Exhibit 10.12
OFFICE LEASE
at
LINCOLN PLAZA
Between
METROPOLITAN LIFE INSURANCE COMPANY (LANDLORD)
And
GREAT SOUTHERN LIFE INSURANCE COMPANY (TENANT)
DATED: February 19, 1997
TABLE OF CONTENTS
ARTICLE ONE - BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . 1
1.01 BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . .1
1.02 ENUMERATION OF EXHIBITS . . . . . . . . . . . . . . . . 1
1.03 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO - PREMISES, TERM AND FAILURE TO GIVE POSSESSION . . . . .. . 3
2.01 LEASE OF PREMISES . . . . . . . . . . . . . . . . . .. 3
2.02 TERM . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.03 FAILURE TO GIVE POSSESSION . . . . . . . . . . . . . . .3
2.04. CONDITION OF PREMISES . . . . . . . . . . . . . . . .. 3
ARTICLE THREE - RENT . . . . . . . . . . . . . . . . . . . . . . . ..3
ARTICLE FOUR - RENT ADJUSTMENT . . . . . . . . . . . . . . . .. . . . . .4
4.01 RENT ADJUSTMENT . . . . . . . . . . . . . . . . . .. . .4
4.02 ELECTRICAL COSTS . . . . . . . . . . . . . . . . . .. . 4
4.03 PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . 4
4.04 BOOKS AND RECORDS . . . . . . . . . . . . . . . . . .. 4
4.05 PARTIAL OCCUPANCY . . . . . . . . . . . . . . . . . .. 4
ARTICLE FIVE - SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . .5
ARTICLE SIX - SERVICES . . . . . . . . . . . . . . . . . . . . . . . .. 5
6.01 LANDLORD'S GENERAL SERVICES . . . . . . . . . . . . . . 5
6.02 ELECTRICAL SERVICES . . . . . . . . . . . . . . . . . . 5
6.03 ADDITIONAL AND AFTER-HOUR SERVICES . . . . . . . . . . .6
6.04 TELEPHONE SERVICES . . . . . . . . . . . . . . . .. . .6
6.05 DELAYS IN FURNISHING SERVICES . . . . . . . . . . .. . 6
ARTICLE SEVEN - POSSESSION, USE AND CONDITION OF PREMISES . . . . . . . .6
7.01 POSSESSION AND USE OF PREMISES . . . . . . . . . . .. . 6
7.02 LANDLORD ACCESS TO PREMISES . . . . . . . . . . 7
7.03 QUIET ENJOYMENT . . . . . . . . . . . . . . . . 7
ARTICLE EIGHT - MAINTENANCE . . . . . . . . . . . . . . . . . . .. . . .8
8.01 LANDLORD'S MAINTENANCE . . . . . . . . . . . . . . . . 8
8.02 TENANT'S MAINTENANCE . . . . . . . . . . . . . . . . . .8
ARTICLE NINE - ALTERATIONS AND IMPROVEMENTS . . . . . . . . . . . . . . .8
9.01 TENANT'S ALTERATIONS . . . . . . . . . . . . . . . . . .8
9.02 LIENS . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TEN - ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . .9
10.01 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . .. 9
10.02 RECAPTURE . . . . . . . . . . . . . . . . . . . . .. . 9
10.03 EXCESS RENT . . . . . . . . . . . . . . . . . . . .. 9
10.04 TENANT LIABILITY . . . . . . . . . . . . . . . . . .. . 9
10.05 ASSUMPTION AND ATTORNMENT . . . . . . . . . . . . . . .10
ARTICLE ELEVEN - DEFAULT AND REMEDIES . . . . . . . .. . . . . . . . . . 10
11.01 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . .10
11.02 LANDLORD'S REMEDIES . . . . . . . . . . . . . . . .. . 10
11.03 ATTORNEY'S FEES . . . . . . . . . . . . . . . . . .. .11
11.04 BANKRUPTCY . . . . . . . . . . . . . . . . . . . . .. 11
ARTICLE TWELVE - SURRENDER Of PREMISES . . . . . . . . . . . . . . . . .11
12.01 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . 11
12.02 LANDLORD'S RIGHTS . . . . . . . . . . . . . . . . . . .11
ARTICLE THIRTEEN - HOLDING OVER . . . . . . . . . . .. . . . . . . . .. .12
ARTICLE FOURTEEN - DAMAGE BY FIRE OR OTHER CASUALTY .. . . . . . . . . . 12
14.01 SUBSTANTIAL UNTENANTABILITY . . . . . . . . . . . . . .12
14.02 INSUBSTANTIAL UNTENANTABILITY . . . . . . . . . . .. . 12
14.03 RENT ABATEMENT . . . . . . . . . . . . . . . . . .. . 12
ARTICLE FIFTEEN - EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . .12
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART . . . . . . . . . .12
15.02 TAKING OF PART . . . . . . . . . . . . . . . . . . . . 12
15.03 COMPENSATION . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE SIXTEEN - INSURANCE . . . . . . . . . . . . . . . . . . . . . . 13
16.01 TENANT'S INSURANCE . . . . . . . . . . . . . . . . . 13
16.02 FORM OF POLICIES . . . . . . . . . . . . . . . . . . . 13
16.03 LANDLORD'S INSURANCE . . . . . . . . . . . . . . . .. .13
16.04 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . .13
16.05 NOTICE OF CASUALTY . . . . . . . . . . . . . . . . . . 14
ARTICLE SEVENTEEN - WAIVER OF CLAIMS AND INDEMNITY . . .. . . . . . . . .14
17.01 WAIVER OF CLAIMS . . . . . . . . . . . . . . . . . .. .14
17.02 INDEMNITY BY TENANT . . . . . . . . . . . . . . . .. . 14
ARTICLE EIGHTEEN - RULES AND REGULATIONS . . . . . . . . . . . . . . . .14
18.01 RULES . . . . . . . . . . . . . . . . . . . . . . .. .14
18.02 ENFORCEMENT . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE NINETEEN - LANDLORD'S RESERVED RIGHTS . . . . . . . . . . . . .14
19.01 RESERVED RIGHTS . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWENTY - ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . .. . 15
20.01 IN GENERAL . . . . . . . . . . . . . . . . . . . . . .15
20.02 ENFORCEMENT . . . . . . . . . . . .. . . . . . . . . . 15
ARTICLE TWENTY-ONE - RELOCATION OF TENANT . . . . . . . . . . . . . . .15
ARTICLE TWENTY-TWO - REAL ESTATE BROKERS . . . . . .. . . . . . . . . . 15
ARTICLE TWENTY-THREE - MORTGAGEE PROTECTION . . . . . . . . . . . .. . 15
23.01 SUBORDINATION AND ATTORNMENT . . . . . . . . . . .. . 15
23.02 MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . .15
ARTICLE TWENTY-FOUR - NOTICES . . . . . . . . . . . . . . . . . . .. . 16
ARTICLE TWENTY-FIVE - MISCELLANEOUS . . . . . . . . . . . . . . . . . .16
25.01 LATE CHARGES . . . . . . . . . . . . . . . . . . . . .16
25.02 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . .16
25.03 DEFAULT UNDER OTHER LEASE . . . . .. . . . . . . . . . 16
25.04 OPTION . . . . . . . . . . . . . . . . . . . . . .. . .16
25.05 TENANT AUTHORITY . . . . . . . . . . . . . . . . . . .16
25.06 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . .16
25.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE . . . .17
25.08 EXCULPATION . . . . . . . . . . . . . . . . . .. . . . 17
25.09 ACCORD AND SATISFACTION . . . . . . . . . . . . . . . .17
25.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING . . . .. . 17
25.11 BINDING EFFECT . . . . . . . . . . . . . . . . .. .. . 17
25.12 CAPTIONS . . . . . . . . . . . . . . . . . . . .. . . .17
25.13 APPLICABLE LAW . . . . . . . . . . . . . . . . . .. 17
25.14 ABANDONMENT . . . . . . . . . . . . . . . . . . . . . 17
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES . . .. .. 17
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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 Lincoln Plaza, 000 X. Xxxxx, Xxxxxx,
Xxxxx 00000.
(2) LANDLORD: Metropolitan Life Insurance Company, a New York corporation.
(3) TENANT:
(a) Name: Great Southern Life Insurance Company
(b) State of incorporation or partnership: Texas
(4) DATE OF LEASE: February 19, 1997
(5) LENGTH OF LEASE TERM: approximately 120 months.
(6) PROJECTED COMMENCEMENT DATE: June 1, 1997
(7) PROJECTED EXPIRATION DATE: May 31, 2007
(8) BASE RENT.
Period from/to Monthly Annually Rate/SF of Rentable Area
Months 1-120 $58,230.67 $698,768.00 $14.00
(9) PREMISES: SUITE NO. 5000
49,912 SQUARE FEET OF RENTABLE AREA (approx.)
47,930 SQUARE FEET OF USABLE AREA (approx.)
(10) SECURITY DEPOSIT: $0.00
(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 or
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. Termination Option
EXHIBIT H. Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT I. Right of First Refusal
EXHIBIT J. Right to Lease Additional Space
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 $12.25
times the number of square feet of Rentable Area included in the Premises.
Tenant may use the allowance for furniture, fixtures and equipment and
installation and cable costs.
BUILDING: The "Building" shall mean the office building located upon the Land.
CENTRE: (Not Applicable).
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 system, 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.
EXPENSE STOP: The sum of $5.50 per square foot of Rentable Area in the Building.
EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by
operation of Article Two.
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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 biphenyls.
INDEMNITIES: 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 agrees to
provide according to the Workletter attached hereto as Exhibit "C".
LAND: The parcels of real estate on which the Building is located, as legally
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 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 month, or shorter, period until the Expiration Date.
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, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day and other
holidays recognized by the Landlord.
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 all operating expenses of the Exterior
Common Areas (defined below) plus Taxes, but exclusive of electrical costs.
Operating Expenses shall not include the cost of capital improvements,
depreciation, interest, lease commissions, principal payments on mortgage and
other non-operating debts of Landlord, and Landlord's general and administrative
expenses and overhead. 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) and all streets, sidewalks, walkways, and
landscaped areas.
PREMISES: The space located in the Building, described In Section 1.01(9) and
depicted on Exhibit "B" attached hereto.
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, system 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 (existing as of the date of this Lease): 1,109,081
square feet.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in Section
1.01(9), which represents the sum of (1) the "Usable Areas" 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 (2) a pro rate port 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 Rental 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 xxxxx
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 with acoustical ceiling tile in the Premises; (II) central air
conditioning and heating ducts and diffusers in a placement deemed typical by
Landlord and (III) lay-in fluorescent light fixtures in a placement deemed
typical by Landlord.
SUBSTANTIALLY COMPLETE: The completion of the initial improvements, except for
minor insubstantial details of construction, decoration or mechanical
adjustments which remain to be done, as verified and mutually agreed upon by
Tenant's architect and Landlord's architect.
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, franchise, 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.
TENANT DELAY: Any event or occurrence caused by Tenant which delays the
competition 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.
WORKLETTER: The Agreement regarding the manner of completion of the initial
improvements, attached hereto as Exhibit "C".
ARTICLE TWO
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
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 which is the earlier to
occur of:
(I) the Projected Commencement Date (provided the initial
improvements are Substantially Complete on or before such date; or
(II) May 1, 1997.
(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.
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: (I) the initial
improvements are not Substantially Complete (through no fault of Landlord), or
(ii) the holding over or retention of possession of any tenant, tenants or
occupants, the Landlord shall not be subject to any liability for the failure to
give possession on sold 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 and the initial improvements are Substantially
Complete, 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. 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 (I) Substantial Completion of the initial improvements, or (II) when Tenant
takes possession of the Premises, of any non-latent 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
and latent defects discovered within the first twelve (12) months of the Term,
of which Tenant gives Landlord notice within such time period, Tenant shall be
conclusively deemed to have accepted the Premises "AS IS" in the condition
existing on the date Tenant first takes possession, and to have waived all
claims relating to the then existing 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 my be specifically stated in this Lease
or in the Workletter.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the property management office specified in
Section 24(b)(1), 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, 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 independent of every other covenant in
this Lease.
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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 the following provisions:
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 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 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 ELECTRICAL COSTS
Notwithstanding anything contained in the Lease to the contrary, Operating
Expenses shall not Include the cost of electricity, but the Base Rent hereunder
shall be increased by an amount equal to Tenant's pro rate share of the cost of
electricity to the Building ("Electrical Costs"), which pro rate share shall be
equal to the product of (I) the Electrical Costs and (II) the fraction having a
numerator equal to the Rentable Area of the Premises and a denominator equal to
the Rentable Area in the Building. The Electrical Costs used to calculate
Tenant's pro rate share as heretofore described shall not include the cost of
any extraordinary electrical use by other tenants of the Building, where such
costs are charged to such tenants. Landlord may from time to time deliver to
Tenant an invoice for such pro rate share of Electrical Costs and Tenant shall
make payment of such amount to Landlord within three (3) days of delivery of the
invoice. Landlord from time to time shall also have the option to make a good
faith estimate of Tenant's pro rate share of the Electrical Costs for each
upcoming year and, upon thirty (30) days' written notice to Tenant, my require
the monthly payment of Base Rent to be adjusted in accordance with such
estimate. Any amounts paid based on such an estimate shall be subject to
adjustment as hereafter provided when actual Electrical Costs are available for
such year.
4.03 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 and Electrical Costs
for the previous calendar year. If for any calendar year additional Base Rent
was collected for the prior year, as a result. Of Landlord's estimate of
Operating Expenses and Electrical Costs in excess of the additional Base Rent
due during such prior year (as the case may be), then Landlord shall promptly
refund to Tenant any overpayment. 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
shall pay, not less then 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 then January 1
or terminates on a day other than December 31, the Excess for that part of the
first (1st) calendar year or lost calendar year during the Term of the Lease
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 (A) 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 (8)
the Expense Stop, as prorated pursuant to the provisions of this Subsection
4.03(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 4.03(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.
4.04 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses in
accordance with generally accepted
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 in which the Property is located) shall
have the right, for a period of sixty (60) 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
three (3) business days in advance. If Tenant does not object in writing to
Landlord's Statement within (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 Landlords 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.
4.05 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 an 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
ninety-five (95%) 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 (I) the actual Operating Expenses
incurred during any portion of such calendar year in which the Building is
occupied to the extent of ninety-five percent (95%) or more of the Rentable Area
therein, plus (ii) the Operating Expenses which would have been incurred had the
Building been occupied to the extent of ninety-five percent (95%) of the
Rentable Area therein; and Landlord shall have the option of making such
estimate in advance for any upcoming calendar year.
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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
(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:
(1) heat and air-conditioning in the Premises, Monday through Friday from
8:00 A.M. to 6:00 P.M., Saturday. From 8:00 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;
(2) tempered and cold water for use in lavatories in common with other
tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Premises five (5)
days per week, excluding National Holidays;
(4) Washing of the outside windows in the Premises weather permitting at
intervals reasonably determined by Landlord;
(5) 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;
(6) 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
(7) 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.
6.02 ELECTRICAL SERVICES
Tenants 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) two (2) xxxxx per square foot of Usable
Area within the Promises, at 120 volts, for Tenant's receptacle/equipment toads
(excluding Tenant's dedicated circuits). Collectively, Tenant's lighting and
receptacle/equipment shall not have an electrical design load greater then an
average of four (4) xxxxx per square foot of Usable Area within the Premises
("Standard Building Capacity"). The electrical costs component of Basic Costs Is
calculated on the basis of the Standard Building Capacity.
(b) The electrical facilities In the Building available for Tenant's
use are (1) 277/480 volts, 3 phase, for large equipment toads and fluorescent
lighting; and (II) 120/208 volts, 3 phase, for small equipment toads and
Incandescent lighting. Tenant shall notify Landlord, In writing, of any
equipment that has a rated electrical load greater then 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, sub-meters, wiring,
risers, transformers, electrical panels, air conditioning and other items
required by Landlord, in Landlord's reasonable discretion, to accommodate
Tenant's design toads and capacities that exceed Standard Building Capacity,
including, without limitation, the installation and maintenance thereof.
Installation costs may be paid out of Tenant's Allowance. 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 reasonable judgment, the same 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.
(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.
5
(e) Landlord may, at its option, upon not less then sixty (60) 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 Tenants 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 shall deliver to Landlord a written
request for such additional services or utilities prior to 3:00 P.M. on Monday
through Friday (except National Holidays) for service an those days, and prior
to 3:00 P.M. on the lost business day prior to Saturday, Sunday or a National
Holiday. For services or utilities requested by Tenant and furnished by
Landlord, Tenant shot[ 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, (which approval shall not be
unreasonably withheld or delayed), 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 rotated wiring in the Premises, which may be paid out of
Tenant's Allowance, 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 effects 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 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, unless such damages, injuries, losses, expenses, claims or causes of
action result in whole or in part from the gross negligence or willful
misconduct of Landlord.
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 breech 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 then sixty (60) 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. Except as otherwise provided herein,
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. In the event that Tenant shall give
notice to Landlord stating correctly that any cessation of a service described
in Section 6.01(1), (2). or (5), above (not caused by Tenant, its agents,
customers servants, contractors, employees, or invitees) shall have rendered all
or any portion of the Premises untenantable, and in the event that such
cessation continues for a period of five (5) or more consecutive business days
after Landlord receives such notice from Tenant, and in the further event that
Tenant ceases occupying such portion of the Premises solely on account of such
cessation, then Rent shall xxxxx as to such portion of the Premises from and
after the later to occur of (I) the sixth (6th) business day following the day
Tenant gave such notice, or (if) the date Tenant so ceases occupancy, until such
service is restored or Tenant reoccupies such portion of the Premises (whichever
date is earlier). For purposes of the foregoing sentence, Tenant shall not be
considered to have occupied the Premises if Tenant simply enters the Premises
for a temporary purpose such as accessing or retrieving vital business records.
In the event that the cessation of such service was not a result of or in
connection with fire or other casualty (in which case the provisions of Article
14 of this Lease, rather then this sentence, shall apply with respect to
Tenant's rights of termination of this Lease) and such service is not restored
within seventy-five (75) days after the later to occur of the sixth (6th)
business day following the date Tenant gave such notice or the date Tenant
ceased to occupy such portion of the Premises solely on account of the cessation
of such service and Tenant has not reoccupied such portion of the Premises, then
Tenant shall have the option to terminate this Lease as to that portion of the
Premises by giving written notice of such termination to Landlord within fifteen
(15) days of the expiration of such seventy-five (75) day period. Tenant's
remedies for failure to provide services as set out in the above two sentences
of this paragraph shall constitute Tenant's sole and exclusive remedies for any
interruption or malfunction of services called for in Section 6.01(1), (2) or
(5).
ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
6
7.01 POSSESSION AND USE Of PREMISES
(a) Tenant shall be entitled to possession of the Premises when the
Work to Substantially Complete. 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: (1) is unlawful or in
violation of any Law or Environmental Law; (2) may be dangerous to persons or
property or which my increase the cost of, or invalidate, any policy of
insurance carried on the Building or covering its operations; (3) 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 (4) would tend to create or continue
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; provided, however, Tenant shot I be entitled
to store and/or handle in, on or about the Property without the prior written
consent of Landlord such minimal amounts of Hazardous Materials as may be
necessary or desirable in the operation of Tenant's business and the storage,
use and/or disposal of which do not and shall not violate any applicable
Environmental Laws. 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 doom desirable, all of which
shall be completed at Landlord'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 indemnities from any and all loss, claim, expense, liability and
cost (including reasonable 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 in violation of the terms of this Lease.
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.
(c) Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990 (42 U.S.C $12101 at 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: (1) whether Tenant's business is
deemed a "public accommodation" or "commercial facility", (2) whether such
requirements are "readily achievable", and (3) whether a given alteration
effects a "primary function area" or triggers "path of travel" requirements. The
parties hereby agree that: (a) Landlord shall be responsible for implementing
ADA Title III compliance in the Common Areas, (b) 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, and (c) Landlord way perform, or require that Tenant
perform, and Tenant shall be responsible for the cost of, ADA Title III "path of
travel" requirements resulting directly from alterations in 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. Am. (1994), and regulations and
guidelines promulgated thereunder, as all of the same may be mended and
supplemented from time to time (collectively referred to herein as "TABA"
establish requirements for accessibility and barrier removal. The parties hereby
agree that, (1) with respect to the Premises, 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 Worktetter 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 (2) 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 my be necessitated solely as a result of Tenant's use
of the Premises.
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 so long as such activities
do not interfere with or interrupt Tenant's business activities. 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 Promises, however, any such
interference shall not be a default by Landlord.
(b) If Tenant shall not be 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 accord reasonable care to Tenants 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 system 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 without hindrance or interference from Landlord or
those claiming through Landlord, and subject to the rights of any Mortgagee.
7
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 system which are located within the Premises and are supplemental or
special to the Building's standard system; and (b) subject to section 16.04
below, the cost of performing any of said maintenance or repairs whether to the
Premises or to the Building caused solely 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.
8.02 TENANT'S MAINTENANCE
Subject to the provision 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 or delayed, 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 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'S ALTERATIONS
(a) Except for completion of the Initial Improvements pursuant to the
Workletter, the following provisions shall apply to the completion of " Tenant
Alterations:
(1) Tenant shall not, except as provided herein, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld
or delayed, make or cause to be made any Tenant Alterations in or to
the Premises or any Building system serving the Premises. Prior to
making any Tenant Alterations, Tenant shall give Landlord five (5) 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 or delayed, 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
reasonably acceptable to Landlord stating that the Tenant Alterations
will not in any way adversely effect 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. Notwithstanding the
foregoing, Landlord's approval shall not be required with respect to
any alteration(s) to the Premises which (a) together cost Fifteen
Thousand and No/100 Dollars ($15,000.00) or less, and (b) do not
affect, in any way, the mechanical, electrical, plumbing and/or
structural components of the Premises or Property.
(2) 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; provided, however, such construction fee shall not in
any event exceed two percent (2%) of the contract amount with respect
to such Tenant Alterations. 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.
(3) Tenant agrees to cause to be completed 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 Low in connection with completion of any Tenant
Alterations and shall immediately take such steps as are necessary to
remedy such violation. Such supervision or right to supervise by
Landlord or any approvals given by Landlord under this Lease shall not
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(a)(3)(i) and (ii) above or impose any liability upon Landlord In
connection with the performance of such work.
(b) All Tenant Alterations which cannot be removed without substantial
damage to the Premises, 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 s 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 indemnities against all costs and liabilities resulting
from such lien or claim for lian 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, way, upon prior
notice to Tenant, 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 (which consent shall
not be unreasonably withheld or delayed), 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 then Tenant. Except as otherwise provided
herein, 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 sixty (60) days prior to
the commencement date of the term of the proposed sublease or assignment. if
Tenant proposes to sublease less then 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 thirty (30) days after receipt of Tenant's
Notice (and &it required information). In no event may Tenant sublease any
portion of the Premises or assign the Lease to any other tenant of the Building.
Tenant shall submit for Landlord's approval (which approval shelf 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 losses 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 a bonafide 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 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 then 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.
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 such proposed sublease or
assignment of 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 shelf 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: (I) 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 (II) the following costs and expenses for the
subletting or assignment of such space: (1) brokerage commissions and attorneys'
fees and expenses, (2) advertising for subtenants or assignees; (3) the actual
costs paid in making any improvements or substitutions in the Premises required
by any sublease or assignment; and (4) "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
post, present or future, under this Lease, including any liability arising from
the exercise of any renewal or expansion option, to the extent expressly
permitted by
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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 assignee, 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 assure all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later then
fifteen (15) days prior to the effective date of the assignment. If Tenant shall
sublease the Premises an 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 Rent (and excess rent
described in Section 10.03 above) 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:
(1) Tenant fails to pay any installment or other payment of Rent including
without limitation Rent Adjustment Deposits or Rent Adjustments, within ten (10)
days after the later to occur of (A) the date of written notice from Landlord
that such sum is due, provided, however, that Landlord shall not be required to
give more then two (2) such notices during any twelve (12) month period during
the Term, or (B) the date on which such payment is due hereunder if Landlord has
previously given two (2) such notices with respect to payments due during the
prior eleven (11) months;
(2) 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
thirty (30) days after written notice thereof to Tenant (unless the default
involves a hazardous condition, which shall be cured forthwith); provided,
however, if such default is incapable of being cured within said thirty (30) day
period, Tenant shall have such period of time as may be necessary in order to
cure such default as long as Tenant has commences such cure within said initial
thirty (30) day period and hereafter diligently prosecutes such cure to
completion, not to exceed sixty (60) days.
(3) the interest of Tenant in this Lease is levied upon under execution or other
legal process;
(4) 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;
(5) Tenant is declared insolvent by law or any general assignment of Tenant's
property is made for the benefit of creditors;
(6) a receiver is appointed for Tenant or Tenants property, which appointment is
not discharged within thirty (30) days;
(7) 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;
(8) upon the dissolution of Tenant; or
(9) the failure to immediately surrender occupancy and deliver up the Premises
as provided in Paragraph 5 of the Termination Option Exhibit, Exhibit "G" to
this Lease.
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 lose 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, discounted to present value at the
rate of ten percent (10%) ("Discounted Future Rent").
(c ) In the event Landlord proceeds pursuant to subparagraph (a)(II)
above, Landlord shall be entitled to recover (1) the sum of all Rents and other
indebtedness accrued to the date of such termination of Tenant's possession,
plus (2) 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 terns
and conditions as are reasonably acceptable to Landlord. For purposes of such
reletting, Landlord is authorized to decorate, 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 mount 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).
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(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 sate without further payment or credit by Landlord to Tenant.
11.03 ATTORNEY'S FEES
Tenant shall pay upon demand, all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord and resulting from Tenant's Default.
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 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 casualty,
condemnation or Landlord excepted. Tenant shall deliver to Landlord all keys to
the Premises. Tenant shall be entitled to remove from the Promises 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 or which may be otherwise removed pursuant to the provisions
of this Lease. 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
towering 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 item described
above, Landlord may, at Tenants expense, remove any of such property therefrom
without any liability to Landlord and undertake, at Tenant's expense such
restoration work as my be required hereunder.
12.02 LANDLORD'S RIGHTS
All property which my 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 shalt 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 (I) double the monthly Rent payable for
the month immediately preceding the holding over (including increases for Rent
Adjustments which Landlord my reasonably estimate) or, (II) 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 actual
damages sustained 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.
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 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 then 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 negligence or willful act of Tenant or its agents, employees,
contractors or invitees, if all or any part of the Premises are rendered
untenentable 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.
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.
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 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.
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15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sate 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.
ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company or
companies reasonably 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 Two Million and No/100 Dollars (S2,000,000.00);
(b) Workers' Compensation and Employers, Liability Insurance for an amount of
not less then 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; and (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 One Million and No/100 Dollars ($1,000,000.00) 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.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following requirements. Each
policy shall (I) name Landlord and the indemnities as additional insureds, (II)
be issued by one or more responsible insurance companies licensed to do business
in Texas reasonably satisfactory to Landlord, (III) not permit coinsurance, (IV)
shall provide that such insurance may not be canceled or amended without thirty
(30) days' prior written notice to the Landlord, and (v) 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 then ten (10) days prior to the
Commencement Date and not less then ten (10) days prior to the expiration date
of each policy.
16.03 LANDLORDS 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 recognized responsibility, qualified to do business in
Texas on the Building in amounts not less then 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 term of the applicable policies, against fire and such
other risks as may be included in standard form 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 tosses 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 sit right of recovery against any party for tosses 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 to
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 ny tenant of space In the Building with respect to losses
payable under such policy or policies and/or (III) 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.
(c) Provided that Landlord's right of full recovery under all 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, agents 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 lose 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 by Tenant's insurance,
notwithstanding that such loss or damage my result from the negligence or fault
of Landlord, its servants, agents or employees, or such other tenant and the
servants, agents or employees thereof.
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(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 an 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 term 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 mission 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 material 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 indemnities from, and waives
all claims for, damage to person or property sustained by the Tenant or any
occupant of the Building or 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 indemnities. Tenant
hereby waives any consequential damages, compensation or claims for
inconvenience or lose 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, 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
Intentionally Deleted.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
to empty with the rules and regulations listed an Exhibit "D" attached hereto
and with all reasonable modifications and additions thereto which Landlord may
make from time to time.
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 premium
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: (1) To change the Building's name or street address upon thirty (30)
days' prior written notice to Tenant; (2) To install, affix and maintain all
signs on the exterior and for interior of the Building; (3) To designate and/or
approve prior to installation, all types of signs, window shades, blinds,
drapes, awnings or other similar item, and all internal lighting that may be
visible from the exterior of the Premises; (4) Upon reasonable notice to Tenant,
to display the Premises to prospective tenants at reasonable hours during the
last twelve (12) months of the Term; (5) 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; (6) To change the arrangement
and/or location of entrances or passageways, doors and doorways, corridors,
elevators, stairs, washroom 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; (7) 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 (8) 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.
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
Within twenty (20) 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 (I) 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
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(II) the dates to which Rent has been paid; (III) that Tenant is in the
possession of the Premises if that is the case; (Iv) that Landlord is not In
default under this Lease, or, If Tenant believes Landlord is in default, the
nature thereof in detail; (V) 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); (VI) that
the Premises have been completed in accordance with the term 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; and (VII) that if an
assignment of rents or teases has been served upon the Tenant by a Mortgagee,
Tenant will acknowledge receipt thereof and agree to be bound by the provisions
thereof; (VIII) that Tenant will give to the Mortgagee copies of all notices
required or permitted to be given by Tenant to Landlord; and (IX) 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
Intentionally Deleted.
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that Tenant has not dealt with any real estate broker, sales
person, or finder in connection with this Lease other then Landlord's broker,
Lincoln Property Company (the "Broker"), and no such person initiated or
participated in the negotiation of this Lease, or showed the Premises to Tenant
other than Broker Landlord shall be responsible for the payment of all
commissions to the Broker, if any, specified in this Article.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times to (I)
any ground or underlying lease of the Real Property, now or hereafter existing,
and all amendments, renewals and modifications to any such lease, and (II) the
lien of my first mortgage or trust deed now or hereafter encumbering fee title
to the Real Property and/or the lease hold 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 my be, provided, however, that such purchaser or ground
lessor shall not be (I) bound by any payment of Rent for more then 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 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 Mortgages 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's 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. In
addition, Landlord will use its reasonable efforts to obtain a non-disturbance
agreement from any future mortgagee. Which shall be acceptable to Tenant if in
form and content, except for the completion of the applicable blanks therein,
identical to the form of Subordination, Non-Disturbance and Attornment Agreement
attached hereto as Exhibit "H" and incorporated herein by reference for all
purposes or shall contain term and conditions no more adverse to Tenant then
contained in the form attached hereto as Exhibit "H" then such form of
non-disturbance agreement shall be deemed reasonably satisfactory to Tenant.
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 way 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 my 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 mall, return receipt requested, postage
prepaid.
15
(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:
(1) Notices to Landlord shall be addressed:
Lincoln Property Company
Attn: Xxxx Xxxxx or Building Manager
000 X. Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
with a copy to the following:
Metropolitan Life Insurance Company
Attn: Assistant Vice-President
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(2) Notices to Tenant shall be addressed:
000 X. Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
with a copy to the following:
Jenkens & Xxxxxxxxx, A Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
(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.
ARTICLE TWENTY-FIVE
MISCELLANEOUS
25.01 LATE CHARGES
All payments required hereunder (other then 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
Intentionally Deleted.
25.03 DEFAULT UNDER OTHER LEASE
Intentionally Deleted.
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.
25.06 ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto and the Workletter contain the entire
agreement between Landlord and Tenant concerning the Premises and there are no
other agreements, either oral or written. This Lease shall not be modified
except by a writing executed by Landlord and Tenant.
25.07 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 material and
adverse change in the rights and obligations of Tenant hereunder, then Tenant
agrees that the Lease may be so modified.
16
25.08 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.
25.09 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount then any
installment or payment of Rent due shall be deemed to be other than on account
of the mount 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.
25.10 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.
25.11 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.
25.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as smatter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
25.13 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 I, 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 then 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.
25.14 ABANDONMENT
In the event Tenant abandons the Promises but is otherwise in compliance with
all the terms, covenants and conditions of this Lease, Landlord shall (I) have
the right to enter into the Premises in order to show the space to prospective
tenants, (II) 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 (III) 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.
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
Except as otherwise provided heroin, 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 upon 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.
25.16 TERMINATION OF EXISTING LEASE
"As of the Commencement Date of this Lease, Tenant's existing lease between
Tenant and One Lincoln Plaza - A Joint Venture, Landlord's predecessor in
interest, dated August 4, 1993 as amended by the First Amendment to Office Lease
Agreement dated March 4, 1994 ("First Amendment"), as amended by the Second
Amendment to Office Lease Agreement dated April 18, 1995 ("Second Amendment")
and as amended by the Third Amendment to Office Lease Agreement dated September
18, 1995 ("Third Amendment") covering 50,961 s.f of Rentable Area shall be
terminated and of no further force or effect."
NOTICE OF INDEMNIFICATION: THE PARTIES TO THIS LEASE HEREBY ACKNOWLEDGE
AND AGREE THAT THIS LEASE (AND ATTACHED EXHIBITS)CONTAINS CERTAIN
INDEMNIFICATION PROVISIONS.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Section 1.01(4) hereof.
LANDLORD: TENANT:
METROPOLITAN LIFE INSURANCE GREAT SOUTHERN LIFE INSURANCE COMPANY
COMPANY
By: __________________________ By: _________________________________
Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Secretary
Asst. Vice-President
Date: ___2/14/97______________ Date: _2/11/97_______________________
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FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
This First Amendment to Office Lease Agreement ("Amendment"), by and
between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
("Landlord"), and GREAT SOUTHERN LIFE INSURANCE COMPANY., a Texas corporation
("Tenant"), is dated the 2nd day of December, 1997.
WITNESSETH:
WHEREAS, Landlord and Tenant heretofore entered into that certain
Office Lease Agreement dated February 19, 1997 ("Lease"), under and pursuant to
the terms of which Tenant has leased from Landlord certain office space known as
Suite 5000 and containing approximately 49,912 square feet of Rentable Area
("Premises") in that certain office building commonly known as "One Lincoln
Plaza" ("Building"), which is located at 000 X. Xxxxx Xx., Xxxxxx, Xxxxx, as
more particularly described in the Lease; and
WHEREAS, Tenant desires to add approximately 7,664 square feet of
Rentable Area on the 31 floor ("Expansion Space") (being approximately 6,663
square feet of Usable Area) to the Existing Premises, which Expansion Space is
outlined on Exhibit "A' attached hereto; and
WHEREAS, Tenant agrees, within thirty (30) days after receipt of notice
from Landlord, to vacate the Expansion Space; should Tenant elect not to
exercise its right to lease additional space, as more particularly defined on
Schedule 1 to Exhibit "J" of the Lease; and
WHEREAS, Tenant and Landlord agree to amend the suite number from Suite
5000 to Suite 500.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Lease, the parties hereto do hereby
covenant and agree as follows:
1. Defined Terms. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto in the
Lease, except to the extent that the meaning of such term is specifically
modified by the provisions hereof. In addition, other terms not defined in the
Lease but defined herein will, when delineated with initial capital letters,
have the meanings ascribed thereto in this Amendment. Terms and phrases which
are not delineated by initial capital letters shall have the meanings commonly
ascribed thereto.
2. Premise. From and after the Expansion Space Commencement Date, the
term "Premises" (as defined in Article 1.01(9) of the Lease) shall include the
Expansion Space for all purposes, including, without limitation, the
determination of Tenant's share of Basic Costs, and thereafter, the "Premises"
shall be comprised of the Existing Premises and the Expansion Space, and the
Premises are stipulated for all purposes to contain approximately 57,576 square
feet of Rentable Area. Being approximately 54,593 square feet of Usable Area.
3. Expansion Space Commencement Date, As used herein, the "Expansion
Space Commencement Date" Shall mean December 1, 1997.
4. Lease Term. The Lease Term for the Expansion Space ("Expansion Space
Lease Term") shall mean a term commencing of the Expansion Space Commencement
Date and continuing on a month to month basis expiring on June 30, 1998.
Notwithstanding the foregoing, and without changing the Lease Term with respect
to the existing Premises, the Lease Term for the Existing Premises will expire
on May 31, 2007.
5. Base Rental. Article 1.01(8) of the Lease shall be
amended , and the following additional paragraphs shall be inserted in the
Lease:
With respect to the Expansion Space, commencing on the Expansion Space
Commencement Date and continuing through, June 30, 1998, "Base Rental"
shall mean the sum of $12.00 per square foot of Rentable Area within
the Expansion Space per annum, all as adjusted pursuant to Article 4.01
of the Lease. Notwithstanding the foregoing, and without changing the
Base Rental with respect to the Existing Premises, Base Rental for the
Existing Premises shall remain at $14.00 per square feet of Rentable
Area within the Existing Premises.
6. Commissions. Tenant represents and warrants that no broker has
represented it in this Amendment transaction and that no broker is owed a
commission or fee in connection with the consummation of this Amendment
transaction. Tenant hereby indemnities and holds Landlord harmless against any
loss, claim, expense or liability with respect to any commissions or brokerage
fees claimed on account of the amendment of this Lease or expansion of the
Premises hereunder, if applicable, due to any action of Tenant. The provisions
of this Paragraph 6 shall survive the expiration of the Lease Term or any
renewal or extension thereof.
7. Exhibits. The following exhibit and schedule are attached
hereto and incorporated herein and made a part of this Lease for all purposes:
Exhibit "Al Floor Plan of Expansion Space
8. Effect of Amendment. Except as expressly amended by the provisions
hereof, the terms and provisions contained in the Lease shall continue to govern
the rights and obligations of the parties; and all provisions and covenants in
the Lease shall remain in full force and effect as stated therein, except to the
extent specifically modified by the provisions of this Amendment. This Amendment
and the Lease shall be construed as one instrument.
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT - Page 1
NOTICE OF INDEMNIFICATION: THE PARTIES TO THIS AMENDMENT HEREBY ACKNOWLEDGE AND
AGREE THAT THIS AMENDMENT AND ATTACHED EXHIBITS CONTAIN CERTAIN INDEMNIFICATION
PROVISIONS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment in
multiple counterparts as of the last day and year written below.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By:_______________________________
Xxxxx X. Xxxxxx,
Date:______12/2/97______________
Assistant Vice President
TENANT:
GREAT SOUTHERN LIFE INSURANCE COMPANY
a Texas corporation
By:
Name:
Date: 11/18/97
Secretary
