LEASE GATEWAY RIDGECREST, INC., a California corporation, Landlord, and PETRO RESOURCES CORPORATION a Delaware corporation, Tenant
EXHIBIT
10.14
LEASE
GATEWAY
RIDGECREST, INC.,
a
California corporation,
Landlord,
and
PETRO
RESOURCES CORPORATION
a
Delaware corporation,
Tenant
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TABLE
OF CONTENTS
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PAGE
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USE
AND RESTRICTIONS ON USE
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1
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2.
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TERM
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1
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3.
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RENT
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2
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4.
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RENT
ADJUSTMENTS
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2
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5.
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SECURITY
DEPOSIT
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5
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6.
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ALTERATIONS
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5
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7.
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REPAIR
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6
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8.
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LIENS
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7
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9.
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ASSIGNMENT
AND SUBLETTING
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7
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10.
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INDEMNIFICATION
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9
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11.
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INSURANCE
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9
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12.
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WAIVER
OF SUBROGATION
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10
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13.
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SERVICES
AND UTILITIES
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10
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14.
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HOLDING
OVER
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11
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15.
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XXXXXXXXXXXXX
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00
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00.
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RULES
AND REGULATIONS
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11
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17.
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REENTRY
BY LANDLORD
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11
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18.
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DEFAULT
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12
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19.
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REMEDIES
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12
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20.
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TENANT’S
BANKRUPTCY OR INSOLVENCY
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15
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21.
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QUIET
ENJOYMENT
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16
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22.
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CASUALTY
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16
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23.
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EMINENT
DOMAIN
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17
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24.
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SALE
BY LANDLORD
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17
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25.
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ESTOPPEL
CERTIFICATES
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17
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26.
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SURRENDER
OF PREMISES
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17
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27.
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NOTICES
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18
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28.
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TAXES
PAYABLE BY TENANT
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18
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29.
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RELOCATION
OF TENANT
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19
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30.
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PARKING
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19
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31.
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DEFINED
TERMS AND HEADINGS
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20
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32.
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TENANT’S
XXXXXXXXX
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00
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00.
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FINANCIAL
STATEMENTS AND CREDIT REPORTS
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21
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34.
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COMMISSIONS
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21
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35.
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TIME
AND APPLICABLE LAW
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21
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i
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TABLE
OF CONTENTS
(continued)
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PAGE
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36.
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SUCCESSORS
AND ASSIGNS
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21
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37.
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ENTIRE
AGREEMENT
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21
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38.
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EXAMINATION
NOT OPTION
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21
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39.
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RECORDATION
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21
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40.
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RENEWAL
OPTION
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21
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41.
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EXPANSION
OPTION
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22
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42.
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LIMITATION
OF LIABILITY
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23
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EXHIBIT
A
- FLOOR PLAN DEPICTING THE PREMISES
EXHIBIT
A-1 - SITE PLAN
EXHIBIT
B
- INITIAL ALTERATIONS
EXHIBIT
C
- COMMENCEMENT DATE MEMORANDUM
EXHIBIT
D
- RULES AND REGULATIONS
ii
GROSS
(BY) OFFICE LEASE
REFERENCE
PAGES
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BUILDING:
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000
Xxxx Xxx Xxxxxxxxx
Xxxxxxx,
Xxxxx 00000
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LANDLORD:
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Gateway
Ridgecrest, Inc.,
a
California corporation
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LANDLORD’S
ADDRESS:
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Gateway
Ridgecrest, Inc.,
c/o
RREEF Management Company
0000
Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attention:
District Manager (Post Oak, Houston)
With
a copy to:
RREEF
Management Company
000
Xxxx Xxx Xxxxxxxxx
Xxxxxxx,
Xxxxx 00000
Attention:
Property Manager
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WIRE
INSTRUCTIONS AND/OR ADDRESS FOR RENT PAYMENT:
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Gateway
Ridgecrest, Inc.,
File
#55895
Xxx
Xxxxxxx, XX 00000-0000
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LEASE
REFERENCE DATE:
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September
20, 2006
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TENANT:
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Petro
Resources Corporation,
a
Delaware corporation
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TENANT’S
NOTICE ADDRESS:
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(a)
As of beginning of Term:
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Petro
Resources Corporation
000
Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxxxxxxx
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(b)
Prior to beginning of Term (if different):
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Petro
Resources Corporation
0000
Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxxxxxxx
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PREMISES
ADDRESS:
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000
Xxxx Xxx Xxxxxxxxx,
Xxxxx
000
Xxxxxxx,
Xxxxx 00000
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PREMISES
RENTABLE AREA:
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Approximately
2,896
sq. ft. (for outline of Premises see Exhibit
A)
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SCHEDULED
COMMENCEMENT DATE:
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February
1,
2007
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iii
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TERM
OF LEASE:
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Approximately
five
(5)
years, one
(1)
month and zero
(0)
days beginning on the Commencement Date and ending on the Termination
Date. The period from the Commencement Date to the last day of the
same
month is the “Commencement Month.”
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TERMINATION
DATE:
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The
last day of the sixty
first
(61st)
full calendar month after (if the Commencement Month is not a full
calendar month), or from and including (if the Commencement Month
is a
full calendar month), the Commencement Month.
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ANNUAL
RENT and MONTHLY INSTALLMENT OF RENT
(Article
3):
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Lease
Months *
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Rentable
Square
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Annual
Rent
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Annual
Rent
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Monthly
Installment
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from
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through
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Footage
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Per
Square Foot
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of
Rent
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2/1/07
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2/28/07
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2,896
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$0.00
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$0.00
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$0.00
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3/1/07
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1/31/08
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2,896
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$20.00
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$57,920.00
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$4,826.67
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2/1/08
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1/31/09
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2,896
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$21.00
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$60,816.00
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$5,068.00
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2/1/09
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1/31/10
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2,896
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$21.50
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$62,264.00
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$5,188.67
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2/1/10
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1/31/11
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2,896
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$22.00
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$63,712.00
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$5,309.33
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2/1/11
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2/29/12
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2,896
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$22.50
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$65,160.00
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$5,430.00
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*
The
Lease months are subject to revision upon determination of the actual
Commencement Date and Termination Date
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BASE
YEAR (EXPENSES):
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January
1, 2007
to December 31,
2007
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BASE
YEAR (TAXES):
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Taxes
for January 1, 2007
to December 31,
2007
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TENANT’S
PROPORTIONATE SHARE:
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1.6382%
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SECURITY
DEPOSIT:
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$5,430.00
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ASSIGNMENT/SUBLETTING
FEE:
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$1,000.00
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AFTER-HOURS
HVAC COST:
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$75.00
per hour, subject to change at any time
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PARKING
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Up
to nine
(9)
passes for unreserved
spaces; Tenant may upon request, convert up to three
(3)
spaces to reserved.
Unreserved
Parking Charges
2/1/07
- 1/31/09
$0.00 per space/month
2/1/09
- 2/29/12
$35.00 per space/month
Reserved
Parking Charges
Months
2/1/07
- 2/29/12 $65.00
per space/month
Applicable
sales tax shall be added to the foregoing rates.
The
Lease months above are subject to revision upon determination of
the
actual Commencement Date and Termination Date.
(See
Article 30 on Parking)
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iv
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REAL
ESTATE BROKER DUE COMMISSION:
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Xxxxxxx
& Wakefield of Texas (Landlord)
Xxxxxxxx
Xxxx Company (Tenant)
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TENANT’S
SIC CODE:
TENANT’S
NAICS CODE
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211111
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BUILDING
BUSINESS HOURS:
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Mondays
through Fridays: 7.00 a.m. until 6.00 p.m. Saturdays: 8.00 a.m. until
1.00
p.m.
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AMORTIZATION
RATE:
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Ten
percent (10%)
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[Signature
Page Follows]
v
The
Reference Pages information is incorporated into and made a part of the Lease.
In the event of any conflict between any Reference Pages information and the
Lease, the Lease shall control. This Lease includes Exhibits A through D,
all of
which are made a part of this Lease.
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LANDLORD:
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TENANT:
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GATEWAY
RIDGECREST, INC.,
a
California corporation
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PETRO
RESOURCES CORPORATION
a
Delaware corporation
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By: RREEF
Management Company,
a Delaware corporation
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PETRO
RESOURCES CORPORATION
a
Delaware corporation
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By:
/s/
Xxx
Xxxxx
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By:
/s/
Xxxxxx X.
Xxxxxxxxxx
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Name:
Xxx Xxxxx
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Name:
Xxxxxx
X. Xxxxxxxxxx
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Title:
Managing Director
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Title:
President
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By:
/s/
Xxx X.
Xxxxxxxx
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Name:
Xxx X. Xxxxxxxx
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Title:
Vice President, Regional Director
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Dated:
September 30, 2006
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vi
LEASE
By
this
Lease Landlord leases to Tenant and Tenant leases from Landlord the Premises
in
the Building as set forth and described on the Reference Pages. The Premises
are
depicted on the floor plan attached hereto as Exhibit
A,
and the
Building is depicted on the site plan attached hereto as Exhibit
A-1.
The
Reference Pages, including all terms defined thereon, are incorporated as part
of this Lease.
1.1 The
Premises are to be used solely for general office purposes. Tenant shall not
do
or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building or injure, annoy, or disturb them, or allow the Premises to be used
for
any improper, immoral, unlawful, or objectionable purpose, or commit any waste.
Tenant shall not do, permit or suffer in, on, or about the Premises the sale
of
any alcoholic liquor without the written consent of Landlord first obtained.
Tenant shall comply with all governmental laws, ordinances and regulations
applicable to the use of the Premises and its occupancy and shall promptly
comply with all governmental orders and directions for the correction,
prevention and abatement of any violations in the Building or appurtenant land,
caused or permitted by, or resulting from the specific use by, Tenant, or in
or
upon, or in connection with, the Premises, all at Tenant’s sole expense. Tenant
shall not do or permit anything to be done on or about the Premises or bring
or
keep anything into the Premises which will in any way increase the rate of,
invalidate or prevent the procuring of any insurance protecting against loss
or
damage to the Building or any of its contents by fire or other casualty or
against liability for damage to property or injury to persons in or about the
Building or any part thereof.
1.2 Tenant
shall not, and shall not direct, suffer or permit any of its agents,
contractors, employees, licensees or invitees (collectively, the “Tenant
Entities”) to at any time handle, use, manufacture, store or dispose of in or
about the Premises or the Building any (collectively “Hazardous Materials”)
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products
or
derivatives or any substance subject to regulation by or under any federal,
state and local laws and ordinances relating to the protection of the
environment or the keeping, use or disposition of environmentally hazardous
materials, substances, or wastes, presently in effect or hereafter adopted,
all
amendments to any of them, and all rules and regulations issued pursuant to
any
of such laws or ordinances (collectively “Environmental Laws”), nor shall Tenant
suffer or permit any Hazardous Materials to be used in any manner not fully
in
compliance with all Environmental Laws, in the Premises or the Building and
appurtenant land or allow the environment to become contaminated with any
Hazardous Materials. Notwithstanding the foregoing, Tenant may handle, store,
use or dispose of products containing small quantities of Hazardous Materials
(such as aerosol cans containing insecticides, toner for copiers, paints, paint
remover and the like) to the extent customary and necessary for the use of
the
Premises for general office purposes; provided that Tenant shall always handle,
store, use, and dispose of any such Hazardous Materials in a safe and lawful
manner and never allow such Hazardous Materials to contaminate the Premises,
Building and appurtenant land or the environment. Tenant
shall protect, defend, indemnify and hold each and all of the Landlord Entities
(as defined in Article 31) harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney’s fees) incurred by
reason of any actual or asserted failure of Tenant to fully comply with all
applicable Environmental Laws, or the presence, handling, use or disposition
in
or from the Premises of any Hazardous Materials by Tenant or any Tenant Entity
(even though permissible under all applicable Environmental Laws or the
provisions of this Lease), or by reason of any actual or asserted failure of
Tenant to keep, observe, or perform any provision of this Section
1.2.
Such
indemnity shall survive the termination of this Lease with respect to any claims
or liability accruing prior to such termination.
1.3 Tenant
and the Tenant Entities will be entitled to the non-exclusive use of the common
areas of the Building as they exist from time to time during the Term, including
the parking facilities, subject to Landlord’s rules and regulations regarding
such use. However, in no event will Tenant or the Tenant Entities park more
vehicles in the parking facilities than Tenant’s Proportionate Share of the
total parking spaces available for common use. The foregoing shall not be deemed
to provide Tenant with an exclusive right to any parking spaces or any guaranty
of the availability of any particular parking spaces or any specific number
of
parking spaces.
1
2. TERM.
2.1 The
Term
of this Lease shall begin on the date (“Commencement Date”) which shall be the
later of the Scheduled Commencement Date as shown on the Reference Pages and
the
date that Landlord shall tender possession of the Premises to Tenant with all
of
the Initial Work Substantially Completed in accordance with the attached
Exhibit
B.
The
Term shall terminate on the date as shown on the Reference Pages (“Termination
Date”), unless sooner terminated by the provisions of this Lease. Tenant shall,
at Landlord’s request, execute and deliver a memorandum agreement provided by
Landlord in the form of Exhibit
C
attached
hereto, setting forth the actual Commencement Date, Termination Date and, if
necessary, a revised rent schedule. Should Tenant fail to do so within thirty
(30) days after Landlord’s request, the information set forth in such memorandum
provided by Landlord shall be conclusively presumed to be agreed and
correct.
2.2 Tenant
agrees that Landlord shall not be liable if Landlord is unable to tender
possession of the Premises with all of the Initial Work Substantially Completed
in accordance with Exhibit
B
as of
the Scheduled Commencement Date. No such failure to give possession on the
Scheduled Commencement Date shall affect the obligations of Tenant under this
Lease, except that if Landlord is unable to deliver possession of the Premises
within ninety (90) days after the Scheduled Commencement Date (other than as
a
result of strikes, shortages of materials, holdover tenancies or similar matters
beyond the reasonable control of Landlord and Tenant is notified by Landlord
in
writing as to such delay), Tenant shall have the option to terminate this Lease
unless said delay is as a result of: (a) Tenant’s failure to agree to plans and
specifications and/or construction cost estimates or bids; (b) Tenant’s request
for materials, finishes or installations other than Landlord’s standard except
those, if any, that Landlord shall have expressly agreed to furnish without
extension of time agreed by Landlord; (c) Tenant’s change in any plans or
specifications; or, (d) performance or completion by a party employed by Tenant
(each of the foregoing, a “Tenant Delay”). If any delay is the result of a
Tenant Delay, the Commencement Date and the payment of rent under this Lease
shall be accelerated by the number of days of such Tenant Delay.
2.3 In
the
event Landlord permits Tenant, or any agent, employee or contractor of Tenant,
to enter, use or occupy the Premises prior to the Commencement Date, such entry,
use or occupancy shall be subject to all the provisions of this Lease other
than
the payment of rent, including, without limitation, Tenant’s compliance with the
insurance requirements of Article 11. Said early possession shall not advance
the Commencement Date or the Termination Date.
3.1 Tenant
agrees to pay to Landlord the Annual Rent in effect from time to time by paying
the Monthly Installment of Rent then in effect on or before the first day of
each full calendar month during the Term, except that the first full month’s
rent shall be paid upon the execution of this Lease and shall be credited
against rent when the same first becomes due and payable. The Monthly
Installment of Rent in effect at any time shall be one-twelfth (1/12) of the
Annual Rent in effect at such time. Rent for any period during the Term which
is
less than a full month shall be a prorated portion of the Monthly Installment
of
Rent based upon the number of days in such month. Said rent shall be paid to
Landlord, without deduction or offset and without notice or demand, at the
Rent
Payment Address, as set forth on the Reference Pages, or to such other person
or
at such other place as Landlord may from time to time designate in writing.
If
an Event of Default occurs, Landlord may require by notice to Tenant that all
subsequent rent payments be made by an automatic payment from Tenant’s bank
account to Landlord’s account, without cost to Landlord. Tenant must implement
such automatic payment system prior to the next scheduled rent payment or within
ten (10) days after Landlord’s notice, whichever is later. Unless specified in
this Lease to the contrary, all amounts and sums payable by Tenant to Landlord
pursuant to this Lease shall be deemed additional rent.
3.2 Tenant
recognizes that late payment of any rent or other sum due under this Lease
will
result in administrative expense to Landlord, the extent of which additional
expense is extremely difficult and economically impractical to ascertain. Tenant
therefore agrees that if rent or any other sum is not paid when due and payable
pursuant to this Lease, a late charge shall be imposed in an amount equal to
the
greater of: (a) Fifty Dollars ($50.00), or (b) six percent (6%) of the unpaid
rent or other payment. The amount of the late charge to be paid by Tenant shall
be reassessed and added to Tenant’s obligation for each successive month until
paid. The provisions of this Section 3.2 in no way relieve Tenant of the
obligation to pay rent or other payments on or before the date on which they
are
due, nor do the terms of this Section 3.2 in any way affect Landlord’s remedies
pursuant to Article 19 of this Lease in the event said rent or other payment
is
unpaid after date due.
2
4. RENT
ADJUSTMENTS.
4.1 For
the
purpose of this Article 4, the following terms are defined as
follows:
4.1.1 Lease
Year:
Each
fiscal year (as determined by Landlord from time to time) falling partly or
wholly within the Term.
4.1.2 Expenses:
All
costs of operation, maintenance, repair, replacement and management of the
Building (including the amount of any credits which Landlord may grant to
particular tenants of the Building in lieu of providing any standard services
or
paying any standard costs described in this Section 4.1.2 for similar tenants),
as determined in accordance with generally accepted accounting principles,
including the following costs by way of illustration, but not limitation: water
and sewer charges; insurance charges of or relating to all insurance policies
and endorsements reasonably deemed by Landlord to be necessary or desirable
and
relating in any manner to the protection, preservation, or operation of the
Building or any part thereof; utility costs, including, but not limited to,
the
cost of heat, light, power, steam, gas; waste disposal; the cost of janitorial
services; the cost of security and alarm services (including any central station
signaling system); costs of cleaning, repairing, replacing and maintaining
the
common areas, including parking and landscaping, window cleaning costs; labor
costs; costs and expenses of managing the Building including management fees;
air conditioning maintenance costs; elevator maintenance fees and supplies;
material costs; equipment costs including the cost of maintenance, repair and
service agreements and rental and leasing costs; purchase costs of equipment;
current rental and leasing costs of items which would be capital items if
purchased; tool costs; licenses, permits and inspection fees; wages and
salaries; employee benefits and payroll taxes; accounting and legal fees; any
sales, use or service taxes incurred in connection therewith. In
addition, Landlord shall be entitled to recover, as additional rent (which,
along with any other capital expenditures constituting Expenses, Landlord may
either include in Expenses or cause to be billed to Tenant along with Expenses
and Taxes but as a separate item), Tenant’s Proportionate Share of: (i) an
allocable portion of the cost of capital improvement items which are reasonably
calculated to reduce operating expenses; (ii) the cost of fire sprinklers and
suppression systems and other life safety systems; and (iii) other capital
expenses which are required under any governmental laws, regulations or
ordinances which were not applicable to the Building at the time it was
constructed; but the costs described in this sentence shall be amortized over
the reasonable life of such expenditures in accordance with such reasonable
life
and amortization schedules as shall be determined by Landlord in accordance
with
generally accepted accounting principles, with interest on the unamortized
amount at one percent (1%) in excess of the Wall Street Journal prime lending
rate announced from time to time. Except as expressly permitted in this Lease,
Expenses shall not include:
(a) Leasing
commissions, attorneys’ fees, costs and disbursements and other expenses
incurred in connection with negotiations for leases with tenants and other
occupants of the building, and similar costs incurred in connection with
disputes between Landlord and tenants of the Building;
(b) Costs
incurred in renovating or otherwise improving, decorating or redecorating space
for tenants or other occupants in the Building or vacant leasable space in
the
Building;
(c) Costs
of
correcting defects (including latent defects) in the initial construction of
the
Building, except that, for the purposes of this subparagraph, conditions
resulting from ordinary wear and tear and use, vandalism, and other matters
not
occasioned by construction defects shall not be deemed defects;
(d) Landlord’s
costs of electricity and other services sold to tenants and which are not
standard for the Building, or for which Landlord is reimbursed by tenants as
an
additional charge or rental;
(e) Depreciation
of the Building and all equipment, fixtures, improvements and facilities used
in
connection therewith;
(f) Material
expenses in connection with services or other benefits of a type which are
not
standard for the Building and which are not available to Tenant without specific
charge therefor, but which are provided to another tenant or occupant without
specific charge therefor;
(g) Costs
(including penalties, fines and associated legal expenses) incurred due to
the
violation by Landlord of the terms and conditions of the Lease, or any
applicable federal, state and local governmental laws, ordinances, orders,
rules
and regulations, which costs would not have been incurred but for such violation
by Landlord and which violation has not been caused by any act or omission
by
Tenant or a Tenant Entity;
3
(h) Overhead
and profit increments paid to subsidiaries, partners or other affiliates of
Landlord for services on or to the Building, any appurtenant garage or the
property on which the Premises are located, to the extent that the costs of
such
services exceed competitive costs for such services rendered by persons or
entities of similar skill, competence and experience, other than a subsidiary
of
Landlord;
(i) Interest
on debt or amortization payments on any mortgage or mortgages, and rental under
any ground or underlying leases or lease (except to the extent the same may
be
made to pay or reimburse, or may be measured by, ad valorem taxes);
(j) Costs
of
Landlord’s general corporate overhead and general administrative expenses, which
would not be chargeable to Operating Expenses of the Building, determined in
accordance with generally accepted accounting principles, consistently applied;
and all costs related to maintaining Landlord’s existence as a corporation,
partnership or other entity;
(k) Any
compensation paid to clerks, attendants or other persons in commercial
concessions, if any, operated by Landlord.;
(l) All
services for which Tenant (or any other tenant of the Building) specifically
reimburses Landlord or for which Tenant pays directly to third persons;
(m)
Costs
incurred in installing, operating and maintaining any specialty not normally
installed, operated and maintained in buildings comparable to the Building,
and
not necessary, in Landlord’s reasonable discretion, for the operation, repair,
maintenance and provision of required services for the Building, such as an
antenna, broadcasting facilities (other than health, safety, life support and
security systems), luncheon club, athletic or recreational club; and
(n) Advertising
and promotional expenses incurred to publicize the Building primarily for
leasing purposes.
4.1.3 Taxes:
Real
estate taxes and any other taxes, charges and assessments which are levied
with
respect to the Building or the land appurtenant to the Building, or with respect
to any improvements, fixtures and equipment or other property of Landlord,
real
or personal, located in the Building and used in connection with the operation
of the Building and said land, any payments to any ground lessor in
reimbursement of tax payments made by such lessor; and all fees, expenses and
costs incurred by Landlord in investigating, protesting, contesting or in any
way seeking to reduce or avoid increase in any assessments, levies or the tax
rate pertaining to any Taxes to be paid by Landlord in any Lease Year; and
all
taxes of whatsoever nature that are imposed wholly or in part in substitution
for, or in lieu of, any of the taxes, charges, and assessments included in
this
definition of Taxes. Taxes shall not include any estate or inheritance tax,
or
tax imposed upon any transfer by Landlord of its interest in this Lease or
the
Building or any taxes to be paid by Tenant pursuant to Article 28. If, due
to a
change in a method of taxation, any tax shall be levied against Landlord wholly
or in part in substitution for, or in lieu of, tax otherwise recoverable under
this Section 4.1.3, such other tax shall be deemed to be a Tax for the purposes
of this Section 4.1.3 to the extent not reimbursable from Tenant to Landlord
under Article 28 of this Agreement.
4.2 If
in any
Lease Year, (i) Expenses paid or incurred shall exceed Expenses paid or incurred
in the Base Year (Expenses) and/or (ii) Taxes paid or incurred by Landlord
in
any Lease Year shall exceed the amount of such Taxes which became due and
payable in the Base Year (Taxes), Tenant shall pay as additional rent for such
Lease Year Tenant’s Proportionate Share of such excess.
4
4.3 The
annual determination of Expenses and Taxes shall be made by Landlord and shall
be binding upon Landlord and Tenant, subject to the provisions of this Section
4.3. During the Term, Tenant may review, at Tenant’s sole cost and expense, the
books and records supporting such determination in an office of Landlord, or
Landlord’s agent, during normal business hours, upon giving Landlord five (5)
days advance written notice within sixty (60) days after receipt of such
determination, but in no event more often than once in any one (1) year period,
subject to execution of a confidentiality agreement acceptable to Landlord,
and
provided that if Tenant utilizes an independent accountant to perform such
review it shall be one of national standing which is reasonably acceptable
to
Landlord, is not compensated on a contingency basis and is also subject to
such
confidentiality agreement. If Tenant fails to object to Landlord’s determination
of Expenses or Taxes within ninety (90) days after receipt, or if any such
objection fails to state with specificity the reason for the objection, Tenant
shall be deemed to have approved such determination and shall have no further
right to object to or contest such determination. If the review by the
independent accountant correctly shows a discrepancy of an amount in excess
of
ten percent (10%) of Landlord’s total determination of Expenses and Taxes for
such year, Landlord shall reimburse Tenant the cost of the audit. In the event
that during all or any portion of any Lease Year or Base Year, the Building
is
not fully rented and occupied Landlord shall make an appropriate adjustment
in
occupancy-related Expenses for such year for the purpose of avoiding distortion
of the amount of such Expenses to be attributed to Tenant by reason of variation
in total occupancy of the Building, by employing consistent and sound accounting
and management principles to determine Expenses that would have been paid or
incurred by Landlord had the Building been at least ninety-five percent (95%)
rented and occupied, and the amount so determined shall be deemed to have been
Expenses for such Lease Year.
4.4 Prior
to
the actual determination thereof for a Lease Year, Landlord may from time to
time estimate Tenant’s liability for Expenses and/or Taxes under Section 4.2,
Article 6 and Article 28 for the Lease Year or portion thereof. Landlord will
give Tenant written notification of the amount of such estimate and Tenant
agrees that it will pay, by increase of its Monthly Installments of Rent due
in
such Lease Year, additional rent in the amount of such estimate. Any such
increased rate of Monthly Installments of Rent pursuant to this Section 4.4
shall remain in effect until further written notification to Tenant pursuant
hereto.
4.5 When
the
above mentioned actual determination of Tenant’s liability for Expenses and/or
Taxes is made for any Lease Year and when Tenant is so notified in writing,
then:
4.5.1 If
the
total additional rent Tenant actually paid pursuant to Section 4.3 on account
of
Expenses and/or Taxes for the Lease Year is less than Tenant’s liability for
Expenses and/or Taxes, then Tenant shall pay such deficiency to Landlord as
additional rent in one lump sum within thirty (30) days of receipt of Landlord’s
xxxx therefor; and
4.5.2 If
the
total additional rent Tenant actually paid pursuant to Section 4.3 on account
of
Expenses and/or Taxes for the Lease Year is more than Tenant’s liability for
Expenses and/or Taxes, then Landlord shall credit the difference against the
then next due payments to be made by Tenant under this Article 4, or, if the
Lease has terminated, refund the difference in cash. Tenant shall not be
entitled to a credit by reason of actual Expenses and/or Taxes in any Lease
Year
being less than Expenses and/or Taxes in the Base Year (Expenses and/or
Taxes).
4.6 If
the
Commencement Date is other than January 1 or if the Termination Date is other
than December 31, Tenant’s liability for Expenses and Taxes for the Lease Year
in which said Date occurs shall be prorated based upon a three hundred
sixty-five (365) day year.
5
6. ALTERATIONS.
6.1 Except
for those, if any, specifically provided for in Exhibit
B
to this
Lease, Tenant shall not make or suffer to be made any alterations, additions,
or
improvements, including, but not limited to, the attachment of any fixtures
or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements as required by Article 7, without the prior written consent of
Landlord. When applying for such consent, Tenant shall, if requested by
Landlord, furnish complete plans and specifications for such alterations,
additions and improvements. Landlord’s consent shall not be unreasonably
withheld with respect to alterations which (i) are not structural in nature,
(ii) are not visible from the exterior of the Building, (iii) do not affect
or
require modification of the Building’s electrical, mechanical, plumbing, HVAC or
other systems, and (iv) in aggregate do not cost more than $5.00 per rentable
square foot of that portion of the Premises affected by the alterations in
question.
6.2 In
the
event Landlord consents to the making of any such alteration, addition or
improvement by Tenant, the same shall be made by using either Landlord’s
contractor or a contractor reasonably approved by Landlord, in either event
at
Tenant’s sole cost and expense. If Tenant shall employ any contractor other than
Landlord’s contractor and such other contractor or any subcontractor of such
other contractor shall employ any non-union labor or supplier, Tenant shall
be
responsible for and hold Landlord harmless from any and all delays, damages
and
extra costs suffered by Landlord as a result of any dispute with any labor
unions concerning the wage, hours, terms or conditions of the employment of
any
such labor. In any event Landlord may charge Tenant a construction management
fee not to exceed five percent (5%) of the cost of such work to cover its
overhead as it relates to such proposed work, plus third-party costs actually
incurred by Landlord in connection with the proposed work and the design
thereof, with all such amounts being due fifteen (15) days after Landlord’s
demand.
6.3 All
alterations, additions or improvements proposed by Tenant shall be constructed
in accordance with all government laws, ordinances, rules and regulations,
using
Building standard materials where applicable, and Tenant shall, prior to
construction, provide the additional insurance required under Article 11 in
such
case, and also all such assurances to Landlord as Landlord shall reasonably
require to assure payment of the costs thereof, including but not limited to,
notices of non-responsibility, waivers of lien, surety company performance
bonds
and funded construction escrows and to protect Landlord and the Building and
appurtenant land against any loss from any mechanic’s, materialmen’s or other
liens. Tenant shall pay in addition to any sums due pursuant to Article 4,
any
increase in real estate taxes attributable to any such alteration, addition
or
improvement for so long, during the Term, as such increase is ascertainable;
at
Landlord’s election said sums shall be paid in the same way as sums due under
Article 4. Landlord may, as a condition to its consent to any particular
alterations or improvements, require Tenant to deposit with Landlord the amount
reasonably estimated by Landlord as sufficient to cover the cost of removing
such alterations or improvements and restoring the Premises, to the extent
required under Section 26.2.
6.4 Tenant
may, at Tenant’s cost, install and maintain a burglar alarm system or other
surveillance system designed to protect the Premises from unauthorized entry,
provided that (i) the installation of such system shall be subject to the
provisions of this Article 6, (ii) such system shall be removed by Tenant upon
the expiration or earlier termination of the Term and Tenant shall repair any
damage caused by such removal, and (iii) Tenant shall immediately provide
Landlord with Tenant’s access code and, in the event any lock is replaced or
re-keyed, with keys enabling Landlord to enter the Premises on the terms of
this
Lease.
7.1 Landlord
shall have no obligation to alter, remodel, improve, repair, decorate or paint
the Premises, except as specified in Exhibit
B
if
attached to this Lease and except that Landlord shall repair and maintain the
structural portions of the Building, the Common Areas and the basic plumbing,
air conditioning, heating and electrical systems installed or furnished by
Landlord. By taking possession of the Premises, Tenant accepts them as being
in
good order, condition and repair and in the condition in which Landlord is
obligated to deliver them, except as set forth in the punch list to be delivered
pursuant to Section 2.1. It is hereby understood and agreed that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically set forth in this
Lease.
6
7.2 Tenant
shall, at all times during the Term, keep the Premises in good condition and
repair excepting damage by fire, or other casualty, and in compliance with
all
applicable governmental laws, ordinances and regulations, promptly complying
with all governmental orders and directives for the correction, prevention
and
abatement of any violations or nuisances in or upon, or connected with, the
Premises, all at Tenant’s sole expense.
7.3 Landlord
shall not be liable for any failure to make any repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given to Landlord
by Tenant.
7.4 Except
as
provided in Article 22, there shall be no abatement of rent and no liability
of
Landlord by reason of any injury to or interference with Tenant’s business
arising from the making of any repairs, alterations or improvements in or to
any
portion of the Building or the Premises or to fixtures, appurtenances and
equipment in the Building. Except to the extent, if any, prohibited by law,
Tenant waives the right to make repairs at Landlord’s expense under any law,
statute or ordinance now or hereafter in effect.
9.1 Tenant
shall not have the right to assign or pledge this Lease or to sublet the whole
or any part of the Premises whether voluntarily or by operation of law, or
permit the use or occupancy of the Premises by anyone other than Tenant, and
shall not make, suffer or permit such assignment, subleasing or occupancy
without the prior written consent of Landlord, such consent not to be
unreasonably withheld or delayed, and said restrictions shall be binding upon
any and all assignees of the Lease and subtenants of the Premises. In the event
Tenant desires to sublet, or permit such occupancy of, the Premises, or any
portion thereof, or assign this Lease, Tenant shall give written notice thereof
to Landlord at least sixty (60) days but no more than one hundred twenty (120)
days prior to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed subtenant or assignee,
the
relevant terms of any sublease or assignment and copies of financial reports
and
other relevant financial information of the proposed subtenant or
assignee.
9.2 Notwithstanding
any assignment or subletting, permitted or otherwise, Tenant shall at all times
remain directly, primarily and fully responsible and liable for the payment
of
the rent specified in this Lease and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease. Upon the
occurrence of an Event of Default, if the Premises or any part of them are
then
assigned or sublet, Landlord, in addition to any other remedies provided in
this
Lease or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord
from
Tenant under this Lease, and no such collection shall be construed to constitute
a novation or release of Tenant from the further performance of Tenant’s
obligations under this Lease.
9.3 In
addition to Landlord’s right to approve of any subtenant or assignee, Landlord
shall have the option, in its sole discretion, in the event of any proposed
subletting or assignment, to terminate this Lease, or in the case of a proposed
subletting of less than the entire Premises, to recapture the portion of the
Premises to be sublet, as of the date the subletting or assignment is to be
effective. The option shall be exercised, if at all, by Landlord giving Tenant
written notice given by Landlord to Tenant within thirty (30) days following
Landlord’s receipt of Tenant’s written notice as required above. However, if
Tenant notifies Landlord, within five (5) days after receipt of Landlord’s
termination notice, that Tenant is rescinding its proposed assignment or
sublease, the termination notice shall be void and the Lease shall continue
in
full force and effect. If this Lease shall be terminated with respect to the
entire Premises pursuant to this Section, the Term of this Lease shall end
on
the date stated in Tenant’s notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures under this Section only a portion
of the Premises, the rent to be paid from time to time during the unexpired
Term
shall xxxxx proportionately based on the proportion by which the approximate
square footage of the remaining portion of the Premises shall be less than
that
of the Premises as of the date immediately prior to such recapture. Tenant
shall, at Tenant’s own cost and expense, discharge in full any outstanding
commission obligation which may be due and owing as a result of any proposed
assignment or subletting, whether or not the Premises are recaptured pursuant
to
this Section 9.3 and rented by Landlord to the proposed tenant or any other
tenant.
7
9.4 In
the
event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall
pay to Landlord as additional rent an amount equal to one hundred percent (100%)
of any Increased Rent (as defined below), less the Costs Component (as defined
below), when and as such Increased Rent is received by Tenant. As used in this
Section, “Increased Rent” shall mean the excess of (i) all rent and other
consideration which Tenant is entitled to receive by reason of any sale,
sublease, assignment or other transfer of this Lease, over (ii) the rent
otherwise payable by Tenant under this Lease at such time. For purposes of
the
foregoing, any consideration received by Tenant in form other than cash shall
be
valued at its fair market value as determined by Landlord in good faith. The
“Costs Component” is that amount which, if paid monthly, would fully amortize on
a straight-line basis, over the entire period for which Tenant is to receive
Increased Rent, the reasonable costs incurred by Tenant for leasing commissions
and tenant improvements in connection with such sublease, assignment or other
transfer.
9.5 Notwithstanding
any other provision hereof, it shall be considered reasonable for Landlord
to
withhold its consent to any assignment of this Lease or sublease of any portion
of the Premises if at the time of either Tenant’s notice of the proposed
assignment or sublease or the proposed commencement date thereof, there shall
exist any uncured default of Tenant or matter which will become a default of
Tenant with passage of time unless cured, or if the proposed assignee or
sublessee is an entity: (a) with which Landlord is already in negotiation;
(b)
is already an occupant of the Building unless Landlord is unable to provide
the
amount of space required by such occupant; (c) is a governmental agency; (d)
is
incompatible with the character of occupancy of the Building; (e) with which
the
payment for the sublease or assignment is determined in whole or in part based
upon its net income or profits; or (f) would subject the Premises to a use
which
would: (i) involve increased personnel or wear upon the Building; (ii) violate
any exclusive right granted to another tenant of the Building; (iii) require
any
addition to or modification of the Premises or the Building in order to comply
with building code or other governmental requirements; or, (iv) involve a
violation of Section 1.2. Tenant expressly agrees that for the purposes of
any
statutory or other requirement of reasonableness on the part of Landlord,
Landlord’s refusal to consent to any assignment or sublease for any of the
reasons described in this Section 9.5, shall be conclusively deemed to be
reasonable.
9.6 Upon
any
request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord’s
costs, including reasonable attorney’s fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or
sublease of any of the Premises, regardless of whether Landlord shall consent
to, refuse consent, or determine that Landlord’s consent is not required for,
such assignment, pledge or sublease. Any purported sale, assignment, mortgage,
transfer of this Lease or subletting which does not comply with the provisions
of this Article 9 shall be void.
9.7 If
Tenant
is a corporation, limited liability company, partnership or trust, any transfer
or transfers of or change or changes within any twelve (12) month period in
the
number of the outstanding voting shares of the corporation or limited liability
company, the general partnership interests in the partnership or the identity
of
the persons or entities controlling the activities of such partnership or trust
resulting in the persons or entities owning or controlling a majority of such
shares, partnership interests or activities of such partnership or trust at
the
beginning of such period no longer having such ownership or control shall be
regarded as equivalent to an assignment of this Lease to the persons or entities
acquiring such ownership or control and shall be subject to all the provisions
of this Article 9 to the same extent and for all intents and purposes as though
such an assignment.
9.8 So
long
as Tenant is not entering into the Permitted Transfer for the purpose of
avoiding or otherwise circumventing the remaining terms of this Article 9,
subject as hereinafter stated, Tenant may assign or sublease all or part of
its
interest in this Lease or all or part of the Premises (a “Permitted Transfer”)
to the following types of entities (a “Permitted Transferee”) without the
written consent of Landlord:
(1) an
affiliate (being any person or entity in which Tenant or Tenant’s current owners
own at least fifty one percent (51%) voting control) provided that the Tangible
Net Worth (as defined below) of such person entity is not less than the Tangible
Net Worth of Tenant as of the Lease Reference Date;
(2) any
corporation, limited partnership, limited liability partnership, limited
liability company or other business entity in which or with which Tenant or
its
corporate successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions governing merger and consolidation of business
entities, so long as (A) Tenant’s obligations hereunder are assumed by the
entity surviving such merger or created by such consolidation; and (B) the
Tangible Net Worth of the surviving or created entity is not less than the
Tangible Net Worth of Tenant as of the Lease Reference Date; or
8
(3) any
corporation, limited partnership, limited liability partnership, limited
liability company or other business entity acquiring all or substantially all
of
Tenant’s assets if such entity’s Tangible Net Worth after such acquisition is
not less than the Tangible Net Worth of Tenant as of the Lease Reference
Date.
9.9 Tenant
shall notify Landlord at least twenty (20) days in advance of any proposed
Permitted Transfer. The Permitted Transferee shall sign and deliver to Landlord
an assumption agreement reasonably acceptable to Landlord. Tenant shall remain
liable for the performance of all of the obligations of Tenant hereunder, or
if
Tenant no longer exists because of a merger, consolidation, or acquisition,
the
surviving or acquiring entity shall expressly assume in writing the obligations
of Tenant hereunder. The Permitted Transferee shall comply with all of the
terms
and conditions of this Lease, including the permitted use hereunder. Within
at
least thirty (30) days after the effective date of any Permitted Transfer,
Tenant shall furnish Landlord with copies of the instrument effecting any of
the
foregoing Permitted Transfers and documentation establishing Tenant’s
satisfaction of the requirements set forth above applicable to any such
Permitted Transfer and the relationship of such Permitted Transferee to Tenant.
The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to
any subsequent Transfer. “Tangible Net Worth” means the excess of total assets
over total liabilities, in each case determined in accordance with GAAP. Any
subsequent transfer by Permitted Transferee shall be subject to the provisions
of this Article 9.
11.1 Tenant
shall keep in force throughout the Term: (a) a Commercial General Liability
insurance policy or policies to protect the Landlord Entities against any
liability to the public or to any invitee of Tenant or a Landlord Entity
incidental to the use of or resulting from any accident occurring in or upon
the
Premises with a limit of not less than $1,000,000 per occurrence and not less
than $2,000,000 in the annual aggregate, or such larger amount as Landlord
may
reasonably require from time to time, covering bodily injury and property damage
liability and $1,000,000 products/completed operations aggregate; (b) Business
Auto Liability covering owned, non-owned and hired vehicles with a limit of
not
less than $1,000,000 per accident; (c) Worker’s Compensation Insurance with
limits as required by statute with Employers Liability and limits of $500,000
each accident, $500,000 disease policy limit, $500,000 disease--each employee;
(d) All Risk or Special Form coverage protecting Tenant against loss of or
damage to Tenant’s alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured; and, (e) Business Interruption Insurance
with
limit of liability representing loss of at least approximately six (6) months
of
income.
Notwithstanding anything herein to the contrary, for so long as the “Tenant” is
Petro Resources Corporation (“Petro”), Landlord will waive Tenant’s obligation
to secure Business Interruption Insurance as aforesaid provided that Tenant
hereby covenants and agrees that it will not take any action, litigation or
proceeding against Landlord or any Landlord Entity to recover any sum that
would
otherwise have been recoverable by Tenant under its Business Interruption
Insurance policy had such policy been in place, and (ii) Tenant shall indemnify
and keep indemnified Landlord and the Landlord Entities harmless from and
against any and all loss, claims, liability or costs (including court costs
and
attorney’s fees) incurred by Landlord or any Landlord Entity by reason of
failure on the part of Tenant to keep Business Interruption Insurance in force
throughout the Term. Such indemnity shall survive the termination of this
Lease.
9
11.2 The
aforesaid policies shall (a) be provided at Tenant’s expense; (b) name the
Landlord Entities as additional insureds (General Liability) and loss payee
(Property—Special Form); (c) be issued by an insurance company with a minimum
Best’s rating of “A-:VII” during the Term; and (d) provide that said insurance
shall not be canceled unless thirty (30) days prior written notice (ten days
for
non-payment of premium) shall have been given to Landlord; a certificate of
Liability insurance on XXXXX Form 25 and a certificate of Property insurance
on
XXXXX Form 27 shall be delivered to Landlord by Tenant upon the Commencement
Date and at least thirty (30) days prior to each renewal of said
insurance.
11.3 Whenever
Tenant shall undertake any alterations, additions or improvements in, to or
about the Premises (“Work”) the aforesaid insurance protection must extend to
and include injuries to persons and damage to property arising in connection
with such Work, without limitation including liability under any applicable
structural work act, and such other insurance as Landlord shall require; and
the
policies of or certificates evidencing such insurance must be delivered to
Landlord prior to the commencement of any such Work.
11.4 Throughout
the Term of this Lease, Landlord shall maintain (a) a policy or policies of
insurance covering “all risks” perils to the extent of one hundred percent
(100%) of the insurable value of the Building (excluding such leasehold
improvements for which the tenants in the Building are required to maintain
insurance coverage), and (b) a Commercial General Liability insurance policy
or
policies covering the Building and any areas adjacent thereto with a limit
of
not less than One Million Dollars ($1,000,000.00) per occurrence and not less
than Two Million Dollars ($2,000,000.00) in the annual aggregate.
13.1 Provided
Tenant shall not be in default under this Lease, and subject to the other
provisions of this Lease, Landlord agrees to furnish to the Premises during
Building Business Hours (specified on the Reference Pages) on generally
recognized business days (but exclusive in any event of Sundays and national
and
local legal holidays), the following services and utilities subject to the
rules
and regulations of the Building prescribed from time to time: (a) water suitable
for normal office use of the Premises; (b) heat and air conditioning required
in
Landlord’s judgment for the use and occupation of the Premises during Building
Business Hours; (c) cleaning and janitorial service; (d) elevator service by
nonattended automatic elevators, if applicable; and, (e) equipment to bring
to
the Premises electricity for lighting, convenience outlets and other normal
office use. To the extent that Tenant is not billed directly by a public
utility, Tenant shall pay, within five (5) days of Landlord’s demand, for all
electricity used by Tenant in the Premises. The charge shall be at the rates
charged for such services by the local public utility. Alternatively, Landlord
may elect to include electricity costs in Expenses. In the absence of Landlord’s
gross negligence or willful misconduct, Landlord shall not be liable for, and
Tenant shall not be entitled to, any abatement or reduction of rental by reason
of Landlord’s failure to furnish any of the foregoing, unless such failure shall
persist for an unreasonable time after written notice of such failure is given
to Landlord by Tenant and provided further that Landlord shall not be liable
when such failure is caused by accident, breakage, repairs, labor disputes
of
any character, energy usage restrictions or by any other cause, similar or
dissimilar, beyond the reasonable control of Landlord. Landlord shall use
reasonable efforts to remedy any interruption in the furnishing of services
and
utilities.
13.2 Should
Tenant require any additional work or service, as described above, including
services furnished outside ordinary business hours specified above, Landlord
may, on terms to be agreed, upon reasonable advance notice by Tenant, furnish
such additional service and Tenant agrees to pay Landlord such charges as may
be
agreed upon, including any tax imposed thereon, but in no event at a charge
less
than Landlord’s actual cost plus overhead for such additional service and, where
appropriate, a reasonable allowance for depreciation of any systems being used
to provide such service. The current charge for after-hours HVAC service, which
is subject to change at any time, is specified on the Reference
Pages.
13.3 Wherever
heat-generating machines or equipment are used by Tenant in the Premises which
affect the temperature otherwise maintained by the air conditioning system
or
Tenant allows occupancy of the Premises by more persons than the heating and
air
conditioning system is designed to accommodate, in either event whether with
or
without Landlord’s approval, Landlord reserves the right to install
supplementary heating and/or air conditioning units in or for the benefit of
the
Premises and the cost thereof, including the cost of installation and the cost
of operations and maintenance, shall be paid by Tenant to Landlord within five
(5) days of Landlord’s demand.
10
13.4 Tenant
will not, without the written consent of Landlord, use any apparatus or device
in the Premises, including but not limited to, electronic data processing
machines and machines using current in excess of 2000 xxxxx and/or 20 amps
or
120 volts, which will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises for normal office use,
nor
connect with electric current, except through existing electrical outlets in
the
Premises, or water pipes, any apparatus or device for the purposes of using
electrical current or water. If Tenant shall require water or electric current
in excess of that usually furnished or supplied for use of the Premises as
normal office use, Tenant shall procure the prior written consent of Landlord
for the use thereof, which Landlord may refuse, and if Landlord does consent,
Landlord may cause a water meter or electric current meter to be installed
so as
to measure the amount of such excess water and electric current. The cost of
any
such meters shall be paid for by Tenant. Tenant agrees to pay to Landlord within
five (5) days of Landlord’s demand , the cost of all such excess water and
electric current consumed (as shown by said meters, if any, or, if none, as
reasonably estimated by Landlord) at the rates charged for such services by
the
local public utility or agency, as the case may be, furnishing the same, plus
any additional expense incurred in keeping account of the water and electric
current so consumed.
13.5 Tenant
will not, without the written consent of Landlord, contract with a utility
provider to service the Premises with any utility, including, but not limited
to, telecommunications, electricity, water, sewer or gas, which is not
previously providing such service to other tenants in the Building. Subject
to
Landlord’s reasonable rules and regulations and the provisions of Articles 6 and
26, Tenant shall be entitled to the use of wiring (“Communications Wiring”) from
the existing telecommunications nexus in the Building to the Premises,
sufficient for normal general office use of the Premises. Tenant shall not
install any additional Communications Wiring, nor remove any Communications
Wiring, without in each instance obtaining the prior written consent of
Landlord, which consent may be withheld in Landlord’s sole and absolute
discretion. Landlord’s shall in no event be liable for disruption in any service
obtained by Tenant pursuant to this paragraph.
11
17. REENTRY
BY LANDLORD.
17.1 Landlord
reserves and shall, during regular business hours, have the right to re-enter
the Premises to show said Premises to prospective purchasers, mortgagees or
tenants, and at all times, to inspect the same, to supply janitor service and
any other service to be provided by Landlord to Tenant under this Lease, to
show
said Premises to prospective purchasers, mortgagees or tenants, and to alter,
improve or repair the Premises and any portion of the Building, without
abatement of rent, and may for that purpose erect, use and maintain scaffolding,
pipes, conduits and other necessary structures and open any wall, ceiling or
floor in and through the Building and Premises where reasonably required by
the
character of the work to be performed, provided entrance to the Premises shall
not be blocked thereby, and further provided that the business of Tenant shall
not be interfered with unreasonably. Landlord
shall have the right at any time to change the arrangement and/or locations
of
entrances, or passageways, doors and doorways, and corridors, windows,
elevators, stairs, toilets or other public parts of the Building and to change
the name, number or designation by which the Building is commonly known. In
the
event that Landlord damages any portion of any wall or wall covering, ceiling,
or floor or floor covering within the Premises, Landlord shall repair or replace
the damaged portion to match the original as nearly as commercially reasonable
but shall not be required to repair or replace more than the portion actually
damaged.
In the
absence of gross negligence or willful misconduct by Landlord, Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant’s business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned by any action of Landlord authorized
by
this Article 17.
17.2 For
each
of the aforesaid purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors in the Premises, excluding Tenant’s vaults
and safes or special security areas (designated in advance), and Landlord shall
have the right to use any and all means which Landlord may deem proper to open
said doors in an emergency to obtain entry to any portion of the Premises.
As to
any portion to which access cannot be had by means of a key or keys in
Landlord’s possession, Landlord is authorized to gain access by such means as
Landlord shall elect and the cost of repairing any damage occurring in doing
so
shall be borne by Tenant and paid to Landlord within five (5) days of Landlord’s
demand.
18.1 Except
as
otherwise provided in Article 20, the following events shall be deemed to be
Events of Default under this Lease:
18.1.1 Tenant
shall fail to pay when due any sum of money becoming due to be paid to Landlord
under this Lease, whether such sum be any installment of the rent reserved
by
this Lease, any other amount treated as additional rent under this Lease, or
any
other payment or reimbursement to Landlord required by this Lease, whether
or
not treated as additional rent under this Lease, and such failure shall continue
for a period of five (5) days after written notice that such payment was not
made when due, but if any such notice shall be given, for the twelve (12) month
period commencing with the date of such notice, the failure to pay within five
(5) days after due any additional sum of money becoming due to be paid to
Landlord under this Lease during such period shall be an Event of Default,
without notice.
18.1.2 Tenant
shall fail to comply with any term, provision or covenant of this Lease which
is
not provided for in another Section of this Article and shall not cure such
failure within twenty (20) days (forthwith, if the failure involves a hazardous
condition) after written notice of such failure to Tenant provided, however,
that such failure shall not be an event of default if such failure could not
reasonably be cured during such twenty (20) day period, Tenant has commenced
the
cure within such twenty (20) day period and thereafter is diligently pursuing
such cure to completion, but the total aggregate cure period shall not exceed
ninety (90) days.
18.1.3 Tenant
shall fail to vacate the Premises immediately upon termination of this Lease,
by
lapse of time or otherwise, or upon termination of Tenant’s right to possession
only.
18.1.4 Tenant
shall become insolvent, admit in writing its inability to pay its debts
generally as they become due, file a petition in bankruptcy or a petition to
take advantage of any insolvency statute, make an assignment for the benefit
of
creditors, make a transfer in fraud of creditors, apply for or consent to the
appointment of a receiver of itself or of the whole or any substantial part
of
its property, or file a petition or answer seeking reorganization or arrangement
under the federal bankruptcy laws, as now in effect or hereafter amended, or
any
other applicable law or statute of the United States or any state
thereof.
12
18.1.5 A
court
of competent jurisdiction shall enter an order, judgment or decree adjudicating
Tenant bankrupt, or appointing a receiver of Tenant, or of the whole or any
substantial part of its property, without the consent of Tenant, or approving
a
petition filed against Tenant seeking reorganization or arrangement of Tenant
under the bankruptcy laws of the United States, as now in effect or hereafter
amended, or any state thereof, and such order, judgment or decree shall not
be
vacated or set aside or stayed within sixty (60) days from the date of entry
thereof.
19.1 Except
as
otherwise provided in Article 20, upon the occurrence of any of the Events
of
Default described or referred to in Article 18, Landlord shall have the option
to pursue any one or more of the following remedies without any notice or demand
whatsoever, concurrently or consecutively and not alternatively:
19.1.1 Landlord
may, at its election, terminate this Lease or terminate Tenant’s right to
possession only, without terminating the Lease.
19.1.2 Upon
any
termination of this Lease, whether by lapse of time or otherwise, or upon any
termination of Tenant’s right to possession without termination of the Lease,
Tenant shall surrender possession and vacate the Premises immediately, and
deliver possession thereof to Landlord, and Tenant hereby grants to Landlord
full and free license to enter into and upon the Premises in such event and
to
repossess Landlord of the Premises as of Landlord’s former estate and to expel
or remove Tenant and any others who may be occupying or be within the Premises
and to remove Tenant’s signs and other evidence of tenancy and all other
property of Tenant therefrom without being deemed in any manner guilty of
trespass, eviction or forcible entry or detainer, and without incurring any
liability for any damage resulting therefrom, Tenant waiving any right to claim
damages for such re-entry and expulsion, and without relinquishing Landlord’s
right to rent or any other right given to Landlord under this Lease or by
operation of law.
19.1.3 Upon
any
termination of this Lease, whether by lapse of time or otherwise, Landlord
shall
be entitled to recover as damages, all rent, including any amounts treated
as
additional rent under this Lease, and other sums due and payable by Tenant
on
the date of termination, plus as liquidated damages and not as a penalty, an
amount equal to the sum of: (a) an amount equal to the then present value of
the
rent reserved in this Lease for the residue of the stated Term of this Lease
including any amounts treated as additional rent under this Lease and all other
sums provided in this Lease to be paid by Tenant, minus the fair rental value
of
the Premises for such residue; (b) the value of the time and expense necessary
to obtain a replacement tenant or tenants, and the estimated expenses described
in Section 19.1.4 relating to recovery of the Premises, preparation for
reletting and for reletting itself; and (c) the cost of performing any other
covenants which would have otherwise been performed by Tenant.
19.1.4 Upon
any
termination of Tenant’s right to possession only without termination of the
Lease:
19.1.4.1 Neither
such termination of Tenant’s right to possession nor Landlord’s taking and
holding possession thereof as provided in Section 19.1.2 shall terminate the
Lease or release Tenant, in whole or in part, from any obligation, including
Tenant’s obligation to pay the rent, including any amounts treated as additional
rent, under this Lease for the full Term, and if Landlord so elects Tenant
shall
continue to pay to Landlord the entire amount of the rent as and when it becomes
due, including any amounts treated as additional rent under this Lease, for
the
remainder of the Term plus any other sums provided in this Lease to be paid
by
Tenant for the remainder of the Term.
19.1.4.2 Landlord
shall use commercially reasonable efforts to relet the Premises or portions
thereof to the extent required by applicable law. Landlord and Tenant agree
that
nevertheless Landlord shall at most be required to use only the same efforts
Landlord then uses to lease premises in the Building generally and that in
any
case that Landlord shall not be required to give any preference or priority
to
the showing or leasing of the Premises or portions thereof over any other space
that Landlord may be leasing or have available and may place a suitable
prospective tenant in any such other space regardless of when such other space
becomes available and that Landlord shall have the right to relet the Premises
for a greater or lesser term than that remaining under this Lease, the right
to
relet only a portion of the Premises, or a portion of the Premises or the entire
Premises as a part of a larger area, and the right to change the character
or
use of the Premises. In connection with or in preparation for any reletting,
Landlord may, but shall not be required to, make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall pay the cost thereof, together
with Landlord’s expenses of reletting, including, without limitation, any
commission incurred by Landlord, within five (5) days of Landlord’s demand.
Landlord shall not be required to observe any instruction given by Tenant about
any reletting or accept any tenant offered by Tenant unless such offered tenant
has a credit-worthiness acceptable to Landlord and leases the entire Premises
upon terms and conditions including a rate of rent (after giving effect to
all
expenditures by Landlord for tenant improvements, broker’s commissions and other
leasing costs) all no less favorable to Landlord than as called for in this
Lease, nor shall Landlord be required to make or permit any assignment or
sublease for more than the current term or which Landlord would not be required
to permit under the provisions of Article 9.
13
19.1.4.3 Until
such time as Landlord shall elect to terminate the Lease and shall thereupon
be
entitled to recover the amounts specified in such case in Section 19.1.3, Tenant
shall pay to Landlord upon demand the full amount of all rent, including any
amounts treated as additional rent under this Lease and other sums reserved
in
this Lease for the remaining Term, together with the costs of repairs,
alterations, additions, redecorating and Landlord’s expenses of reletting and
the collection of the rent accruing therefrom (including reasonable attorney’s
fees and broker’s commissions), as the same shall then be due or become due from
time to time, less only such consideration as Landlord may have received from
any reletting of the Premises; and Tenant agrees that Landlord may file suits
from time to time to recover any sums falling due under this Article 19 as
they
become due. Any proceeds of reletting by Landlord in excess of the amount then
owed by Tenant to Landlord from time to time shall be credited against Tenant’s
future obligations under this Lease but shall not otherwise be refunded to
Tenant or inure to Tenant’s benefit.
19.2 Upon
the
occurrence of an Event of Default, Landlord may (but shall not be obligated
to)
cure such default at Tenant’s sole expense. Without limiting the generality of
the foregoing, Landlord may, at Landlord’s option, enter into and upon the
Premises if Landlord determines in its sole discretion that Tenant is not acting
within a commercially reasonable time to maintain, repair or replace anything
for which Tenant is responsible under this Lease or to otherwise effect
compliance with its obligations under this Lease and correct the same, without
being deemed in any manner guilty of trespass, eviction or forcible entry and
detainer and without incurring any liability for any damage or interruption
of
Tenant’s business resulting therefrom and Tenant agrees to reimburse Landlord
within five (5) days of Landlord’s demand as additional rent, for any expenses
which Landlord may incur in thus effecting compliance with Tenant’s obligations
under this Lease, plus interest from the date of expenditure by Landlord at
the
Wall Street Journal prime rate.
19.3 Tenant
understands and agrees that in entering into this Lease, Landlord is relying
upon receipt of all the Annual and Monthly Installments of Rent to become due
with respect to all the Premises originally leased hereunder over the full
Initial Term of this Lease for amortization, including interest at the
Amortization Rate. For purposes hereof, the “Concession Amount” shall be defined
as the aggregate of all amounts forgone or expended by Landlord as free rent
under the lease, under Exhibit
B
hereof
for construction allowances (excluding therefrom any amounts expended by
Landlord for Landlord’s Work, as defined in Exhibit
B),
and
for brokers’ commissions payable by reason of this Lease. Accordingly, Tenant
agrees that if this Lease or Tenant’s right to possession of the Premises leased
hereunder shall be terminated as of any date (“Default Termination Date”) prior
to the expiration of the full Initial Term hereof by reason of a default of
Tenant, there shall be due and owing to Landlord as of the day prior to the
Default Termination Date, as rent in addition to all other amounts owed by
Tenant as of such Date, the amount (“Unamortized Amount”) of the Concession
Amount determined as set forth below; provided, however, that in the event
that
such amounts are recovered by Landlord pursuant to any other provision of this
Article 19, Landlord agrees that it shall not attempt to recover such amounts
pursuant to this Paragraph 19.3. For the purposes hereof, the Unamortized Amount
shall be determined in the same manner as the remaining principal balance of
a
mortgage with interest at the Amortization Rate payable in level payments over
the same length of time as from the effectuation of the Concession concerned
to
the end of the full Initial Term of this Lease would be determined. The
foregoing provisions shall also apply to and upon any intentional act by Tenant
that results in a reduction of space in the Premises, as though such reduction
were a termination for Tenant’s default, except that (i) the Unamortized Amount
shall be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (ii) the manner of application shall be that the Unamortized
Amount shall first be determined as though for a full termination as of the
Effective Date of the elimination of the portion, but then the amount so
determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
19.4 If,
on
account of any breach or default by Tenant in Tenant’s obligations under the
terms and conditions of this Lease, it shall become necessary or appropriate
for
Landlord to employ or consult with an attorney or collection agency concerning
or to enforce or defend any of Landlord’s rights or remedies arising under this
Lease or to collect any sums due from Tenant, Tenant agrees to pay all costs
and
fees so incurred by Landlord, including, without limitation, reasonable
attorneys’ fees and costs. TENANT
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY.
19.5 Pursuit
of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies provided in this Lease or any other remedies provided by law (all
such
remedies being cumulative), nor shall pursuit of any remedy provided in this
Lease constitute a forfeiture or waiver of any rent due to Landlord under this
Lease or of any damages accruing to Landlord by reason of the violation of
any
of the terms, provisions and covenants contained in this Lease.
14
19.6 No
act or
thing done by Landlord or its agents during the Term shall be deemed a
termination of this Lease or an acceptance of the surrender of the Premises,
and
no agreement to terminate this Lease or accept a surrender of said Premises
shall be valid, unless in writing signed by Landlord. No waiver by Landlord
of
any violation or breach of any of the terms, provisions and covenants contained
in this Lease shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants contained
in
this Lease. Landlord’s acceptance of the payment of rental or other payments
after the occurrence of an Event of Default shall not be construed as a waiver
of such Default, unless Landlord so notifies Tenant in writing. Forbearance
by
Landlord in enforcing one or more of the remedies provided in this Lease upon
an
Event of Default shall not be deemed or construed to constitute a waiver of
such
Default or of Landlord’s right to enforce any such remedies with respect to such
Default or any subsequent Default.
19.7 To
secure
the payment of all rentals and other sums of money becoming due from Tenant
under this Lease, Landlord shall have and Tenant grants to Landlord a first
lien
upon the leasehold interest of Tenant under this Lease, which lien may be
enforced in equity, and a continuing security interest upon all goods, wares,
equipment, fixtures, furniture, inventory, accounts, contract rights, chattel
paper and other personal property of Tenant situated on the Premises, and such
property shall not be removed therefrom without the consent of Landlord until
all arrearages in rent as well as any and all other sums of money then due
to
Landlord under this Lease shall first have been paid and discharged. Upon the
occurrence of an Event of Default, Landlord shall have, in addition to any
other
remedies provided in this Lease or by law, all rights and remedies under the
Uniform Commercial Code, including without limitation the right to sell the
property described in this Section 19.7 at public or private sale upon five
(5)
days’ notice to Tenant. Tenant shall execute all such financing statements and
other instruments as shall be deemed necessary or desirable in Landlord’s
discretion to perfect the security interest hereby created.
Upon
request therefor and payment of Landlord’s legal fees in connection therewith,
Landlord will subordinate its lien hereunder to a lender with a lien on Tenant’s
equipment and inventory within the Premises provided that such lender and Tenant
first execute and deliver to Landlord a Consent and Lien Subordination Agreement
on Landlord’s required form.
19.8 Any
and
all property which may be removed from the Premises by Landlord pursuant to
the
authority of this Lease or of law, to which Tenant is or may be entitled, may
be
handled, removed and/or stored, as the case may be, by or at the direction
of
Landlord but 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 to 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 Landlord’s possession or under Landlord’s control. Any such property of
Tenant not retaken by Tenant from storage within thirty (30) days after removal
from the Premises shall, at Landlord’s option, be deemed conveyed by Tenant to
Landlord under this Lease as by a xxxx of sale without further payment or credit
by Landlord to Tenant.
19.9 If
more
than two (2) Events of Default occurs during the Term or any renewal thereof,
Tenant’s renewal options, expansion options, purchase options and rights of
first offer and/or refusal, if any are provided for in this Lease, shall be
null
and void.
20.1 If
at any
time and for so long as Tenant shall be subjected to the provisions of the
United States Bankruptcy Code or other law of the United States or any state
thereof for the protection of debtors as in effect at such time (each a
“Debtor’s Law”):
20.1.1 Tenant,
Tenant as debtor-in-possession, and any trustee or receiver of Tenant’s assets
(each a “Tenant’s Representative”) shall have no greater right to assume or
assign this Lease or any interest in this Lease, or to sublease any of the
Premises than accorded to Tenant in Article 9, except to the extent Landlord
shall be required to permit such assumption, assignment or sublease by the
provisions of such Debtor’s Law. Without limitation of the generality of the
foregoing, any right of any Tenant’s Representative to assume or assign this
Lease or to sublease any of the Premises shall be subject to the conditions
that:
20.1.1.1 Such
Debtor’s Law shall provide to Tenant’s Representative a right of assumption of
this Lease which Tenant’s Representative shall have timely exercised and
Tenant’s Representative shall have fully cured any default of Tenant under this
Lease.
15
20.1.1.2 Tenant’s
Representative or the proposed assignee, as the case shall be, shall have
deposited with Landlord as security for the timely payment of rent an amount
equal to the larger of: (a) three (3) months’ rent and other monetary charges
accruing under this Lease; and (b) any sum specified in Article 5; and shall
have provided Landlord with adequate other assurance of the future performance
of the obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least, in the case of assumption of this Lease,
demonstration to the satisfaction of the Landlord that Tenant’s Representative
has and will continue to have sufficient unencumbered assets after the payment
of all secured obligations and administrative expenses to assure Landlord that
Tenant’s Representative will have sufficient funds to fulfill the obligations of
Tenant under this Lease; and, in the case of assignment, submission of current
financial statements of the proposed assignee, audited by an independent
certified public accountant reasonably acceptable to Landlord and showing a
net
worth and working capital in amounts determined by Landlord to be sufficient
to
assure the future performance by such assignee of all of the Tenant’s
obligations under this Lease.
20.1.1.3 The
assumption or any contemplated assignment of this Lease or subleasing any part
of the Premises, as shall be the case, will not breach any provision in any
other lease, mortgage, financing agreement or other agreement by which Landlord
is bound.
20.1.1.4 Landlord
shall have, or would have had absent the Debtor’s Law, no right under Article 9
to refuse consent to the proposed assignment or sublease by reason of the
identity or nature of the proposed assignee or sublessee or the proposed use
of
the Premises concerned.
22.1 In
the
event the Premises or the Building are damaged by fire or other cause and in
Landlord’s reasonable estimation such damage can be materially restored within
one hundred eighty (180) days, Landlord shall forthwith repair the same and
this
Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate abatement in rent from the date of such damage.
Such
abatement of rent shall be made pro rata in accordance with the extent to which
the damage and the making of such repairs shall interfere with the use and
occupancy by Tenant of the Premises from time to time. Within forty-five (45)
days from the date of such damage, Landlord shall notify Tenant, in writing,
of
Landlord’s reasonable estimation of the length of time within which material
restoration can be made, and Landlord’s determination shall be binding on
Tenant. For purposes of this Lease, the Building or Premises shall be deemed
“materially restored” if they are in such condition as would not prevent or
materially interfere with Tenant’s use of the Premises for the purpose for which
it was being used immediately before such damage.
22.2 If
such
repairs cannot, in Landlord’s reasonable estimation, be made within one hundred
eighty (180) days, Landlord and Tenant shall each have the option of giving
the
other, at any time within ninety (90) days after such damage, notice terminating
this Lease as of the date of such damage. In the event of the giving of such
notice, this Lease shall expire and all interest of the Tenant in the Premises
shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event
that
neither Landlord nor Tenant exercises its option to terminate this Lease, then
Landlord shall repair or restore such damage, this Lease continuing in full
force and effect, and the rent hereunder shall be proportionately abated as
provided in Section 22.1.
22.3 Landlord
shall not be required to repair or replace any damage or loss by or from fire
or
other cause to any panelings, decorations, partitions, additions, railings,
ceilings, floor coverings, office fixtures or any other property or improvements
installed on the Premises by, or belonging to, Tenant. Any insurance which
may
be carried by Landlord or Tenant against loss or damage to the Building or
Premises shall be for the sole benefit of the party carrying such insurance
and
under its sole control.
16
22.4 In
the
event that Landlord should fail to complete such repairs and material
restoration within sixty (60) days after the date estimated by Landlord therefor
as extended by this Section 22.4, Tenant may at its option and as its sole
remedy terminate this Lease by delivering written notice to Landlord, within
fifteen (15) days after the expiration of said period of time, whereupon the
Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this
Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested
by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding
anything to the contrary contained in this Article: (a) Landlord shall not
have
any obligation whatsoever to repair, reconstruct, or restore the Premises when
the damages resulting from any casualty covered by the provisions of this
Article 22
occur
during the last twelve (12) months of the Term or any extension thereof, but
if
Landlord determines not to repair such damages Landlord shall notify Tenant
and
if, in the reasonable opinion of Landlord and Tenant, such damages shall render
any material portion of the Premises untenantable Tenant shall have the right
to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord’s notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In
the
event of any damage or destruction to the Building or Premises by any peril
covered by the provisions of this Article 22, it shall be Tenant’s
responsibility to properly secure the Premises and upon notice from Landlord
to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
17
25. ESTOPPEL
CERTIFICATES.
Within
ten (10) days following any written request which Landlord may make from time
to
time, Tenant shall execute and deliver to Landlord or mortgagee or prospective
mortgagee a sworn statement certifying: (a) the date of commencement of this
Lease; (b) the fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications to this Lease, that this Lease is in
full
force and effect, as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums payable under
this
Lease have been paid; (d) the fact that there are no current defaults under
this
Lease by either Landlord or Tenant except as specified in Tenant’s statement;
and (e) such other matters as may be requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Article 25 may be relied
upon by any mortgagee, beneficiary or purchaser, and Tenant shall be liable
for
all loss, cost or expense resulting from the failure of any sale or funding
of
any loan caused by any material misstatement contained in such estoppel
certificate. Tenant irrevocably agrees that if Tenant fails to execute and
deliver such certificate within such ten (10) day period Landlord or Landlord’s
beneficiary or agent may execute and deliver such certificate on Tenant’s
behalf, and that such certificate shall be fully binding on Tenant.
26.1 Tenant
shall arrange to meet Landlord for two (2) joint inspections of the Premises,
the first to occur at least thirty (30) days (but no more than sixty (60) days)
before the last day of the Term, and the second to occur not later than
forty-eight (48) hours after Tenant has vacated the Premises. In the event
of
Tenant’s failure to arrange such joint inspections and/or participate in either
such inspection, Landlord’s inspection at or after Tenant’s vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant’s responsibility for repairs and restoration.
26.2 All
alterations, additions, and improvements in, on, or to the Premises made or
installed by or for Tenant, including, without limitation, carpeting
(collectively, “Alterations”), shall be and remain the property of Tenant during
the Term. Upon the expiration or sooner termination of the Term, all Alterations
shall become a part of the realty and shall belong to Landlord without
compensation, and title shall pass to Landlord under this Lease as by a xxxx
of
sale. At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all Alterations by whomsoever made,
in
the same conditions received or first installed, broom clean and free of all
debris, excepting only ordinary wear and tear and damage by fire or other
casualty. Notwithstanding the foregoing, if Landlord elects by notice given
to
Tenant at least ten (10) days prior to expiration of the Term, Tenant shall,
at
Tenant’s sole cost, remove any Alterations, including carpeting, so designated
by Landlord’s notice, and repair any damage caused by such removal. Tenant must,
at Tenant’s sole cost, remove upon termination of this Lease, any and all of
Tenant’s furniture, furnishings, equipment, movable partitions of less than full
height from floor to ceiling and other trade fixtures and personal property,
burglar alarm/surveillance system, as well as all data/telecommunications
cabling and wiring installed by or on behalf of Tenant, whether inside walls,
under any raised floor or above any ceiling (collectively, “Personalty”).
Personalty not so removed shall be deemed abandoned by the Tenant and title
to
the same shall thereupon pass to Landlord under this Lease as by a xxxx of
sale,
but Tenant shall remain responsible for the cost of removal and disposal of
such
Personalty, as well as any damage caused by such removal. In lieu of requiring
Tenant to remove Alterations and Personalty and repair the Premises as
aforesaid, Landlord may, by written notice to Tenant delivered at least thirty
(30) days before the Termination Date, require Tenant to pay to Landlord, as
additional rent hereunder, the cost of such removal and repair in an amount
reasonably estimated by Landlord.
26.3 All
obligations of Tenant under this Lease not fully performed as of the expiration
or earlier termination of the Term shall survive the expiration or earlier
termination of the Term Upon the expiration or earlier termination of the Term,
Tenant shall pay to Landlord the amount, as reasonably estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease and/or
to
discharge Tenant’s obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after
all
such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
18
28. TAXES
PAYABLE BY TENANT. In
addition to rent and other charges to be paid by Tenant under this Lease, Tenant
shall reimburse to Landlord, upon demand, any and all taxes payable by Landlord
(other than net income taxes except to the extent imposed in lieu of an
otherwise recoverable tax under this Lease) whether or not now customary or
within the contemplation of the parties to this Lease: (a) upon, allocable
to,
or measured by or on the gross or net rent payable under this Lease, including
without limitation any margin tax pursuant to Chapter 171 of the Texas Tax
Code
(as the same may be amended, renewed, or replaced from time to time) imposed
on
Landlord and computed with respect to rents payable under this Lease, and any
gross income tax or excise tax levied by the State, any political subdivision
thereof, or the Federal Government with respect to the receipt of such rent;
(b)
upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of the Premises or any portion
thereof, including any sales, use or service tax imposed as a result thereof;
(c) upon or measured by the Tenant’s gross receipts or payroll or the value of
Tenant’s equipment, furniture, fixtures and other personal property of Tenant or
leasehold improvements, alterations or additions located in the Premises; (d)
upon this transaction or any document to which Tenant is a party creating or
transferring any interest of Tenant in this Lease or the Premises, or (e)
imposed in lieu of an otherwise recoverable tax hereunder. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied
or
assessed against Tenant and which become payable during the term hereof upon
Tenant’s equipment, furniture, fixtures and other personal property of Tenant
located in the Premises.
30.1 During
the initial Term of this Lease, Tenant agrees to lease from Landlord and
Landlord agrees to lease to Tenant, the number and type of parking passes as
set
forth on the Reference Page of this Lease. This right to park in the Building’s
parking facilities (the “Parking Facility”) shall be on an unreserved,
nonexclusive, first come, first served basis, for passenger-size automobiles
and
is subject to the following terms and conditions:
30.1.1 Tenant
shall pay to Landlord, or Landlord’s designated parking operator, the Building’s
prevailing monthly parking charges, without deduction or offset, on the first
day of each month during the Term of this Lease. Landlord will notify Tenant
upon not less than thirty (30) days’ notice of any increases in the monthly
parking charges prior to billing Tenant any increases. No deductions from the
monthly charge shall be made for days on which the Parking Facility is not
used
by Tenant.
30.1.2 Tenant
shall at all times abide by and shall cause each of Tenant’s employees, agents,
customers, visitors, invitees, licensees, contractors, assignees and subtenants
(collectively, “Tenant’s Parties”) to abide by any rules and regulations
(“Rules”) for use of the Parking Facility that Landlord or Landlord’s garage
operator reasonably establishes from time to time, and otherwise agrees to
use
the Parking Facility in a safe and lawful manner. Landlord reserves the right
to
adopt, modify and enforce the Rules governing the use of the Parking Facility
from time to time including any key-card, sticker or other identification or
entrance system and hours of operation. Landlord may refuse to permit any person
who violates such Rules to park in the Parking Facility, and any violation
of
the Rules shall subject the car to removal from the Parking Facility.
30.1.3 Unless
specified to the contrary above, the parking spaces hereunder shall be provided
on a non-designated "first-come, first-served" basis. Landlord reserves the
right to assign specific spaces, and to reserve spaces for visitors, small
cars,
disabled persons or for other tenants or guests, and Tenant shall not park
and
shall not allow Tenant’s Parties to park in any such assigned or reserved
spaces. Tenant may validate visitor parking by such method as Landlord may
approve, at the validation rate from time to time generally applicable to
visitor parking. Tenant acknowledges that the Parking Facility may be closed
entirely or in part in order to make repairs or perform maintenance services,
or
to alter, modify, re-stripe or renovate the Parking Facility, or if required
by
casualty, strike, condemnation, act of God, governmental law or requirement
or
other reason beyond the operator’s reasonable control.
19
30.1.4 Tenant
acknowledges that to the fullest extent permitted by law, Landlord shall have
no
liability for any damage to property or other items located in the parking
areas
of the Project (including without limitation, any loss or damage to tenant's
automobile or the contents thereof due to theft, vandalism or accident), nor
for
any personal injuries or death arising out of the use of the Parking Facility
by
Tenant or any Tenant’s Parties, whether or not such loss or damage results from
Landlord's active negligence or negligent omission. The limitation on Landlord's
liability under the preceding sentence shall not apply however to loss or damage
arising directly from Landlord's willful misconduct. Without limiting the
foregoing, if Landlord arranges for the parking areas to be operated by an
independent contractor not affiliated with Landlord, Tenant acknowledges that
Landlord shall have no liability for claims arising through acts or omissions
of
such independent contractor. Tenant and Tenant’s Parties each hereby voluntarily
releases, discharges, waives and relinquishes any and all actions or causes
of
action for personal injury or property damage occurring to Tenant or any of
Tenant’s Parties arising as a result of parking in the Parking Facility, or any
activities incidental thereto, wherever or however the same may occur, and
further agrees that Tenant will not prosecute any claim for personal injury
or
property damage against Landlord or any of its officers, agents, servants or
employees for any said causes of action and in all events, Tenant agrees to
look
first to its insurance carrier and to require that Tenant's Parties look first
to their respective insurance carriers for payment of any losses sustained
in
connection with any use of the Parking Facility. Tenant hereby waives on behalf
of its insurance carriers all rights of subrogation against Landlord or
Landlord's agents.
30.1.5 Tenant
may not assign or sublease its right to park as described in this Article except
to an assignee or sublessee under this Lease and Landlord may, upon or following
such assignment or sublease, relocate within the Parking Facility any reserved
parking spaces then available to Tenant or, convert all or any of such reserved
parking spaces to unreserved parking spaces.
30.1.6 In
the
event any surcharge or regulatory fee is at any time imposed by any governmental
authority with reference to parking, Tenant shall (commencing after two (2)
weeks’ notice to Tenant) pay, per parking pass, such surcharge or regulatory fee
to Landlord in advance on the first day of each calendar month concurrently
with
the month installment of rent due under this Lease. Landlord will enforce any
surcharge or fee in an equitable manner amongst the Building
tenants.
30.2 If
Tenant
violates any of the terms and conditions of this Article, the operator of the
Parking Facility shall have the right to remove from the Parking Facility any
vehicles hereunder which shall have been involved or shall have been owned
or
driven by parties involved in causing such violation, without liability therefor
whatsoever. Alternatively, Landlord may in its discretion impose a fine of
$500.00 per violation on Tenant which shall be paid by Tenant as additional
rent
hereunder within thirty (30) days of demand therefor. If there are more than
two
(2) violations in any twelve (12) month period during the Term by any single
Tenant employee, contractor or invitee, then Landlord may deny access to the
Parking Facility by such person. If there are more than three (3) violations
in
any twelve (12) month period during the Term, Landlord may cancel Tenant’s right
to use the Parking Facility pursuant to this Article upon ten (10) days' written
notice, unless within such ten (10) day period, Tenant cures such default.
Landlord’s remedies under this Section 30.2 are cumulative and in addition to
any other rights or remedies available to Landlord at law or equity, or provided
under this Lease.
31. DEFINED
TERMS AND HEADINGS.
The
Article headings shown in this Lease are for convenience of reference and shall
in no way define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of Landlord shall
apply to and inure to the benefit of all the following “Landlord Entities”,
being Landlord, Landlord’s investment manager, and the trustees, boards of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. Any option granted to Landlord shall also include
or
be exercisable by Landlord’s trustee, beneficiary, agents and employees, as the
case may be. In any case where this Lease is signed by more than one person,
the
obligations under this Lease shall be joint and several. The terms “Tenant” and
“Landlord” or any pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number, individuals, firms or
corporations, and their and each of their respective successors, executors,
administrators and permitted assigns, according to the context hereof. The
term
“rentable area” shall mean the rentable area of the Premises or the Building as
calculated by the Landlord on the basis of the plans and specifications of
the
Building including a proportionate share of any common areas. Tenant hereby
accepts and agrees to be bound by the figures for the rentable square footage
of
the Premises and Tenant’s Proportionate Share shown on the Reference Pages;
however, Landlord may adjust either or both figures if there is manifest error,
addition or subtraction to the Building or any business park or complex of
which
the Building is a part, remeasurement or other circumstance reasonably
justifying adjustment.
The term
“Building” refers to the structure in which the Premises are located and the
common areas (parking lots, sidewalks, landscaping, etc.) appurtenant thereto.
If the Building
is part of a larger complex of structures, the term “Building” may include the
entire complex, where appropriate (such as shared Expenses or Taxes) and subject
to Landlord’s reasonable discretion.
20
32. TENANT’S
AUTHORITY.
If
Tenant signs as a corporation, partnership, trust or other legal entity each
of
the persons executing this Lease on behalf of Tenant represents and warrants
that Tenant has been and is qualified to do business in the state in which
the
Building is located, that the entity has full right and authority to enter
into
this Lease, and that all persons signing on behalf of the entity were authorized
to do so by appropriate actions. Tenant agrees to deliver to Landlord,
simultaneously with the delivery of this Lease, a corporate resolution, proof
of
due authorization by partners, opinion of counsel or other appropriate
documentation reasonably acceptable to Landlord evidencing the due authorization
of Tenant to enter into this Lease.
Tenant
hereby represents and warrants that neither Tenant, nor any persons or entities
holding any legal or beneficial interest whatsoever in Tenant, are (i) the
target of any sanctions program that is established by Executive Order of the
President or published by the Office of Foreign Assets Control, U.S. Department
of the Treasury (“OFAC”); (ii) designated by the President or OFAC pursuant to
the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56,
Executive Order 13224 (September 23, 2001) or any Executive Order of the
President issued pursuant to such statutes as the same may be amended, renewed
or replaced from time to time; or (iii) named on the following list that is
published by OFAC: “List of Specially Designated Nationals and Blocked Persons”
as the same may be amended, renewed or replaced from time to time. If the
foregoing representation is untrue at any time during the Term, an Event of
Default will be deemed to have occurred, without the necessity of notice to
Tenant.”
36. SUCCESSORS
AND ASSIGNS.
Subject
to the provisions of Article 9, the terms, covenants and conditions contained
in
this Lease shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the parties to this
Lease.
37. ENTIRE
AGREEMENT.
This
Lease, together with its exhibits, contains all agreements of the parties to
this Lease and supersedes any previous negotiations. There have been no
representations made by the Landlord or any of its representatives or
understandings made between the parties other than those set forth in this
Lease
and its exhibits. This Lease may not be modified except by a written instrument
duly executed by the parties to this Lease.
38. EXAMINATION
NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound by this Lease until it has received a
copy
of this Lease duly executed by Tenant and has delivered to Tenant a copy of
this
Lease duly executed by Landlord, and until such delivery Landlord reserves
the
right to exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained in this Lease to the contrary, Landlord
may
withhold delivery of possession of the Premises from Tenant until
such time as Tenant has paid to Landlord any security deposit required by
Article 5, the first month’s rent as set forth in Article 3 and any sum owed
pursuant to this Lease.
21
40.1 If
Tenant
elects to exercise said option, then Tenant shall provide Landlord with written
notice no earlier than the date which is twelve (12) months prior to the
expiration of the initial Term, and no later than the date which is nine (9)
months prior to the expiration of the initial Term. Time shall be of the essence
herein so that if Tenant fails to provide such notice, Tenant shall have no
further or additional right to extend or renew the term of the
Lease.
40.2 The
Annual Rent in effect at the expiration of the initial Term of the Lease shall
be adjusted to reflect the then current fair market rental for comparable space
in other comparable buildings in the Galleria/West Loop submarket in Houston,
Texas, accounting for all allowances and leasing concessions, as of the date
the
renewal term is to commence, taking into account the specific provisions of
the
Lease except to the extent hereunder provided. In no event shall the new Monthly
Installment of Rent be less than the Monthly Installment of Rent during the
last
month of the initial Term. Landlord shall advise Tenant of the new Annual Rent
and Monthly Installment of Rent for the Premises no later than thirty (30)
days
after receipt of Tenant's written request therefor. Said request shall be made
no earlier than thirty (30) days prior to the date on which Tenant may exercise
its option under this Article 40. Said notification of the new Annual Rent
and
Monthly Installment of Rent may include a provision for its escalation to
provide for a change in fair market rental between the time of notification
and
the commencement of the renewal term. Tenant shall have twenty (20) days from
said notification to provide Landlord with written notice that Tenant accepts
or
rejects the revised Annual Rent and Monthly Installment of Rent. If Tenant
fails
to provide such notice, then, at Landlord's election, in its sole and absolute
discretion, Tenant shall be deemed to have waived its option to renew the Lease,
and Tenant shall have no further or additional right to extend the term of
the
Lease. If Tenant disputes the rate quoted by Landlord and if the parties are
unable to mutually agree upon a revised rate at least six (6) months prior
to
the commencement of the renewal term, Landlord and Tenant shall each appoint
a
qualified MAI appraiser with at least ten (10) years commercial property
experience, doing business in the area in which the Building is located, and
if
those two (2) appraisers are unable, within twenty (20) days of their
appointment, to agree upon the fair market rental of the Premises as of the
expiration of the then current Term, then, those two independent MAI appraisers
shall appoint a third MAI appraiser (similarly so qualified) and the majority
shall decide upon the fair market rental for the Premises as of the expiration
of the then current Term. The decision of such majority shall be final and
binding on Landlord and Tenant. Landlord and Tenant shall equally share in
the
expense of this appraisal except that in the event the new Annual Rent is found
to be within ten percent (10%) of the rate last quoted by Landlord prior to
the
appointment of Landlord’s appraiser, then Tenant shall bear the full cost of all
the appraisal process. If Tenant fails to appoint a duly qualified MAI appraiser
within ten (10) days of Landlord’s notification to Tenant of its appointment of
an MAI appraiser, then Tenant shall be deemed to have waived its option to
renew
the Lease, and Tenant shall have no further or additional right to extend the
term of the Lease.
40.3 Tenant
shall pay for parking spaces allocated to Tenant in accordance with then
prevailing market rates charged by Landlord as the same may be increased in
accordance with the Building’s prevailing parking rates from time to time during
the renewal term upon notice to Tenant.
40.4 The
Premises shall be taken by Tenant during the renewal term, in its “AS-IS”
condition and Landlord shall have no liability to perform any renovation work
nor to provide any improvement allowances therefor unless otherwise agreed
upon
in the determination of fair market rental.
40.5 Upon
exercise of this option, Tenant shall, if so requested by Landlord, execute
an
amendment to the Lease confirming the exercise of the option and the new Annual
Rent and Monthly Installment of Rent for the Premises during the renewal term.
Landlord's failure to prepare or Tenant's failure to execute such amendment
shall not affect the validity of the exercise of this option or alter Tenant's
obligations during the renewal term as determined hereby.
40.6 This
option is personal to Petro and
cannot be exercised by any assignee or sublessee. This option shall no longer
be
effective if Tenant subleases or transfers possession of any portion of the
Premises. In addition, without limitation on any other provisions of this
Article 40, this option shall terminate and be of no further force or effect
if
(i) Landlord terminates Tenant's right to possession due to an Event of Default,
or (ii) Tenant vacates the Premises for in excess of sixty (60) days for reasons
other than casualty or approved repairs, or (iii) Landlord determines, in its
sole but reasonable discretion, that Tenant's financial condition or
creditworthiness has materially deteriorated since the Lease Reference Date.
40.7 Upon
exercise of the renewal option hereunder, Tenant shall have no further right
to
extend the term of the Lease other than by mutual agreement of the parties
hereto.
22
41. EXPANSION
OPTION.
Subject
to the existing rights of other tenants or occupants of space in the Building,
provided (i) there is no Event of Default by Tenant during the Term, (ii) Tenant
is not in default at the time of exercise of the expansion option hereunder
permitted, and (iii) Tenant is then in occupation of the entire of the Premises
leased to Tenant as of the Commencement Date, as the same may be increased
in
size from time to time during the Term, Tenant shall have a one-time only
expansion option (the "Expansion Option") during the initial Term only, covering
additional rentable area on the ninth (9th)
floor
of the Building, as hereinafter set forth:
41.1.1 Upon
the
written request of Tenant, Landlord shall disclose to Tenant the rentable area
on the ninth (9th)
floor
of the Building that may be available for lease during the initial Term subject
to existing rights of other tenants or occupants of space in the Building
("Potential Expansion Space"). By written notice to Landlord ("Expansion
Notice"), Tenant shall identify which space it is interested in leasing within
the Potential Expansion Space ("Expansion Space").
41.1.2 Upon
receipt of Tenant's Expansion Notice, if the Expansion Space or any part thereof
is available and is not then subject to existing rights of other tenants in
the
Building, and if Landlord has not already entered into lease discussions with
a
third party, and provided that Landlord approves, in its sole discretion,
Tenant’s proposed configuration, size and location of the Expansion Space,
Landlord will prepare and deliver to Tenant an offer (the “Expansion Offer”)
setting forth the terms on which Landlord is willing to lease the space to
Tenant. Tenant shall either accept or reject the Expansion Offer within three
(3) business days of Landlord’s delivery of the same. If Tenant rejects the
Expansion Offer, or conditionally accepts the same, or makes a counteroffer,
then this Expansion Option shall no longer apply to the Expansion Space, and
Landlord, at its discretion, may lease such Expansion Space to a third party
on
whatever terms Landlord desires, or may continue to negotiate with Tenant
subject to Landlord’s right to terminate such negotiations at Landlord’s
discretion. If the Expansion Offer is accepted or if the parties agree on terms
during the three (3) business day period, but in either event, are then unable,
within five (5) business days of delivery of a Lease amendment to Tenant or
its
legal counsel, to agree upon the terms of such amendment to provide for the
addition of the Expansion Space to the Premises, then Landlord is at liberty
thereafter to discontinue negotiations with Tenant and to lease the Expansion
Space to any other party on whatever basis Landlord desires. Time shall be
of
the essence herein.
41.1.3 Landlord
will use reasonable diligence to make the Expansion Space available to Tenant
on
the date specified in the Expansion Offer. Landlord shall not be liable for
failure to give possession of the Expansion Space to Tenant on such date, and
such failure shall not impair the validity of the Lease, or extend the Term,
but
the rent for the Expansion Space shall be abated until possession is delivered
to Tenant and such abatement shall constitute full settlement of all claims
that
Tenant might otherwise have against Landlord by reason of such failure to give
possession of the Expansion Space to Tenant on the date originally identified
by
Landlord.
41.1.4 Tenant
shall, prior to the beginning of the term for the Expansion Space, execute
an
amendment to the Lease provided by Landlord confirming the addition of the
Expansion Space, Tenant’s Proportionate Share, as revised, and the terms of the
Expansion Offer including the Annual Rent and the Monthly Installment of Rent
for the Expansion Space, and the Lease Term for the Expansion Space; provided
however that Landlord’s failure to prepare or Tenant’s failure to execute such
amendment shall not affect the validity of the exercise of the option or
Tenant’s obligations with respect to the Expansion Space.
41.1.5 This
option is not transferable; the parties hereto acknowledge and agree that they
intend that this option shall be personal
to
Petro,
and
that in no event will any assignee or sublessee have any rights hereunder.
This
is a one-time option only. Upon exercise of the Expansion Option, Tenant shall
have no further expansion options under this Lease.
41.1.6 Without
limitation on any other provisions of this Article 41, this option shall
terminate and be of no further force or effect if (i) Tenant does not timely
and
properly exercise the option, (ii) Landlord terminates Tenant's right to
possession due to an Event of Default, (iii) Tenant vacates the Premises for
in
excess of sixty (60) days for reasons other than casualty or approved repairs,
(iv) Tenant is then in occupation of less than the entire of the Premises
existing as of the Commencement Date, as the same may be increased in size
during the Term, (v) there is less than nine (9) months remaining in the Term
and Tenant has not exercised its renewal option, or (v) Landlord determines,
in
its sole but reasonable discretion, that Tenant’s financial condition or credit
worthiness has materially deteriorated since the Commencement
Date.
23
42. LIMITATION
OF LIABILITY.
Redress
for any claim against Landlord under this Lease shall be limited to and
enforceable only against and to the extent of Landlord’s interest in the
Building. The obligations of Landlord
under this Lease are not intended to be and shall not be personally binding
on,
nor shall any resort be had to the private properties of, any of its or its
investment manager’s trustees, directors, officers, partners, beneficiaries,
members, stockholders, employees, or agents, and in no case shall Landlord
be
liable to Tenant hereunder for any lost profits, damage to business, or any
form
of special, indirect or consequential damages. The obligations of Tenant under
this Lease are not intended to be and shall not be personally binding on, nor
shall any resort be had to the assets of, any of its affiliates, directors,
officers, partners, beneficiaries, members, stockholders, employees, or
agents.
[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
24
|
LANDLORD:
|
TENANT:
|
|
GATEWAY
RIDGECREST, INC.,
a
California corporation
|
PETRO
RESOURCES CORPORATION
a
Delaware corporation
|
|
By: RREEF
Management Company,
a Delaware corporation
|
PETRO
RESOURCES CORPORATION
a
Delaware corporation
|
|
|
|
|
By:
/s/
Xxx
Xxxxx
|
By:
/s/
Xxxxxx X.
Xxxxxxxxxx
|
|
Name:
Xxx Xxxxx
|
Name:
Xxxxxx
X. Xxxxxxxxxx
|
|
Title:
Managing Director
|
Title:
President
|
|
Dated:
September 30, 2006
|
|
|
By:
/s/
Xxx X.
Xxxxxxxx
|
|
|
Name:
Xxx X. Xxxxxxxx
|
|
|
Title:
Vice President, Regional Director
|
|
|
Dated:
September 30, 2006
|
25
attached
to and made a part of Lease bearing the
Lease
Reference Date of September 20, 2006 between
Gateway
Ridgecrest, Inc., as Landlord and
Petro
Resources Corporation, as Tenant
Exhibit
A
is intended only to show the general layout of the Premises as of the beginning
of the Term of this Lease. It does not in any way supersede any of Landlord’s
rights set forth in Article 17 with respect to arrangements and/or locations
of
public parts of the Building and changes in such arrangements and/or locations.
It is not to be scaled; any measurements or distances shown should be taken
as
approximate.
26
EXHIBIT
A-1 - SITE PLAN
attached
to and made a part of Lease bearing the
Lease
Reference Date of September 20, 2006 between
Gateway
Ridgecrest, Inc., as Landlord and
Petro
Resources Corporation, as Tenant
Exhibit
A-1 is intended only to show the general location of the Building as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord’s rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
A-1
EXHIBIT
B -- INITIAL ALTERATIONS
attached
to and made a part of Lease bearing the
Lease
Reference Date of September 20, 2006 between
Gateway
Ridgecrest, Inc., as Landlord and
Petro
Resources Corporation, as Tenant
(Landlord
does the Initial Work)
(1) Leasehold
Improvements.
Tenant
shall take the Premises in its "AS-IS" condition except for certain leasehold
improvements (the “Initial Work”) to the Premises which shall be completed in
accordance with the terms of this Exhibit
B.
(2) Plans
and Specifications.
Landlord and Tenant have approved the attached preliminary space plan. Landlord
shall, at Tenant’s cost, arrange preparation of the construction drawings (the
“Drawings”) based on said space plan and shall then submit the same to Tenant
for its approval. Tenant’s response shall be given within three (3) business
days of receipt by Tenant’s construction representative of the Drawings. If
Tenant disapproves the Drawings then it shall specify in reasonable detail
its
required changes or its reasons for disapproval. If Landlord approves the
changes requested by Tenant then it shall procure the revision of the Drawings
and resubmit the same. This process shall be repeated until the Drawings are
agreed. Tenant shall at all times act reasonably and in good faith in connection
with its review and approval of the Drawings. Tenant acknowledges that the
Drawings are being prepared in reliance upon the attached space plan that has
been approved by Tenant prior to its execution of this Lease. If Tenant fails
to
respond within the three (3) business day period as aforesaid, then the Drawings
will be deemed to have been approved. Nothing herein contained or in connection
with Landlord’s submission of the Drawings shall constitute a representation or
warranty by Landlord that the Drawings are adequate for any use, purpose, or
conditions, or that the Drawings comply with any applicable law or
code.
(3) Changes.
After
approval of the Drawings, Tenant may from time to time make changes to the
Drawings by delivering written notice to Landlord, specifying in detail the
requested change and, within three (3) business days of receipt of such request,
Landlord shall advise Tenant if it approves such change failing which such
requested change shall be deemed disapproved by Landlord. If Tenant requests
any
changes to any submitted Drawings and, if Landlord approves such requested
changes, then any additional costs necessitated thereby shall be included in
the
Total Construction Costs (defined below). Landlord’s approval when requested as
aforesaid shall not be unreasonably withheld provided that (i) the proposed
changes and Drawings as revised comply with all applicable governmental laws,
codes, rules, and regulations, (ii) the Drawings as revised are sufficiently
detailed to allow construction of the Initial Work in a good and workmanlike
manner, (iii) the Initial Work depicted thereon conforms to the rules and
regulations promulgated from time to time by the Landlord for the construction
of tenant improvements, and (iv) Landlord may withhold its consent in its sole
and absolute discretion to proposed construction work and the working drawings
pertaining thereto that (A) would adversely affect the Building’s structure, or
(B) would adversely affect the Building’s HVAC, plumbing, electrical or
mechanical systems.
(4) Construction
of the Initial Work.
Landlord shall competitively bid the Initial Work to at least two (2)
contractors approved by Landlord and Tenant and will obtain pricing based on
the
approved Drawings. Landlord shall then enter into a construction contract with
the general contractor mutually approved by Landlord and Tenant. The Initial
Work shall be performed using Building standard materials unless otherwise
stated in the Drawings. The general contractor shall be responsible for
obtaining any permits, licenses and governmental approvals required for the
construction of the Initial Work. Tenant shall cooperate with the general
contractor to allow the general contractor to apply for and obtain any required
certificate of occupancy. It shall be a matter for Tenant to satisfy itself
that
the Initial Work is in compliance with applicable laws. Landlord assumes no
liability for special, consequential, or incidental damages of any kind
whatsoever in connection with the design or construction of the Initial Work
and
the obtaining of permits, licenses and approvals, and makes no representations,
warranties, or guaranties regarding the same, expressed or implied, including,
without limitation, warranties of merchantability, compliance with applicable
laws, fitness for a particular purpose, or habitability except that the Initial
Work shall be performed in accordance with the Drawings.
B-1
(5) Substantial
Completion.
When
the Initial Work is Substantially Completed as provided herein, Landlord will
notify Tenant and within two (2) business days thereafter, Landlord's
representative and Tenant's representative or their nominees shall conduct
a
walk-through of the Premises and identify any necessary touch-up work, repairs
and minor completion items that are necessary for final completion of the
Initial Work. Neither Landlord's representative nor Tenant's representative
shall unreasonably withhold his or her agreement on punchlist items. Landlord
shall use reasonable efforts to cause the contractor performing the Initial
Work
to complete all punchlist items within thirty (30) days after agreement thereon
or as soon as reasonably practicable thereafter; however, Landlord shall not
be
obligated to engage overtime labor in order to complete such items. As used
herein “Substantial Completion”, “Substantially Completed”, and any derivations
thereof mean the Initial Work is substantially completed as reasonably
determined by Landlord in substantial accordance with the Drawings even though
minor details of construction, decoration and mechanical adjustments remain
to
be completed.
(6) Construction
Costs.
Tenant
shall bear the entire cost of performing the Initial Work (including, without
limitation, design of the Initial Work, costs of preparation of the space plan
and the Drawings, costs of construction labor and materials, electrical usage
during construction, additional janitorial services, related taxes and insurance
costs, all of which costs are herein collectively called the “Total Construction
Costs”) in excess of the Allowance (hereinafter defined). Tenant shall pay to
Landlord, within thirty (30) days after receipt of an invoice or invoices
therefor, an amount equal to the estimated Total Construction Costs, less the
amount of the Allowance. On or prior to Substantial Completion, Landlord will
provide Tenant with a reasonably detailed itemization of the actual Total
Construction Costs. The outstanding amount of the Total Construction Costs
shall
then be paid within thirty (30) days after receipt by Tenant of an invoice
or
invoices therefor. Any late payment of amounts due under this Exhibit
B
shall
bear interest or be subject to a charge as set forth in Section 3.2 of the
Lease.
(7) Allowance.
Landlord shall provide to Tenant an allowance (the “Allowance”) of $62,120.00
calculated at the rate of $20.00 per rentable square foot in that part of the
Premises. The Allowance shall be used for (i) construction costs (hard costs),
(ii) a 3% construction management fee to be paid to Landlord under Paragraph
(8)
below, (iii) the cost of the Drawings and the construction documents, and (iv)
tenant directory and suite signage costs, but no part of the Allowance may
be
used for purchase and installation of Tenant’s furniture and inventory. The
Allowance shall not be disbursed to Tenant in cash, but shall be applied by
Landlord to the payment of the Total Construction Costs, if, as, and when the
cost of the Initial Work is actually incurred and paid by Landlord. Up to
$3,106.00 (namely, $1.00 psf) of any unused portion of the Allowance may be
used
towards Tenant’s telecommunication and/or cabling installation costs. Any
Allowance which has not been used by March
31, 2007
shall belong to Landlord absolutely.
(8) Construction
Management Fee.
Landlord, or its designated agent or representative, shall supervise the Initial
Work, contract with the general contractor, make disbursements required to
be
made to the contractor, act as a liaison between the general contractor and
Tenant and coordinate the relationship between the Initial Work, the Building,
and the Building’s systems. In consideration for Landlord’s construction
supervision services, Tenant shall pay to Landlord a construction management
fee
equal to three percent (3%) of the Total Construction Costs. Such construction
management fee shall be deducted from the Allowance.
(9) Insurance.
Unless
Landlord expressly agrees otherwise in writing all of the leasehold
improvements, alterations and additions included in the Initial Work shall
be
covered at Tenant’s expense throughout the Term up to the full replacement value
thereof under the All Risk or Special Coverage Form coverage or equivalent
thereof required to be obtained by Tenant under the Lease. Tenant shall be
responsible for the repair or replacement of the same in the event of a
Casualty.
B-2
(10) Construction
Representatives.
Landlord's and Tenant's representatives for coordination of construction will
be
as follows, provided that either party may change its representative upon
written notice to the other:
Landlord's
Representative: Xxxxxx
Xxxxxxx
RREEF
Management Company
000
Xxxx
Xxx Xxxx., Xxxxx 000
Xxxxxxx,
XX 00000
Phone:
713/000-0000
Fax:
713/000-0000
Email:
xxxxxx.xxxxxxx@xxxxx.xxx
Tenant's
Representative:
Xxx
Xxxxxxxxxx
Petro
Resources Corporation
0000
Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Phone:
713/000-0000
Fax:
___________________
Email:xxxxx@xxxxxxxxxxxxxxxxxx.xxx
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B-3
EXHIBIT
C - COMMENCEMENT DATE MEMORANDUM
attached
to and made a part of Lease bearing the
Lease
Reference Date of September 20, 2006 between
Gateway
Ridgecrest, Inc., as Landlord and
Petro
Resources Corporation, as Tenant
[SAMPLE
ONLY]
COMMENCEMENT
DATE MEMORANDUM
THIS
MEMORANDUM, made as of _____, 20_____, by and between _____ (“Landlord”) and
_____ (“Tenant”).
Recitals:
|
A.
|
Landlord
and Tenant are parties to that certain Lease, dated for reference
_____,
20_____
(the “Lease”) for certain premises (the “Premises”) consisting of
approximately _____
square feet at the building commonly known as _____.
|
|
B.
|
Tenant
is in possession of the Premises and the Term of the Lease has
commenced.
|
|
C.
|
Landlord
and Tenant desire to enter into this Memorandum confirming the
Commencement Date, the Termination Date and other matters under the
Lease.
|
NOW,
THEREFORE, Landlord and Tenant agree as follows:
1. The
actual Commencement Date is _____.
2. The
actual Termination Date is ______.
3. The
schedule of the Annual Rent and the Monthly Installment of Rent set forth on
the
Reference Pages is deleted in its entirety, and the following is substituted
therefor:
[insert
rent schedule]
4. Capitalized
terms not defined herein shall have the same meaning as set forth in the
Lease.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year first above written.
|
LANDLORD:
|
TENANT:
|
|
By: RREEF
Management Company, a Delaware corporation
|
|
|
By:
DO NOT SIGN
|
By:
DO NOT SIGN
|
|
Name:
|
|
|
Title:
|
Title:
|
|
Dated:
________________________________
|
Dated:
_______________________________
|
C-1
attached
to and made a part of Lease bearing the
Lease
Reference Date of September 20, 2006 between
Gateway
Ridgecrest, Inc., as Landlord and
Petro
Resources Corporation, as Tenant
1. No
sign,
placard, picture, advertisement, name or notice shall be installed or displayed
on any part of the outside or inside of the Building without the prior written
consent of the Landlord. Landlord shall have the right to remove, at Tenant’s
expense and without notice, any sign installed or displayed in violation of
this
rule. All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at Tenant’s expense by a vendor designated or
approved by Landlord. In addition, Landlord reserves the right to change from
time to time the format of the signs or lettering and to require previously
approved signs or lettering to be appropriately altered. Tenant may put Tenant’s
name on the door of the Premises and, subject to Landlord’s approval at its
discretion as to location, size and graphics, within the common corridor on
the
ninth (9th)
floor
of the Building.
2. If
Landlord objects in writing to any curtains, blinds, shades or screens attached
to or hung in or used in connection with any window or door of the Premises,
Tenant shall immediately discontinue such use. No awning shall be permitted
on
any part of the Premises. Tenant shall not place anything or allow anything
to
be placed against or near any glass partitions or doors or windows which may
appear unsightly, in the opinion of Landlord, from outside the
Premises.
3. Tenant
shall not obstruct any sidewalks, halls, passages, exits, entrances, elevators,
or stairways of the Building. No tenant and no employee or invitee of any tenant
shall go upon the roof of the Building.
4. Any
directory of the Building, if provided, will be exclusively for the display
of
the name and location of tenants only and Landlord reserves the right to exclude
any other names. Landlord reserves the right to charge for Tenant’s directory
listing.
5. All
cleaning and janitorial services for the Building and the Premises shall be
provided exclusively through Landlord. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the
Premises. Landlord shall not in any way be responsible to any Tenant for any
loss of property on the Premises, however occurring, or for any damage to any
Tenant’s property by the janitor or any other employee or any other
person.
6. The
toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be
used
for any purpose other than that for which they were constructed. No foreign
substance of any kind whatsoever shall be thrown into any of them, and the
expense of any breakage, stoppage or damage resulting from the violation of
this
rule shall be borne by the Tenant who, or whose employees or invitees, shall
have caused it.
7. Tenant
shall store all its trash and garbage within its Premises. Tenant shall not
place in any trash box or receptacle any material which cannot be disposed
of in
the ordinary and customary manner of trash and garbage disposal. All garbage
and
refuse disposal shall be made in accordance with directions issued from time
to
time by Landlord. Tenant will comply with any and all recycling procedures
designated by Landlord.
8. Landlord
will furnish Tenant two (2) keys free of charge to each door in the Premises
that has a passage way lock. Landlord may charge Tenant a reasonable amount
for
any additional keys, and Tenant shall not make or have made additional keys
on
its own. Tenant shall not alter any lock or install a new or additional lock
or
bolt on any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay Landlord
therefor.
9. If
Tenant
requires telephone, data, burglar alarm or similar service, the cost of
purchasing, installing and maintaining such service shall be borne solely by
Tenant. No boring or cutting for wires will be allowed without the prior written
consent of Landlord.
10. No
equipment, materials, furniture, packages, bulk supplies, merchandise or other
property will be received in the Building or carried in the elevators except
between such hours and in such elevators as may be designated by Landlord.
The
persons employed to move such equipment or materials in or out of the Building
must be acceptable to Landlord.
D-1
11. Tenant
shall not place a load upon any floor which exceeds the load per square foot
which such floor was designed to carry and which is allowed by law. Heavy
objects shall stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight. Business machines and mechanical equipment
belonging to Tenant which cause noise or vibration that may be transmitted
to
the structure of the Building or to any space in the Building to such a degree
as to be objectionable to Landlord or to any tenants shall be placed and
maintained by Tenant, at Tenant’s expense, on vibration eliminators or other
devices sufficient to eliminate the noise or vibration. Landlord will not be
responsible for loss of or damage to any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property shall be repaired at the expense of
Tenant.
12. Landlord
shall in all cases retain the right to control and prevent access to the
Building of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants, provided that nothing contained in this rule shall be construed
to prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal
activities. Landlord reserves the right to exclude from the Building between
the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge
of
the Building or has a pass and is properly identified as an employee of Tenant.
Tenant shall be responsible for all persons for whom it requests passes and
shall be liable to Landlord for all acts of such persons. Landlord shall not
be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person.
13. Tenant
shall not use any method of heating or air conditioning other than that supplied
or approved in writing by Landlord.
14. Tenant
shall not waste electricity, water or air conditioning. Tenant shall keep
corridor doors closed. Tenant shall close and lock the doors of its Premises
and
entirely shut off all water faucets or other water apparatus and electricity,
gas or air outlets before Tenant and its employees leave the Premises. Tenant
shall be responsible for any damage or injuries sustained by other tenants
or
occupants of the Building or by Landlord for noncompliance with this
rule.
15. Tenant
shall not install any radio or television antenna, satellite dish, loudspeaker
or other device on the roof or exterior walls of the Building without Landlord’s
prior written consent, which consent may be withheld in Landlord’s sole
discretion, and which consent may in any event be conditioned upon Tenant’s
execution of Landlord’s standard form of license agreement. Tenant shall be
responsible for any interference caused by such installation.
16. Tenant
shall not xxxx, drive nails, screw or drill into the partitions, woodwork,
plaster, or drywall (except for pictures, tackboards and similar office uses)
or
in any way deface the Premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of the Premises in any
manner except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
17. Tenant
shall not install, maintain or operate upon the Premises any vending machine
without Landlord’s prior written consent, except that Tenant may install food
and drink vending machines solely for the convenience of its
employees.
18. No
cooking shall be done or permitted by any tenant on the Premises, except that
Underwriters’ Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted provided
that such equipment and use is in accordance with all applicable federal, state
and city laws, codes, ordinances, rules and regulations.
19. Tenant
shall not use in any space or in the public halls of the Building any hand
trucks except those equipped with the rubber tires and side guards or such
other
material-handling equipment as Landlord may approve. Tenant shall not bring
any
other vehicles of any kind into the Building.
20. Tenant
shall not permit any motor vehicles to be washed or mechanical work or
maintenance of motor vehicles to be performed in any parking lot.
21. Tenant
shall not use the name of the Building or any photograph or likeness of the
Building in connection with or in promoting or advertising Tenant’s business,
except that Tenant may include the Building name in Tenant’s address. Landlord
shall have the right, exercisable without notice and without liability to any
tenant, to change the name and address of the Building.
D-2
22. Tenant
requests for services must be submitted to the Building office by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instruction from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to
any
office without specific instructions from Landlord.
23. Tenant
shall not permit smoking or carrying of lighted cigarettes or cigars other
than
in areas designated by Landlord as smoking areas.
24. Canvassing,
soliciting, distribution of handbills or any other written material in the
Building is prohibited and each tenant shall cooperate to prevent the same.
No
tenant shall solicit business from other tenants or permit the sale of any
good
or merchandise in the Building without the written consent of
Landlord.
25. Tenant
shall not permit any animals other than service animals, e.g. seeing-eye dogs,
to be brought or kept in or about the Premises or any common area of the
Building.
26. These
Rules and Regulations are in addition to, and shall not be construed to in
any
way modify or amend, in whole or in part, the terms, covenants, agreements
and
conditions of any lease of any premises in the Building. Landlord may waive
any
one or more of these Rules and Regulations for the benefit of any particular
tenant or tenants, but no such waiver by Landlord shall be construed as a waiver
of such Rules and Regulations in favor of any other tenant or tenants, nor
prevent Landlord from thereafter enforcing any such Rules and Regulations
against any or all of the tenants of the Building.
27. Landlord
reserves the right to make such other and reasonable rules and regulations
as in
its judgment may from time to time be needed for safety and security, for care
and cleanliness of the Building, and for the preservation of good order in
and
about the Building. Tenant agrees to abide by all such rules and regulations
herein stated and any additional rules and regulations which are adopted. Tenant
shall be responsible for the observance of all of the foregoing rules by
Tenant’s employees, agents, clients, customers, invitees and
guests.
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D-3
