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EXHIBIT 10.9
LEASE
LEASE, effective as of July __, 1997 (the "Effective Date") between
K/B FUND IV, a Delaware general partnership, with an office at 0000 Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxxx 00000 ("Landlord"), and CONTINENTAL NATURAL GAS, INC.,
an Oklahoma corporation, with an office at Suite 500, 0000 Xxxxx Xxxxxx,
Xxxxx, Xxxxxxxx 00000 ("Tenant").
ARTICLE ONE - LEASE OF PREMISES
Section 1.01 Lease of Premises.
(a) Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, upon and subject to the covenants, agreements, terms, provisions
and conditions of this Lease, for the term and at the rent hereinafter stated,
the premises referred to in subsection (b) below (the "Leased Premises") in the
building, together with parking spaces as hereinafter provided and certain
non-exclusive rights to the parking garage and related improvements known as
The Texaco Building, 0000 Xxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000 (the
"Building").
(b) The Leased Premises shall include a total of approximately
20,347 rentable square feet (rsq) of demised office space located on the entire
twelfth (12th) floor West Tower of the Building and on a portion of the twelfth
(12th) floor East Tower of the Building as shown on the attached Floor Plans on
Exhibit A1, (i) together with such additional space as Tenant may lease at the
Building pursuant hereto (when added to the Leased Premises) and all fixtures,
equipment, improvements, installations and appurtenances which at the
commencement of or during the term of this Lease are attached to, situated or
located in, or used in connection with such space leased by Tenant but
excluding any personal property or trade fixtures of Tenant and (ii) less such
space as may be deleted from the Leased Premises pursuant to any provision of
this Lease (when so deleted). The rentable area of the Leased Premises
described above is represented by Landlord to Tenant to be 20,347 square feet.
The rentable area of the Building is represented by Landlord to Tenant to be
515,738 square feet. Landlord's stated calculation of the rentable area of
Leased Premises and Building shall be determinative.
(c) This Lease includes the right of Tenant to use the Common
Building Facilities (as defined below) in common with other tenants in the
Building and Tenant's Parking Spaces (as provided for in Article Six) in the
Building Parking Garage and Additional Parking Area (referred to in Article
Six).
(d) The term "Common Building Facilities" shall mean all of the
common facilities in or around the Building designed and intended for use by
all tenants in the Building in common with Landlord and each other, including
but not limited to the parking garage constructed on the land (the "Building
Parking Garage") the other parking areas (the "Additional Parking"), hallways,
elevators, fire stairs, telephone and electric closets, aisles, walkways, truck
docks, plazas, courts, restrooms, service areas, lobbies, landscaped areas, and
all other common and service areas of the land and the
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Building intended for such use. Floors wholly occupied by Tenant shall not
have any facilities which shall be used in common with other tenants, except
for (i) fire stairs and (ii) mechanical, equipment and janitorial rooms and
general service areas for Landlord's exclusive use serving the Building
generally. Use of the Common Building Facilities is subject to rules and
regulations promulgated by the Landlord.
(e) The term "Building" means all of the land and improvements
thereon included within the office projects known as the Texaco Building, 1437
South Boulder Street, Tulsa, Oklahoma as described on Exhibit "A".
The term "The Texaco Building Complex" means any and all driveways,
roadways, sidewalks, landscaped area and other facilities and amenities from
time to time located within The Texaco Building Complex which are all for the
common use of all occupants and business visitors of The Texaco Building.
ARTICLE TWO - TERM
Section 2.01 Initial Term. This Lease is effective as of the date
hereof. The initial term of this Lease (the "Initial Term") shall commence on
the Term Commencement Date (as defined in Section 3.01 below) and shall
terminate on midnight of last day of the sixtieth (60th) month following the
(i) the Term Commencement Date, if the Term Commencement Date occurs on the
first day of a calendar month, or (ii) if not, the first day of the calendar
month immediately following the calendar month containing the Term Commencement
Date (the "Expiration Date") or on such earlier date on which the term may
expire or be terminated pursuant to the provisions of this Lease or pursuant to
law.
Section 2.02 Renewal Terms.
(a) Provided Tenant is not then in default in any of its
obligations under this Lease after applicable notice and curative periods have
expired, Tenant shall have the option to renew the term of this Lease as to all
of the Leased Premises for a one (1) two-(2) year renewal term (the "Renewal
Term"). Such option shall be exercised by written notice to Landlord given at
least six (6) months prior to the expiration of the Initial Term. The Renewal
Term shall be on the same covenants, agreements, terms, provisions and
conditions as are contained herein for the Initial Term, except as expressly
provided herein to the contrary and except for such as are, by their terms,
inapplicable to a Renewal Term. Tenant shall have no further renewal options
following the Renewal Term. The rent payable during the Renewal Term shall be
as provided in Section 4.04.
(b) At any time after the Renewal Term has become effective and
the rent payable during such Renewal Term determined, Landlord and Tenant, upon
request of either, shall execute an agreement supplementary hereto setting out
the date to which such Renewal Term shall extend, the Annual Rental payable
during such Renewal Term and the Leased Premises for such Renewal Term.
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(c) Tenant's renewal rights may not be exercised by any sublessee
or assignee except by a permitted assignee (including an Affiliate of Tenant as
provided in Section 16.01) of all of Tenant's rights under this Lease.
Section 2.04 Expansion Option. Tenant shall have the right and
option to expand the Leased Premises ("Expansion Option") to include all of
office space adjacent to the initial premises on the twelfth (12th) floor of
the East Tower ("Expansion Space") on the following terms:
(a) Landlord shall notify Tenant in writing if it receives a
request for lease proposal or bona fide interest to lease the Expansion Space
from a third party (the "Third Party") and Tenant shall have seven (7) days
from receipt of Landlord's notice to add the Expansion Space to this Lease by
way of Lease Amendment as hereinafter provided.
(b) If after Landlord's notice of offer, Tenant does not notify
Landlord of its election to lease the Expansion Space, Landlord may proceed to
lease the Expansion space to such Third Party on terms and conditions,
including rental rate, acceptable to Landlord. If a lease is not entered into
by Landlord with such Third Party within six (6) months of Landlord's notice,
Tenant's right to first offer and option for the Expansion shall revest.
(c) At any time during the Term when the Expansion Space is not
leased to a third party or subject to negotiation by Landlord within six (6)
months of Landlord's notice to Tenant as provided in Section 2.04(a), Tenant
shall have the right by giving notice to Landlord to include the Expansion
Space in this Lease by way of Lease Amendment as hereinafter provided.
(d) If the Expansion Option is exercised by Tenant with a term
commencing on or before December 31, 1997, the Lease Amendment shall provide:
(1) An Annual Rental for the Expansion Space of TEN AND
50/100 DOLLARS ($10.50) per rentable square foot.
(2) A Tenant Improvement Allowance equal to 1/60th of the
sum of TEN AND NO/100 DOLLARS ($10.00) times the
rentable square footage of the Expansion Space times
the number of months then remaining in the Initial
Term.
(3) All other provisions of the Lease shall remain the
same.
(e) If the Expansion Option is exercised by Tenant with a term
commencing after December 31, 1997, the Lease Amendment shall provide:
(1) An Annual Rental Rate for the Expansion Space equal
to One Hundred Percent (100%) of the Fair Market
Value of the Expansion Space as determined under the
procedures set forth on Exhibit "C" .
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(2) All other provisions of the Lease shall remain the
same.
(f) Tenant's Expansion Option for the Expansion Space shall expire
upon an Event of Default of this Lease and upon the expiration of the Initial
Term if not previously exercised before such date.
Section 2.05 Term of this Lease. The term "term of this Lease"
shall mean the Initial Term and the Renewal Term which may become effective
pursuant to Section 2.02.
ARTICLE THREE - TERM COMMENCEMENT DATE
Section 3.01 Term Commencement Date.
(a) Landlord shall make the Leased Premises available to Tenant
for the performance by Tenant of its Tenant finish work simultaneously with the
Effective Date of this Lease. Such space shall be delivered to Tenant in "as
is" condition, Landlord having no obligation to do any demolition, construction
or improvement work with respect to such space, except as provided in Exhibit
"B". Rent and occupancy for Tenant's business operations shall commence upon
the earlier of (i) the date Tenant has completed its move in and has commenced
its business operations or (ii) September 15, 1997.
(b) Except as specifically and expressly provided in this Lease,
Landlord makes no express or implied warranties as to the condition of such
space (or any other space subsequently leased by Tenant) or its suitability for
the conduct of Tenant's business except as provided in Exhibit "F".
(c) Prior to performing any work in the Leased Premises, Tenant
shall submit working drawings and specifications sufficient to complete
construction based thereon ("Tenant's Plans") for Tenant's improvements,
additions, installations, alterations and trade fixtures to be installed in the
Leased Premises (and for any subsequent improvements or changes to the Leased
Premises, including as to additional space added thereto) for Landlord's review
and written approval. Landlord shall have ten (10) days from receipt of
Tenant's Plans to either approve or reject or comment to same, specifying the
reason for any objections or comments in reasonable detail in writing.
Landlord shall not unreasonably withhold its approval to any of Tenant's Plans
provided (i) the same provide for improvements which will be compatible and
integrate with and not unduly drain from the base building systems for the
Building and will meet all structural design load requirements; (ii) no
improvements of Tenant will be visible from the exterior of the Building; (iii)
any improvements visible from common areas, including elevator lobbies, will be
aesthetically compatible with the Building common areas; (iv) all of Tenant's
improvements and the construction thereof will be consistent with good
construction, engineering and safety practices; and (v) any additional
requirements of Sections 7.01 or 11.01 , the Rules and Regulations attached
hereto as Exhibit "H" and other provisions of this Lease are met. Landlord
shall charge no plan review fee or fee for third-
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party architectural, engineering, consultant and other professional fees and
expenses incurred by Landlord in connection with the review of Tenant's Plans.
Tenant shall perform all construction with contractors and
subcontractors of its choice, subject to the prior written approval of
Landlord, which approval shall not be unreasonably withheld or delayed. Tenant
shall cooperate in providing Landlord with the information that it requests to
qualify contractors or subcontractors.
Tenant and Tenant's contractors and subcontractors shall comply with
all Applicable Laws and all of the Building Rules and Regulations as set forth
in performing its construction. All such construction shall be performed in a
good and workmanlike manner in keeping with good construction practice. Tenant
shall be responsible for obtaining all of its required building permits and the
certificate of occupancy (if required) for the Leased Premises, as well as any
special permits or licenses required pursuant to Section 7.01.
Tenant shall indemnify and hold harmless Landlord from and against any
and all losses, damages, costs and expenses (includes costs of suit and
attorneys' fees), liabilities, or causes of action arising out of or relating
to any alterations, additions, installations, or improvements made by Tenant to
the Leased Premises, including but not limited to, mechanics, materialmen's or
other liens or claims (and all costs or expenses associated therewith)
asserted, filed or arising out of any such work. All contracts with
materialmen, contractors, artisans, mechanics, laborers and other parties
hereafter contracting with Tenant for the furnishing of any labor, services,
materials, supplies or equipment with respect to any portion of the Leased
Premises must provide that they look solely to Tenant for payment for same.
Without limiting the generality of the foregoing, Tenant shall repair or cause
to be repaired at its expense all damage caused by Tenant or any of its
contractors, their subcontractors or their employees, to the Building or any
mechanical system therein, or at Landlord's option, following notice to Tenant
which is reasonable under the circumstances, Landlord shall repair such damage
at Tenant's cost and expense.
ARTICLE FOUR - RENTAL
Section 4.01 Annual Rental. Tenant shall pay to Landlord as rent,
at the office of the Building or elsewhere as directed from time to time by
Landlord's written notice to Tenant, a base rental (the "Annual Rental")
computed on the basis of the Annual Rate in Exhibit "C" for each rentable
square foot of the Leased Premises. The Annual Rental shall be payable in
equal monthly installments, in advance, on the first day of each and every
month of the term of this Lease, the first such payment becoming due and
payable on the Term Commencement Date as to the space leased by Tenant on the
Term Commencement Date. Also, a prorated monthly installment shall be paid, if
the Term Commencement Date is other than the first day of a month or if the
term of this Lease terminates on a day other than the last day of a month.
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Section 4.02 Additional Rental.
(a) For calendar year 1998 and for each calendar year thereafter
Tenant shall pay as additional rental together with all sums other than Annual
Rental payable by Tenant under this Lease (the "Additional Rental") for each
Operating Expense Year (as hereinafter defined) Tenant's Share (as hereinafter
defined) of the increase, if any, in the direct expenses paid or incurred by
Landlord for the operation, repair and maintenance of the Building, Building
Parking Garage, other Common Building Facilities, and the Additional Parking
Area ("Operating Expenses" as more fully defined in Exhibit D). As of the
Effective Date of this Lease, the total rentable area of the leasable space
within the Building is 515,738 square feet; therefore, as of the Effective Date
of this Lease, the Tenant's Share of Operating Expenses is three point
nine-five percent (3.95%). Notwithstanding the foregoing, for purposes of
calculating Additional Rental hereunder (i) the Operating Expenses for 1998
shall not exceed four percent (4%) of the Operating Expense Base, and (ii) the
Operating Expenses for each Operating Expense Year following 1998 shall not
exceed four percent (4%) of the Operating Expenses for the immediately
preceding Operating Expense Year (as limited pursuant to this paragraph
4.02(a)); provided however that such limitation shall apply only to all
Operating Expenses other than the real estate taxes and assessments. In
calculating the maximum amount of Operating Expenses for Tenants Share, the
amount of actual real estate taxes and assessments shall first be deducted from
Operating Expenses then the four percent (4%) limitation shall be applied to
the remainder and then real estate taxes and assessments shall be added back
and the sum of the above amounts shall be the Operating Expenses used in
determining Tenant's Share of Operating Expenses; provided however that the
amount of real estate taxes and assessments in 1998 shall not be in excess of
ten percent (10%) more than the amount of 1997 taxes and for each year after
1998 shall not be in excess of ten percent (10%) of the amount for the prior
year. Such Additional Rental shall be payable by Tenant to Landlord as
hereinafter provided.
(b) The term "Operating Expense Year" shall mean each calendar
year commencing with the calendar year in which the Term Commencement Date
occurs, falling, in whole or in part, within the term of this Lease. If a Term
Commencement Date for space leased by Tenant occurs on a date other than
January 1 or the term of this Lease terminates or expires on a date other than
December 31, the Additional Rental for the pertinent Operating Expense Year for
such space shall be prorated based upon the number of days in such Operating
Expense Year occurring after such Term Commencement Date or before the
termination or expiration of the term of this Lease, as applicable.
(c) The term "Tenant's Share" shall mean that number, stated above
as a percentage in Section 4.02(a). In the event of any change in the area of
the Leased Premises or the Building or in the event Tenant is entitled to a
rent abatement for Operating Expenses hereunder as to all or any portion of the
Leased Premises, Tenant's Share shall be adjusted to reflect such change or
event on a prorated, daily basis determined by dividing the number of rentable
square feet in the Leased Premises by the greater of (i) ninety-five (95%)
percent of the number of square feet of rentable area in the Building (as
represented by Landlord in Section 1.01(b)), or (ii) actual number of square
feet of rentable area then leased in the Building.
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(d) The term "Operating Expense Base" shall mean an amount equal
to the product of Operating Expenses for the calendar year 1997 per rentable
square foot and ninety-five (95%) percent of the number of rentable square feet
in the Building (as represented by Landlord in Section 1.01 (b). On or before
April 1, 1998, Landlord will submit a statement setting forth the computation
of Operating Expenses for the calendar year 1997.
(e) Landlord's "Operating Statement" shall mean a statement
setting forth (1) the Operating Expenses for such Operating Expense Year,
showing in detail the amount of each item included in Operating Expenses, (2) a
detailed computation of any Additional Rental for such Operating Expense Year
and (3) a reconciliation of the actual Additional Rental payable by Tenant for
such year with the estimated Additional Rental paid by Tenant for such year.
Each Operating Statement shall be furnished by Landlord to Tenant not later
than April 1 of the calendar year following the Operating Expense Year to which
such statement relates.
Beginning with January 1, 1998, and for each calendar year thereafter
during the term of this Lease, Landlord shall provide Tenant on or before April
1 of such year with a comparison of the projected Operating Expenses for the
year and the Operating Expense Base and the projected Tenant's Share of any
positive differences between them. Commencing on the later of (i) the receipt
by Tenant of the Operating Statement for each year or (ii) January 1 of each
year, Tenant shall pay one-twelfth (1/12th) of such positive difference each
month during the year. If Tenant's Additional Rental for Operating Expenses
reflected in the Operating Statement for any Operating Expense Year are greater
than the amounts actually paid by Tenant for such Operating Expense Year,
Tenant shall pay Landlord such difference within thirty (30) days of receipt of
the Operating Statement for such Operating Expense Year. If Tenant's
Additional Rental for Operating Expenses reflected in the Operating Statement
for any Operating Expense Year are less than the amounts actually paid by
Tenant for such Operating Expense Year, such difference shall be credited to
Tenant's next payment(s) of Annual Rental and/or Additional Rental, unless the
term has expired, in which event such difference shall be paid by Landlord to
Tenant within thirty (30) days of delivery of the Operating Statement (net of
any sums otherwise owed by Tenant to Landlord).
(g) In no event shall Tenant's Annual Rental be reduced, nor shall
Landlord owe any amount to Tenant, if, for any reason, Operating Expenses for
any Operating Expense Year are less than the Operating Expense Base.
(h) Landlord shall permit Tenant, at any reasonable time after
reasonable notice, to inspect and do a complete audit at Tenant's sole expense,
but only with the use of a "Big Six" accounting firm, of all of the books of
accounts and records of Landlord to the extent reasonably required to establish
Operating Expense. Tenant may not request such an audit more than once per
calendar year. If Tenant shall ask for an audit to be made, and if Operating
Expenses for any period shall be found to be overstated or understated, then
Landlord shall pay Tenant the amount of overpayment, or Tenant shall pay to
Landlord the amount of the underpayment, as the case may be, together with
interest thereon at the rate specified in Section 8.02(b) of this Lease, from
the date of such overpayment or underpayment to the date the overpayment or
underpayment is refunded or
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paid. Tenant's right to make such an audit with respect to any calendar year
shall expire twelve (12) months after Landlord's Operating Statement for the
calendar year shall have been delivered to Tenant, and each such Operating
Statement shall be final and binding on Tenant and shall, as between the
parties, be conclusively deemed correct, at the end of such twelve (12) months,
unless prior thereto Tenant has served Landlord with a notice challenging the
accuracy of same.
Section 4.03 Real Estate Taxes, Assessed Valuation.
(a) If Landlord fails to pay any real estate tax or assessment
includable in Operating Expenses prior to the time that any penalty or interest
may be charged, any penalty or interest levied shall not be included by
Landlord in Operating Expenses for purposes of calculating Tenant's Additional
Rental.
(b) Landlord may petition for reduction of the assessed valuation
of the Building and the land comprising The Texaco Building Complex, claim a
refund of real estate taxes or assessments or otherwise challenge the validity
or applicability of any real estate tax, assessment or similar or related laws.
Section 4.04 Renewal Rental. Annual Rental for the Renewal Term
shall be in accordance with Renewal Term Rental Rate as indicated in Exhibit C.
ARTICLE FIVE - SERVICES
Section 5.01 Standard of Operations.
(a) Landlord shall at all times operate and maintain the Building
in accordance with a standard at least as high as that customarily followed in
the operation and maintenance of office buildings similar to the Building and
with similar tenants in the vicinity of the Building ("Comparable Buildings")
and, without limiting the foregoing, shall provide the specific facilities,
utilities and services set forth in this Article.
(b) The office space in the Building, other than the space
occupied by Tenant, shall be leased only to tenants who are similar in
character to those found in Comparable Buildings. Ground floor retail space,
if any, may be leased to commercial occupants of the following character:
banks, restaurants, department stores and retail merchants and other tenants
found in office and retail space in Comparable Buildings. Landlord may (but
shall not be obligated to) lease space in the Building to a first-class club
facility.
Section 5.02 Heating, Ventilating and Air Conditioning.
(a) Landlord shall provide a heating, ventilating and air
conditioning system ("HVAC") meeting the requirements of Exhibit F. Landlord
shall furnish HVAC services meeting the
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requirements of Exhibit F in season as required for Tenant's comfortable use
and normal occupancy of the Leased Premises, from 7:00 a.m. to 6:00 p.m.
(Landlord shall turn on the HVAC system of the Building by 6:00 a.m. on
Tenant's floors to enable the comfortable use and normal occupancy of the
Leased Premises to be met by 7:00 a.m.) Mondays through Fridays and from 8:00
a.m. to 1:00 p.m. on Saturday. For purposes of this Lease, holidays shall be
indicated in writing by Landlord annually (the "Building Holiday Schedule").
Tenant shall make arrangements for building services at least sixty (60) days
in advance if the Building is scheduled to be closed.
(b) Landlord shall, upon reasonable advance notice from Tenant,
furnish Tenant HVAC services at any time or times other than the regular hours
specified above in accordance with the schedule attached hereto as Exhibit 1.
(c) For HVAC and humidity control systems requiring special
operating hours or other conditions which necessitate the use of self-contained
units (the "Special Systems"), Landlord shall furnish electrical power to
Tenant for Tenant's use in installing and operating, at Tenant's expense, one
or more Special Systems. Tenant shall bear any extra expense incurred by
Landlord in furnishing such power from the Building's system or in expanding
the Building's system, if necessary, to provide such electrical power,
including the cost to Landlord of providing direct and separate metering if
either Landlord or Tenant requests separate metering. Such expansion of the
Building's system, if necessary, shall be subject to the approval of Landlord,
which shall not be unreasonably withheld or delayed. Landlord shall review
Tenant's HVAC plans prior to construction of Tenant's interior improvements and
notify Tenant if Landlord will charge Tenant for the installation and or use
any Special Systems.
Section 5.03 Electrical Service.
(a) Landlord shall provide an electrical distribution system for
the Building meeting the requirements of Paragraph II of Exhibit F. Landlord
shall cause to be furnished and pay for all electricity used in the Leased
Premises or in operating any and all facilities serving the Leased Premises
(the cost of same to be Operating Expenses); provided, however, that Tenant
shall bear any extra expense incurred by Landlord in furnishing electric power
in excess of the normal office use which may be required for use by Tenant for
electronic data processing equipment (including computers), if furnishing such
excess power is reasonably feasible, given the reasonable needs of the Building
and other occupants, including the cost to Landlord of providing direct and
separate metering if either Landlord or Tenant requests separate metering. If
direct and separate meters are not used, the amounts chargeable to Tenant under
the preceding provision shall be Landlord's average cost of electric power
multiplied by Tenant's excess usage, as reasonably determined by Landlord's
professional engineer. Landlord shall review Tenant's electrical plans prior
to initial installation and advise Tenant whether excess capacity is required
to be installed at Tenant's expense and whether Landlord anticipates that
Tenant's usage shall exceed the amount for normal office use.
(b) Landlord will notify Tenant at least seventy-two (72) hours in
advance of any planned shut down of the electrical system for repairs or
maintenance. Landlord will attempt to schedule
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such shut downs for weekends starting on Friday evenings. Any such shut downs
shall not entitle Tenant to any abatement of rent during the scheduled shut
down period or be construed as an interruption of services under Section 5.08
of this Lease.
Section 5.04 Elevators.
(a) Landlord shall provide passenger elevators to serve the Leased
Premises. The passenger elevators shall generally be available during all
working hours of all working days, and, at all other times, there shall be at
least one passenger elevator available to serve the Leased Premises subject to
events beyond Landlord's reasonable control and emergencies which may arise.
In the event of such interruption, Landlord shall, as promptly as is practical
under the circumstances, commence to use all reasonable efforts to cause such
service to be reinstated as soon as is practical.
(b) There is a designated freight elevator in the Building.
Tenant shall provide Landlord with twenty-four (24) hours' advance notice of
its need for a freight elevator and Landlord shall endeavor to make the freight
elevator available to Tenant. Tenant's use of the freight elevator is limited
by the Building's Rules and Regulations, which are subject to change. Failure
to provide said notice shall relieve Landlord of its obligation to provide a
dedicated freight elevator.
Section 5.05 Light Bulbs and Water. Landlord shall furnish and/or
install as an Operating Expense (a) all initial and replacement fluorescent and
incandescent light bulbs and ballast in the Leased Premises, Common Building
Facilities and Building Parking Garage, provided that they are the Building's
standard bulbs and ballasts. Tenant will comply with all of Landlord's
standards for energy efficient lighting fixtures; provided however if Landlord
is required to make replacement of lighting fixtures in the Premises by reason
of legal requirements, such replacement shall be at Landlord's expense.
Landlord shall furnish water, including chilled and heated water, at those
points of supply provided for general use of all tenants in the Building as
required for lavatory and drinking purposes and such other uses as are
permitted pursuant to Section 7.01. The fire stand pipe water system shall
comply with the National Fire Protection Agency "NFPA Code" and applicable
local laws.
Section 5.06 Access Control.
(a) Landlord may install and maintain access control for the
Building and Building Parking Garage. Such access control may include
electronic access control to the Building and Leased Premises.
(b) Landlord shall not be liable to Tenant for losses due to theft
or burglary, or for damages or injuries caused by the entry of unauthorized
persons to the Building, Building Parking Garage, the Leased Premises or other
portions of the Building; provided however that Landlord shall, subject to
Section 9.02 hereof, remain liable for damages or injuries arising directly
from the gross negligence of Landlord. If installed, Landlord's access control
system shall comply with the requirements of all Applicable Laws.
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(c) Tenant, at its expense and with the prior written approval of
Landlord, which approval shall not be unreasonably withheld or delayed, may
install such additional safety and security systems or devices within or
controlling access to the Leased Premises (but not in any lobbies or other
common areas), including, without limitation, smoke detectors, electronic
security devices and auxiliary emergency electric power supplies, as Tenant may
deem reasonably appropriate. Tenant shall have the right by installation of a
card or key system, to control access from all public elevators to floors
wholly occupied by Tenant; provided that Tenant's use of such system shall not
interfere with Landlord's obligations to provide services or perform any work
under this Lease; and provided, further, that, Landlord shall have reasonable
access to the Leased Premises in emergencies and provided that such system does
not interfere with the proper operating of the elevator system or require the
Landlord to incur additional costs to retrofit or maintain the elevators in
order to accommodate such a system.
(d) Tenant, at its expense, may install and operate a cardkey or
similar security system for the Leased Premises so long as it does not
interrupt ingress and egress of other tenants on multi-tenant floors.
(e) Any additional safety or security systems installed by Tenant
shall be compatible with Landlord's security and safety systems, programs and
procedures and shall comply with all Applicable Laws.
Section 5.07 Janitorial Services.
(a) Landlord shall provide, as an Operating Expense the cleaning
and janitorial services ("Janitorial Services") and window cleaning services
set forth in Exhibit G hereto.
Section 5.08 Interruption of Services.
(a) If, for any reason within Landlord's reasonable control there
is a failure to furnish the facilities, utilities or services specified in this
Article which are essential for Tenant's beneficial occupancy of the Leased
Premises or to provide parking spaces required by Article Six and, after
written notice thereof by Tenant to Landlord and to any holder of a First
Mortgage for which Tenant has been provided a notice address, Landlord does not
remedy same within thirty (30) days following delivery of such written notice
(provided as to matters which cannot reasonably be remedied within thirty (30)
days, Landlord shall not be deemed to be in default of its obligations, and
Tenant shall have no remedy hereunder except as may be provided in Section
5.08(d), provided Landlord has commenced such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion). If
Landlord is in default after the applicable cure period, then Tenant shall, if
it is not then in default of any of its obligations under this Lease, have the
option to provide such facilities, utilities or services for its own account
until Landlord remedies the default and performs such obligations in accordance
with this Lease. If any interruption of services shall continue for more than
sixty (60) days, Tenant may, by written notice to Landlord given at any time
prior to the resumption of service to a reasonable level, terminate this Lease,
and, upon giving such notice, this
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Lease shall terminate and expire on the date set forth in such notice, which
date shall not be more than ninety (90) days after the date of such notice.
(b) In addition to Tenant's self-help remedies described in
subsection (a) above, if for any reason within Landlord's reasonable control
there is a failure to furnish the facilities, utilities or services required to
be furnished by this Lease and such failure results in an imminent threat to
persons, Tenant's property or Tenant's business, Tenant may, after providing
Landlord with such notice and the first right to remedy such failure as is
practical under the circumstances, provide for its own account such facilities,
utilities or services to the extent necessary to remove the threat to persons
or property.
(c) Any reasonable sums expended by Tenant in exercising its
remedies described in Sections 5.08(a) or 5.08(b) above shall be reimbursed by
Landlord within sixty (60) days of Tenant's invoice therefore together with
invoices and paid receipts and other reasonable evidence of such costs (a copy
of same shall be simultaneously delivered by Tenant to any holder of a First
Mortgage for which Tenant has been given a notice address).
(d) If any impairment or cessation of Building Services pursuant
to Section 5.08(a) or Section 5.08(b) renders part or all of the Leased
Premises unusable for the normal conduct of Tenant's business for more than
five (5) consecutive business days, rent shall thereafter xxxxx as to the
portion of the Leased Premises rendered unusable until such service is
reinstated so that Tenant's Leased Premises are again useable for the normal
conduct of Tenant's business.
(e) The remedies set forth in subsections (a)-(d) above shall be
Tenant's exclusive remedies for interruption of Building Services resulting
from Landlord's negligent or wrongful acts or omissions. If an impairment or
cessation of Building Services results from the failure of any utility company
or other third party service provider to furnish such services, or other event
beyond Landlord's reasonable control, Landlord shall have no liability to
Tenant under this Lease and, except as provided in the next sentence, rent
shall not xxxxx, provided Landlord promptly notifies the service provider of
such impairment or cessation and thereafter employs all reasonable efforts to
cause such services to be reinstated. If such impairment or cessation of
Building Services resulting from the failure of any utility company or other
third party service provider to furnish such services or other events beyond
Landlord's reasonable control renders part or all of the Leased Premises
unusable for the normal conduct of Tenant's business for more than five (5)
consecutive business days, rent shall thereafter xxxxx as to the portion of the
Leased Premises rendered unusable until such service is reinstated so that
Tenant's Leased Premises are again useable for the normal conduct of Tenant's
business.
Section 5.09 Personnel. Landlord shall employ and/or contract
with persons of sufficient number and experience to maintain the Building and
Common Building Facilities and to perform the services within its control which
Landlord is required to perform under this Lease.
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Section 5.10 Insurance.
(a) Tenant shall maintain at its sole cost, at all times during
the terms of this Lease the insurance coverage set forth below with companies
rated A8 or higher by AM Best with full policy limits applying, but not less
than as stated.
(i) Workers' Compensation Insurance as required by laws
and regulations applicable to and covering employees
of Tenant;
(ii) Employers' Liability Insurance protecting Tenant
against common law liability in the absence of
statutory liability, for employee bodily injury
arising out of the master-servant relationship with a
limit of not less than $1,000,000;
(iii) Commercial General Liability Insurance including
contractual liability and products and completed
operations with limits of not less than $500,000 per
occurrence and $1,000,000 in the aggregate,
(iv) Automobile Liability Insurance including non-owned
and hired vehicle coverage with limits of liability
of not less than $500,000;
(v) Excess Liability Insurance over Automobile Liability,
Commercial General Liability, and Employers'
Liability coverage afforded by the primary policies
described above with minimum limits of $1,000,000 in
excess of specified limits;
(vi) All-Risk Property Insurance for the ninety (90%)
percent replacement value of any leasehold
improvements, additions, alterations and/or
installations made by tenant and for all contents.
(b) Landlord shall maintain insurance coverage applicable to the
Texaco Building Complex similar to the coverage required to be maintained by
Tenant in Section 5.10 above including, without limitation All-Risk Property
insurance for ninety percent (90%) of replacement value on the Texaco Building
Complex excluding (at Landlord's discretion) leasehold improvements,
alterations, and property of tenants of the Texaco Building Complex.
(c) Prior to commencement of the Lease, a certificate evidencing
the required coverage shall be delivered by each party to the other, naming the
other as an additional insured as respects liability coverages. This
certificate shall provide that any change restricting or reducing coverage or
the cancellation of any policies under which certificates are issued shall not
be valid until the other party has received 30 days' written notice of such
change or cancellation. Further, the certificate shall state that the
insurance is primary coverage and not concurrent or excess over other valid
insurance which may be available. The Workers' Compensation policy shall be
endorsed to provide
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waiver of subrogation rights in favor of the other party. Such insurance may
be carried under a blanket policy covering the Leased Premises and other
locations, if any, provided such policy contains an endorsement (i) naming the
other party as an additional insured, (ii) specifically referencing the Leased
Premises on the Texaco Building Complex; and (iii) guaranteeing a minimum limit
available equal to the limits of liability required under this Lease.
(d) Tenant agrees to comply with all terms of the insurance
contracts referenced in this section. Failure of Tenant to keep the required
insurance policies in full force and effect during the term of this Lease and
during any extensions, shall constitute a breach of this Lease and Landlord
shall have the right, in addition to any other rights, to cancel and terminate
this Lease without further cost to Landlord. Nothing contained in these
provisions relating to coverage and amounts set out herein shall operate as a
limitation of tenant's liability in tort or contract under the terms of this
Lease.
ARTICLE SIX - TENANT'S PARKING
Section 6.01 Tenant's Parking.
(a) At all times during the Initial Term or any Renewal Term
Landlord, at its expense, will provide Tenant with sixty-three (63) spaces at
no charge, twenty-one (21) of which shall be reserved covered parking as
indicated in Exhibit A-2. Landlord may provide Tenant on request during the
Initial Term and the Renewal Term, up to five (5) additional covered parking on
a month-to-month basis at a cost of TWENTY-FIVE AND NO/100 DOLLARS ($25.00) per
space per month; provided however that Landlord may recapture such additional
spaces upon thirty (30) days notice to Tenant. Tenant shall have no claim on
any additional parking not expressly assigned to it in this paragraph. Both
the Building Parking Garage and Additional Parking Area shall be available for
use 24 hours a day. Landlord shall keep and maintain both the Building Parking
Garage and the Additional Parking Area in a clean, safe and first-class
condition. Landlord shall not be obligated to provide personnel to perform
parking service but may provide access control to the Building Parking Garage,
provided however Landlord shall not be liable to Tenant for losses due to the
theft or burglary, or for injury to persons or property done by unauthorized
persons unless directly due to the gross negligence of Landlord.
(b) If Tenant, its permitted assignees or subtenants and/or their
respective employees, licensees and guests at any time during the Initial Term
or the Renewal Term are not able to use the Building Parking Garage and/or
Additional Parking Area for the parking spaces provided herein because of
unauthorized use thereof, Landlord shall take whatever steps are necessary,
including, if appropriate, the posting of signs, the distribution of parking
stickers and the towing away of unauthorized vehicles, to the end of preventing
further unauthorized use. However, Landlord shall not be financially liable
for unauthorized use of Tenant's parking, provided that it has made reasonable
efforts insure the availability of such parking. Tenant shall use reasonable
efforts to ensure that its employees and guests restrict their use of parking
to Tenant's parking spaces.
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ARTICLE SEVEN - USE AND ACCESS
Section 7.01 Use.
(a) Tenant, its Affiliates (as defined in Section 16.01), and
permitted assignees and subtenants, shall have the right to use the Leased
Premises for general office purposes.
(b) To the extent Tenant's use as set forth in subsection (a)
above or any other special uses to which Tenant is permitted by Landlord to put
the Leased Premises require a specific Certificate of Occupancy, or a special
entry on the general Certificate of Occupancy for the Building, Tenant shall
obtain the same at its sole expense and shall provide Landlord with a copy upon
request; and Tenant shall be responsible for obtaining any special health,
safety or other governmental permit, approval or license required in connection
with any such specific use as well as the building permits for Tenant's work
and Certificate of Occupancy (if required) for the Leased Premises. Landlord
shall cooperate with Tenant and shall execute all applications, authorizations
and other instruments reasonably required to enable Tenant to fulfill its
responsibilities under this subsection. Tenant shall use the Leased Premises
so that (i) no extra noise, smell (including those resulting from food
preparation) or vibrations will emanate from the Leased Premises into common
areas or areas leased by other tenants or occupants of the Building; (ii) other
occupants of the Building are not disturbed or interfered with in their use and
enjoyment of their premises, the Building or the Common Building Facilities;
(iii) all Applicable Laws and good health, safety and engineering practice will
be complied with; (iv) such use will not create design load or other problems
for the structural, mechanical, electrical, plumbing or HVAC systems of the
Building; (v) ventilation, fire hazard and special waste disposal problems are
addressed to Landlord's reasonable satisfaction; and (vi) Landlord's other
concerns for the safe and efficient operation, maintenance and repair of the
Building and Common Building Facilities are addressed to Landlord's reasonable
satisfaction.
Section 7.02 Environmental.
(a) Tenant acknowledges that Landlord has made available at
Landlord's office certain environmental reports and surveys of the Building,
including asbestos surveys and asbestos remediation certifications and current
activities. A list of the environmental reports and surveys are listed in
Exhibit J - Environmental, which is made a part of this Lease. The purpose of
providing the reports and surveys listed in Exhibit J is to indicate the
presence or absence of asbestos. Landlord makes no representations or
warranties whatsoever to Tenant regarding:
The materials listed in Exhibit J and made available to Tenant for its
review (Landlord has informed Tenant that the materials listed in Exhibit J are
not a comprehensive hazardous substance survey of the Building for all forms of
hazardous or toxic materials, including, but not limited to, asbestos
containing hazardous materials, and can not be relied upon as a representation
that there are no hazardous or toxic materials at the Building, whether
addressed therein or not). Tenant: (x) shall not rely on and Tenant hereby
represents to Landlord that it has not relied on the materials listed in
Exhibit J with respect to the leasing of the Leased Premises, the same having
been provided for
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informational purposes only. Prior to commencement of interior improvements
made prior to the Term Commencement Date by Tenant, Tenant shall have ten (10)
days to engage such specialists and to make studies and investigations and such
tests and surveys of the Leased Premises from an environmental standpoint as
Tenant deems necessary and appropriate. If Tenant determines from the
resulting study, test, investigation or survey as conducted by an independent
third party engineer experienced in such matters that the Leased Premises are
contaminated or otherwise contain hazardous materials and adversely affect
Tenant's use and or occupancy of the Leased Premises and cannot be controlled
or contained in a manner reasonably acceptable to Tenant, then Tenant shall
have a one-time right exercisable within five (5) days of receiving such
results to notify Landlord in writing and terminate this Lease, otherwise such
right of termination shall be deemed waived for all purposes hereunder.
Tenant shall furnish Landlord with a complete and legible copy of any
study, report, test, survey or investigation performed by or on behalf of
Tenant at any time involving the Leased Premises and shall fully restore all
improvements where samples were taken or work performed and repair all damage
resulting from any of the same and shall indemnify and hold Landlord harmless
from any and all claims, actions, liabilities, damages, losses, injuries or
deaths in connection with or arising out of or from any inspection, sampling or
similar or dissimilar activity conducted by Tenant, Tenant's agents or
contractors at the Leased Premises for hazardous or toxic materials, whether
under this section or otherwise under or in connection with this Lease.
(b) Landlord and its agents shall have the right to periodically
inspect, take samples for testing and otherwise investigate the Leased
Premises, at times reasonably acceptable to Tenant, for the presence of
hazardous or toxic materials. Landlord's inspections, sampling or testing will
not unreasonably interfere with Tenant's use of the Leased Premises and
Landlord shall fully restore all improvements where samples were taken or work
performed and repair all damage resulting from any of the same and shall
indemnify and hold Tenant harmless from any and all claims, actions,
liabilities, damages, losses, injuries or deaths in connection with or arising
out of or from any inspection, sampling or similar or dissimilar activity
conducted by Landlord, Landlord's agents or contractors at the Leased Premises
for hazardous or toxic materials, whether under this section or otherwise under
or in connection with this Lease.
(c) Tenant shall not knowingly incorporate into or use, or
otherwise place or dispose of at the Leased Premises or within The Texaco
Building Complex any hazardous materials in concentrations or levels sufficient
so that by the then applicable EPA, OSHA or other applicable standards the
specific materials would be classified or identified as toxic or hazardous
materials except for the limited purposes of use and storage only where (i)
such materials are in small quantities, properly labeled and contained, (ii)
such materials are handled and disposed of in accordance with the highest
accepted industry standard for safety, storage, use and disposal, (iii) such
materials are used for use in the ordinary course of business (i.e., as with
office cleaning supplies), (iv) Tenant complies with Landlord's Hazard
Communication Program (a copy of which is available at the Landlord's office).
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Landlord shall not knowingly dispose of at the Leased Premises, any
toxic or hazardous materials in concentration or levels sufficient that by then
applicable governmental standards cause the specific material so identified to
be classified or identified as toxic or hazardous materials and shall otherwise
deal with all toxic or hazardous materials at the Leased Premises in a manner
that will not adversely affect Tenant's access, use or occupancy of the Leased
Premises. Any remediation or control at the Leased Premises will be in
accordance with all applicable governmental laws, rules, and regulations. If
Landlord or Tenant ever have knowledge of the presence in the Leased Premises
of such toxic or hazardous materials which affect the Leased Premises, the
party having knowledge shall notify the other party thereof in writing promptly
after receiving such knowledge. For purposes of this Lease, hazardous or toxic
materials shall mean hazardous or toxic chemicals or any materials or wastes
containing hazardous or toxic chemicals or materials at levels or content which
causes such materials or wastes to be classified as hazardous or toxic as then
prescribed by the then current levels or contents as set from time to time by
EPA or OSHA or as identified under 29-CFR-1910 or 29-CFR-1925 or other
applicable governmental laws, rules and regulations.
(d) If Tenant or its employees, agents or contractors shall ever
violate the provisions of Paragraph a or c above (that apply to Tenant
regarding toxic or hazardous materials), or if Tenant's acts, negligence,
breach of this provision or business operations directly and materially expand
the scope of or materially worsen any contamination from toxic or hazardous
materials installed or introduced by Tenant, then Tenant shall clean up, remove
and dispose of the material causing the violation, in compliance with all
applicable governmental standards, laws, rules and regulations and repair any
damage to the Leased Premises or any part of the Building or The Texaco
Building Complex within such period as may be reasonable under the
circumstances after written notice by Landlord, provided that such work shall
commence not later than fifteen (15) days from such notice and be diligently
and continuously carried to completion by Tenant or Tenant's designated
contractors.
Tenant shall notify Landlord of its method, time and procedure for any
clean-up or removal of toxic or hazardous materials under this provision; and
Landlord shall have the right to require reasonable changes in such method,
time or procedure or to require the same to be done after normal business hours
or when the Building or The Texaco Building Complex is otherwise closed (i.e.,
weekends and holidays).
(e) Landlord represents and warrants that the Leased Premises, the
Building and The Texaco Building Complex are in substantial compliance with all
federal, state and local laws relating thereto (including, without limitation,
all laws relating to health or the environment) sufficient to afford Tenant's
quiet and save enjoyment of the Leased Premises. If Landlord or its employees,
agents or contractors shall ever violate the representations contained in this
Paragraph (e), or if Landlord's acts, negligence or business operations
directly or materially expand the scope of or materially worsen any
contamination from toxic or hazardous materials, then Landlord shall clean up,
remove and dispose of the material causing the violation, in compliance with
all applicable governmental standards, laws, rules and regulations and repair
any damage to the Leased Premises or any part of the Building or The Texaco
Building Complex within such period as may be
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reasonable under the circumstances, and such remedial activities shall be
diligently and continuously carried to completion by Landlord or Landlord's
designated contractors.
Landlord shall notify Tenant of its method, time and procedure for any
clean-up or removal of toxic or hazardous materials in the Leased Premises, and
Tenant shall have the right to request reasonable changes in such method, time
or procedure and to require the same to be done after normal business hours or
when the Tenant is closed for business (i.e., weekends and holidays) if such
creates a disruption to Tenant's operations or constitutes a potential risk to
public health or safety.
Section 7.03 Access. Subject to events beyond Landlord's
reasonable control and emergencies which may arise, Tenant, its permitted
subtenants and their employees, licensees and guests, shall have access to the
Leased Premises at all times, 24 hours per day, every day of the year, except
if the building is closed due to an emergency or the facility is closed by
governmental order.
Section 7.04 Use of the Common Areas for Certain Purposes.
Tenant, subject to the prior written consent of Landlord, not to be
unreasonably withheld, and subject to scheduling as to date and time when the
common areas are not otherwise in use, shall have the nonexclusive right to use
the common areas and other public portions of the Building to present public
events and other exhibits, provided same do not impair the character the
dignity of the Building or interfere with other tenants in the Building.
Landlord reserves the right to restrict or deny the use of the lobby.
Section 7.05 Building Directory. Landlord, at its expense, shall
maintain a Building directory in the lobby of the Building for all tenants of
the Building. Landlord shall also provide floor signage in the elevator lobby
of Tenant's floor at Tenant's expense. The exact size, location, and design to
be approved by Landlord. Landlord shall list Tenant on such directory at no
charge for the initial listing, such initial listings on the directory as
Tenant shall reasonably require up to Tenant's prorata share of the available
listings. All changes, additions and subtractions to and from Tenant's initial
listings shall be at Tenant's sole expense, and Tenant shall pay Landlord's
cost for the same. Landlord reserves the right to modify or replace the
directory at any time in the future in its sole discretion.
ARTICLE EIGHT - REPAIRS AND MAINTENANCE
Section 8.01 Landlord's obligation to Repair and Maintain.
Landlord shall, at its sole cost and expense (except as otherwise provided
herein) such cost and expense to be Operating Expenses, keep and maintain in
good repair and working order and make all repairs to and perform necessary
maintenance upon the Building, the base building systems within the Leased
Premises and the Common Building Facilities and all parts thereof, including,
but not limited to, the ceilings, lighting, base building HVAC, plumbing,
walls, floors, corridors, lobbies, and base building equipment within and
serving the Leased Premises and the Building (including the Building Parking
Garage and Additional Parking Area) which are required in the normal
maintenance and operation of the Leased Premises and the Building.
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Section 8.02 Tenant's obligations.
(a) Tenant shall maintain the Leased Premises (except the base
building systems contained therein), including all of Tenant's additions,
alterations, installations, improvements and trade fixtures, all special HVAC
equipment and other special facilities installed by or on behalf of Tenant, and
all of Tenant's property within the Leased Premises and shall repair any and
all damage caused by it to the Building or the Leased Premises, ordinary wear
and tear, damage by fire or other casualty and damage caused by others for whom
Tenant is not responsible excepted. Upon termination of this Lease, Tenant
shall surrender and deliver up the Leased Premises in the same condition in
which existed at the commencement of this Lease, except for ordinary wear and
tear, Tenant's alterations, additions, installations and improvements, repairs
and maintenance assumed by Landlord, damage arising from fire or other casualty
and damage caused by others for whom Tenant is not responsible and which damage
Tenant is otherwise not obligated to repair or restore under this Lease.
(b) If Tenant fails to perform any maintenance or repair required
under this Section 8.02, Landlord may, following thirty (30) days' written
notice to Tenant, perform the same and Tenant shall reimburse Landlord for the
reasonable cost of such maintenance and/or repair within thirty (30) days of
Landlord's invoice therefor, together with invoices and paid receipts and other
reasonable evidence of such costs. If such amounts are not paid by Tenant
within the thirty (30) day period, interest shall accrue on such sums based on
Chase Manhattan Bank's New York published prime rate or in the event Chase
Manhattan Bank no longer publishes a prime rate, another major bank substituted
by Landlord, plus 150 basis points (the "Default Rate"). In addition, if
Tenant's failure to maintain or repair causes an imminent threat to persons or
property, Landlord may, after providing Tenant with such notice as is
reasonable under the circumstances, perform such maintenance or repair and
Tenant shall reimburse Landlord for the reasonable cost of such maintenance
and/or repair within thirty (30) days of Landlord's invoice therefor, together
with invoices and paid receipts and other reasonable evidence of such costs.
If such amounts are not paid by Tenant within the thirty (30) day period,
interest shall accrue on such sums until paid at the Default Rate.
ARTICLE NINE - FIRE AND OTHER CASUALTY
Section 9.01 Damage or Destruction.
(a) If the Building or any part thereof should be destroyed or
damaged by fire or other casualty during the term of this Lease, then (unless
this Lease is terminated by Landlord or Tenant as hereinafter provided)
Landlord shall within sixty (60) days of the date of the casualty, proceed to
reconstruct, restore and repair the Building and the base building systems and
Building standard improvements contained in the Leased Premises, as the case
may be, to a condition substantially equivalent to their former condition. If
Landlord does not so commence such restoration or, if having done so, does not
proceed with reasonable diligence until same are restored, then upon receipt of
written notice to Landlord and any holder of a First Mortgage for which Tenant
has been given a notice address from Landlord, Landlord or such First Mortgage
holder shall have twenty (20) days
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to so commence or so proceed. If Landlord fails and the First Mortgage holder
also fails to commence or proceed with such action within this period of time,
Tenant, as its sole remedy for such failure, may forthwith terminate this
Lease, effective as of the date of the casualty.
(b) Notwithstanding anything seemingly to the contrary in Section
9.01 (a), Landlord's obligation to restore shall be limited to the insurance
proceeds it receives, plus applicable deductibles; provided however, such
limitation shall not impair or limit Tenant's right to terminate the Lease for
Landlord's failure to timely commence or to complete restoration as provided in
Section 9.01 (a).
(c) Commencing with the date of such damage, the Rent provided for
herein shall xxxxx prorata to the extent that, and for so long as, any portion
of the Leased Premises is not reasonably usable; provided however that upon
substantial completion by Landlord of its restoration work Rent shall commence
on the earlier of the reasonable time thereafter required for Tenant to
substantially complete its restoration work under Section 9.01 (e) or sixty
(60) days after reasonable ingress and egress has been provided and reasonably
sufficient parking has been provided (which may be provided by shuttle bus or
other reasonable means).
(d) It is agreed that if the Building is totally destroyed by any
cause or is so substantially destroyed that reconstruction would require more
than one hundred eighty (1 80) days, as reasonably estimated by Landlord's
architect or contractor, either Landlord or Tenant may elect to terminate this
Lease by giving the other party written notice of such election within thirty
(30) days after the giving of the notice from Landlord hereinafter provided.
Such termination shall be effective as of the date of such election. In the
event of any substantial casualty, Landlord shall within thirty (30) days
thereafter, give Tenant written notice of the estimated time required to repair
the same as reasonably estimated by Landlord's contractor or architect.
(e) For any casualty to the Leased Premises only, or any casualty
to the Building and Leased Premises in which Landlord is obligated to restore
the Building or otherwise elects to restore the Building, Tenant shall promptly
commence and diligently prosecute to completion the restoration of the
leasehold improvements, alterations, installations, additions and trade
fixtures which are damaged or destroyed to a completion substantially
equivalent to their former condition.
Section 9.02 Waiver of Subrogation Rights. Provided that
Landlord's right of full recovery under its policy or policies aforesaid is not
adversely affected or prejudiced thereby, Landlord hereby waives any and all
right of recovery which it might otherwise have against Tenant, its servants,
agents and employees, for loss or damage occurring to the Building, the Parking
Garage and the fixtures, appurtenances and equipment therein, to the extent the
same is covered by Landlord's insurance, notwithstanding that such loss or
damage may result from the negligence or fault of Tenant, its servants, agents
or employees. Provided that Tenant's right of full recovery under its
aforesaid policy or policies is not adversely affected or prejudiced thereby,
Tenant hereby waives any and all right of recovery which it might otherwise
have against Landlord, its servants, and employees and against every other
tenant in the Building and/or the Parking Garage who shall have
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executed a similar waiver as set forth in this Section 9.02 for loss or damage
to Tenant's furniture, furnishings, fixtures and other property removable by
Tenant under the provisions hereof to the extent that same is covered by
Tenant's insurance required under this Lease, notwithstanding that such loss or
damage may result from the negligence or fault of Landlord, its servants,
agents or employees, or such other tenant and the servants, agents or employees
thereof.
Landlord and Tenant hereby agree to advise the other promptly if the
clauses to be included in their respective insurance policies above cannot be
obtained on the terms hereinbefore provided and thereafter to furnish the other
with a certificate of insurance or copy of such policies showing the naming of
the other as an additional insured, as aforesaid. Landlord and Tenant hereby
also agree to notify the other promptly of any cancellation or change of the
terms of any such policy which would affect such clauses or naming. All such
policies which name both Landlord and Tenant as additional insureds shall, to
the extent obtainable, contain agreements by the insurers to the effect that no
act or omission of any additional insured will invalidate the policy as to the
other additional insureds.
ARTICLE TEN - LIABILITY
Section 10.01 Waiver. To the extent permitted by law, Tenant
releases the Landlord, holders of any Mortgage on the Texaco Building, property
manager and their respective partners, employees, officers, directors and
agents ("Indemnitees") from, and waives all claims for, damage to person or
property sustained by the Tenant, resulting from any accident or event in or
about the Texaco Building Complex, or directly or indirectly from any act or
neglect of any tenant or occupant of the Building and the Parking Garage or of
any other person, including the Indemnitees, except where such results from the
gross negligence of an Indemnitee in which event such Indemnitee and Landlord
shall be liable to Tenant, subject to the provisions of Section 9.02.
Section 10.02 Indemnity by Tenant. To the extent permitted by law,
Tenant agrees to indemnify, protect, defend and hold the Indemnitees harmless
against any and all actions, claims, demands, costs and expenses, including
reasonable attorney's fees and expenses for the defense thereof, arising from
Tenant's breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, in or about the Leased Premises and the Building,
Additional Parking Area and The Texaco Building Complex (subject to Section
9.02 and excluding actions and claims arising from the gross negligence of the
Indemnitees), but only to the extent required by this Lease or to the extent of
Landlord's liability, if any, in excess of amounts, if any, paid to Landlord
under insurance covering such claims or liabilities. In case of any action or
proceeding brought against the Indemnitees by reason of any such claim, upon
notice from Landlord, Tenant covenants to defend such action or proceeding by
counsel reasonably satisfactory to Landlord.
10.03 Indemnity by Landlord. Landlord agrees to indemnify, protect,
defend and hold the Tenant, Tenant's employees, officers, directors, and
agents, (hereinafter the "Tenant Indemnitees")
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harmless against any and all actions, claims, demands, costs and expenses,
including reasonable attorney's fees and expenses for the defense thereof,
arising from any breach or default on the part of Landlord in the performance
of any covenant or agreement on the part of Landlord to be performed pursuant
to the terms of this Lease, in or about the Building, Additional Parking Area,
The Texaco Building Complex (subject to Section 9.02 and excluding actions and
claims arising from the gross negligence of Tenant's Indemnitees), but only to
the extent required by this Lease or to the extent of Tenant's liability, if
any, in excess of amounts, if any, paid to Tenant under insurance covering such
claims or liabilities. In case of any action or proceeding brought against the
Tenant Indemnitees by reason of any such claim, upon notice from Tenant,
Landlord covenants to defend such action or proceeding by counsel reasonably
satisfactory to Tenant.
ARTICLE ELEVEN - ALTERATIONS AND FIXTURES
Section 11.01 Alterations by Tenant.
(a) Tenant may make such alterations in or additions to the Leased
Premises as it shall from time to time elect to make; provided, however, that
any material alteration in or addition to the Leased Premises (it being
expressly agreed that decorations, substitutions and nonstructural changes
which are not visible from the exterior of the Building or Leased Premises and
do not adversely affect the base building HVAC or mechanical, electrical or
plumbing systems shall not be deemed material) shall be subject to the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld or delayed, except as to changes visible from the
exterior of the Building or changes which impair or cause load design problems
for the structural, HVAC, mechanical, electrical or plumbing systems of the
Building, as to which Landlord may withhold consent in its sole discretion.
Subject to the approval of Landlord, which will not be unreasonably withheld,
Tenant may use contractors of its own selection and there shall be no overhead
or supervision fees to Landlord for any such work. Except for the initial
installation of Tenant's improvements which are to be funded by Tenant
Improvement Allowance, Tenant shall reimburse Landlord for any reasonable
out-of-pocket fees or expenses paid to third-party architects, engineers,
consultants and/or other professionals in evaluating any alteration requested
by Tenant pursuant to this Section 1 1.01.
(b) All alterations or additions made by Tenant in the Leased
Premises shall be constructed and completed in a good and workmanlike manner at
Tenant's expense by contractors approved by Landlord, such approval not to be
unreasonably withheld or delayed. Tenant shall furnish to Landlord in advance
the plans and specifications for and any other information which Landlord may
reasonably request pertaining to such alterations or additions. Tenant shall
obtain all necessary governmental permits, licenses and approvals and shall
comply with all Applicable Laws and the requirements of Landlord as to work
schedule, noise abatement, safety, security, elevator access, trash removal and
other activities to minimize disruption and annoyance to other tenants in the
Building. Upon termination of Tenant's lease of any floors in which Tenant has
installed special cabling and systems and/or other additions or alterations,
Landlord may require Tenant to restore at
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Tenant's sole cost and expense such portions of the Leased Premises to their
original condition prior to the termination or expiration of this Lease or the
partial termination of this Lease, normal wear and tear excepted.
(c) Tenant shall pay all taxes and assessments levied with respect
to Tenant's trade fixtures and personal property in the Leased Premises and
shall reimburse Landlord for any portion of the ad valorem taxes and
assessments levied against the equitably attributable to the cost of such trade
fixtures, and personal property.
Section 11.02 Tenant's Property.
(a) Tenant, at its expense, may, at any time and from time to
time, install in and remove from the Leased Premises its trade fixtures,
equipment, movable partitions, walls and wall systems (excluding the Virginia
Panel Wall System which shall remain the property of Landlord), furniture and
furnishings, provided such installation or removal is accomplished without
material damage to the Leased Premises or the Building and Tenant promptly
repairs any damage thereto.
(b) Upon the expiration of this Lease, Tenant shall remove all of
Tenant's property not affixed to the Building walls, floors and ceilings which
can be removed without material damage to the Leased Premises or the Building
and Tenant promptly repairs any damage thereto. If Tenant fails to remove any
personal property of Tenant that Tenant may remove upon the termination of this
Lease, any such property not so removed shall, at Landlord's election, become
the property of Landlord or be removed by Landlord at Tenant's expense.
ARTICLE TWELVE - CONDEMNATION
Section 12.01 Total Taking. If all of the Building or the Leased
Premises shall be taken by condemnation or in any other manner for any public
or quasi-public use or purpose (other than for temporary use or occupancy), the
term of this Lease shall terminate as of the date of vesting of title (the
"Date of the Taking"), and, subject to a proration and apportionment of Annual
Rental and proration, apportionment and reconciliation of Additional Rental and
other sums due hereunder as of the Date of the Taking, no further rent shall be
due hereunder.
Section 12.02 Partial Taking. If a part of the Leased Premises
shall be so taken, then Landlord shall give Tenant prompt written notice
thereof and the part so taken shall no longer constitute part of the Leased
Premises, but this Lease shall continue in force and effect as to the part not
so taken; provided, however, that Tenant may elect to terminate this Lease (a)
if a partial taking is more than ten percent (10%) of the Leased Premises
(unless Landlord is able to provide alternate premises in the Building
reasonably acceptable to Tenant for the normal conduct of Tenant's business for
the portion of the Leased Premises which was taken), (b) if, in the good faith,
reasonable judgment of Tenant, the remaining portion of the Leased Premises
cannot be economically and practicably used by Tenant for the conduct of its
business or (c) if a partial taking has a material and
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adverse effect upon the means of access to the Leased Premises or the entrances
or lobbies of the Building, thereby rendering the Leased Premises unfit for the
normal conduct of Tenant's business, unless Landlord shall have provided
reasonable substitutes therefor. Tenant shall give notice of any election to
terminate to Landlord not later than sixty (60) days after notice of such
taking is given by Landlord to Tenant. Upon the date specified in Tenant's
notice (which shall be a date as soon thereafter as is practical for Tenant to
relocate from the Building, but in no event more than one hundred eighty (180)
days thereafter), the term of this Lease shall terminate and, subject to a
proration and apportionment of Annual Rental and proration, apportionment and
reconciliation of Additional Rental and other sums due hereunder as of the date
of the termination, no further rent shall be due hereunder. Upon a partial
taking and the term of this Lease continuing in force as to any part of the
Leased Premises, the Annual Rental or any Additional Rental shall be reduced
proportionately based upon the part or parts of the Leased Premises and/or
other parts of the Building so taken. If a part of the Building is taken, and
either (i) Landlord's architect or contractor reasonably estimates that
reconstruction would require more than one hundred eighty (180) days; (ii) in
Landlord's good faith, reasonable judgment the remaining portion of the
Building cannot be restored to a functional whole or cannot be restored so as
to be efficient and economically viable to own, operate and maintain as a
commercial office building or (iii) the cost of restoration will require more
than the condemnation proceeds paid to Landlord, then Landlord may elect to
terminate this Lease by delivering written notice of such election to Tenant
not later than sixty (60) days following the Date of the Taking, and this Lease
shall terminate as of a date mutually acceptable to Landlord and Tenant, but in
no event more than one hundred eighty (180) days following such notice, subject
to a proration and apportionment of Annual Rental and proration, apportionment
and reconciliation of Additional Rental and other sums due hereunder.
Section 12.03 Claims of Landlord and Tenant. Landlord shall be
entitled to receive the entire award in any proceeding with respect to any
taking (other than for temporary use and occupancy) provided for in this
Article without deduction therefrom for any estate vested in Tenant by this
Lease and Tenant shall receive no part of such award, except as hereinafter
expressly provided. Tenant shall have the right to make a separate claim with
the condemning authority for (a) any moving expenses incurred by Tenant as a
result of such condemnation; (b) any costs incurred and paid by Tenant in
connection with the layout work, tenant's work or any alteration or improvement
made by and paid for by Tenant to the Leased Premises; (c) the value of any of
Tenant's property taken; and (d) any other separate claim which Tenant may
hereafter be permitted to make, provided, however, that such separate claim
shall not reduce or adversely affect the amount of Landlord's award. If Tenant
shall not be permitted to make a separate claim in such proceeding, Landlord
may prosecute all claims in such proceeding on behalf of both Landlord and
Tenant in which event Tenant may, if it so elects and at its expense, join with
Landlord in such proceeding, retain co-counsel, attend hearings, present
arguments and generally participate in the conduct of the proceeding; provided,
however, that if Landlord incurs any additional expense because of Tenant's
exercising its rights under this sentence, Tenant will bear such additional
expense.
Section 12. 04 Distribution of the Award. The aggregate amount of
all awards received in any proceeding relating to any taking (other than awards
to Tenant pursuant to Section 12.03 or for
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temporary use or occupancy) is hereinafter called the "Award." Regardless of
the apportionment of the Award in such proceeding, and regardless of any
termination of this Lease, the Award shall be paid to Landlord and distributed
in the following order of priority:
(a) If Landlord shall be obligated to repair, alter and/or restore
the remaining part of the Building or base building systems and Building
standard improvements within the Leased Premises pursuant to Section 12.06, the
amount actually expended by Landlord for such repair, alteration and/or
restoration shall be paid to Landlord out of the Award in construction draws,
as such work is performed.
(b) Next, if Tenant shall be obligated to repair, alter and/or
restore its above Building standard additions, alterations, installations,
improvements and trade fixtures in the Leased Premises pursuant to Section
12.06, the reasonable amount actually expended by Tenant for such repair,
alteration and/or restoration shall be paid to Tenant out of the Award in
construction draws, as such work is performed and if not performed then
retained by Landlord.
(c) Then (whether or not restoration is to be performed under
Section 12.04(a) and 12.04(b)) there shall be paid to Tenant any specifically
awarded sums from the condemning authority for the items enumerated in Section
12.03 less all restoration costs, included in such specific sums awarded to
Tenant, if any.
(d) The balance of the Award shall then be paid to Landlord.
Section 12.05 Temporary Taking of Premises. If all or any part of
the Leased Premises shall be temporarily taken by condemnation or otherwise for
any public or quasi-public use or purpose (unless Tenant shall have elected to
terminate the term of this Lease in accordance with the option provided in the
last sentence of this Section), this Lease shall nevertheless remain in full
force and effect. Tenant shall continue to be responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking; provided, however, that Tenant shall not be liable for the payment of
Annual Rental, Additional Rental or other sums for the part of the Leased
Premises so temporarily taken. The Award claims of Landlord and Tenant shall
be handled as provided in Section 12.03. In the event of a temporary taking
which meets the requirement of subsection (a), (b), or (c) of Section 12.02 for
a period in excess of one hundred eighty (180) consecutive days, Tenant may
terminate the term of this Lease upon notice to Landlord given within thirty
(30) days after such taking or, in the case of an indefinite temporary taking
under subsection (a) of Section 12.02, within thirty (30) days after such one
hundred eighty (180) day period has expired.
Section 12.06 Landlord's Obligation to Restore.
(a) In the event of a taking which taking does not result in the
termination of this Lease, Landlord shall, at its expense to the extent of the
amount of the Award or Awards to Landlord as (subject to Landlord's right of
termination of Section 12.02), proceed with due diligence to repair, alter
and/or restore the remaining part of the Building and the base building systems
and Building
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standard improvements within the Leased Premises substantially to their former
condition to the extent feasible to constitute a complete and tenantable
Building and Leased Premises (assuming Tenant performs its restoration pursuant
to Section 12.06(b)). Upon the expiration of any temporary taking which did not
result in a termination of this Lease, Landlord shall restore the base building
systems and Building standard improvements within the Leased Premises to their
former condition as aforesaid.
(b) In the event of a taking which does not result in the
termination of this Lease and to the extent that any Award or Awards to Tenant
shall be sufficient for the purpose, Tenant shall restore Tenant's alterations,
improvements, installations, additions and trade fixtures in the remaining
portion of the Leased Premises.
(c) During any period of restoration of the Building and the base
building systems and Building standard improvements within the Leased Premises
pursuant to subsection (a) above, the rent provided for herein shall xxxxx
prorata to the extent that, and for so long as, any portion of the Leased
Premises is not reasonably useable, and is not actually used, by Tenant in the
ordinary conduct of its business.
ARTICLE THIRTEEN - REMEDIES AND DEFAULTS
Section 13.01 Default by Tenant.
(a) Any of the following shall be an "Event of Default" by Tenant
under this Lease:
(i) Tenant fails or refuses to pay any installment of
Annual Rental or Additional Rental and such failure or refusal continues for
more than ten (10) days following delivery of written notice to Tenant;
provided, however, following the second (2nd) notice of nonpayment of Annual
Rental and/or Additional Rental given by Landlord in any lease year, Landlord
shall not be required to give any written notice for any subsequent failure of
Tenant to timely pay any installment of Annual Rental or Additional Rental
occurring during such calendar year; or
(ii) Tenant fails or refuses to perform any of its other
covenants under this Lease, and such failure or refusal continues beyond a
reasonable time to cure such nonperformance, not to exceed thirty (30) days
after written notice from Landlord unless additional time, up to a maximum of
one hundred eighty (180) days in the aggregate is required to cure the default
which despite diligent and continuous effort, cannot by its very nature be
cured within thirty (30) days, provided cure is commenced as soon as
commercially reasonable and is diligently prosecuted to completion.
(b) Following an Event of Default and which is not cured within
the cure periods set out above, Landlord shall have the following remedies in
addition to those other remedies at law or in equity which are not inconsistent
therewith:
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(i) Landlord may terminate this Lease and forthwith
repossess the Leased Premises and be entitled to recover forthwith as damages a
sum of money equal to the total of (a) the cost of recovering the Leased
Premises, (b) the unpaid rent earned through the date of termination, plus
interest thereon at the Default Rate from the due date, and (c) any other sum
of money and damages owed by Tenant to Landlord under this Lease at the time of
termination.
(ii) Landlord may terminate Tenant's right of possession
(but not the Lease) and may repossess the leased premises by self-help,
forcible entry or detainer suit or otherwise, without demand or notice of any
kind to Tenant and without terminating this Lease, in which event Landlord may,
but shall be under no obligation to do so, relet the same for the account of
Tenant, such right to relet being on the following terms and conditions: (a)
Landlord shall only relet on commercially reasonable terms and rent, and if the
Leased Premises are relet in whole or in part, Tenant shall be entitled to a
credit in the net amount of the Annual Rent or Additional Rental received by
Landlord as a result (after deducting all reasonable costs incurred by Landlord
in finding a new tenant, including brokerage fees, agent's commissions,
redecorating costs, construction allowance, lease concessions, parking,
attorneys' fees and any other reasonable costs and expenses incident thereto).
Tenant shall remain obligated to pay the amount of any deficiency in the Annual
Rental or any Additional Rental obtained on such reletting, but if the Annual
Rental or any Additional Rental obtained on such reletting is greater than that
provided for herein plus Landlord's costs, such excess rentals shall be the
sole property of Landlord, and (b) Landlord shall have the right to collect
from Tenant amounts equal to said deficiencies provided for above by suits or
proceedings brought from time to time on one or more occasions without Landlord
being obligated to wait until the expiration of the term of this Lease. Any
rentals not paid by Tenant when due shall bear interest at the Default Rate.
No such reletting or other action of Landlord shall be construed as an
election on the part of Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant by Landlord.
(c) An election by Landlord of its remedies to terminate Tenant's
right of possession under Section 13.01(b)(ii) shall not prohibit Landlord from
subsequently exercising its rights to terminate the Lease under Section
13.01(b)(i).
Section 13.02 Default by Landlord. Landlord shall be in default
hereunder in the event Landlord has not begun and pursued with reasonable
diligence the cure of any failure of Landlord to meet its obligations hereunder
within thirty (30) days of the receipt by Landlord of written notice from
Tenant of the alleged failure to perform. Except as specifically and expressly
provided in this Lease, Tenant shall not have the right to terminate or rescind
this Lease as a result of Landlord's default as to any covenant or agreement
contained in this Lease. Tenant hereby waives such remedies of termination and
rescission and hereby agrees that Tenant's remedies for default hereunder and
for breach of any promise or inducement shall be limited to a suit for damages
and/or injunction. In addition, Tenant hereby covenants that, prior to the
exercise of any such remedies, it will give the Mortgagees holding mortgages on
the Building notice and a reasonable time to cure any default by Landlord.
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ARTICLE FOURTEEN - BANKRUPTCY
Section 14.01 Bankruptcy by Tenant. If at any time during the term
of this Lease a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or substantially all of
Tenant's assets is filed against Tenant in any court pursuant to any statute
either of the United States or of any state and Tenant fails to secure a
discharge thereof within ninety (90) days, or if Tenant voluntarily files a
petition in bankruptcy or makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement with creditors, the term of this
Lease, at the option of Landlord, exercised within thirty (30) days after
notice of the happening of any one or more of such events, shall terminate on
such date as Landlord shall specify by notice to Tenant, with the same effect
as if the date of termination were the Expiration Date of this Lease, but
Tenant shall remain liable for rent and/or damages attorneys' fees as provided
in Article Thirteen and other damages as may be provided to landlords under the
United States Bankruptcy Code (or any successor thereto). However, if a
petition for reorganization or for an arrangement is filed by or against
Tenant, Landlord may not terminate the term of this Lease so long as Tenant is
not in default hereunder and, provided this Lease is assumed or affirmed in
such reorganization or arrangement proceeding within the time periods provided
by law.
ARTICLE FIFTEEN - COMPLIANCE WITH LAWS
Section 15.01 Tenant's Compliance with Laws. Tenant, at its
expense, shall comply with all applicable laws, rules, orders, ordinance,
regulations and other requirements, present or future (collectively,
"Applicable Laws"), affecting the Leased Premises and/or the Building that are
promulgated by any governmental authority or agency having jurisdiction over
the Leased Premises and/or the Building and with any reasonable requirements of
the insurance companies insuring Landlord against damage, loss or liability for
accidents in or connected with the Building or Common Building Facilities to
the extent that the same shall affect or be applicable to (i) Tenant's use of
the Leased Premises, Building, Common Building Facilities, Additional Parking
Area and/or The Texaco Building Complex, (ii) additions, installations,
alterations and improvements made by Tenant, trade fixtures and/or personal
property of Tenant or (iii) a breach by Tenant of its obligations under this
Lease. Tenant shall not at any time use or occupy the Leased Premises so as to
violate the Certificate of Occupancy for the Building or Common Building
Facilities. Nothing contained in this Section 15.01, however, shall be deemed
to impose any obligation upon Tenant to make any structural changes or repairs
unless necessitated by reason of a particular use by Tenant of the Leased
Premises. Tenant shall be responsible for compliance with all current and
future requirements for handicap accessibility within the Leased Premises.
Section 15.02 Landlord's Compliance with Laws. Landlord shall be
responsible for complying with all valid and Applicable Laws affecting the
design, construction and operation of the Building (excluding the Leased
Premises) or relating to the performance by Landlord of any duties or
obligations to be performed by it hereunder. Without limiting the foregoing,
Landlord shall
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comply or cause the Building to comply with all present and future energy
conservation and fire and safety laws, regulations and codes, as the same are
interpreted from time to time.
ARTICLE SIXTEEN -ASSIGNMENT AND SUBLETTING
Section 16.01 Assignment and Subletting by Tenant.
(a) Except as permitted pursuant to this Section 16.01, any
attempted assignment or subletting by Tenant of this Lease of all or any part
of the Leased Premises shall be null and void.
(b) Except for an assignment to an "Affiliate" pursuant to Section
16.01 (c) below, if Tenant desires to assign this Lease or sublease all or any
part of the Leased Premises, Tenant shall notify Landlord in writing at least
thirty (30) days prior to the effective date of any proposed assignment or
sublease, describing the terms of the proposed assignment or sublease and the
identity of the proposed assignee or sublessee and available financial
information concerning the business and history of the proposed assignee or
sublessee (and any additional information which Landlord may reasonably
request). Landlord shall have fifteen (15) days from receipt of all of the
foregoing to elect to (i) reject such proposed assignment or sublease; or (ii)
consent to the proposed assignment or sublease; provided, however, Landlord
will not unreasonably withhold its consent to a proposed assignment or
sublease.
(c) Tenant (and any permitted subtenant or assignee) shall have
the right, without the consent of Landlord, to assign this Lease or sublet the
Leased Premises or any portion thereof to, or to permit occupancy of any
portion of the Leased Premises by, any Affiliate (as hereinafter defined), any
entity that acquires substantially all of the assets of Tenant, any entity into
which Tenant is merged and any entity resulting from a consolidation of Tenant
with some other entity. The term "Affiliate" shall mean any corporation or
other entity controlled by, under common control with or which controls Tenant
or in which Tenant, directly or indirectly, has a fifty (50%) percent or
greater voting or ownership interest. However, such subletting or assignment
shall not relieve Tenant of any of its obligations under this Lease.
(d) Any assignee of this Lease must execute a written assumption
agreement assuming all of the obligations of Tenant accruing from and after the
date of assignment.
(e) No assignment or sublease shall relieve the Tenant which was
the assignor or sublessor from any of its obligations or liabilities under this
Lease; the original Tenant and any subsequent assignee of Tenant's interest
under this Lease shall always remain liable under this Lease.
(f) Anything to the contrary not withstanding any and all sums
collected by Tenant (Assignor or Sublessor) in excess of Annual and Additional
Rentals payable hereunder shall be retained by Tenant.
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(g) No assignment or subletting will be allowed at a rental rate
that is below the rental rate for tenants for the Building located on floors
above the lobby level at the time of the subletting or assignment. If Landlord
and Tenant can not agree on the rental rate for the Building, the rate will be
determined by the arbitration provision in Exhibit E. Tenant shall pay all of
the costs associated with the arbitration.
Section 16.02 Assignment by Landlord. Landlord shall have the
continuing right to transfer, sell and/or assign all of its rights and
obligations under this Lease and in the Building, land and Common Building
Facilities and to assign, in whole or in part, the rent payable by Tenant under
this Lease (subject to the terms of this Lease). Upon the transfer of the
entire estate and interest of Landlord under this Lease, the transferor shall
have no liability for obligations to Tenant relating to events occurring after
and to claims accruing after the date of such transfer. "Landlord" shall mean
the then-current owner of Landlord's interest and any transferee of the
Landlord's interest shall not be liable for liabilities and obligations of any
former Landlord.
Section 16.03 No Personal Liability. Tenant specifically agrees to
look solely to Landlord's interest in the Building, Common Building Facilities
for the recovery of any judgment from Landlord, its officers, employees or
agents, it being agreed that Landlord shall never be personally liable for any
such judgment. The provisions contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or Landlord's successors in interest.
ARTICLE SEVENTEEN - LANDLORD'S ACCESS
Section 17.01 Landlord's Right to Use Certain Facilities. Landlord
may install, use and maintain utility and other pipes, ducts, lines, flues and
conduits in and through the Leased Premises and serving other portions of the
Building and/or Leased Premises, provided that such installations are concealed
within the permanent walls, floors, columns and ceilings of the Leased Premises
and in the shafts provided in the Leased Premises for such installations, not
damaging the appearance or reducing the floor area of the Leased Premises or
affecting Tenant's layout, and provided further, that the installation work is
performed without substantially interfering with Tenant's use of the Leased
Premises to the extent commercially reasonable under the circumstances. Any
damage to the Leased Premises resulting from Landlord's exercise of the
foregoing rights shall be repaired by Landlord, at Landlord's expense.
Section 17.02 Landlord's Access to Premises. Landlord, and
Landlord's employees, agents and contractors, shall have the right to enter and
pass through the Leased Premises or any part or parts thereof (i) during
non-business hours, to examine the Leased Premises and to show them to
underlying or ground lessees or mortgagees and to prospective purchasers,
mortgagees, lessees (during the last year of the term of this Lease) or
insurers, and (ii) for cleaning and maintenance and making such repairs or
changes in or to the Leased Premises or in or to the Building or its facilities
as may be provided for or permitted by this Lease or as may be mutually agreed
upon by the parties
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or as Landlord may be required to make by laws and requirements of public
authorities, provided, however, that the foregoing shall be done upon prior
notice to Tenant, in a manner so as to cause little interference with Tenant's
business operations and, if required by Tenant, accompanied by a designated
representative of Tenant; (iii) during non- business hours to perform
Janitorial Services; and (iv) in emergencies. Tenant may designate one or more
areas in the Leased Premises as secure areas, and Landlord shall have no access
thereto without being accompanied by a designated representative of Tenant
except in the case of emergencies where life or property is threatened.
ARTICLE EIGHTEEN - NAME OF BUILDING and TENANTS SIGNAGE
Section 18.01 Name.
(a) Landlord reserves the right to designate and change the name
of the Building at any time.
(b) No sign, notice or other advertisement shall be inscribed,
painted, affixed, or displayed on any windows or doors or on any other part of
the outside or inside of the Leased Premises or any where in the Complex
without Landlord's prior written consent.
ARTICLE NINETEEN - QUIET ENJOYMENT
Section 19.01 Landlord's Covenant of Quiet Enjoyment. Landlord
covenants and agrees, provided Tenant performs all terms, conditions and
covenants of this Lease, Tenant shall quietly hold and enjoy the Leased
Premises for the term of this Lease, without hindrance, claim or molestation by
Landlord, subject to the terms and provisions of this Lease and subject to any
other leases, mortgages and other matters to which this Lease is subject.
ARTICLE TWENTY - NONWAIVER
Section 20.01 Non-Waiver By Either Party. Failure by either party
to complain of any action, nonaction or default of the other party shall not
constitute a waiver of any aggrieved party's rights hereunder. Waiver by
either party of any right for any default of the other party shall not
constitute a waiver of any right for either a subsequent default of the same
obligation or for any other default, past, present or future.
ARTICLE TWENTY-ONE - NOTICES
Section 21.01 Notices to Landlord or Tenant. Any notice or
communication to Landlord or Tenant required or permitted to be given under
this Lease shall be effectively given only if in writing and sent by Federal
Express or other national overnight express courier service, or sent by United
States Registered or Certified Mail, postage prepaid, return receipt requested,
addressed as follows:
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IF TO TENANT, AS FOLLOWS: CONTINENTAL NATURAL GAS, INC.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
C.F.O.
IF TO LANDLORD,
ADDRESSED AS FOLLOWS: K/B FUND IV
c/x Xxxx: Investment Management Division
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
WITH COPY TO: HALL, ESTILL, HARDWICK, GABLE, GOLDEN &
XXXXXX
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
If notices, demands or requests are sent by registered or certified
mail, said notices, demands or requests shall be effective upon being deposited
in the United States mail. However, the time period in which a response to any
such notice, demand or request must be given shall commence to run from the
date of receipt on the return receipt of the notice, demand or request by the
addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of notice, demand or request sent. Notices may also be served by
personal service upon any officer, director or partner of Landlord or Tenant or
in the case of delivery by Federal Express or other overnight courier service,
notices shall be effective upon acceptance of delivery by an employee, officer,
director or partner of Landlord or Tenant.
Either party shall have the right to change the address to which
notices shall thereafter be sent by giving notice to the other party as
aforesaid.
ARTICLE TWENTY-TWO - PARTIAL INVALIDITY
Section 22.01 Severability Clause. If any term, covenant,
condition or provision of this Lease, or the application thereof to any person
or circumstance, shall ever be held to be invalid or unenforceable, then in
each such event the remainder of this Lease or the application of such term,
covenant, condition or provision to any other person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not
be thereby affected, and each term, covenant, condition and provision hereof
shall remain valid and enforceable to the fullest extent permitted by law.
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ARTICLE TWENTY-THREE - BROKERAGE
Section 23.01 Brokerage. Landlord and Tenant mutually represent to
each other that the only broker with whom they have dealt with respect to this
Lease are Xxxxxx Xxxxxxx Associates, Inc. and Maritch Services, Inc. and
Landlord agrees to pay all commissions that may be owing to such brokers under
the commission agreement between Landlord and Xxxxxx Xxxxxxx Associates, Inc.
which broker has agreed to recognize Maritch Services, Inc. as the co-broker.
Landlord agrees to indemnify and hold Tenant harmless against any claims for
commissions that may be asserted in connection with this Lease based upon acts,
conversations or communications of Landlord that may be asserted in connection
with the lease of premises hereunder by any brokers other than the two
companies named above. Tenant agrees to indemnify and hold Landlord harmless
against any claims for commissions that may be asserted in connection with this
Lease based upon acts, conversations or communications by Tenant that may be
asserted in connection with this Lease by any brokers other than the two
companies named above.
ARTICLE TWENTY-FOUR - SUBORDINATION, NONDISTURBANCE
Section 24.01 Subordination. Landlord may, from time to time,
grant first and secondary lien deeds of trust, mortgages or other lien security
interests covering its estate in the land and the Building (herein,
collectively, a "First Mortgage") and any subordinate liens as Landlord may
elect. Tenant, subject to the provisions of Section 24.02, agrees that this
Lease shall be subject and subordinate to each First Mortgage, including any
modifications, substitutions, extensions or renewals thereof and advances
thereunder from time to time in effect. Upon the request of Landlord, Tenant
agrees to execute a subordination agreement incorporating the provisions of
this Article Twenty-Four and otherwise in form reasonably acceptable to Tenant
and Landlord.
Section 24.02 Nondisturbance. The subordination of this Lease to
any First Mortgage pursuant to Section 24.01 is expressly conditioned upon the
holder thereof expressly agreeing in the First Mortgage, or a separate
instrument recorded contemporaneously with or at a reasonable time after the
recordation of the First Mortgage, that (i) Tenant will not be named or joined
in any proceeding (or trustee's sale) to enforce the First Mortgage unless such
be required by law in order to perfect the proceeding (or sale) (ii)
enforcement of any First Mortgage shall not terminate this Lease or disturb
Tenant in the possession and use of the Leased Premises (except in the case
where Tenant is in default beyond the period, if any, provided in this Lease to
remedy such default), and (iii) any party succeeding to the interest of
Landlord as a result of the enforcement of any First Mortgage shall be bound to
Tenant as to obligations and liabilities of the Landlord thereafter accruing
and as provided in this Lease, and Tenant shall be bound to it, under all the
terms, covenants, and conditions of this Lease, including Renewal Terms, with
the same force and effect as if such party were the original Landlord under
this Lease.
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ARTICLE TWENTY-FIVE - RULES AND REGULATIONS
Section 25.01 General. This Lease Controls in Event of Conflict.
(a) Annexed hereto as Exhibit H are Landlord's Rules and Regulations for the
Building. Tenant shall faithfully observe and comply with such Rules and
Regulations (except as hereinafter provided) and such changes therein as
Landlord at any time or times hereafter may make and communicate in writing to
Tenant. The Rules and Regulations, as changed in accordance with this Section
from time to time, are hereinafter called the "Rules and Regulations."
ARTICLE TWENTY-SIX - SECURITY DEPOSIT
Tenant shall upon execution of this Lease deposit the amount of one
(1) months of Annual Rent with Landlord as its security deposit which shall be
held by Landlord to be applied to any Event of Default by Tenant and if none
refunded to Tenant within thirty (30) days of the expiration of this Lease.
ARTICLE TWENTY-SEVEN - MISCELLANEOUS
Section 27.01 Certain Miscellaneous Provisions. This Lease
(including the Exhibits referred to herein) contains the entire agreement
between the parties and all prior negotiations and agreements are merged into
this Lease. This Lease may not be changed, modified or amended, in whole or in
part, except by a writing, executed by the party against whom enforcement of
the change, modification or amendment is to be sought. The Article and Section
headings or titles in this Lease are inserted for convenience only and are not
to be given any effect in its construction. Wherever appropriate in this
Lease, personal pronouns shall be deemed to include the other genders and the
singular to include the plural. The covenants and agreements contained herein
shall inure to and be binding upon Landlord, its successors and assigns, and
Tenant its successors and assigns.
Section 27.02 Holding Over. If Tenant holds over in all or any
part of the Leased Premises after the expiration or termination of this Lease
(or partial/termination as to the portion of the Leased Premises in which
Tenant is holding over) , Tenant shall pay as liquidated damages one hundred
twenty-five percent (125%) of the Annual Rental and Additional Rental then
applicable to the Leased Premises (or applicable portion thereof. No such
holding over shall extend the Lease and Tenant shall indemnify Landlord from
any and all claims resulting from such holding over, including those of any
other tenant to which or whom Landlord may have leased such space and any
purchaser of The Texaco Building Complex. Tenant shall be a tenant at will and
at sufferance of Landlord for any unauthorized holding over.
Section 27.03 Estoppel Certificate. Upon the written request of
the other, each of Landlord and Tenant agree to execute from time to time
certificates stating (a) if true, that the Lease is in full force and effect;
(b) if true, that the certifying party is not in default under the Lease and
has no knowledge of any default of the other party; (c) the then applicable
rentable area of the Leased Premises, Annual Rental, Additional Rental and the
expiration date of the Lease; (d) the date through which rent has been paid;
(e) a covenant to send notices of default (which notices shall be duplicate and
not additional notice except as specifically provided in this Lease) by the
other party to a
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designated person or entity and to provide such designated party with the
opportunity to cure such default provided in this Lease; (an agreement to not
modify or terminate the Lease (except as provided in the Lease) without the
prior written consent of a designated person or entity; and (f) such other
information as is reasonably requested.
Section 27.04 Attorneys' and Professional Fees. In the event any
dispute between Landlord and Tenant is resolved by a judgment in a court of
law, the prevailing party shall be entitled to all of its court costs
reasonable professional's fees and reasonable attorneys' fees incurred in
connection with such action.
Section 27.05 Governing Law. This Lease shall be governed in all
respects by the laws of the State of Oklahoma without reference to those laws
dealing with conflicts of law.
This LEASE is hereby executed and delivered effective as of the date
and year first above written.
K/B FUND IV
(LANDLORD)
By
--------------------------------------
Printed Name
----------------------------
Title
-----------------------------------
CONTINENTAL NATURAL GAS, INC.
(TENANT)
By
--------------------------------------
Printed Name
----------------------------
Title
-----------------------------------
STATE OF _____________ )
)
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1997, by ____________________________________________________
as _________________ of CONTINENTAL NATURAL GAS, INC. , an Oklahoma
corporation, on behalf of said entity.
----------------------------------------
Notary Public
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My Commission Expires:
____________________
[SEAL]
STATE OF _____________ )
)
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1997, by ____________________________________________________
as _________________ of K/B FUND IV, a Delaware general partnership, on behalf
of said partnership.
----------------------------------------
Notary Public
My Commission Expires:
____________________
[SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Xxxx 00, 00 xxx 00, Xxxxx 0, Xxxxx Addition, City of Tulsa, Tulsa
County, State of Oklahoma.
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EXHIBIT A2
Lot Number Number of Parking Spaces
---------- ------------------------
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EXHIBIT B
ALLOWANCES
Tenant Improvement Allowance
1 . Tenant shall be entitled to tenant finish allowance of $10.00
per rentable square foot of office space comprising the Leased Premises for a
total allowance of $203,470 'Tenant Improvement Allowance." The Tenant
Improvement Allowance will be paid or credited to Tenant within 30 days of the
submission of invoices for work performed within the Leased Premises. Tenant
shall maintain and make available to Landlord accurate records of any and all
such disbursements, along with draw requests signed by the contractors and
other bills and invoices establishing that any disbursement was in fact made
and lien waivers for all work which Landlord is reimbursing. This allowance
can be used for physical construction, architectural space planning,
construction documents, moving expenses and computer wiring.
Tenant will indemnify Landlord for all damage to and liens
against the Building and The Texaco Building Complex arising from work
authorized by Tenant and performed within the Leased Premises and the Building
and will, within ten (10) days have all liens removed from the Building and The
Texaco Building Complex or secure a bond in Landlord's name for the
satisfaction of said liens.
2. Tenant may use the Xxxxxxxx Xxxx Panel system in the Leased
Premises. The relocation, removal and installation of this Panel Wall System
shall be at the expense of Tenant, but may be funded out of the Tenant
Improvement Allowance at the option of Tenant. Landlord shall have the sole
discretion in determining whether there are any section of panel wall systems
located outside of the Leased Premises available for Tenant's use.
3. Landlord shall install a fire sprinkler system on the twelfth
(12th) floor West Tower of the Leased Premises at Landlord's sole cost.
4. Landlord shall, at its sole cost, install new ceiling and
lighting in the elevator lobby of the twelfth (12th) floor similar to the
ceiling and lighting currently existing in the thirteenth (13th) Floor elevator
lobby.
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EXHIBIT C
ANNUAL RENTAL RATE
Base Rent Schedule
The foregoing rental rates shall be applicable from and after the Term
Commencement
Date.
For purposes of this Lease, the total Annual Rental payable by Tenant under
this Lease for the Initial Term for office space is TEN AND 50/100 DOLLARS
($10.50) per rentable square feet for a total of TWO HUNDRED THIRTEEN THOUSAND
SIX HUNDRED FORTY-THREE AND 50/100 DOLLARS ($213,643.50) and such rental is
payable monthly in advance to Landlord according to the following schedule:
Monthly Rental Rate - Initial Term - Office Space: Months 1-60 - $17,803.63 per
month.
Renewal Term Rental Rate - Office Space and Storage Space: 100% of Fair Market
Value for Comparable Buildings in the Midtown Tulsa Area. The Midtown Tulsa
Area shall be considered to be that area bounded by Interstate 51 to the North,
Boulder Avenue to the West, Harvard Avenue to the East and 00xx Xxxxxx to the
South. For purposes of defining Fair Market Value, the average rental rate for
Comparable Buildings in the Midtown Tulsa Area will be the standard. Subject
to the notice provisions of Section 2.02(a) of this Lease, Tenant shall provide
Landlord with its estimate of the Fair Market Value. Within fifteen (15)
calendar days from Tenant giving written notice to Landlord of its intent to
renew the Lease, Landlord and Tenant will simultaneously provide their
estimates of Fair Market Value for the Renewal Term. If the estimates are
within five (5%) percent of each other, the estimates will be averaged and that
will be the Fair Market Value. If Tenant's and Landlord's estimates are at
variance with each other by more than five (5%) percent Landlord and Tenant
will have an additional fifteen (15) days to attempt to negotiate a
determination of the Fair Market Value. If Tenant and Landlord can not agree
to a determination of Fair Market Value in the fifteen (15) days provided for
above, Tenant may withdraw from negotiations or both parties may submit to
arbitration as described in Exhibit E to this Lease.
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EXHIBIT D
OPERATING EXPENSES
"Operating Expenses" as used in Section 4.02 shall mean the costs and
expenses specified below in Category A actually incurred by Landlord for a
given Operating Expense Year, to the extent properly allocable (in accordance
with generally accepted accounting principles consistently applied) to the
operation, repair, maintenance and access control for the Building (including
the Building Parking Garage and the Common Building Facilities) and the costs,
and expenses of the operation, repair, maintenance and access control for the
Additional Parking Area and the Common Area Allocation of the same with respect
to The Texaco Building Complex Common Area. If the Building is not fully
occupied during any given operating Expense Year, the Operating Expenses
actually incurred shall be adjusted to reflect the amount of Operating Expenses
which would have been incurred at full occupancy for such Operating Expense
Year. It is agreed that any cost allocable to the items specified below in
Category B shall be excluded from Operating Expenses. Any local real estate
tax incentives or abatements which relate to any Operating Expense Year
received by Landlord from local authorities as to real estate taxes includable
in Operating Expenses shall be passed through to Tenant to the extent of
Tenant's Share.
A. Items Included in Operating Expense:
All costs and expenses reasonably and necessarily incurred by
Landlord in the operation, repair, maintenance and access control for the
Building, Common Building Facilities (which includes, without limitation, the
Building Parking Garage) and the Additional Parking Area, of the costs and
expenses of the operation, repair, maintenance and access control for the
Building and The Texaco Building Complex of whatever kind or nature (but
excluding those items specified in category B below) and including, without
limitation, the following:
(1) real estate and improvement taxes and assessments,
whether ordinary or extraordinary, anticipated or unanticipated, and all
utility district charges, rents and assessments, assessed by any governmental
or quasi-governmental body, whether federal, state, county or municipal and
whether now existing or hereafter created, and the costs and expenses incurred
in any contest of such taxes on application for reduction in same, and any
assessments and dues of any private property owner's association for property
including the Building, which are assessed, levied or charged against the
Building, Common Building Facilities, land, and/or Additional Parking Area of
those assessed, levied and/or charged against The Texaco Building Complex;
(2) wages, normal and routine salaries, taxes, insurance
and benefits (collectively, "Personnel Costs") of all persons engaged in the
operation, maintenance, repair, and/or access control for the Building and/or
Common Building Facilities, Personnel Costs incurred in providing access and
traffic control to the Building, Common Building Facilities, and/or Additional
Parking Area and The Texaco Building Complex. Personnel Costs shall include a
fair and reasonable
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allocation of Landlord's or its affiliates' senior property management
personnel consisting of a senior property manager and a senior comptroller, but
shall otherwise not include personnel above the grade of Building Manager
and/or equally held positions. The allocation to Personnel Costs of the senior
property manager and senior comptroller shall be the percentage of their time
that they spend on the Building and The Texaco Building Complex.
(3) the cost of materials and supplies used in the
operation, repair and maintenance of the Building, Common Building Facilities,
Additional Parking Area and The Texaco Building Complex;
(4) the cost of replacements for tools and equipment used
in the normal and routine operation, repair, maintenance and access control for
the Building and Common Building Facilities, Additional Parking Area, and The
Texaco Building Complex, it being agreed that such replacement of equipment
shall not include major air conditioning equipment, boilers, elevators or any
similar major items;
(5) amounts charged to Landlord by independent
contractors for services (including full or part- time labor), materials,
supplies, tools and equipment furnished in connection with the operation,
repair, maintenance and access control for any part of the Building, Common
Building Facilities and the Additional Parking Area and the heating, air
conditioning, ventilating, plumbing, electrical and elevator systems of the
Building, Common Building Facilities and the Additional Parking Area and The
Texaco Building Complex;
(6) amounts paid by Landlord, or charged to Landlord by
independent contractors, for window cleaning and janitorial, rubbish removal
and xxxxxx services;
(7) water charges and sewer rents;
(8) the cost of repainting or otherwise redecorating any
part of the exterior of the Building, the Common Building Facilities and the
Additional Parking Area of the cost of repainting or otherwise redecorating The
Texaco Building Common Area;
(9) Holiday and other decorations for the lobby and other
public portions of the Building below the second floor, the exterior of the
Building, the Common Building Facilities and the Additional Parking Area;
(10) the cost of telephone service, postage, office
supplies, normal and routine maintenance and repair and replacement of office
equipment, telex, facsimile and photocopying charges, furniture costs, and
similar charges related to operation of the Building Managers Office in the
Building;
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(11) the cost of licenses, permits and similar fees and
charges related to the operation, repair and maintenance and access control of
the Building (including the tenanted areas thereof), Common Building
Facilities, Additional Parking Area and The Texaco Building Complex;
(12) premiums for property insurance, liability insurance,
employer's liability insurance, workers compensation insurance, boiler and
machinery insurance, rental abatement insurance and such other insurance as is
customarily carried by prudent owners of Comparable Buildings, in amounts and
with companies as Landlord determines, with respect to the Building, Common
Building Facilities, Additional Parking Area and The Texaco Building Complex;
(13) fees for the management of the Building, Common
Building Facilities and Texaco Building Complex, not exceeding the greater of
Three Percent (3%) of gross rentals of the Building (including parking
rentals), or the fees customarily charged for Comparable Buildings and
excluding any leasing commissions or compensations;
(14) fees and reimbursements for costs and expenses paid
to the operator of the Building Parking Garage and similar fees and charges
with respect to the Additional Parking Area if the Additional Parking Area is
operated under a similar arrangement;
(15) Subject to the exclusions set forth in Category B
herein below, amortization of the cost of installation of capital investment
items which are primarily for the purpose of reducing operating costs or which
are required by governmental authority. All such costs shall be amortized over
the reasonable life of the capital investment items, with the reasonable life
and amortization schedule being determined in accordance with general accepted
accounting principles and in no event to extend beyond the reasonable life of
the Building. In the case of installations for the purpose of reducing
operating costs, Landlord shall provide a cost justification for its
practicality; and
(16) charges (including applicable taxes) for water,
sewage, electricity, gas, steam and all other utilities required in the
operation, heating, air conditioning and ventilation of the Building (including
tenanted areas thereon, the Common Building Facilities, Additional Parking
Area, and The Texaco Building Complex;
Operating Expenses shall be "net" of any reimbursement, refund or
credit received by Landlord (net of the reasonable costs and expenses of
obtaining the same, if any) with respect to any item of cost that is included
in Operating Expenses.
B. Items Excluded from Operating Expenses:
(1) the cost of any work or service performed for any
specific tenant (including Tenant) at such tenant's cost (except pursuant to
tenant pass-throughs);
(2) the cost of correcting material defects in the
construction of the
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Building or in the Building equipment;
(3) except as otherwise includable under A(2) above,
salaries of officers and executives of Landlord,
(4) except with respect to the Common Building
Facilities, The Texaco Building Complex and the Additional Parking Area, the
cost of any work or service performed for the exclusive benefit of any facility
other than the Building;
(5) the cost of any items for which Landlord is
reimbursed by insurance proceeds;
(6) except as otherwise included in Category A above, the
cost of any repairs, alterations, additions, changes, replacements and other
items which under generally accepted accounting principles are properly
classified as capital expenditures or which are made in order to prepare for a
new tenant's occupancy;
(7) the cost of any capital repair in accordance with
Articles Nine and Twelve of this Lease;
(8) interest on debt or amortization payments on any
mortgage and rental under any ground lease or other underlying lease;
(9) any real estate brokerage commissions or other costs
incurred in procuring tenants;
(10) charges (including applicable taxes) for extra
electricity, steam and other utilities for which Landlord is entitled to direct
reimbursement from any tenant;
(11) except as provided in Category A above, any costs of
painting or decorating of Landlord's space in the Building (except for the
management office) or any occupied part of the Building;
(12) any expenses for repairs or maintenance if and to the
extent reimbursed pursuant to warranties and service contracts in existence on
the Term Commencement Date; and
(13) any expenses incurred in order to cause the Building,
the Common Building Facilities, The Texaco Building Complex or the Additional
Parking Area as they exist today to be, or come into, compliance with any
currently binding federal, state or local laws effecting or relating to such
facilities as such laws are in effect on the Effective Date.
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EXHIBIT E
ARBITRATION
In any circumstance for which arbitration or a determination of fair
market rental value (the "Fair Market Value Rate") is specialty provided for
pursuant to this Lease, such arbitration or determination shall be conducted in
accordance with the following provisions:
(a) For purposes of determining the Fair Market Value Rate,
Landlord and Tenant shall first meet to attempt to agree upon the Fair Market
Value Rate in accordance to the Provisions in Exhibit C. Each party shall be
entitled to have its consultants and experts participate in the meetings and
discussions between the parties. If Landlord and Tenant have not agreed upon
the Fair Market Value Rate and executed and delivered between them a supplement
to this Lease setting forth the same within the time frame called for in
Exhibit C, then either Landlord or Tenant may notify the other that it desires
to invoke the arbitration procedure set forth below.
(b) If (i) the Fair Market Value Rate has not been determined
pursuant to subsection (a) above or (ii) the matter being arbitrated does not
involve a determination of the Fair Market Value Rate, then the party invoking
the procedure set forth in subsections (b) through (c) of this Exhibit E shall
give a notice (the "Arbitration Notice") to the other party meeting the
requirements of the (UNIFORM ARBITRATION ACT) (the "Act"), or any successor
statute, and stating that the party sending the Arbitration Notice desires to
meet within ten (10) days to attempt to agree on a single arbitrator to
determine the dispute in question or the Fair Market Value Rate, as the case
may be (the "Arbitrator"). If Landlord and Tenant have not agreed on the
Arbitrator within fifteen (15) days after giving of the Arbitration Notice,
then either Landlord or Tenant, on behalf of both, may apply to the local
office of the American Arbitration Association or any organization which is the
successor thereof (the "AAA") for appointment of the Arbitrator, or, if the AAA
shall not then exist or shall fail, refuse or be unable to act such that the
Arbitrator is not appointed by the AAA within sixty (60) days after application
therefore, then either party may apply to the presiding judge of the court (as
that term is defined in Article 234 of the Act) (the "Court") for the
appointment of the Arbitrator and the other party shall not raise any question
as to the Court's full power and jurisdiction to entertain the application and
make the appointment. The date on which the Arbitrator is appointed, by the
agreement of the parties, or otherwise, is referred to herein as the
"Appointment Date". If any Arbitrator appointed hereunder shall be unwilling
to unable, for any reason, to serve, or continue to serve, a replacement
arbitrator shall be appointed in the same manner as the original Arbitrator.
(c) The arbitration shall be conducted in accordance with the then
prevailing rules of the local office of the AAA, modified as follows:
(i) To the extent that the Act or any successor statute
imposes requirements different than those of the AAA in order for the decision
of the Arbitrator to be enforceable in the courts of the State of Oklahoma,
such requirements shall be complied with in the arbitration.
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(ii) The Arbitrator shall be disinterested and impartial,
have no economic interest in the outcome, shall not be affiliated with the
Landlord or the Tenant and shall be (A) for purposes of determining the Fair
Market Value Rate, an MAI appraiser with at least ten (10) years experience in
the determination of fair market rentals in Comparable Buildings (B) for
purposes of any dispute under Section 4.02(e) or Exhibit D, an independent
certified public accountant with at least ten (10) years experience in public
accounting with respect to real estate matters and (C) for purposes of all
other disputes or determinations to be made in accordance with this section, a
qualified and impartial person who shall have had at least ten (10) years
experience in the City of Tulsa, Oklahoma in a calling connected with the
matters of the dispute.
(iii) Before hearing any testimony or receiving any
evidence, the Arbitrator shall be sworn to hear and decide the controversy
faithfully and fairly by an officer authorized to administer an oath and a
written copy thereof shall be delivered to the Landlord and the Tenant.
(iv) Within twenty (20) days after the Appointment Date,
Landlord and Tenant shall deliver to the Arbitrator two (2) copies of (A) a
written statement setting forth in reasonable detail their respective positions
with respect to the dispute in question, which statement may be accompanied by
such evidence as the submitting party shall deem appropriate, or (B) their
respective written determinations of the Fair Market Value Rate, as applicable
(in each case, a "Determination"). After the submission of any Determination,
the submitting party may not make any additions to or deletions from or
otherwise change such Determination. If either party fails to so deliver its
Determination within such time period, time being of the essence with respect
thereto, such party shall be deemed to have irrevocably waived its right to
deliver a Determination and the Arbitrator without holding a hearing, shall
accept the Determination of the submitting party as the result with respect to
the dispute in question or the Fair Market Value Rate, as applicable. If each
party submits a Determination within the twenty (20) day period described
above, the Arbitrator shall, promptly after its receipt of the second
Determination, deliver a copy of each party's Determination to the other party.
For purposes of determining the Fair Market Value Rate, if the higher of the
Determinations so submitted by the parties exceeds the lower of such
Determinations by not more than five percent (5%) of the lower Determination,
then the Arbitrator, without holding a hearing, shall determine that the Fair
Market Value Rate is the mathematical average of the two Determinations
thereof.
(v) If (A) the Fair Market Value Rate has not been
determined pursuant to clause (iv) of this subparagraph or (B) the matter being
arbitrated does not involve a determination of the Fair Market Value Rate, then
not less than fifteen (1 5) days nor more than thirty (30) days after the
earlier to occur of (1) the expiration of the twenty (20) day period provided
for in clause (iv) of this subparagraph or (2) the Arbitrator's receipt of both
of the Determinations from the parties (such earlier date is referred to herein
as the ("Submission Date"), and upon not less than ten (10) days notice to the
parties, the Arbitrator shall hold one or more hearings with respect to the
dispute in question or the determination of the Fair Market Value Rate, as
applicable. The hearings shall be held in the City of Tulsa, Oklahoma at such
location and time as shall be specified by the Arbitrator. Each of the parties
shall be entitled to present all relevant evidence and to cross-examine
witnesses
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at the hearings. The Arbitrator shall have the authority to adjourn any
hearing to such later date as the Arbitrator shall specify, provided that in
all events all hearings, pursuant to this Section, shall be concluded not later
than forty five (45) days after the Submission Date.
(vi) Except as otherwise provided in clause (iv) of this
subparagraph, the Arbitrator shall be instructed, and shall be empowered only,
to select that one of the Determinations which the Arbitrator believes is the
more accurate determination of the dispute in question for the Fair Market
Value Rate, as applicable. Without limiting the generality of the foregoing,
in rendering his or her decision, the Arbitrator shall not add to, subtract
from or otherwise modify the provisions of this Lease or either of the
Determinations.
(vii) The Arbitrator shall render his or her determination
as to the selection of a Determination in a signed and acknowledged written
instrument, original counterparts of which shall be sent simultaneously to the
Landlord and the Tenant, within ten (10) days after the earlier to occur of (A)
his or her determination of the dispute in question or the Fair Market Value
Rate, as applicable, pursuant to clause (iv) of this subparagraph or (B) the
conclusion of the hearing(s) required by clause (v) of this subparagraph,
(viii) If the rental commencement date for any space to be
leased by Tenant pursuant to this Lease for which the Fair Market Value Rate is
being determined begins prior to the commencement of or completion of the
procedures for determining such rental rate as herein provided, rent shall be
provisionally determined and paid for by Tenant based on Landlord's initial
calculation of the Fair Market Value Rate beginning on the commencement date
provided in the Lease. Any overpayment by, Tenant resulting from any reduction
in the Fair Market Value Rate upon its final determination pursuant to the
provisions hereof, together with interest thereon from the date or dates of
overpayment at the Prime Interest Rate, until such rent is credited to Tenant,
shall be credited to Tenant's next succeeding Annual Rental payments.
(ix) The Arbitrator shall resolve any Operating Expense
dispute as he may determine and his decision shall be binding on Landlord and
Tenant. Each party shall present its case to the Arbitrator and each party's
auditors involved in the dispute shall be entitled to present evidence and
attend hearings.
(d) This provision shall constitute a written agreement under the
Act to submit those disputes for which arbitration is specifically provided for
pursuant to this Lease, including any dispute regarding the determination of
the Fair Market Value Rate, to arbitration.
(e) The arbitration decision, determined as provided in this
Section, shall be conclusive and binding on the parties, shall constitute an
"award" by the Arbitrator within the meaning of the AAA rules and applicable
law and judgment may be entered thereon in any court of competent jurisdiction.
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(f) Each party shall pay its own fees and expenses relating to the
arbitration (including, without being limited to, the fees and expenses of its
counsel and of experts and witnesses retained or called by it). Each party
shall pay one-half ( 1/2) of the fees and expenses of the AAA and of the
Arbitrator, provided, that if either party fails to submit a Determination
within the period provided therefor, such non-submitting party shall pay all of
such fees and expenses.
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EXHIBIT F
I. Heating, Ventilation and Air Conditioning.
The HVAC system that is in place will be in good working
order. Tenant accepts the main duct distribution system in
as-is/where-is condition with any modifications to ducts at
Tenant's sole cost.
II. Electrical Distribution and Service.
Tenant accepts the electrical system in as-is/where is
condition.
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EXHIBIT G
JANITORIAL
Landlord reserves the right to modify these specifications upon notice to
Tenant.
Landlord will maintain janitorial specifications consistent with those of
Comparable Buildings in the Midtown Tulsa area.
I. NIGHTLY - ALL FLOORS.
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A. Empty trash can and change liners as needed.
B. Pick up recycle paper on recycle floors, deliver to designated
area for pick up. Clean all private rest rooms (stock paper
towels, tissue, and soap. Clean sink, stool, and mirror).
D. Clean all kitchenette and coffee bar areas (stock paper towels
and clean sink and counter tops).
E. Clean all conference rooms.
F. Service areas (clean sink and stock paper towels).
G. Clean all drinking fountains.
H. Clean and mop floor of Tenant elevator lobbies.
I. Trash taken to designated area for pick up.
J. Blot and clean all liquid spills from lobby area, service area,
and carpet areas.
K. Remove all trash from all floors to trash pick-up area.
II. TWICE A WEEK - ALL FLOORS.
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A. Wipe desk bookshelves and all furniture off with damp cloth.
Dust desk where papers prohibit using water.
B. Wipe telephone with damp cloth.
C. Wipe spots from walls and doors; if glass, use window cleaner.
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D. Clean spots from glass partitions and glass doors.
E. Whisk broom chairs as needed. Clean vinyl or leather.
F. Clean ladies' lounge on floors where located.
G. Wipe trash cans out as needed.
H. Break down cardboard boxes and take to recycle area twice per
week.
III. WEEKLY.
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A. Clean window xxxxx.
B. Dust hanging picture frames.
C. Dust partitions.
IV. MONTHLY.
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A. Clean wooden desks with furniture polish.
B. Clean glass-topped desks with window cleaner.
C. Wipe or dust file cabinets, dust bookshelves, all furniture in
the office (if wooden, use furniture polish; if glass top, use
window cleaner).
D. Dust base boards.
E. Dust chair bottoms and legs.
V. ANNUAL.
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A. Wash marble lobby walls on all floors once a year.
B. Common hallways where carpeted and all office areas to be
shampooed (cleaned) 1 time per year on a scheduled basis.
VI. VACUUM CLEANING.
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A. Vacuum carpeted areas 2 times a week. Once a week detail
vacuuming is done on a rotation basis.
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B. Vacuum diffusers in Tenant elevator lobbies once a month.
C. StaticGuard carpet as needed.
VII. ELEVATORS.
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A. Polish handrails and wipe down wall panels daily.
B. Shampoo carpet once per week.
VIII. REST ROOMS - NIGHTLY.
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A. Clean, sweep, and mop.
B. Clean sinks with disinfectant and chrome polish.
C. Clean stools and urinals with bowl cleaner.
D. Clean toilet seats (both sides) with disinfectant.
E. Clean mirrors and polish stainless steel.
F. Restock paper towels, tissue, and soap dispensers.
G. Empty sanitary napkin disposal boxes nightly and clean with
disinfectant, once a week.
H. Clean spots on tile behind sinks and urinals.
L. Empty trash nightly and take to designated area for pick up.
J. Dust partition tops and plumbing fixtures as needed.
K. Clean stall walls as needed.
L. Scrub floors with scrubber 4 times per year.
M. Completely wash walls and partitions twice per year.
IX. ALL OTHER FLOORS.
----------------
- Refinish hard floors (strip, wax, and buff) as follows:
- Service Area: Clean and mop 2 times weekly; stock paper towels
and soap.
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X. DAY UTILITY.
A. Main Lobby - daily - mid morning - police the lobby for trash
or spills after lunch rush, pick up any trash in the lobby and
hand vacuum the seating areas if needed.
B. Miscellaneous - early a.m. - start at the top of the building
and come down, turning on the floor lights. After the lunch
rush, vacuum out the elevator cabs as needed. Be available to
clean up spills and messes which may occur, as well as any
special cleaning which may be required from time to time.
Alert engineers of any leaks or mechanical problems which you
may observe.
C. Maintain the lighting systems in the building by replacing
lamps observed or reported to be out.
XI. WINDOW CLEANING.
Wash windows in all Tenant premises of building twice a year.
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EXHIBIT H
THE TEXACO BUILDING
BUILDING RULES AND REGULATIONS
Sidewalks, doorways, vestibules, halls, stairways, and other similar areas
shall not be obstructed by tenant or used by any tenant for any purpose other
than ingress and egress to the Leased Premises and for going from one part of
the Building to another part of the Building.
Plumbing fixtures and appliances shall be used only for the purpose for which
designated and no sweeping, rubbish, rags or other unsuitable material shall be
thrown or placed therein. Damage resulting from misuse by Tenant shall be paid
by Tenant and Landlord shall not in any case be responsible therefore.
No signs, advertisements, or notices shall be painted or affixed in any way on
or to any windows or doors or any other parts of the Building except of such
color, size and style and in such places as designated by Landlord.
Landlord will provide and maintain a directory board for all the tenants in the
main lobby of the Building, and no other directory will be permitted unless
previously consented to by Landlord in writing.
Landlord shall be provided with a key for all locks for doors in tenant's
leased area and no tenant shall place any additional lock or locks on any door
in its leased area without Landlord's written consent. All requests for
duplicate keys shall be made to the Property Manager. Tenant, with Landlord's
approval which approval shall not be unreasonably withheld, can designate
certain areas as closed access and will not have to provide Landlord with a
key.
Proposed plans for alterations affecting floors, walls, woodwork, trim,
windows, ceiling, equipment, and/or other physical portion of the Building must
be approved in writing by Landlord. Tenants will refer all contractors,
contractors representatives and installation technicians tendering any service
to them to Landlord for Landlord's reasonable supervision, approval and control
before the performance of any contractual services. This provision shall apply
to all work performed in the Building, including, but not limited to,
installation of telephones, telegraph equipment, electrical devices and
attachments, any and all installation of every nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment, and any other physical portion of
the Building.
Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which requires use of elevators or stairways or movement through the Building
entrances or lobby shall be restricted to such hours as Landlord shall
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designate. All such movement shall be under the supervision of Landlord and in
the manner agreed between the tenant and Landlord by prearrangement before
performance. Such prearrangement initiated by a tenant shall include
determination by Landlord, and subject to his decision and control as to the
time, method, and routine of movement and as to limitations for safety or other
concern which may prohibit any article, equipment, or any other item from being
brought into the Building.
The tenants are to assume all risks as to damage to articles moved and injury
to persons or public engaged or not engaged in such movement, including
equipment, property, and personnel of Landlord if damaged or injured as a
result of entering property to completion of work; and Landlord shall not be
liable for acts of any persons engaged in, or any damage or loss to any of said
property or persons resulting from any act in connection with such service
performed for a tenant.
Landlord reserves the right to prescribe the weight and position of safes and
other heavy equipment, which shall, in all cases, distribute weight, stand on
supporting devices approved by Landlord. All damages done to the building by
taking in or putting out any property of a tenant, or done by a tenant's
property while in the building, shall be repaired at the expense of that
tenant.
A tenant shall notify the Property Manager when safes or other heavy equipment
are to be taken in or out of-the building, and the moving shall be done under
the supervision of the Property manager, after receiving written permission
from Landlord. Persons employed to move such property must be acceptable to
Landlord.
Corridor doors, when not in use, will be kept closed.
Each tenant shall cooperate with Landlord's employees in keeping its leased
area neat and clean. Tenant shall not employ cleaning and maintenance
personnel. Landlord shall be in no way responsible to the tenants, their
agents, employees, or invitees for any loss of property from the leased
premises or public areas or for any damage to any property thereon from any
cause whatsoever, unless due to gross negligence by Landlord.
Tenant shall not make or permit any improper noises in the building or
otherwise interfere with other tenants or persons having business with them.
Tenant shall cooperate with Landlord's reasonable efforts to minimize energy
consumption.
Tenant shall comply with Landlord's life safety plans, including all
requirements for fire drills and building evacuation plans.
Nothing shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals shall be brought into or kept in, on, or about
the tenant's area.
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Tenant may be allowed vending machines for bottled or canned soda and drinks
for its employees. Landlord reserves the right to contract for the
installation of the vending machines or to designate a specific company to
provide the vending machines.
No machinery of any kind except office equipment, shall be operated by any
tenant in its leased area without the prior written consent of Landlord, nor
shall any tenant use, or keep, in the building any flammable or explosive fluid
or substance.
No portion of the tenant's leased area shall at any time be used or occupied as
sleeping or lodging quarters.
Tenants are requested to lock all office doors leading to corridors and to turn
out all lights at the close of their working day.
Landlord shall not be held responsible for lost or stolen personal property,
money or jewelry from tenant's leased area or public areas regardless of
whether such loss occurs when area is locked against entry or not, unless due
to gross negligence by Landlord.
Tenant shall not tamper with or attempt to adjust the temperature control
thermostats in the leased premises. Landlord shall make adjustments in
thermostats on call from the tenant. Landlord shall provide initial balancing
of Tenant's HVAC system and will attempt to make adjustments to the thermostats
to provide a comfortable temperature and humidity level in the Leased Premises.
Landlord will preapprove thermostats that Tenant can control so long as they
are indicated on Tenant's HVAC plans and approved by Landlord's engineer.
Tenant shall have access to the building before and after normal working hours.
Such
access shall be through the front door and shall be controlled by the security
guard on duty.
Landlord reserves the right to rescind any of these rules and regulations and
to make such other and further reasonable rules and regulations as in its
judgment shall, from time to time, be needed for the safety, protection, care
and cleanliness of the building, the operation thereof, the preservation of
good order therein and the protection and comfort of the tenants and their
agents, employees and invitees, which rules and regulations, when made and
written notice thereof is given to a tenant, shall be binding upon it in like
manner as if originally herein prescribed.
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EXHIBIT I
OVERTIME HVAC CHARGES
Any HVAC services ("Overtime HVAC") furnished to Tenant at times or on
days other than during the regular business hours specified in Section 5.02(a)
shall be at $50.00 per hour for the first partial or full floor for which
Tenant requests Overtime HVAC and $50.00 per hour for each additional partial
or full floor for which Tenant requests overtime HVAC. Such charges shall be
adjusted from time to time for the actual increases or decreases to Landlord of
providing Overtime HVAC resulting from increases or decreases in Landlord's
cost's including costs per kilowatt hour of electricity from the charges in
effect as of the Effective Date of this Lease.
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EXHIBIT J
ENVIRONMENTAL
The following is a listing of documentation, reports, surveys, and test
results that are available for Tenant's inspection. It is Tenant's
responsibility to review these documents.
1. November 1996 report from Pathcon Laboratories to identify
certain microbiological forming units of Legionella bacteria.
2. June 1995 report from Xxxxxxxx & Associates Services detailing
the locations and makeup of the asbestos containing material
(chrysolite or amosite) in the Building.
3. Certification letters from ClHs on past asbestos abatement
projects.
4. All air monitoring done by Xxxxxxxx & Associates in 1996, and
1992 and 1993 EH&S reports on the ambient monitoring for
airborne asbestos fibers.
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