FIRST AMENDMENT OF OFFICE LEASE
This First Amendment of Office Lease ("First Amendment"), by and between
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP, a Delaware limited partnership dba
TrizecHahn Xxxxx Center Limited Partnership, ("Landlord"), and GATEWAY ENERGY
CORPORATION, a Delaware corporation, ("Tenant"), is dated the 29th of June,
1998.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into that certain Office
Lease dated January 20, 1998 (the "Original Lease"); and
WHEREAS, Landlord and Tenant wish to document certain changes which the
parties wish to make to the terms and conditions for the exercise of the
Expansion Premises described in Exhibit "G" of the Original Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and in the Original Lease, Landlord and Tenant do hereby covenant and
agree that the Lease is amended as follows:
1. EXHIBIT "G" - MANDATORY EXPANSION. Exhibit "G" of the Original Lease
is modified in the following manner:
(a) The Expansion Premises described in Paragraph 1 of Exhibit "G"
are changed from the approximately 2,556 square feet of Rentable Area as shown
on Schedule 1 to Exhibit "G" attached to the Original Lease to the approximately
2,087 square feet of Rentable Area as shown on the revised Schedule 1 to Exhibit
"G" attached to this First Amendment.
(b) The Required Expansion Date designated in Paragraph 1 of
Exhibit "G" is changed from November 1, 1998 to January 1, 1999. At its option,
Tenant may elect to occupy the Expansion Premises on a date earlier than January
1, 1999.
(c) The Allowance of $5.00 per square foot of Rentable Area
described in Paragraph 4 of Exhibit "G" shall be changed to $20.00 per square
foot of Rentable Area.
(d) Paragraph 3 of Exhibit "G" is modified so that the first month
of Base Rental owing for the Expansion Premises shall be abated by Landlord.
(e) Paragraph 8 of Exhibit "G" is modified so that the deadline for
Tenant to cancel the Lease with respect to the Expansion Premises shall be
extended from August 31, 1998 to November 30, 1998. In addition, if Tenant
cancels the Lease with respect to the Expansion Premises, Tenant agrees to move
its front entry back eighteen inches (18") to provide for a formal front entry
of the Expansion Premises, and all such costs to move the front entry shall be
borne by Landlord.
Page 1
2. DEFINED TERMS. Terms defined in the Original Lease and delineated
herein by initial capital letters shall have the same meaning ascribed thereto
in the Original Lease.
3. EFFECT OF FIRST AMENDMENT. Except as expressly amended by the
provisions hereof, the terms and conditions contained in the Original Lease
shall continue to govern the rights and obligations of the parties; and all
provisions and covenants in the Original Lease shall remain in full force and
effect as stated therein, except to the extent specifically modified by the
provisions of this First Amendment. This First Amendment and the Original Lease
shall be construed as one instrument known as the Lease.
4. LENDER APPROVAL. Tenant acknowledges and agrees that this First
Amendment is subject to the approval of Metropolitan Life Insurance Company and
Landlord agrees to notify Tenant of such approval within five (5) days following
Landlord's receipt thereof.
IN WITNESS HEREOF, Landlord and Tenant have executed this First Amendment
in multiple counterparts as of the day and year written above.
LANDLORD: TENANT:
TRIZEC XXXXX CENTER LIMITED GATEWAY ENERGY CORPORATION,
PARTNERSHIP, a Delaware limited a Delaware corporation
partnership dba TrizecHahn Xxxxx Center
Limited Partnership
By: [ILLEGIBLE]
------------------------------
By: TRIZEC XXXXX CENTER, INC., Name: [ILLEGIBLE]
a Delaware corporation, its sole -----------------------------
general partner Title: President
----------------------------
By: /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Vice President and Assistant Secretary
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Vice President
Page 2
[ARCHITECTURAL PLAN]
TRIZECHAHN OFFICE PROPERTIES INC.
Xxxxx Center
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Tel 000 000 0000
Fax 000 000 0000
[LOGO]
April 24, 1998
Xx. Xxxx X. Xxxxxx
Gateway Energy Corporation
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
RE: OFFICE LEASE AGREEMENT, DATED JANUARY 20, 1998 ("LEASE"),
BETWEEN TRIZEC XXXXX CENTER LIMITED PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP D/B/A/ A TRIZECHAHN XXXXX CENTER LIMITED
PARTNERSHIP ("LANDLORD") AND GATEWAY ENERGY CORPORATION
("TENANT") FOR SUITE NO. 2615 ("PREMISES") AT ONE XXXXX CENTER,
HOUSTON, TEXAS.
Dear Xx. Xxxxxx:
Pursuant to the above-reference document, this letter is to confirm (i) the
Rentable Area of the Leased Premises, (ii) the Commencement Date of the term
of the Lease, and (iii) the actual monthly Base Rental due.
Now, therefore, Landlord and Tenant hereby agree and confirm that, (i) the
Rentable Area of the Leased Premises is approximately 3,981 square feet of
Rentable Area on the twenty-sixth (26th) floor, (ii) the Commencement Date of
the term of the Lease is April 9, 1998 and will expire on March 31, 2003
unless sooner terminated or extended pursuant to the terms of the lease, and
(iii) the actual Base Rental shall be the sum fo Five Thousand Nine Hundred
Seventy One and 50/100 Dollars ($5,971.50) per month.
Please acknowledge your acceptance of the Leased Premises and confirmation of
the above by signing in the space provided below and returning two executed
copies to my attention at the Building Office.
Sincerely,
/s/ Xxxx Xxxx Xxxxx
---------------------------
Xxxx Xxxx Xxxxx
Assistant Property Manager
One Xxxxx Center
Agreed and accepted this 30 day of April 1998.
Gateway Energy Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: President
----------------------------
OFFICE LEASE
AT
ONE XXXXX CENTER
BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP (LANDLORD)
AND
GATEWAY ENERGY CORPORATION (TENANT)
DATED: JANUARY 20, 1998
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 1
1.02 ENUMERATION OF EXHIBITS. . . . . . . . . . . . . . . . . . . . . . 2
1.03 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PREMISES, TERM AND OTHER LEASE RIGHTS. . . . . . . . . . . . . . . . . . . . . 7
2.01 LEASE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . 7
2.02 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.03 FAILURE TO GIVE POSSESSION . . . . . . . . . . . . . . . . . . . . 7
2.04 CONDITION OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . 8
2.05 RENEWAL OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.06 MANDATORY EXPANSION. . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RENT ADJUSTMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.01 RENT ADJUSTMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.02 PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.03 BOOKS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . .10
4.04 PARTIAL OCCUPANCY. . . . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
6.01 LANDLORD'S GENERAL SERVICES. . . . . . . . . . . . . . . . . . . .12
6.02 ELECTRICAL SERVICES. . . . . . . . . . . . . . . . . . . . . . . .13
6.03 ADDITIONAL AND AFTER-HOUR SERVICES . . . . . . . . . . . . . . . .14
6.04 TELEPHONE SERVICES . . . . . . . . . . . . . . . . . . . . . . . .14
6.05 DELAYS IN FURNISHING SERVICES. . . . . . . . . . . . . . . . . . .15
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
POSSESSION, USE AND CONDITION OF PREMISES. . . . . . . . . . . . . . . . . . .16
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PAGE
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7.01 POSSESSION AND USE OF PREMISES . . . . . . . . . . . . . . . . . .16
7.02 LANDLORD ACCESS TO PREMISES. . . . . . . . . . . . . . . . . . . .18
7.03 QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . .18
7.04 ENTRY CARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
8.01 LANDLORD'S MAINTENANCE . . . . . . . . . . . . . . . . . . . . . .19
8.02 TENANT'S MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ALTERATIONS AND IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . .20
9.01 TENANT ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . .20
9.02 LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . . . . . . . .22
10.01 ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . .22
10.02 RECAPTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.03 EXCESS RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.04 TENANT LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . .24
10.05 ASSUMPTION AND ATTORNMENT. . . . . . . . . . . . . . . . . . . . .24
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
11.01 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . .25
11.02 LANDLORD'S REMEDIES. . . . . . . . . . . . . . . . . . . . . . . .26
11.03 ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . . . . . .28
11.04 BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SURRENDER OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
12.01 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
12.02 LANDLORD'S RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . .29
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
DAMAGE BY FIRE OR OTHER CASUALTY . . . . . . . . . . . . . . . . . . . . . . .30
14.01 SUBSTANTIAL UNTENANTABILITY. . . . . . . . . . . . . . . . . . . .30
14.02 INSUBSTANTIAL UNTENANTABILITY. . . . . . . . . . . . . . . . . . .31
14.03 RENT ABATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . .31
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PAGE
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ARTICLE FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART. . . . . . . . . . . . . . . .32
15.02 TAKING OF PART . . . . . . . . . . . . . . . . . . . . . . . . . .32
15.03 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . .32
ARTICLE SIXTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
INSURANCE . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
16.01 TENANT'S INSURANCE . . . . . . . . . . . . . . . . . . . . . . . .33
16.02 FORM OF POLICIES . . . . . . . . . . . . . . . . . . . . . . . . .33
16.03 LANDLORD'S INSURANCE . . . . . . . . . . . . . . . . . . . . . . .33
16.04 WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . . .34
16.05 NOTICE OF CASUALTY . . . . . . . . . . . . . . . . . . . . . . . .35
ARTICLE SEVENTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
WAIVER OF CLAIMS AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . .35
17.01 WAIVER OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . .35
17.02 INDEMNITY BY TENANT. . . . . . . . . . . . . . . . . . . . . . . .36
ARTICLE EIGHTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
18.01 RULES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
18.02 ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE NINETEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
LANDLORD'S RESERVED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . .37
19.01 RESERVED RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE TWENTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
20.01 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
20.02 ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE TWENTY-ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
RELOCATION OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE TWENTY-TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
REAL ESTATE BROKERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
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PAGE
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ARTICLE TWENTY-THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
23.01 SUBORDINATION AND ATTORNMENT . . . . . . . . . . . . . . . . . . .39
23.02 MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . . . . . . . .40
ARTICLE TWENTY-FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
NOTICES . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
ARTICLE TWENTY-FIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
25.01 LATE CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . .42
25.02 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . .42
25.03 DEFAULT UNDER OTHER LEASE. . . . . . . . . . . . . . . . . . . . .42
25.04 OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
25.05 TENANT AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . .42
25.06 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE . . . . . . . . . .43
25.07 EXCULPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .43
25.08 ACCORD AND SATISFACTION. . . . . . . . . . . . . . . . . . . . . .43
25.09 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING . . . . . . . . . . . .43
25.10 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . .43
25.11 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
25.12 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . .44
25.13 ABANDONMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .44
25.14 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES. . . . . . . . . . . .44
25.15 TEXAS DECEPTIVE TRADE PRACTICES ACT INAPPLICABLE . . . . . . . . .44
25.16 LETTER OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . .45
25.17 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . .45
25.18 NOTICE OF INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . .45
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OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS - In the event of any conflict between these
Basic Lease Provisions and any other Lease provision, such other Lease
provision shall control.
(1) BUILDING AND ADDRESS: One Xxxxx Center, 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000.
(2) LANDLORD: Trizec Xxxxx Center Limited Partnership, a Delaware
limited partnership d/b/a TrizecHahn Xxxxx Center Limited
Partnership.
(3) TENANT: Gateway Energy Corporation, a Delaware corporation
(4) DATE OF LEASE: JANUARY 20, 1998.
(5) LENGTH OF LEASE TERM: Sixty (60) months.
(6) PROJECTED COMMENCEMENT DATE: April 1, 1998.
(7) PROJECTED EXPIRATION DATE: March 31, 2003.
(8) BASE RENT:
PERIOD FROM/TO MONTHLY ANNUALLY RATE/SF OF RENTABLE AREA
------------- ------- -------- ------------------------
Months 1-60 $5,971.50 $71,658.00 $18.00
(9) PREMISES: Xxxxx Xx. 0000.
3,981 SQUARE FEET OF RENTABLE AREA (approximate)
3,296 SQUARE FEET OF USABLE AREA (approximate)
(10) SECURITY DEPOSIT: $11,943.00
(11) TENANT'S USE OF PREMISES: General office use.
1.02 ENUMERATION OF EXHIBITS
The exhibits and riders set forth below and attached to this Lease are
incorporated in this Lease by this reference:
EXHIBIT A Legal Description of Land
EXHIBIT B Plan of Premises
EXHIBIT C Workletter Agreement
EXHIBIT D Rules and Regulations
EXHIBIT E Parking
EXHIBIT F Renewal Option
EXHIBIT G Mandatory Expansion
EXHIBIT H Janitorial Specifications
1.03 DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
AFFILIATE: Any corporation or other business entity which is currently owned or
controlled by, owns or controls, or is under common ownership or control with
Tenant.
ALLOWANCE: "Allowance" shall mean an amount equal to the product of $20.00
times the number of square feet of Rentable Area of the Premises.
BUILDING: The "Building" shall mean the office building located upon the Land.
COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Projected
Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Real Property made available by Landlord from
time to time for the general common use or benefit of the tenants of the
Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Tenant Alterations which do not require a building permit and which
do not involve any of the structural elements of the Building, or any of the
Building's systems, including, without limitation, its electrical, mechanical,
plumbing and security and life/safety systems.
DEFAULT RATE: The maximum interest rate permitted by law.
ENVIRONMENTAL LAWS: Any Law governing the use, storage, disposal or generation
of any Hazardous Material, including without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended and
the Resource Conservation and Recovery Act of 1976, as amended.
-2-
EXPENSE STOP: The sum of the Operating Expenses (as grossed up in Section 4.04)
and Taxes (as defined in this Lease) per square foot of Rentable Area in the
Building for the calendar year 1998.
EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by
operation of Article Two.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion,
strike or labor troubles, or any cause whatsoever beyond the reasonable control
of Landlord, including, but not limited to, energy shortages or governmental
preemption in connection with a national emergency, or by reason of government
laws or any rule, order or regulation of any department or subdivision thereof
or any governmental agency, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or become
regulated under any Environmental Law; or which are classified as hazardous or
toxic under any Environmental Law; and explosives and firearms, radioactive
material, asbestos, and polychlorinated byphenyls.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the
Property, the property manager and the leasing manager for the Property and
their respective directors, officers, agents and employees.
INITIAL IMPROVEMENTS: "Initial Improvements", when used herein, shall mean
those improvements or remodeling to the Premises, if any, which Landlord and/or
Tenant shall agree to provide according to the Workletter attached hereto as
EXHIBIT C.
LAND: The parcels of real estate on which the Building is located, as more
particularly described in EXHIBIT A attached hereto.
LAWS: All laws, ordinances, rules, regulations and other requirements adopted
by any governmental body, or agency or department having jurisdiction over the
Property, the Premises or Tenant's activities at the Premises and any covenants,
conditions or restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached hereto, as may be
amended from time to time.
LEASE YEAR: The twelve (12) month period beginning on the first day of the
first month following the Commencement Date (unless the Commencement Date is the
first day of a calendar month in which case beginning on the Commencement Date),
and each subsequent twelve (12) month, or shorter, period until the Expiration
Date.
-3-
MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).
MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument
encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, President's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day and any other holiday
recognized by tenants occupying at least fifty percent (50%) of the Rentable
Area of the Building.
OPERATING EXPENSES: Operating Expenses shall mean all direct and indirect costs
and expenses in each calendar year of operating, maintaining, repairing,
managing and owning the Property plus a portion of all such operating expenses
reasonably allocable to the Project, plus Taxes. Operating Expenses shall not
include the cost of capital improvements, depreciation, interest, lease
commissions, and principal payments on mortgage and other non-operating debts of
Landlord. Operating Expenses shall, however, include the amortization of
capital improvements which are primarily for the purpose of reducing Operating
Expenses, or which are required by governmental authorities. "Exterior Common
Areas" shall mean that portion of the Property (and other tracts of real
property comprising the multi-building project in the event the Building is
located in such a project) which are not located within the Building (or other
building in a multi-building project) and which are provided and maintained for
the common use and benefit of Landlord and tenants of the Building (or
multi-building project) generally and the employees, invitees and licensees of
Landlord and such tenants; including without limitation, all parking areas
(enclosed or otherwise, including, without limitation, the Building Garage, the
Xxxxx Center Parking Garage and the Metropolitan Parking Garage) and all
streets, sidewalks, walkways, pedestrian tunnels and landscaped areas contained
within the Project.
PREMISES: The space located in the Building, described in Section 1.01(9) and
depicted on EXHIBIT B attached hereto.
PROJECT: The Xxxxx Center project located on the tracts of land described on
EXHIBIT A, together with that certain elevated pedestrian walkway between the
Building known as Three Xxxxx Center and the Xxxxx Center Parking Garage
("Skywalk") and the pedestrian tunnel between the Building and the Hyatt Regency
Hotel ("One Xxxxx Tunnel"), less (i) the Building, (ii) the building known as
Two Xxxxx Center, (iii) the building known as Three Xxxxx Center, (iv) the Xxxxx
Center Parking Garage, and (v) the Metropolitan Parking Garage, but including
such other improvements and amenities as may from time to time exist within the
land described on EXHIBIT A. Any such improvements and/or amenities may be
modified, altered or eliminated by Landlord and the other owners of property in
the Project in their sole discretion without incurring any liability to Tenant
or any other person or entity. Tenant acknowledges that Landlord has advised
that portions of the Project are not owned by Landlord.
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PROPERTY: The Building, the Land, any other improvements located on the Land,
including, without limitation, any parking structures and the personal property,
fixtures, machinery, equipment, systems and apparatus located in or used in
conjunction with any of the foregoing.
REAL PROPERTY: The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Rent Adjustments and all other charges,
payments, late fees or other amounts required to be paid by Tenant under this
Lease.
RENTABLE AREA OF THE BUILDING: 993,238 square feet, consisting of 929,278
square feet of office space and 63,960 square feet of retail space (located on
the concourse and street levels of the Building). Landlord acknowledges and
agrees that Tenant shall only be required to pay its proportionate share of
Operating Expenses with respect to office space in the Building as provided in
Section 4.01 below.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in
Section 1.01(9), which represents the sum of (i) the "Usable Area" within the
Premises (i.e., the gross area enclosed by the surface of the exterior glass
walls, the mid-point of any walls separating portions of the Premises from those
of adjacent tenants, the slab penetration line of all walls separating the
Premises from Service Areas and the corridor side of walls separating the
Premises from Common Areas) plus (ii) a pro rata part of the Common Areas within
the Building, such proration to be based upon the ratio of the Usable Area
within the Premises to the total Usable Area within the Building existing as of
the date of this Lease, including the area encompassed by any columns or other
structural elements which provide support to the Premises and/or the Building.
Rentable Area shall not include any Service Areas. The estimates of Rentable
Area within the Premises and in the Building may be revised at Landlord's
election if Landlord's architect determines such estimate to be inaccurate in
any material degree after examination of the final "as built" drawings of the
Premises and the Building, and the Base Rent shall be adjusted accordingly,
based upon the rate per square foot of Rentable Area specified in Section
1.01(8) hereof.
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses.
The Rent Adjustments shall be determined and paid as provided in Article Four.
SECURITY DEPOSIT: The funds specified in Section 1.01(10), if any, deposited by
Tenant with Landlord as security for Tenant's performance of its obligations
under this Lease.
SERVICE AREAS: "Service Areas" shall mean those areas within the outside walls
used for building stairs, elevator shafts, flues, vents, stacks, pipe shafts and
other vertical penetrations (but shall not include any such areas for the
exclusive use of a particular tenant).
SHELL IMPROVEMENTS: "Shell Improvements" shall mean (i) lay-in acoustical
ceiling grid and (ii) existing central air conditioning and heating ducts and
diffusers. All Shell Improvements will be provided "AS-IS," in their then
current condition and placement as of the date of delivery of the Premises to
Tenant.
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SUBSTANTIALLY COMPLETE: The completion of the Initial Improvements, except for
minor insubstantial details of construction, decoration or mechanical
adjustments which remain to be done.
TAXES: All federal, state and local governmental taxes, assessments and
charges of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay because of
or in connection with the ownership, leasing, management, control or
operation of the Property or any of its components, or any personal property
used in connection therewith, which shall also include any rental or similar
taxes levied in lieu of or in addition to general real and/or personal
property taxes. For purposes hereof, Taxes for any year shall be Taxes which
are assessed or become a lien during such year, whether or not such taxes are
billed and payable in a subsequent calendar year. There shall be included in
Taxes for any year the amount of all fees, costs and expenses (including
reasonable attorneys' fees) paid by Landlord during such year in seeking or
obtaining any refund or reduction of Taxes. Taxes for any year shall be
reduced by the net amount of any tax refund received by Landlord attributable
to such year. If a special assessment payable in installments is levied
against any part of the Property, Taxes for any year shall include only the
installment of such assessment and any interest payable or paid during such
year. Taxes shall not include any federal or state inheritance, general
income, gift or estate taxes, except that if a change occurs in the method of
taxation resulting in whole or in part in the substitution of any such taxes,
or any other assessment, for any Taxes as above defined, such substituted
taxes or assessments shall be included in the Taxes.
TENANT ALTERATIONS: Any alterations, improvements, additions, installations or
construction in or to the Premises or any Building systems serving the Premises
pursuant to Section 9.01, excluding Initial Improvements.
TENANT DELAY: Any event or occurrence caused by Tenant which delays the
completion of the Initial Improvements, as described in the Workletter.
TERM: The term of this Lease commencing on the Commencement Date and expiring
on the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
terminates or Tenant's right to possession of the Premises terminates.
WORK: The construction or installation of improvements to the Premises, as more
specifically described in the Workletter attached hereto as EXHIBIT C.
WORKLETTER: The Agreement regarding the manner of completion of the Initial
Improvements, attached hereto as EXHIBIT C.
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ARTICLE TWO
PREMISES, TERM AND OTHER LEASE RIGHTS
2.01 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises for the Term and upon the conditions provided in this Lease. In
the event Landlord delivers possession of the Premises to Tenant prior to the
Commencement Date, Tenant shall be subject to all of the terms, covenants, and
conditions of this Lease (except with respect to the payment of Rent) as of the
date of such possession.
2.02 TERM
(a) The Commencement Date shall be the date determined as follows:
(i) If the Initial Improvements are Substantially Complete on
or before the Projected Commencement Date then on the
date which is the earlier to occur of:
(x) the Projected Commencement Date; or
(y) the date Tenant first occupies all or part of the
Premises for the conduct of business; or
(ii) If the Initial Improvements are not Substantially Complete
by the Projected Commencement Date, then on the date on
which the Initial Improvements are Substantially Complete.
(b) Within thirty (30) days following the occurrence of the
Commencement Date, Landlord, through its property manager, and
Tenant shall enter into an agreement confirming the Commencement
Date and the Expiration Date. If Tenant fails to enter into such
agreement, then the Commencement Date and the Expiration Date
shall be the dates designated by Landlord in such agreement.
2.03 FAILURE TO GIVE POSSESSION
If the Landlord shall be unable to give possession of the Premises on
the Projected Commencement Date by reason of the following: (a) the Building has
not been sufficiently completed to make the Premises ready for occupancy, (b)
the Initial Improvements are not Substantially Complete, (c) the holding over or
retention of possession of any tenant, tenants or occupants, or (d) for any
other reason, then Landlord shall not be subject to any liability for the
failure to give possession on said date. Under such circumstances the rent
reserved and covenanted to be paid herein shall not commence until the Premises
are made available to Tenant by Landlord,
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and no such failure to give possession on the Projected Commencement Date
shall affect the validity of this Lease or the obligations of the Tenant
hereunder. At the option of Landlord, to be exercised within thirty (30)
days of the delayed delivery of possession to Tenant, the Lease shall be
amended so that the term shall be extended by the period of time possession
is delayed. The said Premises shall be deemed to be ready for Tenant's
occupancy in the event the Initial Improvements are Substantially Complete,
or if the delay in the availability of the Premises for occupancy shall be
due to any Tenant Delay and/or default on the part of Tenant and/or its
subtenant or subtenants. In the event of any dispute as to whether the
Initial Improvements are Substantially Complete, the decision of Landlord's
architect shall be final and binding on the parties.
2.04 CONDITION OF PREMISES
Tenant shall notify Landlord in writing within thirty (30) days after
the later of (a) Substantial Completion of the Initial Improvements, or (b) when
Tenant takes possession of the Premises, of any defects in the Premises claimed
by Tenant or in the materials or workmanship furnished by Landlord in completing
the Initial Improvements. Except for defects stated in such notice, Tenant
shall be conclusively deemed to have accepted the Premises "AS IS" and "WITH ALL
FAULTS" in the condition existing on the date Tenant first takes possession, and
to have waived all claims relating to the condition of the Premises. Landlord
shall proceed diligently to correct the defects stated in such notice unless
Landlord disputes the existence of any such defects. In the event of any
dispute as to the existence of any such defects, the decision of Landlord's
architect shall be final and binding on the parties. No agreement of Landlord
to alter, remodel, decorate, clean or improve the Premises or the Building and
no representation regarding the condition of the Premises or the Building has
been made by or on behalf of Landlord to Tenant, except as may be specifically
stated in this Lease or in the Workletter.
2.05 RENEWAL OPTION
Tenant shall have the option to renew the Term of this Lease in
accordance with the terms and conditions of EXHIBIT F attached hereto and made a
part hereof for all purposes.
2.06 MANDATORY EXPANSION
Tenant shall lease additional space on Floor 26 of the Building in
accordance with the terms and conditions of EXHIBIT G attached hereto and made a
part hereof for all purposes.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the property management office
specified in Article 24, or to such other persons, or at such other places
designated by Landlord, without any prior demand therefor in immediately
available funds and without any deduction whatsoever, Rent, including,
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without limitation, Monthly Base Rent and Rent Adjustments in accordance with
Article Four, during the Term. Monthly Base Rent shall be paid monthly in
advance on the first day of each month of the Term, except that the first
installment of Monthly Base Rent shall be paid by Tenant to Landlord
concurrently with Tenant's execution of this Lease. Monthly Base Rent shall
be prorated for partial months within the Term. Unpaid Rent shall bear
interest at the Default Rate from the date due until paid. Tenant's covenant
to pay Rent shall be independent of every other covenant in this Lease.
ARTICLE FOUR
RENT ADJUSTMENT
4.01 RENT ADJUSTMENT
The Base Rent payable hereunder shall be adjusted ("Rent Adjustment")
from time to time in accordance with this Article Four:
Tenant's Base Rent is based, in part, upon the estimate that annual
Operating Expenses will be equal to the Expense Stop. During the Term, Tenant
shall pay as a Rent Adjustment hereunder an amount (per each square foot of
Rentable Area within the Premises) equal to the excess ("Excess") from time to
time of Operating Expenses per square foot of Rentable Area of office space in
the Building over the Expense Stop. Landlord may collect such additional Base
Rent in arrears on a yearly basis. Landlord shall also have the option to make
a good faith estimate of the Excess from time to time for each upcoming calendar
year (or remainder thereof, if applicable) and, upon thirty (30) days' written
notice to Tenant, may require the monthly payment of Base Rent to be adjusted in
accordance with such estimate. Any amounts paid based on any such estimate
shall be subject to adjustment pursuant to Section 4.02 below when Operating
Expenses are available for such calendar year.
4.02 PROCEDURE
The following additional provisions shall apply to Rent Adjustments per
Section 4.01:
(a) By April 1 of each calendar year during Tenant's occupancy, or as
soon thereafter as practical, Landlord shall furnish to Tenant a statement
("Landlord's Statement") of Landlord's Operating Expenses for the previous
calendar year (audited with respect to Landlord's Statement for 1998). If for
any calendar year additional Base Rent was collected for the prior year, as a
result of Landlord's estimate of Operating Expenses, in excess of the additional
Base Rent due during such prior year, then Landlord shall refund to Tenant any
over payment (or at Landlord's option, apply such amount against rentals due
hereunder). Likewise, Tenant shall pay to Landlord, on demand, any underpayment
with respect to the prior year. In no event shall Operating Expenses per square
foot of Rentable Area within the Building be deemed to be less than the Expense
Stop, it being the intent of Landlord and Tenant that Tenant shall at all times
be responsible for the payment of, and
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shall pay, not less than the amount of Base Rent for the applicable period
(before adjustment) specified in this Lease.
(b) In the event that the Term commences on a day other than January
1 or terminates on a day other than December 31, the Excess for that part of the
first (1st) calendar year or last calendar year during the Term shall be
determined as follows:
(i) The Expense Stop shall be prorated based upon the number
of months in such partial calendar year. With respect to any partial
calendar month occurring during such partial calendar year, the Expense
Stop shall also be prorated based upon the number of days in that
partial calendar month.
(ii) The Excess, if any, for the applicable partial calendar
year shall then be the amount by which (x) actual Operating Expenses per
square foot of Rentable Area in the Building for such calendar year,
prorated based upon the number of months and days in the applicable
partial calendar year, exceed (y) the Expense Stop, as prorated pursuant
to the provisions of this Subsection 4.02(b).
(iii) With respect to a proration for the first (1st) calendar
year and in the event that Landlord's estimate of the Operating Expenses
to be incurred during such partial calendar year exceeds the Expense
Stop, as prorated pursuant to the provisions of this Subsection 4.02(b),
Landlord may, upon thirty (30) days' prior written notice to Tenant,
require the Monthly Base Rent occurring during such partial calendar
year to be adjusted in accordance with such estimate.
4.03 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses
in accordance with sound accounting and management practices, consistently
applied. The Tenant or its representative (which representative shall be a
certified public accountant licensed to do business in the State of Texas)
shall have the right, for a period of thirty (30) days following the date
upon which Landlord's Statement is delivered to Tenant, to examine the
Landlord's books and records with respect to the items in the foregoing
statement of Operating Expenses during normal business hours, upon written
notice, delivered at least ten (10) business days in advance. No contingency
fee-based audits shall be permitted. If Tenant does not object in writing to
Landlord's Statement within sixty (60) days of Tenant's receipt thereof,
specifying the nature of the item in dispute and the reasons therefor, then
Landlord's Statement shall be considered final and accepted by Tenant. Any
amount due to the Landlord as shown on Landlord's Statement, whether or not
disputed by Tenant as provided herein shall be paid by Tenant when due as
provided above, without prejudice to any such written exception.
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4.04 PARTIAL OCCUPANCY
Notwithstanding any language in the Lease or in this Article Four
seemingly to the contrary, Landlord may at Landlord's sole election, determine
and estimate Operating Expenses for any calendar year within the Term by
increasing the variable components of Operating Expenses to the amount which
Landlord projects would have been incurred had the Building been occupied to the
extent of one hundred percent (100%) of the Rentable Area therein during all of
the applicable calendar year. In such event, the term "Operating Expenses", as
used in this Article Four and in the Lease, shall include (a) the actual
Operating Expenses incurred during any portion of such calendar year in which
the Building is occupied to the extent of one hundred percent (100%) of the
Rentable Area therein, plus (b) the Operating Expenses which would have been
incurred had the Building been occupied to the extent of one hundred percent
(100%) of the Rentable Area therein; and Landlord shall have the option of
making such estimate in advance for any upcoming calendar year.
ARTICLE FIVE
SECURITY DEPOSIT
Tenant, concurrently with the execution of this Lease, shall pay to
Landlord the Security Deposit. The Security Deposit may be applied by Landlord
to cure any default of Tenant under this Lease, and upon notice by Landlord of
such application, Tenant shall replenish the Security Deposit in full by paying
to Landlord within ten (10) days of demand the amount so applied. Landlord
shall not pay any interest on the Security Deposit. The Security Deposit shall
not be deemed an advance payment of Rent, nor a measure of damages for any
default by Tenant under this Lease, nor shall it be a bar or defense of any
action which Landlord may at any time commence against Tenant. In the absence
of evidence satisfactory to Landlord of an assignment of the right to receive
the Security Deposit or the remaining balance thereof, Landlord may return the
Security Deposit to the original Tenant, regardless of one or more assignments
of this Lease. Upon the transfer of Landlord's interest under this Lease,
Landlord's obligation to Tenant with respect to the security deposit shall
terminate upon assumption of such obligation by the transferee.
If Tenant shall fully and faithfully comply with all the terms,
provisions, covenants, and conditions of this Lease, the Security Deposit, or
any balance thereof, shall be returned to Tenant after the following:
(a) the expiration of the Term of this Lease;
(b) the removal of Tenant and its property from the Premises;
(c) the surrender of the Premises by Tenant to Landlord in accordance
with this Lease; and
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(d) the payment by Tenant of any outstanding Rent, including, without
limitation, all Rent Adjustments due pursuant to the Lease as
computed by Landlord.
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES
So long as the Lease is in full force and effect and Tenant has paid all
Rent then due, Landlord shall furnish the following services:
(a) heat and air-conditioning in the Premises, Monday through Friday
from 7:00 a.m. to 7:00 p.m., Saturday, from 7:00 a.m. to 1:00
p.m., excluding National Holidays, as necessary in Landlord's
reasonable judgment for the comfortable occupancy of the Premises
under normal business operations, subject to compliance with all
applicable voluntary and mandatory regulations and laws;
(b) tempered and cold water for use in lavatories in common with
other tenants from the regular supply of the Building;
(c) customary cleaning and janitorial services in the Premises five
(5) days per week, excluding National Holidays in accordance with
Landlord's Building standard janitorial specifications attached
hereto as EXHIBIT H (as may be supplemented from time to time by
Landlord);
(d) washing of the outside windows in the Premises weather permitting
at intervals determined by Landlord;
(e) automatic passenger elevator service in common with other tenants
of the Building and freight elevator service subject to
reasonable scheduling by Landlord and payment of Landlord's
standard charges;
(f) all Building Grade fluorescent bulb replacement in the Premises
necessary to maintain the lighting provided as a part of the
Shell Improvements and fluorescent and incandescent bulb
replacement in the Common Areas and Service Areas; and
(g) routine maintenance and electric lighting service for all Common
Areas and Service Areas of the Building in the manner and to the
extent deemed by Landlord to be standard.
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6.02 ELECTRICAL SERVICES
Tenant's use of electrical services furnished by Landlord shall be
subject to the following:
(a) Landlord will provide the necessary facilities to supply (i) two
(2) xxxxx per square foot of Usable Area within the Premises, at
277 volts, for Tenant's fluorescent lighting and (ii) four and
one-half (4.5) xxxxx per square foot of Usable Area within the
Premises, at 120 volts, for Tenant's receptacle/equipment loads
(excluding Tenant's dedicated circuits). Collectively, Tenant's
lighting and receptacle/ equipment shall not have an electrical
design load greater than an average of six and one-half (6.5)
xxxxx per square foot of Usable Area within the Premises
("Standard Building Capacity"). The electrical costs component
of Operating Expenses is calculated on the basis of the Standard
Building Capacity. Any electrical usage in the Premises in
excess of .34 kilowatt hours per square foot of Usable Area in
the Premises per month shall be considered to be in excess of
Standard Building Capacity and shall be separately metered and
billed to Tenant on a monthly basis. Notwithstanding the above,
high voltage power used for Building standard lighting will not
be metered unless the Building standard allowance for lighting
(defined as one (1) 2x4 parabolic lighting fixture for each
eighty (80) square feet of Usable Area within the Premises) is
exceeded.
(b) The electrical facilities in the Building available for Tenant's
use are (i) 277/480 volts, 3 phase, for large equipment loads and
fluorescent lighting; and (ii) 120/208 volts, 3 phase, for small
equipment loads and incandescent lighting. Tenant shall notify
Landlord, in writing, of any equipment that has a rated
electrical load greater than 500 xxxxx and/or that requires a
service voltage other than 120 volts, and Landlord's written
approval shall be required with respect to the installation of
any such high electrical consumption equipment in the Premises.
(c) Tenant shall pay for all costs of meters, submeters, wiring,
risers, transformers, electrical panels, air conditioning and
other items required by Landlord, in Landlord's discretion, to
accommodate Tenant's design loads and capacities that exceed
Standard Building Capacity, including, without limitation, the
installation and maintenance thereof. Notwithstanding the
foregoing, Landlord may refuse to install and withhold consent
for Tenant's installation of any wiring, risers, transformers,
electrical panels, or air conditioning if, in Landlord's sole
judgment, the same are not necessary or would cause damage or
injury to the Building or the Premises or cause or create a
dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs to the Building or the
Premises, or would interfere with or create or constitute a
disturbance to other tenants or occupants of the Building. In no
event shall Landlord incur any liability for Landlord's refusal
to install, or withholding of consent for Tenant's installation
of, any such electrical facility or equipment.
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(d) Tenant shall pay to Landlord, upon demand, the cost of the
consumption of electrical service in excess of the Standard
Building Capacity at rates determined by Landlord which shall be
in accordance with any applicable laws.
(e) Landlord may, at its option, upon not less than thirty (30) days'
prior written notice to Tenant, discontinue the availability of
such extraordinary electrical service. If Landlord gives any
such notice, Tenant will contract directly with the applicable
public utility for the supplying of such electrical service to
the Premises.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES
At Tenant's request, Landlord shall furnish additional quantities of any
of the services or utilities specified in Section 6.01, if Landlord can
reasonably do so, on the terms set forth herein. Tenant may order after-hours
HVAC service instantaneously by a coded entry over a touch-tone phone. The
charge for after-hours HVAC service is currently $25.00 per handler per hour
(subject to change from time to time based on Landlord's costs therefor) and
shall be billed to Tenant monthly. For other services or utilities requested by
Tenant and furnished by Landlord, Tenant shall pay to Landlord as a charge
therefor Landlord's prevailing rates for such services and utilities. If Tenant
shall fail to make any such payment, Landlord may, upon notice to Tenant and in
addition to Landlord's other remedies under this Lease, discontinue any or all
of such additional services.
6.04 TELEPHONE SERVICES
All telegraph, telephone, and electric connections which Tenant may
desire shall be first approved by Landlord in writing, before the same are
installed, and the location of all wires and the work in connection therewith
shall be performed by contractors approved by Landlord and shall be subject to
the direction of Landlord. Landlord reserves the right to designate and control
the entity or entities providing telephone or other communication cable
installation, repair and maintenance in the Building and to restrict and control
access to telephone cabinets. In the event Landlord designates a particular
vendor or vendors to provide such cable installation, repair and maintenance for
the Building, Tenant agrees to abide by and participate in such program. Tenant
shall be responsible for and shall pay all costs incurred in connection with the
installation of telephone cables and related wiring in the Premises, including,
without limitation, any hook-up, access and maintenance fees related to the
installation of such wires and cables in the Premises and the commencement of
service therein, and the maintenance thereafter of such wire and cables; and
there shall be included in Operating Expenses for the Building all installation,
hook-up or maintenance costs incurred by Landlord in connection with telephone
cables and related wiring in the Building which are not allocable to any
individual users of such service but are allocable to the Building generally.
If Tenant fails to maintain all telephone cables and related wiring in the
Premises and such failure affects or interferes with the operation or
maintenance of any other telephone cables or related wiring in the Building,
Landlord or any vendor hired by Landlord may enter into and upon the Premises
forthwith and perform such repairs, restorations or alterations as Landlord
deems necessary in order to eliminate any such interference (and Landlord may
recover from Tenant all of
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Landlord's costs in connection therewith). Upon the Termination Date, Tenant
agrees to remove all telephone cables and related wiring installed by Tenant
for and during Tenant's occupancy, which Landlord shall request Tenant to
remove. Tenant agrees that neither Landlord nor any of its agents or
employees shall be liable to Tenant, or any of Tenant's employees, agents,
customers or invitees or anyone claiming through, by or under Tenant, for any
damages, injuries, losses, expenses, claims or causes of action because of
any interruption, diminution, delay or discontinuance at any time for any
reason in the furnishing of any telephone service to the Premises and the
Building.
6.05 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be liable to Tenant for damages or
otherwise, for any failure to furnish, or a delay in furnishing, any service
when such failure or delay is occasioned, in whole or in part, by repairs,
improvements or mechanical breakdowns by the act or default of Tenant or other
parties or by an event of Force Majeure. No interruption or malfunction of any
utility service shall constitute an eviction or disturbance of Tenant's use or
possession of the Premises or a breach by Landlord of any of Landlord's
obligations hereunder or render Landlord liable or responsible to Tenant for any
loss or damage which Tenant may sustain or incur if either the quantity or
character of any utility service is changed or is no longer available to or is
no longer suitable for Tenant's requirements or entitle Tenant to be relieved
from any of Tenant's obligations hereunder, including, without limitation, the
obligation to pay Rent, or grant Tenant any right to set-off, abatement, or
recoupment. Notwithstanding any other provision in this Lease seemingly to the
contrary, at any time when Landlord is making such facilities for such utility
services available to the Premises, Landlord may, at Landlord's option, upon not
less than thirty (30) days' prior written notice to Tenant, discontinue the
availability of any such utility service. If Landlord gives any such notice of
discontinuance, Landlord shall make all the necessary arrangements with the
public utility service supplying the utility to the area in which the Building
is located with respect to obtaining such utility service to the Premises; but
Tenant will contract directly with such public utility service for the supplying
of such utility services to the Premises. Failure to any extent to make
available, or any slowdown, stoppage, or interruption of, the specified utility
services resulting from any cause, including, without limitation, Landlord's
compliance with any voluntary or similar governmental or business guidelines now
or hereafter published or any requirements now or hereafter established by any
governmental agency, board, or bureau having jurisdiction over the operation of
the Building shall not render Landlord liable in any respect for damages to
either persons, property, or business, nor be construed as an eviction of Tenant
or work an abatement of Rent, nor relieve Tenant of Tenant's obligations for
fulfillment of any covenant or agreement hereof. Should any equipment or
machinery furnished by Landlord break down or for any cause cease to function
properly, Landlord shall use reasonable diligence to repair same promptly, but
Tenant shall have no claim for abatement of Rent or damages on account of any
interruption of service occasioned thereby or resulting therefrom.
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ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Premises on the
Commencement Date. Tenant shall occupy and use the Premises only
for the uses specified in Section 1.01(11) to conduct Tenant's
business. Tenant shall not occupy or use the Premises (or permit
the use or occupancy of the Premises) for any purpose or in any
manner which: (i) is unlawful or in violation of any Law or
Environmental Law; (ii) may be dangerous to persons or property
or which may increase the cost of, or invalidate, any policy of
insurance carried on the Building or covering its operations;
(iii) is contrary to or prohibited by the terms and conditions of
this Lease or the rules of the Building set forth in Article
Eighteen; or (iv) would tend to create or constitute a nuisance.
(b) Tenant and Landlord shall each comply with all Environmental Laws
concerning the proper storage, handling and disposal of any
Hazardous Material with respect to the Property. Tenant shall
not generate, store, handle or dispose of any Hazardous Material
in, on, or about the Property without the prior written consent
of Landlord. In the event that Tenant is notified of any
investigation or violation of any Environmental Law arising from
Tenant's activities at the Premises, Tenant shall immediately
deliver to Landlord a copy of such notice. In such event or in
the event Landlord reasonably believes that a violation of
Environmental Law exists, Landlord may conduct such tests and
studies relating to compliance by Tenant with Environmental Laws
or the alleged presence of Hazardous Materials upon the Premises
as Landlord deems desirable, all of which shall be completed at
Tenant's expense. Landlord's inspection and testing rights are
for Landlord's own protection only, and Landlord has not, and
shall not be deemed to have assumed any responsibility to Tenant
or any other party for compliance with Environmental Laws, as a
result of the exercise, or non-exercise of such rights. Tenant
shall indemnify, defend, protect and hold harmless the
Indemnitees from any and all loss, claim, expense, liability and
cost (including attorneys' fees) arising out of or in any way
related to the presence of any Hazardous Material introduced to
the Premises during the Term by any party other than Landlord. If
any Hazardous Material is released, discharged or disposed of on
or about the Property and such release, discharge or disposal is
not caused by Tenant or other occupants of the Premises, or their
employees, agents or contractors, such release, discharge or
disposal shall be deemed casualty damage under Article Fourteen
to the extent that the Premises are affected thereby; in such
case, Landlord and Tenant shall have the obligations and rights
respecting such casualty damage provided under such Article.
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(c) Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and
regulations and guidelines promulgated thereunder, as all of the
same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish
requirements for business operations, accessibility and barrier
removal, and that such requirements may or may not apply to the
Premises and the Building depending on, among other things: (i)
whether Tenant's business is deemed a "public accommodation" or
"commercial facility", (ii) whether such requirements are
"readily achievable", and (iii) whether a given alteration
affects a "primary function area" or triggers "path of travel"
requirements.
The parties hereby agree that: (i) Landlord shall be
responsible for implementing ADA Title III compliance in the
Common Areas as part of Operating Expenses, except as provided
below, (ii) Tenant shall be responsible for ADA Title III
compliance in the Premises, including any leasehold improvements
or other work to be performed in the Premises under or in
connection with this Lease, (iii) Landlord may perform, or
require that Tenant perform, and Tenant shall be responsible for
the cost of, ADA Title III "path of travel" requirements
triggered by alterations in the Premises, and (iv) Landlord may
perform, or require Tenant to perform, and Tenant shall be
responsible for the cost of, ADA Title III compliance in the
Common Areas necessitated by the Building being deemed to be a
"public accommodation" instead of a "commercial facility" as a
result of Tenant's use of the Premises. Tenant shall be solely
responsible for requirements under Title I of the ADA relating to
Tenant's employees.
(d) Landlord and Tenant acknowledge that the Texas Architectural
Barriers Act, Art. 9102, Tex. Civ. Stat. Xxx. (1994), and
regulations and guidelines promulgated thereunder, as all of the
same may be amended and supplemented from time to time
(collectively referred to herein as "TABA") establish
requirements for accessibility and barrier removal. The parties
hereby agree that: (i) Tenant shall be responsible for
compliance with TABA, including, without limitation, submission
(through the Property manager) of required plans and documents to
the State of Texas for approval of accessibility design features,
in connection with the work set forth in the Workletter attached
hereto, if any, and any other construction or alterations to the
Premises during the Term, except that Landlord agrees to be
responsible for such compliance in connection with any work done
by Landlord pursuant to Section 8.01 hereof; and (ii) Landlord
shall be responsible for compliance with TABA, including, without
limitation, submission of required plans and documents to the
State of Texas for approval of accessibility design features, in
connection with construction or alterations to the Common Areas,
except that Tenant agrees to be responsible for such compliance
in connection with any such work which may be necessitated solely
as a result of Tenant's use of the Premises.
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7.02 LANDLORD ACCESS TO PREMISES
(a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Premises, so long
as Tenant's use, layout or design of the Premises is not
materially affected or altered. Landlord or Landlord's agents
shall have the right to enter upon the Premises in the event of
an emergency, or to inspect the Premises, to perform janitorial
and other services, to conduct safety and other testing in the
Premises and to make such repairs, alterations, improvements or
additions to the Premises or the Building as Landlord may deem
necessary or desirable. Janitorial and cleaning services shall
be performed after normal business hours. Any entry or work by
Landlord may be during normal business hours and Landlord may use
reasonable efforts to ensure that any entry or work shall not
materially interfere with Tenant's occupancy of the Premises,
however, any such interference shall not be a default by
Landlord.
(b) If Tenant is not personally present to permit an entry into the
Premises when for any reason an entry therein shall be necessary
or permissible, Landlord (or Landlord's agents), after attempting
to notify Tenant (unless Landlord believes an emergency situation
exists), may enter the Premises without rendering Landlord or its
agents liable therefor (if during such entry Landlord or
Landlord's agent shall afford reasonable care to Tenant's
property), and without relieving Tenant of any obligations under
this Lease.
(c) Landlord may enter the Premises for the purpose of conducting
such inspections, tests and studies as Landlord may deem
desirable or necessary to confirm Tenant's compliance with all
Laws and Environmental Laws or for other purposes necessary in
Landlord's reasonable judgment to ensure the sound condition of
the Building and the systems serving the Building. Landlord's
rights under this Section 7.02(c) are for Landlord's own
protection only, and Landlord has not, and shall not be deemed to
have assumed any responsibility to Tenant or any other party for
compliance with Laws or Environmental Laws, as a result of the
exercise or non-exercise of such rights.
(d) Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraphs without
such action constituting an actual or constructive eviction of
Tenant, in whole or in part, or giving rise to an abatement of
Rent by reason of loss or interruption of business of the Tenant,
or otherwise.
7.03 QUIET ENJOYMENT
Landlord covenants that so long as Tenant is in compliance with the
covenants and conditions set forth in this Lease, Tenant shall have the right to
quiet enjoyment of the Premises
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without hindrance or interference from Landlord or those claiming through
Landlord, and subject to the rights of any Mortgagee.
7.04 ENTRY CARDS
Landlord shall provide limited access to the Building before and after
normal business hours in the form of special limited access entry cards ("Entry
Cards") for Tenant and its employees. An Entry Card shall not automatically
qualify Tenant or any of its employees for an access card to the "Parking
Garage" as defined in and pursuant to the terms of EXHIBIT E. Landlord agrees
to provide Tenant with up to, but not in excess of, eight (8) Entry Cards for a
non-refundable deposit of $10.00 per card. However, Tenant shall pay Landlord
for any additional or replacement cards, in such amount as Landlord shall, from
time to time, determine. The current cost required for a replacement card and
an additional card is $10.00 per card. Landlord shall be entitled to cancel (by
computer entry) any lost or stolen cards of which it becomes aware. Tenant
shall promptly notify Landlord of any lost or stolen cards. Landlord shall have
no liability to Tenant, its employees, agents, invitees, or licensees for losses
due to theft or burglary, or for damages committed by unauthorized persons on
the Premises; and neither shall Landlord be required to insure against any such
losses. Tenant shall cooperate fully in Landlord's efforts to maintain security
in the Building and shall follow all regulations promulgated by Landlord with
respect thereto. Tenant further agrees to surrender all Entry Cards in its
possession upon the expiration or earlier termination of this Lease.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE
Subject to the provisions of Article Fourteen, Landlord shall maintain
and make necessary repairs to the foundations, roofs, exterior walls, and the
structural elements of the Building, the electrical, plumbing, heating,
ventilation and air-conditioning systems of the Building and the public
corridors, washrooms and lobby of the Building, except that: (a) Landlord shall
not be responsible for the maintenance or repair of any floor or wall coverings
in the Premises or any of such systems which are located within the Premises and
are supplemental or special to the Building's standard systems; and (b) the cost
of performing any of said maintenance or repairs whether to the Premises or to
the Building caused by the negligence of Tenant, its employees, agents,
servants, licensees, subtenants, contractors or invitees, shall be paid by
Tenant. Landlord shall not be liable to Tenant for any expense, injury, loss or
damage resulting from work done in the Building or upon the Property, or the use
of, any adjacent or nearby building, land, street, or alley.
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8.02 TENANT'S MAINTENANCE
Subject to the provisions of Article Fourteen, Tenant, at its expense,
shall keep and maintain the Premises and all Tenant Alterations in good order,
condition and repair and in accordance with all Laws and Environmental Laws.
Tenant shall not permit waste and shall promptly and adequately repair all
damages to the Premises and replace or repair all damaged or broken glass in the
interior of the Premises, fixtures or appurtenances. Any repairs or maintenance
shall be completed with materials of similar quality to the original materials,
all such work to be completed under the supervision of Landlord. Any such
repairs or maintenance shall be performed only by contractors or mechanics
approved by Landlord, which approval shall not be unreasonably withheld, and
whose work will not cause or threaten to cause disharmony or interference with
Landlord or other tenants in the Building and their respective agents and
contractors performing work in or about the Building. If Tenant fails to
perform any of its obligations set forth in this Section 8.02, Landlord may, in
its sole discretion and upon twenty-four (24) hours prior notice to Tenant
(except without notice in the case of emergencies), perform the same, and Tenant
shall pay to Landlord any costs or expenses incurred by Landlord upon demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT ALTERATIONS
The following provisions shall apply to the completion of any Tenant
Alterations:
(a) Tenant shall not, except as provided herein, without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld, make or cause to be made any Tenant
Alterations in or to the Premises or any Building systems serving
the Premises. Prior to making any Tenant Alterations, Tenant
shall give Landlord ten (10) days' prior written notice (or such
earlier notice as would be necessary pursuant to applicable law)
to permit Landlord sufficient time to post appropriate notices of
non-responsibility. Subject to all other requirements of this
Article Nine, Tenant may undertake Decoration work without
Landlord's prior written consent. Tenant shall furnish Landlord
with the names and addresses of all contractors and
subcontractors and copies of all contracts. All Tenant
Alterations shall be completed at such time and in such manner as
Landlord may from time to time designate, and only by contractors
or mechanics approved by Landlord, which approval shall not be
unreasonably withheld, and whose work will not cause or threaten
to cause disharmony or interference with Landlord or other
tenants in the Building and their respective agents and
contractors performing work in or about the Building. Landlord
may further condition its consent upon Tenant furnishing to
Landlord and Landlord approving prior to the commencement of any
work or delivery of materials to the Premises related to the
Tenant Alterations such of the following as specified by
Landlord: architectural plans and specifications, opinions from
engineers
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reasonably acceptable to Landlord stating that the Tenant
Alterations will not in any way adversely affect the Building's
systems, including, without limitation, the mechanical, heating,
plumbing, security, ventilating, air-conditioning, electrical,
and the fire and life safety systems in the Building, necessary
permits and licenses, certificates of insurance, and such other
documents in such form reasonably requested by Landlord.
Landlord may, in the exercise of reasonable judgment, request
that Tenant provide Landlord with appropriate evidence of
Tenant's ability to complete and pay for the completion of the
Tenant Alterations such as a performance bond or letter of
credit. Upon completion of the Tenant Alterations, Tenant shall
deliver to Landlord an as-built mylar and digitized (if
available) set of plans and specifications for the Tenant
Alterations.
(b) Tenant shall pay the cost of all Tenant Alterations and the cost
of decorating the Premises and any work to the Building
occasioned thereby. In connection with completion of any Tenant
Alterations, Tenant shall pay Landlord a construction fee at
Landlord's then standard rate. Upon completion of Tenant
Alterations, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills
covering all labor and materials expended and used in connection
therewith and such other documentation reasonably requested by
Landlord or Mortgagee.
(c) Tenant agrees to complete all Tenant Alterations (i) in
accordance with all Laws, Environmental Laws, all requirements of
applicable insurance companies and in accordance with Landlord's
standard construction rules and regulations, and (ii) in a good
and workmanlike manner with the use of good grades of materials.
Tenant shall notify Landlord immediately if Tenant receives any
notice of violation of any Law in connection with completion of
any Tenant Alterations and shall immediately take such steps as
are necessary to remedy such violation. In no event shall such
supervision or right to supervise by Landlord nor shall any
approvals given by Landlord under this Lease constitute any
warranty by Landlord to Tenant of the adequacy of the design,
workmanship or quality of such work or materials for Tenant's
intended use or of compliance with the requirements of
Section 9.01(c)(i) and (ii) above or impose any liability upon
Landlord in connection with the performance of such work.
(d) All Tenant Alterations whether installed by Landlord or Tenant,
shall without compensation or credit to Tenant, become part of
the Premises and the property of Landlord at the time of their
installation and shall remain in the Premises, unless pursuant to
Article Twelve, Tenant may remove them or is required to remove
them at Landlord's request.
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9.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic,
laborer or supplier or any other lien to be filed against the Building, the
Land, the Premises, or any part thereof arising out of work performed, or
alleged to have been performed by, or at the direction of, or on behalf of
Tenant. If any such lien or claim for lien is filed, Tenant shall within ten
(10) days of receiving notice of such lien or claim (a) have such lien or claim
for lien released of record or (b) deliver to Landlord a bond in form, content,
amount, and issued by surety, satisfactory to Landlord, indemnifying,
protecting, defending and holding harmless the Indemnitees against all costs and
liabilities resulting from such lien or claim for lien and the foreclosure or
attempted foreclosure thereof. If Tenant fails to take any of the above
actions, Landlord, without investigating the validity of such lien or claim for
lien, may pay or discharge the same and Tenant shall, as payment of additional
Rent hereunder, reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord's expenses and attorneys' fees.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord (such consent not
to be unreasonably withheld), Tenant may not sublease, assign,
mortgage, pledge, hypothecate or otherwise transfer or permit the
transfer of this Lease or the encumbering of Tenant's interest
therein in whole or in part, by operation of law or otherwise or
permit the use or occupancy of the Premises, or any part thereof,
by anyone other than Tenant. If Tenant desires to enter into any
sublease of the Premises or assignment of this Lease, Tenant
shall deliver written notice thereof to Landlord ("Tenant's
Notice"), together with the identity of the proposed subtenant or
assignee and the proposed principal terms thereof and financial
and other information sufficient for Landlord to make an informed
judgment with respect to such proposed subtenant or assignee at
least thirty (30) days prior to the commencement date of the term
of the proposed sublease or assignment. If Tenant proposes to
sublease less than all of the Rentable Area of the Premises, the
space proposed to be sublet and the space retained by Tenant must
each be a marketable unit as reasonably determined by Landlord
and otherwise in compliance with all Laws. Landlord shall notify
Tenant in writing of its approval or disapproval of the proposed
sublease or assignment or its decision to exercise its rights
under Section 10.02 within fifteen (15) days after receipt of
Tenant's Notice (and all required information). In no event may
Tenant sublease any portion of the Premises or assign the Lease
to any other tenant of the Building, of Two Xxxxx Center or of
Three Xxxxx Center (unless Landlord is unable to accommodate such
tenant's space requirements within ninety (90) days of the
effective date of the proposed assignment or subletting). Tenant
shall submit for Landlord's approval
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(which approval shall not be unreasonably withheld) any
advertising which Tenant or its agents intend to use with respect
to the space proposed to be sublet.
(b) In making its determination of whether to consent to any proposed
sublease or assignment, Landlord may take into consideration the
business reputation and credit-worthiness of the proposed
subtenant or assignee; the intended use of the Premises by the
proposed subtenant or assignee; the nature of the business
conducted by such subtenant or assignee and whether such business
would be deleterious to the reputation of the Building or
Landlord or would violate the provisions of any other leases of
tenants of the Building; the estimated pedestrian and vehicular
traffic in the Premises and to the Building which would be
generated by the proposed subtenant or assignee; whether the
proposed assignee or subtenant is a department, representative or
agency of any governmental body, foreign or domestic; whether the
proposed assignee or subtenant is an existing tenant in the
Building, in Two Xxxxx Center or in Three Xxxxx Center or is a
bona fide prospective tenant of Landlord in the Building, as
demonstrated by a written proposal dated within ninety (90) days
prior to the date of Tenant's request for approval; and any other
factors which Landlord shall deem relevant. In no event shall
Landlord be obligated to consider a consent to any proposed (i)
sublease of the Premises or assignment of the Lease if a Default
then exists under the Lease, or a fact or condition exists, which
but for the giving of notice or the passage of time would
constitute a Default, or (ii) assignment of the Lease which would
assign less than the entire Premises.
(c) If Landlord chooses not to recapture the space proposed to be
subleased or assigned as provided in Section 10.02, Landlord
shall not unreasonably withhold its consent to a subletting or
assignment under this Section 10.01. Any approved sublease or
assignment shall be expressly subject to the terms and conditions
of this Lease. Any such subtenant or assignee shall execute such
documents as Landlord may reasonably require to evidence such
subtenant or assignee's assumption of such obligations and
liabilities. Tenant shall deliver to Landlord a copy of all
agreements executed by Tenant and the proposed subtenant and
assignee with respect to the Premises. Landlord's approval of a
sublease or assignment shall not constitute a waiver of Tenant's
obligation to obtain Landlord's consent to further assignments or
subleases.
(d) For purposes of this Article Ten, an assignment shall be deemed
to include a change in the majority control of Tenant, resulting
from any transfer, sale or assignment of shares of stock of
Tenant occurring by operation of law or otherwise if Tenant is a
corporation whose shares of stock are not traded publicly. If
Tenant is a partnership, any change in the partners of Tenant
shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary contained in this
Article Ten, Tenant shall have the right, without the prior
written consent of Landlord, to sublease the Premises, or to
assign this Lease to an Affiliate.
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10.02 RECAPTURE
Except as provided in Section 10.01(e) Landlord shall have the option to
exclude from the Premises covered by this Lease ("recapture"), the space
proposed to be sublet or subject to the assignment, effective as of the proposed
commencement date of such sublease or assignment. If Landlord elects to
recapture, Tenant shall surrender possession of the space proposed to be
subleased or subject to the assignment to Landlord on the effective date of
recapture of such space from the Premises such date being the Termination Date
for such space. Effective as of the date of recapture of any portion of the
Premises pursuant to this section, the Monthly Base Rent, Rentable Area of the
Premises and Tenant's Rent Adjustment shall be adjusted accordingly.
10.03 EXCESS RENT
Tenant shall pay Landlord on the first day of each month during the term
of the sublease or assignment, fifty percent (50%) of the amount by which the
sum of all rent and other consideration (direct or indirect) due from the
subtenant or assignee for such month exceeds: (a) that portion of the Monthly
Base Rent and Rent Adjustments due under this Lease for said month which is
allocable to the space sublet or assigned; and (b) the following costs and
expenses for the subletting or assignment of such space: (i) brokerage
commissions and attorneys' fees and expenses, (ii) advertising for subtenants or
assignees; (iii) the actual costs paid in making any improvements or
substitutions in the Premises required by any sublease or assignment; and (iv)
"free rent" periods, costs of any inducements or concessions given to subtenant
or assignee, moving costs, and other amounts in respect of such subtenant's or
assignee's other leases or occupancy arrangements. All such costs will be
amortized over the term of the sublease or assignment pursuant to sound
accounting principles.
10.04 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with
Landlord's consent, Tenant shall not be released or discharged from any
liability, whether past, present or future, under this Lease, including any
liability arising from the exercise of any renewal or expansion option, except
to the extent expressly permitted by Landlord. If Landlord grants consent to
such sublease or assignment, Tenant shall pay all reasonable attorneys' fees and
expenses incurred by Landlord with respect to such assignment or sublease. In
addition, if Tenant has any options to extend the term of this Lease or to add
other space to the Premises, such options shall not be available to any
subtenant, or to any assignee (other than an Affiliate), directly or indirectly
without Landlord's express written consent.
10.05 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee
shall expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later than
fifteen (15) days prior to the effective date of the assignment. If Tenant
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shall sublease the Premises as permitted herein, Tenant shall, at Landlord's
option, within fifteen (15) days following any request by Landlord, obtain and
furnish to Landlord the written agreement of such subtenant to the effect that
the subtenant will attorn to Landlord and will pay all subrent directly to
Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall
constitute a "Default" by Tenant under this Lease:
(a) Tenant fails to pay any installment or other payment of Rent
including without limitation Rent Adjustment Deposits or Rent
Adjustments when due, and Tenant's continued failure to pay same
within three (3) days following Tenant's receipt of Landlord's
written notice thereof;
(b) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or the Workletter and
fails to cure such default within fifteen (15) days after written
notice thereof to Tenant (unless the default involves a hazardous
condition, which shall be cured forthwith);
(c) The interest of Tenant in this Lease is levied upon under
execution or other legal process;
(d) A petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under
any Chapter of the Bankruptcy Act, or any amendment, replacement
or substitution therefor, or to delay payment of, reduce or
modify Tenant's debts, which in the case of an involuntary action
is not discharged within thirty (30) days;
(e) Tenant is declared insolvent by law or any assignment of Tenant's
property is made for the benefit of creditors;
(f) A receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged within thirty (30) days;
(g) Any action taken by or against Tenant to reorganize or modify
Tenant's capital structure in a materially adverse way which in
the case of an involuntary action is not discharged within thirty
(30) days;
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(h) Upon the dissolution of Tenant; or
(i) Upon the third occurrence within any Lease Year that Tenant fails
to pay Rent when due or has breached a particular covenant of
this Lease (whether or not such failure or breach is thereafter
cured within any stated cure or grace period or statutory
period).
11.02 LANDLORD'S REMEDIES
(a) If a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct and cumulative:
(i) Landlord may terminate this Lease by giving Tenant notice of
Landlord's election to do so, in which event, the term of this
Lease shall end and all of Tenant's rights and interests shall
expire on the date stated in such notice; (ii) Landlord may
terminate Tenant's right of possession of the Premises without
terminating this Lease by giving notice to Tenant that Tenant's
right of possession shall end on the date specified in such
notice; or (iii) Landlord may enforce the provisions of this
Lease and may enforce and protect the rights of the Landlord
hereunder by a suit or suits in equity or at law for the specific
performance of any covenant or agreement contained herein, or for
the enforcement of any other appropriate legal or equitable
remedy, including recovery of all monies due or to become due
from Tenant under any of the provisions of this Lease. All
Landlord remedies shall be cumulative and not exclusive.
(b) In the event that Landlord terminates the Lease, Landlord shall
be entitled to recover (i) the sum of all Rents and other
indebtedness accrued to the date of such termination, plus (ii)
the cost of recovering the Premises, (iii) the cost of reletting
the Premises, or portions thereof (including, without limitation,
brokerage commissions) and (iv) the cost of repairs, alterations,
improvements, additions and decorations to the Premises to the
extent Landlord deems reasonably necessary or desirable. [Items
(ii) through (iv) are herein defined as the "Recovery Costs."]
In addition, in the event that Tenant's Default constitutes a
material breach, Landlord shall be entitled to recover a sum
equal to the difference between (x) the total Base Rent due under
this Lease for the remainder of the Term and (y) the then fair
market rental value of the Premises during such period, both
discounted to present value at a rate determined by Landlord, in
its sole discretion ("Discounted Future Rent").
(c) In the event Landlord proceeds pursuant to subparagraph (a)(ii)
above, Landlord shall be entitled to recover (i) the sum of all
Rents and other indebtedness accrued to the date of such
termination of Tenant's possession, plus (ii) the Recovery Costs
(as defined above). Landlord may, but shall not be obligated to
(except as may be required by law), relet the Premises, or any
part thereof for the account of Tenant, for such rent and term
and upon such terms and conditions as are reasonably acceptable
to Landlord. For purposes of such reletting, Landlord is
authorized to decorate,
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repair, alter and improve the Premises to the extent
reasonably necessary or desirable. If the Premises are relet
and the consideration realized therefrom after payment of all
Landlord's Reletting Expenses, is insufficient to satisfy the
payment when due of Rent reserved under this Lease for any
monthly period, then Tenant shall pay Landlord upon demand any
such deficiency monthly ("Rental Deficiency"). If such
consideration is greater than the amount necessary to pay the
full amount of the Rent, the full amount of such excess shall
be retained by Landlord and shall in no event be payable to
Tenant. Tenant agrees that Landlord may file suit to recover
any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder
shall not be any defense to any subsequent action brought for
any amount not theretofore reduced to judgment in favor of
Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous Default. In the
alternative (but only in the event that Tenant's Default
constitutes a material breach), Landlord may elect to
terminate Tenant's right to occupy the Premises and to
immediately recover as damages, in lieu of the Rental
Deficiency, a sum equal to the Discounted Future Rent (as
defined above).
(d) In the event a Default occurs, Landlord may, at Landlord's
option, enter into the Premises, remove Tenant's property,
fixtures, furnishings, signs and other evidences of tenancy, and
take and hold such property; provided, however, that such entry
and possession shall not terminate this Lease or release Tenant,
in whole or in part, from Tenant's obligation to pay the Rent
reserved hereunder for the full Term or from any other obligation
of Tenant under this Lease. Any and all property which may be
removed from the Premises by Landlord pursuant to the authority
of the Lease or law, to which Tenant is or may be entitled, may
be handled, removed or stored by Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall
pay Landlord, upon demand, any and all expenses incurred in such
removal and all storage charges against such property so long as
the same shall be in the Landlord's possession or under the
Landlord's control. Any such property of Tenant not retaken from
storage by Tenant within thirty (30) days after the Termination
Date, shall be conclusively presumed to have been conveyed by
Tenant to Landlord under this Lease as a xxxx of sale without
further payment or credit by Landlord to Tenant.
(e) If Landlord terminates this Lease or Tenant's right to possession
(without terminating the Lease), Landlord shall use objectively
reasonable efforts to mitigate Landlord's damages by re-letting
the Premises following Tenant's vacancy thereof (but in doing so,
Tenant agrees that Landlord shall not be required to give
preference to re-letting the Premises prior to leasing other
space that Landlord has available, i.e., any prospective tenant's
space requirements will dictate Landlord's leasing activities).
Tenant shall bear the burden of proof to demonstrate that
Landlord has mitigated or failed to mitigate Landlord's damages.
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11.03 ATTORNEY'S FEES
Tenant shall pay upon demand, all costs and expenses, including
reasonable attorneys' fees, incurred by Landlord in enforcing the Tenant's
performance of its obligations under this Lease, or resulting from Tenant's
Default, or incurred by Landlord in any litigation, negotiation or transaction
in which Tenant causes Landlord, without Landlord's fault, to become involved or
concerned.
11.04 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the
Bankruptcy Code where the trustee of Tenant elects to assume this
Lease for the purposes of assigning it, such election or
assignment, may only be made upon compliance with the provisions
of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the
trustee elects to reject this Lease then Landlord shall
immediately be entitled to possession of the Premises without
further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the
Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's
trustee (the "Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate
assurance that it will cure all monetary defaults under
this Lease within fifteen (15) days from the date of
assumption and it will cure all nonmonetary defaults under
this Lease within thirty (30) days from the date of
assumption. Landlord and Tenant acknowledge such
condition to be commercially reasonable.
(c) If the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such
interest may be assigned only if the intended assignee has
provided adequate assurance of future performance (as herein
defined), of all of the obligations imposed on Tenant under this
Lease. For the purposes hereof, "adequate assurance of future
performance" means that Landlord has ascertained that each of the
following conditions has been satisfied:
(i) The assignee has submitted a current financial statement,
certified by its chief financial officer, which shows a
net worth and working capital in amounts sufficient to
assure the future performance by the assignee of Tenant's
obligations under this Lease; and
(ii) Landlord has obtained consents or waivers from any third
parties which may be required under a lease, mortgage,
financing arrangement, or other
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agreement by which Landlord is bound, to enable Landlord
to permit such assignment.
(d) Landlord's acceptance of rent or any other payment from any
trustee, receiver, assignee, person, or other entity will not be
deemed to have waived, or waive, the requirement of Landlord's
consent, Landlord's right to terminate this Lease for any
transfer of Tenant's interest under this Lease without such
consent, or Landlord's claim for any amount of Rent due from
Tenant.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the
Premises immediately and deliver possession thereof to Landlord in a clean, good
and tenantable condition, ordinary wear and tear, and damage caused by Landlord
excepted. Tenant shall deliver to Landlord all keys to the Premises. Tenant
shall be entitled to remove from the Premises all movable personal property of
Tenant, Tenant's trade fixtures and such Tenant Alterations which at the time of
their installation Landlord and Tenant agreed may be removed by Tenant. Tenant
shall also remove such other Tenant Alterations as required by Landlord,
including, but not limited to, any Tenant Alterations containing Hazardous
Materials. Tenant immediately shall repair all damage resulting from removal of
any of Tenant's property, furnishings or Tenant Alterations, shall close all
floor, ceiling and roof openings and shall restore the Premises to a tenantable
condition as reasonably determined by Landlord. If any of the Tenant
Alterations which were installed by Tenant involved the lowering of ceilings,
raising of floors or the installation of specialized wall or floor coverings or
lights, then Tenant shall also be obligated to return such surfaces to their
condition prior to the commencement of this Lease. Tenant shall also be
required to close any staircases or other openings between floors. In the event
possession of the Premises is not delivered to Landlord when required hereunder,
or if Tenant shall fail to remove those items described above, Landlord may, at
Tenant's expense, remove any of such property therefrom without any liability to
Landlord and undertake, at Tenant's expense such restoration work as Landlord
deems necessary or advisable.
12.02 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.02(d). Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Alterations and in restoring the Premises to the condition required by
this Lease at the Termination Date.
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ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (a) double the monthly Rent
payable for the month immediately preceding the holding over (including
increases for Rent Adjustments which Landlord may reasonably estimate) or, (b)
double the fair market rental value of the Premises as reasonably determined by
Landlord for each month or portion thereof that Tenant retains possession of the
Premises, or any portion thereof, after the Termination Date (without reduction
for any partial month that Tenant retains possession). Tenant shall also pay
all damages sustained and losses incurred by Landlord by reason of such
retention of possession. The provisions of this Article shall not constitute a
waiver by Landlord of any re-entry rights of Landlord and Tenant's continued
occupancy of the Premises shall be as a tenancy in sufferance. If Tenant
retains possession of the Premises, or any part thereof for thirty (30) days
after the Termination Date then at the sole option of Landlord expressed by
written notice to Tenant, but not otherwise, such holding over shall constitute
a renewal of this Lease for a period of one (1) year on the same terms and
conditions (including those with respect to the payment of Rent) as provided in
this Lease, except that the Monthly Base Rent for such period shall be equal to
the greater of (i) 150% of the Monthly Base Rent payable during the month
preceding the Termination Date, or (ii) 150% of the monthly base rent then being
quoted by Landlord for similar space in the Building, and except for any
Landlord concessions, including, without limitation, any tenant improvement
allowance or any other allowance.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENANTABILITY
(a) If any fire or other casualty (whether insured or uninsured)
renders all or a substantial portion of the Premises or the
Building untenantable, Landlord shall, with reasonable promptness
after the occurrence of such damage, estimate the length of time
that will be required to Substantially Complete the repair and
restoration and shall by notice advise Tenant of such estimate
("Landlord's Notice"). If Landlord estimates that the amount of
time required to Substantially Complete such repair and
restoration will exceed one hundred eighty (180) days from the
date such damage occurred, then Landlord, or Tenant if all or a
substantial portion of the Premises is rendered untenantable,
shall have the right to terminate this Lease as of the date of
such damage upon giving written notice to the other at any time
within twenty (20) days after delivery of Landlord's Notice,
provided that if Landlord so chooses, Landlord's Notice may also
constitute such notice of termination.
(b) Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable promptness
to repair and restore the Premises to its condition as existed
prior to such casualty, subject to reasonable delays for
insurance
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adjustments and Force Majeure delays, and also subject to zoning
laws and building codes then in effect. Landlord shall have no
liability to Tenant, and Tenant shall not be entitled to
terminate this Lease if such repairs and restoration are not in
fact completed within the time period estimated by Landlord so
long as Landlord shall proceed with reasonable diligence to
complete such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord
or Tenant, for damages to the Premises, except for those proceeds
of Tenant's insurance of its own personal property and equipment
which would be removable by Tenant at the Termination Date. All
such insurance proceeds shall be payable to Landlord whether or
not the Premises are to be repaired and restored.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair or
restore any portion of any Tenant Alterations or to expend for
any repair or restoration of the Premises or Building amounts in
excess of insurance proceeds paid to Landlord and available for
repair or restoration; and (ii) Tenant shall not have the right
to terminate this Lease pursuant to this Section if any damage or
destruction was caused by the act or neglect of Tenant, its agent
or employees.
(e) Any repair or restoration of the Premises performed by Tenant
shall be in accordance with the provisions of Article Nine
hereof.
14.02 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is
rendered substantially untenantable, then Landlord shall proceed to repair and
restore the Building or the Premises other than Tenant Alterations, with
reasonable promptness, unless such damage is to the Premises and occurs during
the last six (6) months of the Term, in which event either Tenant or Landlord
shall have the right to terminate this Lease as of the date of such casualty by
giving written notice thereof to the other within twenty (20) days after the
date of such casualty.
14.03 RENT ABATEMENT
Except for the gross negligence or willful act of Tenant or its agents,
employees, contractors or invitees, if all or any part of the Premises are
rendered untenantable by fire or other casualty and this Lease is not
terminated, Monthly Base Rent and Rent Adjustments shall xxxxx for that part of
the Premises which is untenantable on a per diem basis from the date of the
casualty until Landlord has Substantially Completed the repair and restoration
work in the Premises which it is required to perform, provided, that as a result
of such casualty, Tenant does not occupy the portion of the Premises which is
untenantable during such period. For purposes of this Article 14 the Premises
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shall be considered "untenantable" if they are not reasonably usable for the
conduct of Tenant's business.
ARTICLE FIFTEEN
EMINENT DOMAIN
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the
Premises is taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation) and is thereby rendered
untenantable, this Lease shall terminate as of the date title vests in such
authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of
the Termination Date. Notwithstanding anything to the contrary herein set
forth, in the event the taking is temporary (for less than the remaining term of
the Lease), Landlord may elect either (a) to terminate this Lease or (b) permit
Tenant to receive the entire award attributable to the Premises in which case
Tenant shall continue to pay Rent and this Lease shall not terminate.
15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or
condemned by any competent authority (or a deed is delivered in lieu of
condemnation) and this Lease is not terminated, the Lease shall be amended to
reduce or increase, as the case may be, the Monthly Base Rent and Tenant's Rent
Adjustment to reflect the Rentable Area of the Premises or Building, as the case
may be, remaining after any such taking or condemnation. Landlord, upon receipt
and to the extent of the award in condemnation (or proceeds of sale) shall make
necessary repairs and restorations to the Premises (exclusive of Tenant
Alterations) and to the Building to the extent necessary to constitute the
portion of the Building not so taken or condemned as a complete architectural
and economically efficient unit. Notwithstanding the foregoing, if as a result
of any taking, or a governmental order that the grade of any street or alley
adjacent to the Building is to be changed and such taking or change of grade
makes it necessary or desirable to substantially remodel or restore the Building
or prevents the economical operation of the Building, Landlord shall have the
right to terminate this Lease upon ninety (90) days' prior written notice to
Tenant.
15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale
proceeds) from any such taking, condemnation or sale without any payment to
Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any, in such
award; provided, however, Tenant shall have the right separately to pursue
against the condemning authority a separate award in respect of the loss, if
any, to Tenant Alterations paid for by Tenant without any credit or allowance
from Landlord so long as there is no diminution of Landlord's award as a result.
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ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company
or companies acceptable to Landlord, during the Term: (a) Commercial General
Liability Insurance on a primary basis and without any right of contribution
from any insurance carried by Landlord covering the Premises on an occurrence
basis against all claims for personal injury, bodily injury, death and property
damage, including contractual liability covering the indemnification provisions
in this Lease. Such insurance shall be for such limits that are reasonably
required by Landlord from time to time but not less than a combined single limit
of Five Million and No/100 Dollars ($5,000,000.00); (b) Workers' Compensation
and Employers' Liability Insurance for an amount of not less than One Million
and No/100 Dollars ($1,000,000.00), both in accordance with the laws of The
State of Texas; (c) "All Risks" property insurance in an amount adequate to
cover the full replacement cost of all equipment, installations, fixtures and
contents of the Premises in the event of loss and any such policy shall contain
a provision requiring the insurance carriers to waive their rights of
subrogation against Landlord; (d) in the event a motor vehicle is to be used by
Tenant in connection with its business operation from the Premises,
Comprehensive Automobile Liability Insurance coverage with limits of not less
than Three Million and No/100 Dollars ($3,000,000.00) combined single limit
coverage against bodily injury liability and property damage liability arising
out of the use by or on behalf of Tenant, its agents and employees in connection
with this Lease, of any owned, non-owned or hired motor vehicles; and (e) such
other insurance or coverages as Landlord reasonably requires.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following
requirements. Each policy shall (a) name Landlord and the Indemnitees as
additional insureds, (b) be issued by one or more responsible insurance
companies licensed to do business in Texas reasonably satisfactory to Landlord,
(c) where applicable, provide for deductible amounts satisfactory to Landlord
and not permit co-insurance, (d) shall provide that such insurance may not be
canceled or amended without thirty (30) days' prior written notice to the
Landlord, and (e) shall provide that the policy shall not be invalidated should
the insured waive in writing prior to a loss, any or all rights of recovery
against any other party for losses covered by such policies. Tenant shall
deliver to Landlord, certificates of insurance and at Landlord's request, copies
of all policies and renewals thereof to be maintained by Tenant hereunder, not
less than ten (10) days prior to the Commencement Date and not less than ten
(10) days prior to the expiration date of each policy.
16.03 LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect during the
Term hereof, including any extensions or renewals thereof, insurance under
policies issued by insurers of
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recognized responsibility, qualified to do business in Texas on the Building
in amounts not less than the greater of eighty (80%) percent of the then full
replacement cost (without depreciation) of the Building (above foundations)
or an amount sufficient to prevent Landlord from becoming a co-insurer under
the terms of the applicable policies, against fire and such other risks as
may be included in standard forms of all risk coverage insurance reasonably
available from time to time. Landlord agrees to maintain in force during the
Term, Commercial General Liability Insurance covering the Building on an
occurrence basis against all claims for personal injury, bodily injury, death
and property damage. Such insurance shall be for a combined single limit of
Five Million and No/100 Dollars ($5,000,000.00). Neither Landlord's
obligation to carry such insurance nor the carrying of such insurance shall
be deemed to be an indemnity by Landlord with respect to any claim,
liability, loss, cost or expense due, in whole or in part, to Tenant's
negligent acts or omissions or willful misconduct.
16.04 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal, additional
cost, and so long as the same is permitted under the laws of
Texas, it will include in its "All Risks" policies appropriate
clauses pursuant to which the insurance companies (i) waive all
right of subrogation against Tenant with respect to losses
payable under such policies and/or (ii) agree that such policies
shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party
for losses covered by such policies.
(b) Tenant agrees to include, if obtainable at no, or minimal,
additional cost, and so long as the same is permitted under the
laws of Texas, in its "All Risks" insurance policy or policies on
its furniture, furnishings, fixtures and other property removable
by Tenant under the provisions of its lease of space in the
Building, appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation against
Landlord and/or any tenant of space in the Building with respect
to losses payable under such policy or policies and/or (ii) agree
that such policy or policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of
recovery against any party for losses covered by such policy or
policies. If Tenant is unable to obtain in such policy or
policies either of the clauses described in the preceding
sentence, Tenant shall, if legally possible and without
necessitating a change in insurance carriers, have Landlord named
in such policy or policies as an additional insured. If Landlord
shall be named as an additional insured in accordance with the
foregoing, Landlord agrees to endorse promptly to the order of
Tenant, without recourse, any check, draft, or order for the
payment of money representing the proceeds of any such policy or
representing any other payment growing out of or connected with
said policies, and Landlord does hereby irrevocably waive any and
all rights in and to such proceeds and payments.
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(c) Provided that Landlord's right of full recovery under its policy
or policies aforesaid is not adversely affected or prejudiced
thereby, Landlord hereby waives any and all right of recovery
which it might otherwise have against Tenant, its servants,
agents and employees, for loss or damage occurring to the
Building and the fixtures, appurtenances and equipment therein,
to the extent the same is covered by Landlord's insurance,
notwithstanding that such loss or damage may result from the
negligence or fault of Tenant, its servants, agents or employees.
Provided that Tenant's right of full recovery under its aforesaid
policy or policies is not adversely affected or prejudiced
thereby, Tenant hereby waives any and all right of recovery
which it might otherwise have against Landlord, its servants, and
employees and against every other tenant in the Building who
shall have executed a similar waiver as set forth in this Section
16.04(c) for loss or damage to Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the
provisions hereof to the extent that same is covered or coverable
by Tenant's insurance required under this Lease, notwithstanding
that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or employees, or such other
tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if
the clauses to be included in their respective insurance policies
pursuant to subparagraphs (a) and (b) above cannot be obtained on
the terms hereinbefore provided and thereafter to furnish the
other with a certificate of insurance or copy of such policies
showing the naming of the other as an additional insured, as
aforesaid. Landlord and Tenant hereby also agree to notify the
other promptly of any cancellation or change of the terms of any
such policy which would affect such clauses or naming. All such
policies which name both Landlord and Tenant as additional
insureds shall, to the extent obtainable, contain agreements by
the insurers to the effect that no act or omission of any
additional insured will invalidate the policy as to the other
additional insureds.
16.05 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the
Premises promptly after Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS
To the extent permitted by law, Tenant releases the Indemnitees from,
and waives all claims for, damage to person or property sustained by the
Tenant or any occupant of the Building or
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Premises resulting directly or indirectly from any existing or future
condition, defect, matter or thing in and about the Property or the Premises
or any part of either or any equipment or appurtenance therein, or resulting
from any accident in or about the Property, or resulting directly or
indirectly from any act or neglect of any tenant or occupant of the Building
or of any other person, including Landlord's agents and servants, except
where resulting from the willful and wrongful act of any of the Indemnitees.
Tenant hereby waives any consequential damages, compensation or claims for
inconvenience or loss of business, rents, or profits as a result of such
injury or damage. If any such damage, whether to the Premises or to any part
of the Property or any part thereof, or whether to Landlord or to other
tenants in the Building, results from any act or neglect of Tenant, its
employees, servants, agents, contractors, invitees and customers, Tenant
shall be liable therefor and Landlord may, at Landlord's option, repair such
damage and Tenant shall, upon demand by Landlord, as payment of additional
Rent hereunder, reimburse Landlord within ten (10) days of demand for the
total cost of such repairs, which are in excess of amounts, if any, paid to
Landlord under insurance covering such damages. Tenant shall not be liable
for any damage caused by its acts or neglect if Landlord or a tenant has
recovered the full amount of the damage from proceeds of insurance policies
and the insurance company has waived its right of subrogation against Tenant.
17.02 INDEMNITY BY TENANT
To the extent permitted by law, Tenant agrees to indemnify, protect,
defend and hold the Indemnitees harmless against any and all actions, claims,
demands, costs and expenses, including reasonable attorney's fees and expenses
for the defense thereof, arising from Tenant's occupancy of the Premises, from
the undertaking of any Tenant Alterations or repairs to the Premises, from the
conduct of Tenant's business on the Premises, or from any breach or default on
the part of Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed pursuant to the terms of this Lease, or from any
willful or negligent act of Tenant, its agents, contractors, servants,
employees, customers or invitees, in or about the Premises, but only to the
extent of Landlord's liability, if any, in excess of amounts, if any, which is
paid to Landlord under insurance covering such claims or liabilities. In case
of any action or proceeding brought against the Indemnitees by reason of any
such claim, upon notice from Landlord, Tenant covenants to defend such action or
proceeding by counsel reasonably satisfactory to Landlord.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and
invitees to comply with the rules and regulations listed on EXHIBIT D attached
hereto and with all reasonable modifications and additions thereto which
Landlord may make from time to time.
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18.02 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord
any duty or obligation to enforce the rules and regulations as set forth on
EXHIBIT D or as hereafter adopted, or the terms, covenants or conditions of
any other lease as against any other tenant, and the Landlord shall not be
liable to the Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees. Landlord shall use
reasonable efforts to enforce the rules and regulations of the Building in a
uniform and non-discriminatory manner. Tenant shall pay to Landlord all
damages caused by Tenant's failure to comply with the provisions of this
Article Eighteen and shall also pay to Landlord as additional Rent an amount
equal to any increase in insurance premiums caused by such failure to comply.
ARTICLE NINETEEN
LANDLORD'S RESERVED RIGHTS
19.01 RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to
Tenant and without liability to Tenant for damage or injury to persons, property
or business and without being deemed an eviction or disturbance of Tenant's use
or possession of the Premises or giving rise to any claim for setoff or
abatement of Rent: (a) To change the Building's name or street address upon
thirty (30) days' prior written notice to Tenant; (b) To install, affix and
maintain all signs on the exterior and/or interior of the Building; (c) To
designate and/or approve prior to installation, all types of signs, window
shades, blinds, drapes, awnings or other similar items, and all internal
lighting that may be visible from the exterior of the Premises; (d) upon
reasonable notice to Tenant, to display the Premises to prospective tenants at
reasonable hours during the last nine (9) months of the Term; (e) To grant to
any party the exclusive right to conduct any business or render any service in
or to the Building, provided such exclusive right shall not operate to prohibit
Tenant from using the Premises for the purpose permitted hereunder; (f) To
change the arrangement and/or location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, washrooms or public portions of the
Building, and to close entrances, doors, corridors, elevators or other
facilities, provided that such action shall not materially and adversely
interfere with Tenant's access to the Premises or the Building; (g) to have
access for Landlord and other tenants of the Building to any mail chutes and
boxes located in or on the Premises as required by any applicable rules of the
United States Post Office; and (h) To close the Building after normal business
hours, except that Tenant and its employees and invitees shall be entitled to
admission at all times, under such regulations as Landlord prescribes for
security purposes.
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ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
Within fifteen (15) days after request therefor by Landlord, Mortgagee
or any prospective mortgagee or owner, Tenant agrees as directed in such request
to execute an Estoppel Certificate in recordable form, binding upon Tenant,
certifying (a) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that this
Lease as modified is in full force and effect); (b) the dates to which Rent has
been paid; (c) that Tenant is in the possession of the Premises if that is the
case; (d) that Landlord is not in default under this Lease, or, if Tenant
believes Landlord is in default, the nature thereof in detail; (e) that Tenant
has no off-sets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any off-sets or defenses, a full and
complete explanation thereof); (f) that the Premises have been completed in
accordance with the terms and provisions hereof or the Workletter, that Tenant
has accepted the Premises and the condition thereof and of all improvements
thereto and has no claims against Landlord or any other party with respect
thereto; (g) that if an assignment of rents or leases has been served upon the
Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and agree to be
bound by the provisions thereof; (h) that Tenant will give to the Mortgagee
copies of all notices required or permitted to be given by Tenant to Landlord;
and (i) to any other information reasonably requested.
20.02 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate, then
such failure shall be a Default for which there shall be no cure or grace
period. In addition to any other remedy available to Landlord, Landlord may
impose a penalty equal to $500.00 for each day that Tenant fails to deliver an
Estoppel Certificate and Tenant shall be deemed to have irrevocably appointed
Landlord as Tenant's attorney-in-fact to execute and deliver such Estoppel
Certificate.
ARTICLE TWENTY-ONE
RELOCATION OF TENANT
At any time after January 1, 1999, Landlord may substitute for the
Premises, other premises in the Building, in One Xxxxx Center or in Three Xxxxx
Center (the "New Premises"), in which event the New Premises shall be deemed to
be the Premises for all purposes under this Lease, provided that (a) the New
Premises shall be substantially similar to the Premises in area and
configuration (provided that no increase in area shall result in an increase in
Tenant's Monthly Base Rent payments); (b) the New Premises must be a contiguous
block of space and be served by the same elevator bank; (c) if Tenant is then
occupying the Premises, Landlord shall pay the actual and reasonable expenses of
physically moving Tenant, and moving, installing and, if necessary,
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repairing, Tenant's furniture, fixtures, equipment and personal property to
the New Premises including, without limitation, telephone switch, computer
cabling and signage costs, as well as the cost of replacing in-stock
stationery and business cards and any other direct out-of-pocket, reasonable
costs necessitated by Tenant's relocation to the New Premises; (d) Landlord
shall give Tenant not less than ninety (90) days' prior written notice of
such substitution; and (e) Landlord, at its expense, shall improve the New
Premises with improvements (in quantity and quality of materials)
substantially similar to those in the Premises at the time of such
substitution, if the Premises are then improved (including any Tenant
Alterations installed by Tenant within the Premises after the Commencement
Date(s)). Any such move shall be made after normal Building hours (I.E.,
evenings and weekends) so as to minimize the interference with the operation
of Tenant's business.
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that, except for McDade, Smith, Xxxxx & Company,
Tenant has not dealt with any real estate broker, sales person, or finder in
connection with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to indemnify, protect, defend and hold Landlord and the Indemnitees,
harmless from and against any and all liabilities and claims for commissions and
fees arising out of a breach of the foregoing representation. Landlord shall be
responsible for the payment of all commissions to all brokers specified in this
Article 22.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all
times to (a) any ground or underlying lease of the Real Property, now or
hereafter existing, and all amendments, renewals and modifications to any such
lease, and (b) the lien of any first mortgage or trust deed now or hereafter
encumbering fee title to the Real Property and/or the leasehold estate under any
such lease, unless such ground lease or ground lessor, or mortgage or Mortgagee,
expressly provides or elects that the Lease shall be superior to such lease or
mortgage. If any such mortgage or trust deed is foreclosed, or if any such
lease is terminated, upon request of the Mortgagee or ground lessor, as the case
may be, Tenant will attorn to the purchaser at the foreclosure sale or to the
ground lessor under such lease, as the case may be, provided, however, that such
purchaser or ground lessor shall not be (i) bound by any payment of Rent for
more than one month in advance except payments in the nature of security for the
performance by Tenant of its obligations under this Lease; (ii) subject to any
offset, defense or damages arising out of a default of any obligations of any
preceding Landlord; or (iii) bound by any amendment or modification of this
Lease made without the written consent of the
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Mortgagee or ground lessor; or (iv) liable for any security deposits not
actually received in cash by such purchaser or ground lessor. This
subordination shall be self-operative and no further certificate or
instrument of subordination need be required by any such Mortgagee or ground
lessor. In confirmation of such subordination, however, Tenant shall execute
promptly any reasonable certificate or instrument that Landlord, Mortgagee or
ground lessor may request. Tenant hereby constitutes Landlord as Tenant's
attorney-in-fact to execute such certificate or instrument for and on behalf
of Tenant upon Tenant's failure to do so within fifteen (15) days of a
request to do so. Upon request by such successor in interest, Tenant shall
execute and deliver reasonable instruments confirming the attornment provided
for herein.
23.02 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or
certified mail, a copy of any notice of default served upon the Landlord by
Tenant, provided that prior to such notice Tenant has received notice (by way of
service on Tenant of a copy of an assignment of rents and leases, or otherwise)
of the address of such Mortgagee or ground lessor. Tenant further agrees that
if Landlord shall have failed to cure such default within the time provided for
in this Lease, then the Mortgagee or ground lessor shall have an additional
thirty (30) days after receipt of notice thereof within which to cure such
default or if such default cannot be cured within that time, then such
additional notice time as may be necessary, if, within such thirty (30) days,
any Mortgagee or ground lessor has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings or other proceedings to acquire
possession of the Real Property, if necessary to effect such cure). Such period
of time shall be extended by any period within which such Mortgagee or ground
lessor is prevented from commencing or pursuing such foreclosure proceedings or
other proceedings to acquire possession of the Real Property by reason of
Landlord's bankruptcy. Until the time allowed as aforesaid for Mortgagee or
ground lessor to cure such defaults has expired without cure, Tenant shall have
no right to, and shall not, terminate this Lease on account of default. This
Lease may not be modified or amended so as to reduce the rent or shorten the
term, or so as to adversely affect in any other respect to any material extent
the rights of the Landlord, nor shall this Lease be canceled or surrendered,
without the prior written consent, in each instance, of the ground lessor or the
Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Lease must be in writing and shall be
personally delivered, sent by Federal Express or other overnight
courier service, or mailed by first class, registered or
certified mail, return receipt requested, postage prepaid.
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(b) All notices, demands or requests to be sent pursuant to this
Lease shall be deemed to have been properly given or served by
delivering or sending the same in accordance with this Section,
addressed to the parties hereto at their respective addresses
listed below:
Notices to Landlord shall be addressed:
Trizec Xxxxx Center Limited Partnership
Attn: Regional Vice President
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Notices to Tenant shall be addressed:
Gateway Energy Corporation
Attn: President
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(c) If notices, demands or requests are sent by registered or
certified mail, said notices, demands or requests shall be
effective upon being deposited in the United States mail.
However, the time period in which a response to any such notice,
demand or request must be given shall commence to run from the
date of receipt on the return receipt of the notice, demand or
request by the addressee thereof. Rejection or other refusal to
accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of
notice, demand or request sent. Notices may also be served by
personal service upon any officer, director or partner of
Landlord or Tenant or in the case of delivery by Federal Express
or other overnight courier service, notices shall be effective
upon acceptance of delivery by an employee, officer, director or
partner of Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days' written
notice thereof, either party shall have the right from time to
time during the term of this Lease to change their respective
addresses for notices, statements, demands and requests, provided
such new address shall be within the United States of America.
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ARTICLE TWENTY-FIVE
MISCELLANEOUS
25.01 LATE CHARGES
All payments required hereunder (other than the Monthly Base Rent and
Rent Adjustments, which shall be due as hereinbefore provided) to Landlord shall
be paid within ten (10) days after Landlord's demand therefor. All such amounts
(including, without limitation Monthly Base Rent and Rent Adjustments) not paid
when due shall bear interest from the date due until the date paid at the
Default Rate in effect on the date such payment was due.
25.02 WAIVER OF JURY TRIAL
As a material inducement to Landlord to enter into this Lease, Tenant
hereby waives its right to a trial by jury of any issues relating to or arising
out of its obligations under this Lease or its occupancy of the Premises.
Tenant acknowledges that it has read and understood the foregoing provision.
25.03 DEFAULT UNDER OTHER LEASE
It shall be a Default under this Lease if Tenant or any affiliated
company under any other lease with Landlord for premises in the Building
defaults under such lease and as a result thereof such lease is terminated or
terminable.
25.04 OPTION
This Lease shall not become effective as a lease or otherwise until
executed and delivered by both Landlord and Tenant. The submission of the Lease
to Tenant does not constitute a reservation of or option for the Premises,
except that it shall constitute an irrevocable offer on the part of Tenant in
effect for fifteen (15) days to lease the Premises on the terms and conditions
herein contained.
25.05 TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full authority
and power to enter into and perform its obligations under this Lease, that the
person executing this Lease is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that
Tenant provide Landlord evidence of Tenant's authority.
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25.06 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which
shall not result in any increased cost or expense to Tenant or in any other
substantial and adverse change in the rights and obligations of Tenant
hereunder, then Tenant agrees that the Lease may be so modified.
25.07 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and
assigns, that any liability or obligation under this Lease shall only be
enforced against Landlord's equity interest in the Property and in no event
against any other assets of the Landlord, or Landlord's officers or directors.
25.08 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term.
25.09 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord
shall be entirely freed and relieved of all agreements and obligations of
Landlord hereunder accruing or to be performed after the date of such sale or
transfer, provided that all of Landlord's obligations hereunder are specifically
assumed by the buyer or transferee. The term "Landlord" as used in this Lease,
insofar as the performance of any covenants or obligations on the part of
Landlord under the Lease are concerned, shall mean only the owner of the
Building, or the entity with right of possession of the Building at the time in
question.
25.10 BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of Landlord
and Tenant and their respective heirs, legal representatives, successors and
permitted assigns.
25.11 CAPTIONS
The Article and Section captions in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the
scope or intent of such Articles and Sections.
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25.12 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State
of Texas. If any term, covenant or condition 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 term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
item, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
25.13 ABANDONMENT
In the event Tenant abandons the Premises but is otherwise in compliance
with all the terms, covenants and conditions of this Lease, Landlord shall (a)
have the right to enter into the Premises in order to show the space to
prospective tenants, (b) have the right to reduce the services provided to
Tenant pursuant to the terms of this Lease to such levels as Landlord reasonably
determines to be adequate services for an unoccupied premises and (c) during the
last six (6) months of the Term, have the right to prepare the Premises for
occupancy by another tenant upon the end of the Term.
25.14 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails timely to perform any of its duties under this Lease or
the Workletter, Landlord shall have the right (but not the obligation), to
perform such duty on behalf and at the expense of Tenant without prior notice to
Tenant, and all sums expended or expenses incurred by Landlord in performing
such duty shall be deemed to be additional Rent under this Lease and shall be
due and payable upon demand by Landlord.
25.15 TEXAS DECEPTIVE TRADE PRACTICES ACT INAPPLICABLE
It is the intent of Landlord and Tenant that the provisions of the Texas
Deceptive Trade Practices-Consumer Protection Act, Subchapter E of Chapter 17 of
the Texas Business and Commerce Code (the "DTPA") be inapplicable to this Lease
and the transaction evidenced hereby. Accordingly, Tenant hereby represents and
warrants to Landlord as follows:
(a) The total consideration paid or to be paid by Tenant over the
term of this Lease exceeds $100,000.00.
(b) Tenant is represented by legal counsel of its own choice and
designation in connection with the transaction contemplated by
this Lease;
(c) Tenant's counsel was not directly or indirectly identified,
suggested or selected by Landlord or an agent of Landlord; and
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(d) Tenant is leasing the Premises for business or commercial
purposes, not for use as Tenant's residence.
25.16 LETTER OF CREDIT
Within five (5) business days after execution of this Lease, Tenant
shall provide to Landlord a letter of credit (the "Letter of Credit") in the
amount of $101,117.00 (the "Maximum Guaranteed Amount") drawn upon Intrust Bank,
0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000. Such Letter of Credit
shall be in a form acceptable to Landlord and be subject to being drawn upon in
the event of the occurrence of a Default by Tenant in an amount not to exceed
the "Unamortized Capital Balance" at the time of such Default. The Unamortized
Capital Balance shall be calculated from time to time by fully amortizing the
Maximum Guaranteed Amount by 1/60 for each month during the initial sixty (60)
months of the Term that Tenant makes timely Monthly Base Rent payments to
Landlord. Tenant shall have the right to replace the Letter of Credit annually
prior to the expiration of the then current Letter of Credit in an amount equal
to the then remaining Unamortized Capital Balance. Any amounts drawn on the
Letter of Credit shall be applied by Landlord against any sums owing by Tenant
as a result of a Default, and any remainder thereafter shall be applied to sums
next due and owing to Landlord by Tenant under the Lease. If the Letter of
Credit is not delivered to Landlord within the time period provided for herein,
or if a replacement Letter of Credit is not delivered annually prior to the
expiration of the then effective Letter of Credit, as applicable, Landlord, at
its option, subject to five (5) business days prior written notice to Tenant,
may elect thereafter to cancel this Lease by delivering written notice thereof
to Tenant provided such notice is given to Tenant prior to Landlord's receipt of
the Letter of Credit or replacement Letter of Credit, as applicable. Landlord,
at Landlord's sole option, may elect to waive the requirements of this Section
25.16 and cancel the Letter of Credit following its review of Tenant's corporate
financial statements if the "Net Change in Cash & Cash Equivalents" entry
reflected on such financial statements indicates a positive cash flow balance
over no less than a thirty-six (36) consecutive month period.
25.17 ENTIRE AGREEMENT
No oral statements or prior written material not specifically
incorporated herein shall be of any force or effect. Tenant agrees that in
entering into and taking this Lease, it relies solely upon the representation
and agreements contained in this Lease and no others. This Lease, together with
all Exhibits and Addenda, if any, attached to this Lease, constitutes the whole
agreement of the parties and shall in no way be conditioned, modified or
supplemented except by a written agreement executed by both parties.
25.18 NOTICE OF INDEMNIFICATION
THE PARTIES TO THIS LEASE HEREBY ACKNOWLEDGE AND AGREE THAT THIS LEASE
(AND ATTACHED EXHIBITS) CONTAINS CERTAIN INDEMNIFICATION PROVISIONS.
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IN WITNESS WHEREOF, this Lease has been executed as of the date set
forth in Section 1.01(4) hereof.
"Landlord" "Tenant"
TRIZEC XXXXX CENTER LIMITED GATEWAY ENERGY CORPORATION,
PARTNERSHIP, a Delaware limited a Delaware corporation
partnership, d/b/a TrizecHahn
Xxxxx Center Limited Partnership
By: [ILLEGIBLE]
------------------------------
By: Trizec Xxxxx Center, Inc., Name: [ILLEGIBLE]
its general partner ----------------------------
Title: President
-----------------------------
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Vice President and Assistant Secretary
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
Vice President
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EXHIBIT A
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
LEGAL DESCRIPTION OF LAND
TRACT A - ONE XXXXX CENTER TRACT
Being a tract or parcel containing 82,212 square feet of land in the Obedience
Xxxxx Survey, Abstract 696 and the Xxxx Xxxxxx Survey, Abstract 1, Xxxxxx
County, Texas and being a part of those certain tracts designated as "Tract 1, 2
and Tract 3" per the deed recorded in Volume 7769, Page 561 of the Xxxxxx County
Deed Records, and a part of certain street rights-of-way as closed by City
Council Motion No. 70-1288, passed April 15, 1970 and filed in Volume 8104, Page
1 of said Deed Records and being more particularly described by metes and bounds
as follows with all bearings and coordinates referenced to the Texas Coordinate
System, South Central Zone:
COMMENCING at City Rod 541 (X=3,151,055.22, Y=717,483.00) located in West Dallas
Avenue (80 feet wide) at its intersection with Xxxxx Street (92 feet wide);
THENCE, North 32DEG. 51'57" East, 355.14 feet along the City Reference Line
to a Copperweld Rod (X=3,151,247.92, Y=717,781.26) stamped "AC-1" marking the
reference line intersect with the centerline of Dallas Avenue (80 feet wide);
THENCE, South 57DEG. 08'03" East, 619.84 feet along the centerline of said
Dallas Avenue to a point North 57DEG. 08'03" West, 40.00 feet from the
centerline intersect of Xxxxx Street (80 feet wide);
THENCE, South 32DEG. 51'57" West, 40.00 feet, at a right angle to said
centerline of Dallas Avenue to the POINT OF BEGINNING (X=3,151,746.76,
Y=717,411.34), said point also being the intersect of the southwesterly
right-of-way line of said Dallas Avenue and the northwesterly right-of-way of
said Xxxxx Xxxxxx;
XXXXXX, Xxxxx 00XXX. 51'57" West, 221.00 feet along the northwesterly
right-of-way line of Xxxxx Street to a point for most southerly corner;
THENCE, North 57DEG. 08'03" West, 372.00 feet to a point for most westerly
corner;
Page 1 of Exhibit A
THENCE, North 32DEG. 51'57" East, 221.00 feet to a point on the southwesterly
right-of-way line of Dallas Avenue for most northerly corner;
THENCE, South 57DEG. 08'03" East 372.00 feet along said right-of-way line of
Dallas Avenue to the POINT OF BEGINNING, containing a computed area of 82,212
square feet of land.
TRACT B - TWO XXXXX CENTER TRACT
Being a tract or parcel of land containing 98,863 square feet in the
Obedience Smith Survey, Abstract 696, Xxxxxx County, Texas, and being all of
that certain tract of land conveyed to XXXXX CENTER CO. #2 by the deeds
recorded in the Xxxxxx County Official Public Records of Real Property
(H.C.O.P.R.R.P.), under File Number F 124311, Film Code 000-00-0000, File
Number F 124312, Film Code 000-00-0000 and File Number F 124313, Film Code
###-##-####. Said tract being more particularly described by metes and
bounds as follows, with all bearings and coordinates referenced to the Texas
Coordinate System, South Central Zone:
BEGINNING at the intersection (X=3,151,520.75, Y=717,061.57) of the northerly
right-of-way line of Polk Avenue (varying width) with the northwesterly
right-of-way line of Xxxxx Street (80 feet wide);
THENCE, South 87DEG. 36'57" West, 203.28 feet along the northerly
right-of-way line of said Polk Avenue to a 5/8 inch iron rod set for the
beginning of a tangent curve to the right;
THENCE, 106.78 feet northwesterly along said tangent curve and said northerly
right-of-way line of Polk Avenue (Delta Angle = 13DEG. 21'05", Radius =
458.22 feet, Chord = North 85DEG. 42'30" West, 106.54 feet) to a point of
non-tangency;
THENCE, continuing along said northerly right-of-way line, North 63DEG.
33'06" West, 45.53 feet to a point for corner common to the herein described
tract and a 119,251 square foot tract described in exhibit "J" of the
document recorded in H.C.O.P.R.R.P., File Number F 792860, Film Code
###-##-####;
THENCE, along the boundary common to said tracts the following seven courses;
Departing said north right-of-way line, North 16DEG. 35'07" East, 15.00
feet to a 5/8-inch iron rod set for the beginning of a non-tangent curve
to the left;
143.43 feet easterly along said non-tangent curve to the left (Delta
Angle = 18DEG. 58'09", Radius = 433.22 feet, Chord = South 82DEG. 53'58"
East, 142.77 feet) to a 5/8-inch iron rod set for point of tangency;
Tangent to said curve, North 87DEG. 36'57" East, 10.28 feet to a 5/8-inch
iron rod set for corner;
Page 2 of Exhibit A
North 57DEG. 08'03" West, 219.67 feet;
North 32DEG. 51'57" East, 196.42 feet;
South 57DEG. 08'03" East, 129.15 feet;
Xxxxx 00XXX. 00'00" Xxxx, 90.00 feet to a point for corner in the
southwesterly line of ONE XXXXX CENTER 1.887 acre tract;
THENCE, South 57DEG. 08'03" East, 262.56 feet along the line common to said
1.887 acre tract and the tract herein described to the northwesterly
right-of-way line of said Xxxxx Xxxxxx;
XXXXXX, Xxxxx 00XXX. 51'57" West, 195.45 feet along the northwesterly
right-of-way line of said Xxxxx Street to the POINT OF BEGINNING, containing
a computed area of 98,863 square feet of land.
TRACT C - THREE XXXXX CENTER TRACT
BEING a tract or parcel of land containing 119,202 square feet out of the
Xxxx Xxxxxx Survey, Abstract No. 1, and the Obedience Smith Survey, Abstract
No. 696, Xxxxxx County, Texas, and being part of those certain tracts
designated as "Tract 1, 2, 3 and Tract 4" per the deed recorded in Volume
7769, Page 592, of Xxxxxx County Deed Records, and a part of certain street
rights-of-way as closed by City Council Motion No. 70-1288, passed April 15,
1970 and filed in Volume 8104, Page 1 of said Deed Records and being more
particularly described by metes and bounds as follows with all bearings and
coordinates referenced to the Texas Coordinate System, South Central Zone:
BEGINNING at the most northerly cut-back corner (X=3,150,861.30,
Y=717,454.95) at the intersection of the south right-of-way line of West
Dallas Avenue (80 feet wide) with the easterly right-of-way line of Clay
Avenue (100 feet wide);
THENCE, North 87DEG. 37' 33" East, a distance of 156.34 feet along the south
right-of-way line of said West Dallas Avenue to the beginning of a tangent
curve to the left;
THENCE, 135.53 feet northeasterly along the arc of said curve (Delta Angle =
54DEG. 45' 36", Radius = 141.81 feet, Chord = North 60DEG. 14' 45" East,
130.43 feet) to a point at the end of said curve in the southeasterly
right-of-way line of Xxxxx Street (varying width), said point also being a
point on a non-tangent curve to the left;
THENCE, 126.55 feet easterly along the southeasterly right-of-way line of
said Xxxxx Street and the arc of said curve (Delta Angle = 10DEG. 54' 11",
Radius = 665.00 feet, Chord = North 38DEG. 18' 56" East, 126.36 feet);
Page 3 of Exhibit A
THENCE, South 32DEG. 51' 57" West, 172.98 feet;
THENCE, South 57DEG. 08' 03" East, 20.62 feet;
THENCE, North 77DEG. 51' 57" East, 45.24 feet;
THENCE, South 57DEG. 08' 03" East, 121.23 feet;
THENCE, North 32DEG. 51' 57" East, 27.13 feet;
THENCE, North 77DEG. 51' 57" East, 7.07 feet;
THENCE, South 57DEG. 08' 03" East, 126.44 feet;
THENCE, South 32DEG. 51' 57" West, 90.00 feet;
THENCE, North 57DEG. 08' 03" West, 129.15 feet;
THENCE, South 32DEG. 51' 57" West, 196.42 feet;
THENCE, South 57DEG. 08' 03" East, 219.67 feet;
THENCE, South 87DEG. 36' 57" West, 10.28 feet to the beginning of a tangent
curve to the right;
THENCE, 143.43 feet westerly along the arc of said curve (Delta Angle =
18DEG. 58' 09", Radius = 433.22 feet, Chord = North 82DEG. 53' 58" West,
142.77 feet);
THENCE, South 16DEG. 35' 07" West, 15.00 feet to an intersection with the
northeasterly right-of-way line of said Clay Avenue and a point on a
non-tangent curve to the right;
THENCE, 415.17 feet northwesterly along the northeasterly right-of-way line
of Clay Avenue and the arc of said curve (Delta Angle = 53DEG. 04' 18",
Radius = 448.22 feet, Chord = North 46DEG. 52' 45" West, 400.49 feet) to a
point of a compound curve to the right;
THENCE, 93.22 feet northwesterly along said northeasterly right-of-way line
of Clay Avenue and the arc of said curve (Delta Angle = 09DEG. 09' 01",
Radius = 583.72 feet, Chord = North 15DEG. 46' 05" West, 93.12 feet) to a
point on a cut-back to the right;
THENCE, North 38DEG. 27' 43" East, 13.08 feet along said cut-back to the
POINT OF BEGINNING, containing a computed area of 119,202 square feet of land.
Page 4 of Exhibit A
TRACT D - METROPOLITAN GARAGE TRACT
All that certain tract of land out of the X. Xxxxx Survey, A-696, Houston,
Xxxxxx County, Texas and being more particularly described by metes and
bounds as follows:
Commencing at the City of Houston Engineering Department Reference Rod No.
541 located in West Dallas at its intersection with Xxxxx Street, thence S
89DEG. 45'00" W passing the City of Houston Engineering Reference Rod No. 94
at 520.09' and continuing for a total distance of 732.26' to a point, thence
S 0DEG. 15'00" E -20.05' to a 5/8" iron rod located in the south right-of-way
line of West Dallas (based on a 90' width) at its intersection with the east
right-of-way line of Xxxxxx Street, and being the POINT OF BEGINNING of the
herein described tract:
THENCE N 89DEG. 45'29" E - 247.30' along the south right-of-way line of said
West Dallas to a point for corner;
THENCE S 00DEG. 15' E - 557.76' to a 3/8" iron rod for corner;
THENCE S 89DEG. 45'07" W - 250.02' to a 3/8" iron rod for corner located in
the east right-of-way line of Xxxxxx Street;
THENCE along the said east right-of-way line of Xxxxxx Street the five
following courses and distances:
N 00DEG. 21'53" W - 100.04' to a point,
N 06DEG. 24'16" E - 30.20' to a point,
N 00DEG. 15' W - 200' to a point,
N 01DEG. 26'42" W - 27.76' to a point,
N 00DEG. 15' W - 200'
to the POINT OF BEGINNING and containing 138,131.8 square feet of land more or
less.
TRACT E - XXXXX CENTER PARKING GARAGE TRACT
Being a tract or parcel of land containing 179,624 square feet of land out of
the Obedience Smith Survey, Abstract 696, Xxxxxx County, Texas, and being a
part of those certain tracts designated as "Tract 4, 5 and Tract 8" per the
deed recorded in Volume 7769, Page 568 of the Xxxxxx County Deed Records, and
a part of certain street rights-of-way as closed by City Council Motion No.
70-1288, passed April 15, 1970 and filed in Volume 8104, Page 1 of said Deed
Records, and being more particularly described by metes and bounds as follows
with all bearings and coordinates referenced to the Texas Coordinate System,
South Central Zone:
Page 5 of Exhibit A
BEGINNING at a point (X=3,150,750.60, Y=717,450.35) at the intersection of
the south right-of-way line of West Dallas Avenue (80 feet wide) with the
westerly right-of-way line of Clay Avenue (100 feet wide), said point also
being on a non-tangent curve to the left;
THENCE, 134.65 feet southeasterly along the westerly right-of-way line of
said Clay Avenue and the arc of said curve (Delta Angle = 11DEG. 17'02",
Radius = 683.72 feet, Chord = South 14DEG. 42'05" East, 134.44 feet) to a
point for the end of said curve and point of a compound curve to the left;
THENCE, 283.23 feet southeasterly, continuing along said westerly
right-of-way line of Clay Avenue and the arc of said curve (Delta Angle =
29DEG. 36'05", Radius = 548.22 feet, Chord = South 35DEG. 08'38" East, 280.09
feet) to the end of said curve and the most northerly corner of a cut-back to
the right at the intersection of said westerly right-of-way line of Clay
Avenue and the westerly right-of-way line of Xxxx Street (60 feet wide):
THENCE, South 02DEG. 22'27" East, 9.77 feet along said cut-back and westerly
right-of-way line of Xxxx Street to the beginning of a non-tangent curve to
the left;
THENCE, 219.99 feet southwesterly along the arc of said curve and said
westerly right-of-way line (Delta Angle = 30DEG. 44'32", Radius = 410.00
feet, Chord = South 13DEG. 14'49" West, 217.36 feet) to a point of tangency;
THENCE, South 02DEG. 07'27" East, 60.47 feet along said westerly right-of-way
line to the most northerly corner of a cut-back to the right;
THENCE, South 42DEG. 45'03" West, 14.17 feet along said cut-back and westerly
right-of-way line to a point at the intersection of said westerly
right-of-way line of Xxxx Street and the north right-of-way line of Xxxxxxx
Street (60 feet wide);
THENCE, South 87DEG. 37'33" West, 255.65 feet along the north right-of-way
line of said Xxxxxxx Street to an angle point in said north right-of-way;
THENCE, South 85DEG. 38'14" West, 34.46 feet, continuing along the north
right-of-way line of said Xxxxxxx Street to a nail set in concrete for
southwest corner;
THENCE, North 02DEG. 22'27" West, 99.98 feet to an "X" cut in concrete for an
angle point;
THENCE, North 02DEG. 18'03" West, 557.64 feet to a point for northwest
corner, said point being on the south right-of-way line of said Xxxx Xxxxxx
Xxxxxx;
XXXXXX, Xxxxx 00XXX. 37'33" East, 177.90 feet along the south right-of-way
line of said West Dallas Avenue to the POINT OF BEGINNING, containing a
computed area of 179,624 square feet of land.
Page 6 of Exhibit A
TRACT F - ANTIOCH PARK TRACT
A tract or parcel containing 27,402 square feet of land out of the
Obedience Smith Survey, Abstract 696, Xxxxxx County, Texas. Said tract also
being a portion of Lots 9 and 10 in Block 3, and Xxxx 0, 0, 0, 0 xxx 0 xx
Xxxxx 2 of the Xxxxxxxx Addition, a subdivision of record per the map
recorded in Volume M, Page 475 of the Xxxxxx County Deed Records, and
contains that portion of Xxxxxxxxx Street that is bounded on the north by
Clay Avenue (width varies) and is bounded on the south by Xxxxxxx Street (50
feet wide). The herein described tract is more particularly described as
follows, with all bearings and coordinates referenced to the Texas Coordinate
System, South Central Zone:
COMMENCING at a Copperweld Rod stamped "AC-5" (X=3,150,906.78, Y=716,037.50)
found at the intersection of the centerlines of Xxxxx Street (80 feet wide)
and Xxxxx Avenue (80 feet wide) from which City Survey Marker 5357-1606-C
(City Rod No. 52) bears South 57DEG. 08'01" East;
THENCE, North 32DEG. 51'57" East, 950.00 feet along the centerline of said
Xxxxx Street;
THENCE, departing said centerline at a right angle, North 57DEG. 08'03" West,
89.73 feet to a 5/8-inch iron rod (X=3,151,346.89, Y=716,884.03) found for
the intersection of the southwesterly right-of-way line of Clay Avenue
(varying width) with the northwesterly right-of-way line of said Xxxxx Street
(width varies at this point), said iron rod being a point on the line common
to Lots 8 and 9 in said Block 2 and the POINT OF BEGINNING;
THENCE, South 02DEG. 07'27" East, 61.20 feet along the northwesterly
right-of-way line of said Xxxxx Street and the line common to said Lots 8 and
9 to a 5/8-inch iron rod found for the new northerly right-of-way line of
Xxxxxxx Street (50 feet wide);
THENCE South 87DEG. 37'33" West, 265.27 feet along the new northerly
right-of-way line of said Xxxxxxx Street to a 5/8-inch iron rod found on the
line common to Xxxx 0 xxx 0 xx xxxx Xxxxx 0;
XXXXXX, Xxxxx 00XXX. 07'27" West, 95.63 feet along said common line to a
5/8-inch iron rod found at the corner common to Lots 2, 3, 8 and 9 in said
Block 3;
THENCE, North 87DEG. 27'29" East, 99.99 feet along the line common to Lots 9,
10, 2 and 1 in said Block 3 to a 5/8-inch iron rod found for the corner
common to said Lots 1 and 10 in the westerly right-of-way line of abandoned
Xxxxxxxxx xxxxxx;
XXXXXX, Xxxxx 00XXX. 52'33" East, 17.50 feet to the centerline of said
Xxxxxxxxx Xxxxxx;
XXXXXX, Xxxxx 00XXX. 07'27" West, 54.49 feet along said centerline to the
south right-of-way line of said Clay Avenue;
Page 7 of Exhibit A
THENCE, South 65DEG. 48'22" Each, 40.34 feet along said southwesterly
right-of-way line of Clay Avenue to a 5/8-inch iron rod found for the
beginning of a tangent curve to the right;
THENCE, 81.46 feet southeasterly along the arc of said curve and
southwesterly right-of-way line (Radius = 538.22 feet, Delta = 0XXX. 00'00",
Xxxxx = South 61DEG. 28'12" East, 81.38 feet) to a 5/8-inch iron rod found
for point of tangency;
THENCE, continuing along the southwesterly right-of-way line of said Clay
Avenue, South 57DEG. 08'03" East, 50.78 feet to the POINT OF BEGINNING,
containing a computed area of 27,402 square feet of land.
Page 8 of Exhibit A
[ARCHITECTURAL PLAN]
EXHIBIT B
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
PLAN OF PREMISES
[TO COME]
EXHIBIT C
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
WORKLETTER
(LANDLORD DOES WORK--ALLOWANCE)
This Work Letter ("Work Letter") describes and specifies the rights and
obligations of Landlord and Tenant with respect to certain allowances granted to
Tenant hereunder and rights and responsibilities of Landlord and Tenant with
respect to the design, construction and payment for the completion of the
Initial Improvements within the Premises.
1. DEFINITIONS. Terms which are defined in the Lease shall have the
same meaning in this Work Letter. Additionally, as used in this Work Letter,
the following terms (when delineated with initial capital letters) shall have
the respective meaning indicated for each as follows:
(a) ALLOWANCE shall mean a sum not to exceed $20.00 per square
foot of Rentable Area within the initial 3,981 square feet comprising
the Premises (a maximum of $79,620.00).
(b) BASIC CONSTRUCTION OF THE BUILDING shall mean the
structure of the Building as built on the date of this Work Letter, the
Shell Improvements, and all other improvements, fixtures and facilities
constituting a part of the Project, as these exist on the date of this
Work Letter if the Building is complete, or as provided for in
Landlord's plans and specifications for the Building if prior to
completion.
(c) LANDLORD'S ARCHITECT shall mean the architect designated
by Landlord as its architect, from time to time, to perform the
functions of Landlord's Architect hereunder.
(d) PLANS AND SPECIFICATIONS shall mean collectively, the
plans, specifications and other information prepared or to be prepared
by Tenant's Architect and, where necessary, by Landlord's electrical,
mechanical and structural engineers, all at Tenant's expense, which
shall detail the Work required by Tenant in the Premises and which shall
be approved in writing by both Tenant and Landlord prior to the
commencement of such Work.
Page 1 of Exhibit C
(e) TENANT'S ARCHITECT shall mean PDG Architects, who is an
architect licensed to practice in the State of Texas.
(f) WORK shall mean all materials and labor to be added to the
Basic Construction of the Building and the Shell Improvements in order
to complete the installation of the Initial Improvements within the
Premises for Tenant in accordance with the Plans and Specifications,
including, without limitation any modification to Basic Construction of
the Building or to the Shell Improvements, any structural modifications
to the Building, any electrical or plumbing work required to meet
Tenant's electrical and plumbing requirements, and any special air
conditioning work required to be performed in the Premises.
(g) COST OF THE WORK shall mean the cost of all materials and
labor to be added to the Basic Construction of the Building and the
Shell Improvements in order to complete the installation of the Initial
Improvements within the Premises in accordance with the Plans and
Specifications.
(h) LANDLORD'S COSTS shall mean the sum of (i) the cost of the
Shell Improvements and (ii) that portion of the Cost of the Work up to,
but not in excess of, the aggregate amount of the Allowance.
(i) TENANT'S COSTS shall mean that portion of the Cost of the
Work in excess of Landlord's Costs.
(j) CHANGE COSTS shall mean all costs or expenses attributable
to any change in the Plans and Specifications which, when added to other
costs and expenses incurred in completing the Work, exceed Landlord's
Costs, including, without limitation, (i) any cost caused by direction
of Tenant to omit any item of Work contained in the Plans and
Specifications, (ii) any additional architectural or engineering
services, (iii) any changes to materials in the process of fabrication,
(iv) the cancellation or modification of supply or fabricating
contracts, (v) the removal or alteration of any Work or any plans
completed or in process, or (vi) delays affecting the schedule of the
Work.
(k) WORKING DAYS shall mean all days of the week other than
Saturday, Sunday, and legal holidays.
2. PROCEDURE AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS. The Plans and Specifications shall be completed in accordance
with the following procedure and time schedules:
(a) DESIGN DRAWINGS. Within ten (10) Working Days from
execution of the Lease, Tenant shall submit to Landlord four (4) sets of
prints of design drawings, specifying the intended design, character and
finishing of the Initial Improvements within the Premises. Such package
shall include separate drawings for signs in accordance with Landord's
sign
Page 2 of Exhibit C
criteria. The design drawings shall set forth the requirements of
Tenant with respect to the installation of the Initial Improvements
within the Premises, and such drawings shall include, without limiting
their scope, a Tenant approved space plan, architectural design of the
space, including office front, plans, elevations, sections, and
renderings indicating materials, color selections and finishes.
(i) After receipt of design drawings, Landlord shall
return to Tenant one set of prints of design drawings with
Landlord's suggested modifications and/or approval.
(ii) If design drawings are returned to Tenant with
comments, but not bearing approval of Landlord, the design
drawings shall be immediately revised by Tenant and resubmitted
to Landlord for approval within ten (10) Working Days of their
receipt by Tenant. Unless such action is taken, Tenant will be
deemed to have accepted and approved all of Landlord's comments
on the design drawings.
(b) COMPLETION OF PLANS AND SPECIFICATIONS. All Plans and
Specifications shall be prepared in strict compliance with applicable
Building standards and requirements as set forth in the Lease, this Work
Letter and otherwise, and shall also adhere to the design drawings
approved by Landlord. In order to assure the compatibility of Tenant's
electrical and mechanical systems and the compatibility of Tenant's
structural requirements with the existing Building and in order to
expedite the preparation of Tenant's electrical, mechanical and
structural drawings Tenant or Tenant's Architect shall deliver to
Landlord's Architect, not later than ten (10) Working Days from the date
of Landlord's approval of design drawings, a detailed plan setting forth
any and all electrical, mechanical and structural requirements, and
Landlord's Architect shall retain, at Tenant's expense, Landlord's
electrical, mechanical and structural engineers to prepare all necessary
electrical, mechanical and structural construction drawings which shall
be included as a part of the Plans and Specifications. All construction
documents and calculations prepared by Tenant's Architect shall be
submitted by Tenant, in the form of four (4) sets of blueline prints, to
Landlord for approval within ten (10) Working Days after the date of
receipt by Tenant of Landlord's approval of design drawings. If the
Plans and Specifications are returned to Tenant with comments, but not
bearing approval of Landlord, the Plans and Specifications shall be
immediately revised by Tenant and resubmitted to Landlord for approval
within ten (10) Working Days of their receipt by Tenant.
(i) The fees for Tenant's Architect and any consultants
or engineers retained by or on behalf of Tenant or Tenant's
Architect (including, but not limited to, the electrical,
mechanical and structural engineers required to be retained under
this paragraph) shall be paid by Tenant. Tenant shall also pay
for any preliminary drawings by Landlord's Architect for review
of the design drawings, the Plans and Specifications, and any
revisions to such documents, and the fees and expenses of
Landlord's Architect for inspection of the Work, as required by
Landlord.
Page 3 of Exhibit C
(ii) Tenant shall have the sole responsibility for
compliance of the Plans and Specifications with all applicable
statutes, codes, ordinances and other regulations, and the
approval of the Plans and Specifications or calculations included
therein by Landlord shall not constitute an indication,
representation or certification by Landlord that such Plans and
Specifications or calculations are in compliance with said
statutes, codes, ordinances and other regulations. In instances
where several sets of requirements must be met, the requirements
of Landlord's insurance underwriter or the strictest applicable
requirements shall apply where not prohibited by applicable
codes.
(iii) Upon completion of the Initial Improvements, if so
required by Landlord, Tenant shall deliver to Landlord an
"as-built" set of Plans and Specifications for the Premises,
together with such other information required by Landlord to
place the information from the "as-built" Plans and
Specifications on to Landlord"s data base; the cost of providing
the "as-built" Plans and Specifications and other information,
together with Landlord's cost to place the information on to
Landlord's data base, shall be borne solely by Tenant.
3. PRICING. On or before the date which is ten (10) Working Days
after finalization of the Plans and Specifications, as evidenced by Landlord's
written approval thereof, Landlord shall notify Tenant in writing of the Cost of
the Work. The contract for the Work shall obligate the contractor to purchase
from Landlord all materials and supplies which are held in "stock" by Landlord
and which are required for the Work by the Plans and Specifications provided,
Landlord's pricing is comparable to the general market. Within ten (10) Working
Days after its receipt of Landlord's written notice identifying the Cost of the
Work, Tenant shall either approve such Cost of the Work in writing or cause the
Plans and Specifications to be revised and resubmitted to Landlord for Approval.
On or before the date which is ten (10) Working Days from Landlord's receipt of
such revised Plans and Specifications, Landlord shall either approve the revised
Plans and Specifications and give to Tenant a revised Cost of the Work or give
to Tenant Landlord's comments on such revised Plans and Specifications. If for
any reason Landlord and Tenant have not agreed in writing upon final Plans and
Specifications and/or the Tenant has not approved in writing the Cost of the
Work on or before the date which is sixty (60) Working Days from the date
hereof, then Landlord shall have the right to terminate the Lease and this Work
Letter, without further obligation.
4. PAYMENTS. Tenant may use a portion of the Allowance up to $2.00
per square foot of the Rentable Area of the Premises for the payment of fees and
expenses payable by Tenant under the terms of Paragraph 2(b)(i) of this Work
Letter Tenant shall pay the aggregate amount of Tenant's Costs to Landlord upon
demand. Landlord shall determine the percentage of the Cost of the Work which
is allocable to Landlord and the percentage of the Cost of the Work which is
allocable to Tenant. Landlord shall also revise its determination of such
percentages based on any changes in the Cost of the Work due to change orders
affecting the Plans and Specifications. Within ten (10) days after Tenant's
receipt of an invoice from Landlord which identifies that portion of the Cost of
the Work to be incurred, respectively, by Landlord and Tenant, Tenant shall pay
to Landlord the
Page 4 of Exhibit C
percentage of the Cost of the Work allocable to Tenant, as Tenant's Costs, as
determined by Landlord from time to time. Landlord's obligation for payment
with respect to the Work shall not exceed the aggregate amount of Landlord's
Costs; and after Landlord has paid Landlord's Costs, Tenant shall thereafter
pay all Cost of the Work as and when invoiced to Tenant by Landlord,
including, without limitation, any Change Costs. The amounts payable to
Landlord hereunder shall constitute Rent due pursuant to the Lease, and
failure to make any such payment when due shall constitute a default under
the Lease, entitling Landlord to exercise any or all of its remedies
hereunder, as well as all remedies otherwise available to Landlord. Any cost
savings achieved after completion of the Work with respect to the initial
Premises shall be added to the Allowance to be provided to Tenant with
respect to Tenant's improvement of the Expansion Premises.
5. PERFORMANCE OF WORK AND DELAYS. Landlord shall cause the
Contractor to perform the Work in substantial accordance with the Plans and
Specifications. In that regard, Landlord shall perform as construction manager
for the construction of the Initial Improvements in accordance with the Plans
and Specifications; and the Cost of the Work shall include a management fee
payable to Landlord in the amount of five percent (5%) of the cost of the
materials and labor constituting the Work. If a delay shall occur in the
completion of the Work by Landlord as the probable result of (i) any failure to
furnish when due Tenant's design drawings, Tenant's electrical, mechanical
and/or structural requirements, Tenant's Plans and Specifications or any
revision to any such documents, (ii) any change by Tenant in any of the Plans
and Specifications, (iii) any state of facts which gives rise to a change
referred to in the definition of Change Costs or any changes resulting in a
Change Cost, (iv) the fact that materials to be incorporated into the Work which
are non-Building grade require a lead time (not due to Landlord default or
error) to obtain or construction time to perform, in excess of that required for
Work which is Building grade, as determined by Landlord, or (v) any other act or
omission of Tenant, its agents or employees, including any violation of the
provisions of the Lease or any delay in giving authorizations or approvals
pursuant to this Work Letter, then any such delay shall not justify any
extension of the Commencement Date of the Lease.
6. CHANGE ORDERS. All changes and modifications in the Work from
that contemplated in the Plans and Specifications, whether or not such change or
modification gives rise to a Change Cost, must be evidenced by a written Change
Order executed by both Landlord and Tenant. In that regard, Tenant shall submit
to Landlord such information as Landlord shall require with respect to any
Change Order requested by Tenant. After receipt of requested Change Order,
together with such information as Landlord shall require with respect thereto,
Landlord shall return to Tenant either the executed Change order, which will
evidence Landlord's approval thereof, or the Plans and Specifications with
respect thereto with Landlord's suggested modification.
7. PUNCHLIST. Within thirty (30) days after the Commencement Date,
Tenant shall give Landlord written notice specifying any details of
construction, decoration or mechanical adjustment which remain to be performed
by Landlord with respect to any Work; and except for the details contained in
such written notice from Tenant, all obligations of Landlord in regard to the
Work shall be deemed to have been satisfied. Landlord shall have the right to
enter the Premises to complete any such unfinished details, and entry by
Landlord, its agents, servants, employees or contractors
Page 5 of Exhibit C
for such purpose shall not relieve Tenant of any of its obligations under the
Lease or impose any liability on Landlord or its agents, servants, employees
or contractors.
8. WHOLE AGREEMENT; NO ORAL MODIFICATION. This Work Letter embodies
all representations, warranties and agreements of Landlord and Tenant with
respect to the matter described herein, and this Work Letter may not be altered
or modified except by an agreement in writing signed by the parties.
9. PARAGRAPH HEADINGS. The paragraph headings contained in this
Work Letter are for convenient reference only and shall not in any way affect
the meaning or interpretation of such paragraphs.
10. NOTICES. All notices required or contemplated hereunder shall be
given to the parties in the manner specified for giving notices under the Lease.
11. BINDING EFFECT. This Work Letter shall be construed under the
laws of the State of Texas and shall be binding upon and shall inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
12. CONFLICT. In the event of conflict between this Work Letter and
any other exhibits or addenda to this Lease, this Work Letter shall prevail.
Page 6 of Exhibit C
EXHIBIT D
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and similar
areas shall not be obstructed nor shall refuse, furniture, boxes or other items
be placed therein by Tenant or its officers, agents, servants, and employees, or
used for any purpose other than ingress and egress to and from the leased
premises, or for going from one part of the Building to another part of the
Building. Canvassing, soliciting and peddling in the Building are prohibited.
2. Plumbing fixtures and appliances shall be used only for the
purposes for which constructed, and no unsuitable material shall be placed
therein. Damages resulting from misuse of fixtures or appliances by Tenant, or
its employees, agents or contractors, shall be paid by Tenant.
3. No signs, directories, posters, advertisements, or notices shall
be painted or affixed on or to any of the windows or doors, or in corridors or
other parts of the Building, except in such color, size, and style, and in such
places, as shall be first approved in writing by Landlord in its discretion.
Building standard suite identification signs will be prepared by Landlord at
Tenant's expense. Landlord shall have the right to remove all unapproved signs
without notice to Tenant, at the expense of Tenant.
4. Tenants shall not do, or permit anything to be done in or about
the Building, or bring or keep anything therein, that will in any way increase
the rate of fire or other insurance on the Building, or on property kept therein
or otherwise increase the possibility of fire or other casualty. Electric
current shall not be used for cooking or heating without prior written
permission from Landlord.
5. Landlord shall have the power to prescribe the weight and
position of heavy equipment or objects which may over stress any portion of the
floor. All damage done to the Building by the improper placing of such heavy
items by Tenant, its employees, agents or contractors will be repaired at the
sole expense of Tenant.
Page 1 of Exhibit D
6. Tenant shall notify the Building manager when safes or other
heavy equipment are to be taken on or out of the Building, and the moving shall
be done after written permission is obtained from Landlord on such conditions as
Landlord shall require.
7. Corridor doors, when not in use, shall be kept closed.
8. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Landlord's written
approval must be obtained for any delivery after normal working hours.
9. Each tenant shall cooperate with Landlord's employees in keeping
its leased premises neat and clean. Nothing shall be swept or thrown into
corridors, halls, elevator shafts, stairways, or other public areas, nor shall
tenants place any trash receptacles in these areas.
10. Tenants shall not cause or permit any improper noises in the
Building, or allow any unpleasant odors to emanate from the leased premises, or
otherwise interfere, injure or annoy in any way other tenants, or persons having
business with them.
11. No animals shall be brought into or kept in or about the
Building, except guide dogs or similar support animals accompanying persons who
are physically disabled.
12. When conditions are such that Tenant must dispose of crates,
boxes, etc., it will be the responsibility of Tenant to dispose of same prior
to, or after the hours of 7:30 a.m. and 5:30 p.m., respectively.
13. No machinery of any kind, other than ordinary office machines
such as typewriters and calculators, shall be operated on the leased premises
without the prior written consent of Landlord, nor shall a tenant use or keep in
the Building any inflammable or explosive fluid or substance (including
Christmas trees and ornaments), or any illuminating materials, except candles.
No space heaters or fans shall be operated in the Building.
14. No bicycles, motorcycles or similar vehicles will be allowed in
the Building.
15. No nails, hooks, or screws shall be driven into or inserted in
any part of the Building except as approved by Landlord.
16. Landlord has the right to evacuate the Building in the event of
an emergency or catastrophe.
17. No food and/or beverages shall be distributed from Tenant's
office without the prior written approval of the Building manager. At any party
where alcoholic beverages are to be consumed on Building premises, Tenant is
required to have two (2) off-duty policemen attend such party.
Page 2 of Exhibit D
18. No additional locks shall be placed upon any doors without the
prior written consent of Landlord. Two (2) keys per entry door shall be
furnished by Landlord, and the same shall be surrendered upon termination of
this Lease. Tenant shall then give Landlord or his agent an explanation of the
combination of all locks on doors or vaults. No duplicates of such keys shall
be made by Tenant. Additional keys shall be obtained only from Landlord, at a
fee to be determined by Landlord.
19. Tenants will not locate furnishings or cabinets adjacent to
mechanical or electrical access panels or over air conditioning outlets so as to
prevent operating personnel from servicing such units as routine or emergency
access may require. Cost of moving such furnishings for Landlord's access will
be for Tenant's account. The lighting and air conditioning equipment of the
Building will remain the exclusive charge of the Building designated personnel.
20. Tenant shall comply with parking rules and regulations as may be
posted or distributed from time to time.
21. No portion of the Building shall be used for the purpose of
lodging rooms.
22. Vending machines or dispensing machines of any kind will not be
placed in the leased premises by a tenant without prior written approval by
Landlord.
23. Prior written approval, which shall be at Landlord's sole
discretion, must be obtained for installation of window shades, blinds, drapes
or any other window treatment of any kind whatsoever. Landlord will control all
internal lighting that may be visible from the exterior of the Building and
shall have the right to change any lighting which has not been so approved by
Landlord, without notice to Tenant, at Tenant's expense.
24. No tenant shall make any changes or alterations to any portion of
the Building without Landlord's prior written approval, which may be given on
such conditions as Landlord may elect. All such work shall be done by Landlord
or by contractors and/or workmen approved by Landlord, working under Landlord's
supervision.
25. Tenant and its contractors shall provide Landlord with Material
Safety Data Sheets (MSDS) for all materials or substances being used or stored
in or about the Building. The MSDS will be provided PRIOR to bringing the
materials or substances into the Building.
26. The directory board of the Building will be provided for the
display of the name and location of tenants only. Tenant will be provided one
(1) line or strip on the Building directory board for every two thousand (2,000)
square feet of space. Any additional lines which Tenant shall desire to place
upon said directory board over and above this allowance must first be approved
by Landlord, and if so approved, a charge will be made therefor.
Page 3 of Exhibit D
27. Tenants shall ensure that the doors of their leased premises are
closed and securely locked and must observe strict care and caution that all
water faucets, water apparatus and utilities are shut off before a tenant and
such tenant's employees leave the leased premises, so as to prevent waste or
damage. On multiple-tenancy floors, all tenants shall keep the door or doors to
the Building corridors closed at all times except for ingress and egress.
28. Tenants shall exercise reasonable precautions in the protection
of their personal property from loss or damage by keeping doors to unattended
area locked. Tenants shall also report any thefts or losses to the Building
manager as soon as reasonably possible after discovery and shall also notify the
Building manager of the presence of any persons whose conduct is suspicious or
causes a disturbance.
29. Firearms of any caliber or make are strictly prohibited from
being carried or stored in the Building. Requests for an exception to this
policy must be submitted in writing to Landlord prior to any introduction of a
firearm in the Building and must detail the reasons for the requested exception.
Any exception permitting a person to carry or store a firearm in the Building
must be in writing signed by Landlord and shall contain such conditions and
provisions as Landlord may specify in its sole discretion. Notwithstanding the
grant of any exception, Landlord shall retain the right to revoke such
permission at any time and for any reason, including without limitation, the
unsafe, rude, offensive, alarming or reckless display or carrying of the
firearms.
30. Landlord shall not be responsible to the tenants, their agents,
employees or invitees for any loss of money, jewelry or other personal property
from the leased premises or public areas or for any damages to any property
therein from any cause whatsoever whether such loss or damage occurs when an
area is locked against entry or not.
31. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any heavy equipment, bulky
material or merchandise which requires use of elevators or stairways, or
movement through the Building entrances or lobbies shall be restricted to such
hours as Landlord shall designate. All such movement shall be in a manner to be
agreed between the tenants and Landlord in advance. Such pre-arrangement shall
be initiated by the tenant. The time, method, and routing of movement and
limitations for safety or other concern which may prohibit any article,
equipment or other item from being brought into the Building shall be subject to
Landlord's discretion and control. Although Landlord or its personnel may
participate in or assist in the supervision of such movement, the tenant assumes
final responsibility for all risks as to 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 damages or injured as a result of acts in
connection with carrying out this service for a tenant from time of entering the
property to completion of work. Landlord shall not be liable for acts of any
person engaged in, or any damage or loss to any of said property or persons
resulting from any act in connection with such service performed for a tenant.
Page 4 of Exhibit D
32. Tenants shall not employ any person for the purpose of cleaning
other than the authorized cleaning and maintenance personnel for the Building
unless otherwise approved in writing by Landlord. To ensure orderly operation
of the Building, Landlord reserves the right to approve all concessionaires,
vending machine operators or other distributors of cold drinks, coffee, food or
other concessions, water, towels, or newspapers.
33. Tenants, their employees, guests and invitees may be called upon
to show suitable identification and/or sign a building register when entering or
leaving the Building at times other than normal Building operating hours. All
tenants shall cooperate fully with Building security personnel in complying with
such requirements.
34. Tenants shall not solicit from or circulate advertising material
among other tenants of the Building except the regular use of the U.S. mail
service. Tenants shall notify the Building manager or the Building security
personnel promptly if it comes to their attention that any unauthorized persons
are soliciting from or causing annoyance to tenants, their employees, guests or
invitees.
35. Landlord reserves the right to deny entrance to the Building or
remove any person or persons from the Building in any case where the conduct of
such person or persons involves a hazard or nuisance to any tenant of the
Building or to the public or in the event of fire or other emergency, riot,
civil commotion or similar disturbance involving risk to the Building, tenants
or the general public.
36. Landlord reserves the right to rescind any of these rules and
make such other and further rules and regulations as in its judgment shall from
time to time be necessary or advisable for the operation of the Building, which
rules shall be binding upon each tenant upon delivery to such tenant of notice
thereof in writing.
Page 5 of Exhibit D
EXHIBIT E
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
PARKING
This EXHIBIT E ("Parking Exhibit") describes and specifies Tenant's
non-exclusive right to use four (4) parking spaces (collectively, "Spaces")
located on such levels inside one or more of the Building's parking garages as
set forth on SCHEDULE 1 attached to this Parking Exhibit and incorporated herein
by reference, all upon the terms and conditions set forth below. The parking
garage beneath the Building shall be referred to as the "Building Garage." The
parking garage located at 000 Xxxx Xxxxxx shall be referred to as the "Xxxxx
Center Parking Garage." The parking garage located at 000 Xxxx Xxxxxx Xxxxxx
shall be referred to as the "Metropolitan Parking Garage." The Building Garage,
Xxxxx Center Parking Garage and Metropolitan Parking Garage may be hereinafter
referred to individually and collectively as the "Parking Garage."
1. DEFINITIONS. The terms which are defined in the Lease shall
have the same meanings in this Parking Exhibit.
2. GRANT AND RENTAL FEE. Provided no event of default has occurred
and is continuing under the Lease, Tenant shall rent on a "must-take" basis the
Spaces during the entire Term at such monthly rates (together with any
applicable tax thereon) and subject to such terms, conditions, and regulations
as are, from time to time, promulgated by Landlord or the manager of the Parking
Garage, as applicable, and charged or applicable to patrons of the Parking
Garage for spaces similarly situated therein. In the event the Premises are
increased or decreased during the Term, the number of Spaces available to Tenant
shall likewise be increased or decreased so that the aggregate number of Spaces
to which Tenant is entitled shall equal one (1) unreserved Space for each one
thousand (1,000) square feet of Rentable Area within the Premises.
3. UNAVAILABILITY OF SPACES. If the Spaces are not available or
become unavailable to Tenant (due to causes beyond the reasonable control of
Landlord) during any portion of the Term of this Lease, Landlord shall make
available to Tenant alternate parking spaces located reasonably near the
Building until the Spaces are made available to Tenant.
Page 1 of Exhibit E
4. RISK. All motor vehicles (including all contents thereof) shall
be parked in the Spaces at the sole risk of Tenant, its employees, agents,
invitees and licensees, it being expressly agreed and understood that Landlord
has no duty to insure any of said motor vehicles (including the contents
thereof), and that Landlord is not responsible for the protection and security
of such vehicles. Landlord shall have no liability whatsoever for any property
damage and/or personal injury which might occur as a result of or in connection
with the parking of said motor vehicles in any of the Spaces, and Tenant hereby
agrees to indemnify and hold Landlord harmless from and against any and all
costs, claims, expenses, and/or causes of action which Landlord may incur in
connection with or arising out of Tenant's use of the Spaces pursuant to this
Parking Exhibit.
5. NO BAILMENT. It is further agreed that this Parking Exhibit
shall not be deemed to create a bailment between the parties hereto, it being
expressly agreed and understood that the only relationship created between
Landlord and Tenant hereby is that of licensor and licensee, respectively.
6. RULES AND REGULATIONS. In its use of the Spaces, Tenant shall
follow all of the Rules and Regulations of the Building (attached to the Lease
as EXHIBIT D) applicable thereto, any rules and regulations promulgated by
Landlord or the manager of the Parking Garage, as applicable, as the same may be
amended from time to time. Upon the occurrence of any breach of such rules,
failure to make parking rental payments due hereunder or default by Tenant under
the Lease, Landlord shall be entitled to terminate this Parking Exhibit, in
which event Tenant's right to utilize the Spaces shall thereupon automatically
cease.
7. ACCESS. Landlord shall be entitled to utilize whatever access
device Landlord deems necessary (including but not limited to the issuance of
parking stickers or access cards), to assure that only those persons who have
contracted to use spaces in the Parking Garage are using the parking spaces
therein. Landlord currently limits access to the Parking Garage through the use
of a parking entry card system, the cards for which shall be provided by
Landlord. These cards are different from and do not entitle the holder thereof
to an after-hours entry card to the Building (pursuant to the terms of Section
7.04 of the Lease). Landlord agrees to provide to Tenant four (4) parking entry
cards. Tenant further agrees to surrender all parking entry cards in its
possession upon the expiration or earlier termination of this Lease. Landlord
shall be entitled to cancel any lost or stolen cards of which it becomes aware.
Tenant shall promptly notify Landlord of any lost or stolen cards. Tenant shall
pay Landlord for each additional card(s) or for each replacement card(s) for any
card(s) lost by or stolen from Tenant, in such amount as Landlord shall, from
time to time determine, the present charge for such lost or stolen cards being
$10.00 per card. Tenant acknowledges that the parking entry card may also be
the same as the master entry card used for access to the Building during other
than normal business hours, and to the extent the cards are the same, agrees
that the provisions of Section 7.04 of the Lease shall also be applicable and in
the event of a conflict with the provisions of this Parking Exhibit, the
provisions of Section 7.04 shall control. In the event Tenant, its agent or
employees wrongfully park in any of the Parking Garage's spaces, Landlord shall
be entitled and is hereby authorized to have any such vehicle towed away, at
Tenant's sole risk and expense, and Landlord is further authorized to impose
upon Tenant a penalty of $25.00 for each
Page 2 of Exhibit E
such occurrence. Tenant hereby agrees to pay all amounts falling due
hereunder upon demand therefor, and the failure to pay any such amount shall
additionally be deemed an event of default hereunder and under the Lease,
entitling Landlord to all of its rights and remedies hereunder and thereunder.
Page 3 of Exhibit E
SCHEDULE 1
TO
EXHIBIT E
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
BUILDING GARAGE
XXXXX CENTER PARKING GARAGE OR METROPOLITAN PARKING GARAGE
RESERVED SPACES
NO. OF SPACES CURRENT MONTHLY
------------- PRICE PER SPACE
---------------
Xxxxx Center Garage
0 $146.14 (including tax)
1 Metropolitan Parking Garage
$ 97.43 (including tax)
TOTAL RESERVED SPACES: 1
UNRESERVED SPACES
NO. OF SPACES CURRENT MONTHLY
------------- PRICE PER SPACE
---------------
0 Building Garage
$200.26 (including tax)
0 Xxxxx Center Garage
$ 97.43 (including tax)
3 Metropolitan Parking Garage
$ 81.19 (including tax)
TOTAL UNRESERVED SPACES: 3
EXHIBIT F
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
RENEWAL OPTION
1. Tenant shall have an option (the "Renewal Option") to renew and
extend the term of this Lease for one additional period of five (5) years,
commencing on the day following the Expiration Date and expiring five (5) years
thereafter (the "Renewal Term"). The Renewal Option may only be exercised by
Tenant giving written notice thereof no more than twelve (12) months nor less
than nine (9) months prior to the Expiration Date. If Tenant fails to give
notice of exercise of the Renewal Option within such specified time period, the
Renewal Option shall be deemed waiver and of no further force and effect.
2. Tenant's right to extend this Lease as provided for herein can be
exercised only if, at the time of such exercise and upon the commencement of the
Renewal Term (a) no Event of Default then exists under this Lease, and (b)
Tenant is in possession of the entire Premises (unless Landlord, in its sole
discretion, elects to waive either such condition). If either of such
conditions are not satisfied or waived by Landlord, the Renewal Option shall be
terminated and of no further force and effect, any purported exercise thereof
shall be null and void, and this Lease shall terminate on the Expiration Date.
3. If Tenant shall exercise the Renewal Option (in accordance with
and subject to the provisions of this EXHIBIT F), all of the terms, covenants
and conditions provided in this Lease shall continue to apply during the Renewal
Term, except that (i) the Base Rental during the Renewal Term shall be the then
Prevailing Market Rate (as defined below) for the Premises, and (ii) any terms,
covenants and conditions that are expressly or by their nature inapplicable to
such renewal term (including, without limitation, this EXHIBIT F) shall be
deemed void and of no further force and effect. No assignee of this Lease
(other than an Affiliate) may exercise the Renewal Option. No subtenant of any
portion of the Premises shall have any rights hereunder whatsoever.
4. As used herein, the term "Prevailing Market Rate" means the
annual amount per square foot of Rentable Area within the Premises that a
willing tenant would pay and a willing landlord would accept in arm's length,
bona fide negotiations for a renewal of the Premises to be executed at the time
of determination and to commence at the beginning of the Renewal Term, as
Page 1 of Exhibit F
determined by Landlord in good faith based upon comparable renewal transactions
made in the Building and in other Class "A" downtown Houston, Texas office
buildings located in the area immediately adjacent to the Building (including
Two Xxxxx Center and Three Xxxxx Center) within the previous twelve (12) months
(taking into consideration the location, quality, and age of the building, floor
level, extent of leasehold improvements (existing or to be provided), rental
abatements, lease takeovers/assumptions, moving expenses and other concessions,
term of lease, extent of services to be provided, distinction between "gross"
and "net" lease, base year or other amounts allowed for escalation purposes
(expense stop), other inducements such as parking spaces or club memberships),
the time the particular rental rate under consideration became or is to become
effective, or any other relevant term or condition. Within thirty (30) days
after receipt of Tenant's notice of exercise of the Renewal Option, Landlord
will notify Tenant in writing of its determination of the Prevailing Market Rate
for the Premises for the Renewal Term. If Tenant disagrees with Landlord's
determination, Tenant shall have a period of thirty (30) days after receipt of
Landlord's notice to withdraw its exercise of the Renewal Option by written
notice to Landlord, in which event the Renewal Option shall be terminated and of
no further force and effect and this Lease shall terminate upon the Expiration
Date. Failure by Tenant to withdraw its exercise of the Renewal Option within
such thirty (30) day period shall be deemed acceptance by Tenant of Landlord's
determination of the Prevailing Market Rate for the Renewal Term.
Page 2 of Exhibit F
EXHIBIT G
TO
OFFICE LEASE BETWEEN
TRIZEC XXXXX CENTER LIMITED PARTNERSHIP,
AS LANDLORD,
AND
GATEWAY ENERGY CORPORATION,
AS TENANT
MANDATORY EXPANSION
1. As material consideration to Landlord to enter into this Lease,
Tenant has agreed to expand the initial Premises by leasing no less than 1,465
square feet (approximate) of Rentable Area being Suite 2610 located on Floor 26
of the Building (the "Expansion Premises") not later than November 1, 1998 (the
"Required Expansion Date"). If, prior to the Required Expansion Date, Carrigan,
Lapin, Xxxxx & Wilde, L.L.P. cancels its expansion rights with respect to
approximately 1,091 square feet of Rentable Area contiguous to the Expansion
Premises, the Expansion Premises shall automatically be expanded to include such
additional space for a total of 2,556 square feet of Rentable Area which Tenant
must lease. The Rentable Area of the entire Expansion Premises leased by Tenant
hereunder shall be verified by both Landlord's architect and Tenant's architect
prior to Tenant's expansion.
2. Tenant will execute and return to Landlord an amendment to the
Lease adding the Expansion Premises or such other documentation as Landlord
shall reasonably require in order to confirm the leasing of the Expansion
Premises within thirty (30) days after Tenant's receipt of such documentation.
Tenant shall have the right to occupy the Expansion Premises prior to the
Required Expansion Date subject to all terms and conditions of the Lease other
than the payment of Rent, which shall not commence until the Required Expansion
Date. Tenant's lease of the Expansion Premises shall commence on the Required
Expansion Date and shall terminate on the Expiration Date.
3. The Base Rental for the Expansion Premises shall be $20.00 per
square feet of Rentable Area within the Expansion Premises per year. Tenant's
obligation to pay Rent with respect to the Expansion Premises shall commence,
and Tenant's proportionate share of Operating Expenses shall be increased based
on the Rentable Area of the Expansion Premises on the Required Expansion Date.
4. Tenant shall be entitled to an Allowance from Landlord of $5.00
per square foot of Rentable Area within the Expansion Premises for the
construction of leasehold improvements within the Expansion Premises in
accordance with the terms and conditions of the Workletter. Such
Page 1 of Exhibit G
Allowance shall be funded by Landlord within thirty (30) days following the
later to occur of (i) Landlord's receipt of the final invoices and lien waivers
required by Paragraph 3 of the Workletter documenting the Work with respect to
the Expansion Premises or (ii) the Required Expansion Date. Landlord shall
apply that portion of the Allowance not utilized by Tenant, against Rent next
due from Tenant.
5. Upon request of Landlord at any time after the Required Expansion
Date, Tenant shall execute and deliver to Landlord a declaration (in a form
provided by Landlord) specifying (i) the Base Rental schedule for the Expansion
Premises, (ii) the Rentable Area of the Expansion Premises, and (iii) Tenant's
revised proportionate share of Operating Expenses with respect to the Expansion
Premises.
6. Tenant may improve the unoccupied portion of the Expansion
Premises simultaneously with the installation of Initial Improvements within the
initial Premises; however Rent shall not commence with respect to the Expansion
Premises until the Required Expansion Date.
7. Tenant shall rent on a "must-take" basis commencing on the
Required Expansion Date either two (2) or three (3) (depending on the size of
the Expansion Premises) unreserved parking spaces in the Metropolitan Parking
Garage in accordance with the terms and conditions of EXHIBIT E to the Lease.
8. Notwithstanding the foregoing, Tenant shall have the right to
cancel the Lease with respect to the Expansion Premises only by written notice
to Landlord delivered on or prior to August 31, 1998.
Page 2 of Exhibit G
SCHEDULE 1 TO EXHIBIT G
ONE XXXXX CENTER
ARCHITECTURAL PLAN MANDATORY EXPANSION
HOUSTON, TEXAS SPACE
R=2,556
U=2,116
F=1.2078
[FLOOR PLAN]
