Texas-House-5151 San Felipe Lease - Sage Plaza One Ltd. and Spires Financial LP
HALLIBURTON CENTER
LEASE AGREEMENT
BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD.
AND
SPIRES FINANCIAL, L.P.
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LEASE AGREEMENT
THE STATE OF TEXAS
COUNTY OF HARRIS
THIS LEASE AGREEMENT (hereinafter called "Lease") is made and entered
into on this the 4TH day of AUGUST, 1998, by and between BARNHART INTERESTS,
INC., AS AGENT FOR SAGE PLAZA ONE LTD. (hereinafter called "Landlord"), and
SPIRES FINANCIAL, L.P. (hereinafter called "Tenant").
WITNESSETH:
ARTICLE 1
LEASED PREMISES AND NET RENTABLE AREA
1.01. LEASED PREMISES. Landlord does hereby lease, demise and let to
Tenant, and Tenant does hereby lease from Landlord those certain premises
(hereinafter sometimes called the "Leased Premises") in the building known as
Halliburton Center (hereinafter called the "Building"), located at 5151 San
Felipe, Houston, Harris County, Texas. Such Leased Premises contains
approximately 7,427 Square Feet of Net Rentable Area, hereinafter defined, on
Level 13 of the Building and are outlined and/or hatched on the floor plan
drawing attached hereto and made a part hereof as Exhibit "A" and initialed
for identification by both parties.
1.02. The term "Net Rentable Area" as used herein shall mean, in the
case of a single tenant occupying a floor (hereinafter called "Single Tenant
Floor"), the total of (i) the entire area bounded by the four exterior walls
of the Building measured from the inside surface of the outer glass on such
floor, less the area contained within Building stairs, vertical ducts,
elevator shafts, flues, vents, stacks and pipe shafts, measured from the
centerline of the walls separating such areas, and (ii) an allocation of the
Building ground and basement lobbies and rest rooms, central plant, truck
dock, areaways, mail room and other facilities shared by tenants of the
Building. No deduction shall be made for columns and other structural
portions of the Building. All the area on any Single Tenant Floor that is
used for elevator lobbies, corridors, special stairways, rest rooms,
mechanical rooms, electrical rooms, telephone closets, and all vertical
penetrations that are included for the special use by Tenant shall be
included within the Net Rentable Area for such floor.
1.03. On each floor of the Building on which space is or will be
leased to more than one tenant, the Net Rentable Area attributable to each
such lease shall be the total of (i) the entire area included within the
leased premises covered by such lease, being the area bounded by the exterior
wall or walls of the Building measured from the inside surface of the outer
glass or finished walls bounding such leased premises, the centerline of all
walls separating such leased premises from elevator lobbies, public
corridors, restrooms, stairwell, mechanical rooms, electrical rooms and
telephone closets situated on such floor ("common areas"), and the
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centerline of all walls separating such leased premises from other areas
leased or to be leased to other tenants on such floor, and (ii) a pro rata
portion of the area covered by the common areas, plus an allocation of the
Building ground and basement lobbies and rest rooms, central plant, truck
dock, areaways, mail room and other facilities shared by tenants of the
Building and columns and other structural portions of the Building. The Net
Rentable Area for the entire Building shall be deemed to be 519,966 square
feet for the purposes of this Lease. The Net Rentable Area contained within
the Leased Premises shall be deemed to be the number of square feet set forth
in Section 1.01 above.
ARTICLE 2
TERM
2.01. The provisions of this Article 2 are subject to and upon the
terms and conditions set forth in this Lease and any addendum or rider hereto.
2.02. The term of this Lease is sixty (60) months. The "Commencement
Date" shall be within five (5) business days after Landlord notifies Tenant
in writing that the Leased Premises is completed per plans and
specifications, or when Tenant occupies the Leased Premises to transact
business, whichever is earlier. If the Leased Premises are not ready for
occupancy by October 15, 1998, for reasons other than delays caused by
Tenant, Tenant shall have the right to terminate this Lease. The Lease will
terminate on the last day of the sixtieth (60th) month following the actual
"Commencement Date".
2.03. In the event Landlord fails to complete the Building or the
Leased Premises by the time of the Commencement Date for any reason or cause,
Landlord shall not be liable or responsible for any claims, damages or
liabilities in connection therewith or by reason thereof, and the date on
which the term of this Lease commences shall be the date on which the Leased
Premises are ready for occupancy by Tenant (except as provided in Section
2.04 below). In such event, the stated term in this Lease shall thereupon
commence, the expiration date shall be extended so as to give effect to the
full stated term, and Landlord and Tenant will, at the request of either,
execute a declaration specifying the beginning date of the term of this Lease.
2.04. In the event the Leased Premises are not ready for occupancy
by the Commencement Date of this Lease due to any delay whatsoever on the
part of Tenant, its agents or contractors, including, without limitation, any
delay in furnishing information or performance of its obligations required in
Exhibit "B", or as a result of Tenant Delay as defined in Exhibit "B", or if
Tenant fails to occupy the Leased Premises Leased Premises are ready for
occupancy, then Tenant shall commence rental payments hereunder on the
Commencement Date. The Commencement Date, expiration date and commencement of
installments of Base Rental or additional rent shall not be postponed or
delayed as a result of delays on the part of Tenant.
ARTICLE 3
CONSTRUCTION
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3.01. LEASEHOLD IMPROVEMENTS. Tenant shall comply with the Tenant
improvement schedule attached hereto and made a part hereof as Exhibit "B".
The Leased Premises shall be remodeled and improved in accordance with
Exhibit "B" and plans and specifications submitted and signed by Tenant.
Landlord shall provide Tenant with a finish allowance of $15.00/square foot
of Net Rentable Area ($111,405.00), plus demolition as set forth on Exhibit
B-2 (the "Allowance"), to include space planning and design, construction,
relocation costs, architectural and construction management, and MEP
drawings. The Allowance shall include costs for demolition of partitions as
shown on Exhibit "B-2" attached hereto. After receipt of the approved working
drawings and pricing letter agreement described in said Exhibit "B", Landlord
will partition and prepare said Leased Premises in accordance therewith;
however, Landlord shall not be required to install any partitions or
improvements which are not in conformity with the plans and specifications
for the Building or which are not approved by Landlord or Landlord's
architect, and Landlord shall be required to bear the expense of installing
only the items listed in Exhibit "B" hereto which can be installed at a cost
not to exceed the Allowance. All installations in excess of the Allowance
("Tenant's Costs") shall be for Tenant's account, and Tenant shall pay, as
additional rent hereunder, to Landlord, an amount therefor equal to
Landlord's actual cost thereof, including associated architectural and
engineering fees, if any, plus an additional charge of fifteen percent (15%)
to cover overhead, promptly upon being invoiced therefor. Additionally,
Tenant shall pay all ad valorem taxes and increased insurance premiums that
are payable on account of any of Tenant's improvements that are in addition
to those items (or quantities thereof) described on Exhibit "B" hereto.
Failure by Tenant to pay any sums described in this Section 3.01 in full
within thirty (30) days after its receipt of an invoice therefor will
constitute failure to pay rent when due and an event of default by Tenant
hereunder, giving rise to all remedies available to Landlord under this Lease
and at law for nonpayment of rent. It is stipulated that time is of the
essence in connection with Tenant's compliance with the terms of Exhibit "B".
Landlord may make insubstantial changes in its preparation of the Leased
Premises without Tenant's approval. Landlord may make substantial changes in
its preparation of the Leased Premises only with Tenant's approval, which
approval shall not be unreasonably withheld. Upon completion by Landlord of
the work to be performed by it in preparation of the Leased Premises
substantially in accordance with Exhibit "B", Landlord will tender possession
of such premises to Tenant, and Tenant will accept and occupy the Leased
Premises, if completed pursuant to Exhibit "B", subject to punch list items
which Landlord will complete as soon as reasonably possible. The work to be
performed by Landlord in the preparation of the Leased Premises shall be
deemed to have been completed substantially in accordance with Exhibit "B",
notwithstanding that adjustments may be required to be made by Landlord in
its work and that minor items of Landlord's work have not been fully
completed, so long as Tenant would be able to use the Leased Premises for the
purpose provided hereunder upon performance of Tenant's own construction and
installation of its fixtures and equipment. Completion substantially in
accordance with Exhibit "B" by Landlord may, but need not be, evidenced by a
certificate of completion or certificate of substantial completion issued by
Landlord's architect. Subject to Section 3.03, after such tender of
possession by Landlord, Tenant may enter the Leased Premises under all the
terms and conditions of this Lease (except that no rental shall be payable
until the commencement of the term as specified in Article 4 hereof) for the
purpose of performing its construction work in the Leased Premises and
installing its fixtures. Entry into possession by Tenant will constitute
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acknowledgment by Tenant that the Leased Premises are in the condition called
for by this Lease and that Landlord has performed all of Landlord's visible
obligations relating to preparation of the Leased Premises, but subject to
punch list items.
3.02. PRIOR OCCUPANCY. Tenant, at its option, along with its
employees, suppliers, contractors, subcontractors and agents, shall be
permitted to enter the Leased Premises at any time prior to the scheduled
Commencement Date of the Lease, providing such entry and work shall be in
harmony with the Landlord's contractors and with no obligation on the part of
Tenant to pay rent during such period of prior occupancy, for the purposes of
installing furniture, fixtures and equipment (including telephone equipment),
as well as non "building standard" leasehold improvements, including, but not
limited to, millwork, wall and floor covering, and draperies. This prior
occupancy provision shall be separate and distinct from the obligations of
Landlord as to the completion of the "building standard" improvements per
Exhibit "B".
3.03. USE OF THE COMPLEX PRIOR TO THE COMMENCEMENT DATE. Prior to
the Commencement Date of the Lease, entry into the Complex, as defined in
Section 5.10 herein, shall be at Tenant's risk and Landlord shall not be
liable for (i) any injury, loss or damage to any of Tenant's installations or
decorations, and/or (ii) any injury or death arising in connection with any
outside contractor or others being with the Complex on Tenant's behalf and
Tenant agrees to protect, defend, indemnify, and save harmless Landlord from
all liabilities, costs, damages, fees and expenses arising out of the
activities of Tenant or its employees, agents, contractors, suppliers or
workmen in or about the Complex.
3.04. INITIAL CONSTRUCTION-NON STANDARD IMPROVEMENTS. With respect
to the initial construction of the Leased Premises, Tenant shall have the
right to undertake non "building standard" leasehold improvements (except
where same relate to base building structural, electrical, mechanical and/or
plumbing) through outside contractors of its own choosing, subject to
Landlord's reasonable approval, providing the entry and work on the part of
such outside contractors shall be in harmony with Landlord's contractors;
and, if at any time such entry and work by one or more persons furnishing
labor or materials for Tenant's work shall result in disharmony or
interference with Landlord's work, the consent granted by Landlord to Tenant
may be withdrawn upon twenty-four (24) hours written notice to Tenant.
3.05. CONSTRUCTION BY TENANT. With respect to construction by
Tenant, Tenant, its contractors or other agents shall provide Landlord
sufficient evidence that it (they) is (are) covered under such workmen's
compensation, public liability, and property damage insurance as Landlord may
reasonably request for its protection. All such labor shall be performed and
materials furnished at Tenant's own cost, expense and risk. With respect to
any contract for any such labor or materials, Tenant acts as a principal and
not as an agent of Landlord. Tenant agrees to indemnify and hold Landlord
harmless from all claims (including costs and expenses of defending against
such claims) arising or alleged to arise from any act or omission of Tenant
or Tenant's agents, employees, contractors, subcontractors, laborers,
materialmen or invitees or arising from any bodily injury or property damage
occurring or alleged to have occurred incident to Tenant's work at the Leased
Premises. Tenant shall have no authority to place any lien upon tile Leased
Premises or any interest therein or in any way to bind Landlord; and any
attempt to do so shall be void and of no effect. Landlord expressly disclaims
liability for the cost of labor
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performed or materials furnished by Tenant. If, because of any actual or
alleged act or omission of Tenant, any lien, affidavit, charge or order for
the payment of money shall be filed against Landlord, the Leased Premises or
any portion thereof or interest therein, whether or not such lien, affidavit,
charge or order is valid or enforceable, Tenant shall, at its own cost and
expense, cause the same to be discharged of record by payment, bonding or
otherwise not later than thirty (30) days after notice to Tenant of the
filing thereof, but in all events, prior to the foreclosure thereof. All of
Tenant's construction of the Leased Premises shall be performed in a good and
workmanlike manner satisfactory to Landlords' architect in accordance with
applicable building codes, regulations and all other legal requirements, and
shall not interfere with or delay any work being done by Landlord's
contractors.
ARTICLE 4
BASE RENTAL
4.01. BASE RENTAL. As rental (hereinafter called "Base Rental" or
"Rent") for the Lease and the use of the Leased Premises, Tenant shall pay in
U. S. Dollars to Landlord or Landlord's assigns, at the Building office,
without demand and without deduction, abatement or setoff, and subject to
Base Rental Adjustment defined in Article 5 below, Base Rental as follows:
Leased Premises Net Rentable Area (NRA): 7,427
Years 1 through 5 :Annual Rate: $ 20.00/SF/YR NRA
(inclusive)
Annual Rental: $ 148,540.00
Monthly Rental: $ 12,378.33
4.02. BASE RENTAL PAYMENTS. All rental payments are payable on the
first day of each calendar month, monthly in advance, in lawful money of the
United States of America, commencing on the first day of the first month of
the term of this Lease and continuing through the last day of the last year
of the term of this Lease. If the term of the Lease does not commence on the
first day of the calendar month or terminate on the last day of the calendar
month, as the case may be, Tenant shall pay in advance a pro rata part of
such sum as rental for such first or last partial month, as the case may be.
All past due installments of Rent shall bear interest at the maximum lawful
rate per annum from the date due until paid. The Annual Rate, Annual Rental
and Monthly Rental set forth above shall be subject to the Base Rental
Adjustment set forth in Article 5.
4.03. ADDITIONAL RENT. Tenant shall also pay, as additional rent,
all other sums of money as shall become due and payable by Tenant to Landlord
under this Lease. Landlord shall have the same remedies of default for the
payment of additional rent as are available to Landlord in the case of a
default in the payment of Base Rental.
ARTICLE 5
BASE RENTAL ADJUSTMENT
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5.01. The Base Rental Adjustment shall be calculated in accordance
with the factors set forth in the following sections of this Article 5.
5.02. BASIC COST AMOUNT. Tenant's Base Rental includes a component
applicable to Basic Cost (hereinafter defined). The "Initial Basic Cost"
(including the management fee) is hereby stipulated to be the actual
Operating Expenses for calendar year 1999.
5.03. INTENTIONALLY STRICKEN.
5.04. ANNUAL ESTIMATE OF BASIC COST. Prior to and no later than
thirty (30) days after the commencement of each calendar year of Tenant's
occupancy, Landlord shall provide an estimate of Basic Cost for said calendar
year. Tenant shall pay a Base Rental for said calendar year adjusted upward
or downward, as appropriate, by the amount of difference between the prior
calendar year's estimated costs and the coming year's estimated costs.
5.05. REVISIONS IN ESTIMATED BASIC COST. If real estate taxes or the
cost of utilities or janitorial services increase during a calendar year,
Landlord may revise the estimated Basic Cost during such year by giving
Tenant written notice to that effect, and thereafter Tenant shall pay to
Landlord, in each of the remaining months of such year, an additional amount
equal to its pro rata share of the amount of such increase in the estimated
Basic Cost divided by the number of months remaining in such year.
5.06. ACTUAL BASIC COST. Within one hundred fifty (150) days or as
soon thereafter as possible of the conclusion of each calendar year of the
term of the Lease, Landlord shall furnish to Tenant a statement of Landlord's
actual Basic Cost for said lease year. A lump sum payment will be made from
Landlord to Tenant or from Tenant to Landlord, as appropriate, within thirty
(30) days of the delivery of such statement equal to the difference in actual
Basic Cost and estimated Basic Cost for the just completed year. The effect
of this reconciliation payment is that Tenant will pay during the term of
this Lease its share of Basic Cost increases over the initial Basic Cost.
5.07. TENANT'S PROPORTIONATE SHARE OF BASIC COST. All increases in
Basic Cost shall be paid by Tenant in the proportion which Tenant's Net
Rentable Area bears to ninety-five percent (95%) of the total Net Rentable
Area in the Building or to the total Net Rentable Area leased in the Building
(if such total is greater than ninety-five percent (95%) of the total
Building area). Notwithstanding any other provision herein to the contrary,
it is agreed that in the event the Building is not substantially occupied
during any year of the lease term, an adjustment shall be made in computing
the Basic Cost for such year so that the Basic Cost shall be computed for
such year as though the Building had been substantially occupied during such
year. The Building shall be deemed substantially occupied if ninety-five
(95%) percent of the total Net Rentable Area is leased.
5.08. AUDIT. Tenant at its expense shall have the right at all
reasonable times and within one hundred twenty (120) days from the receipt of
Landlord's statement of Actual Basic Cost for any immediately preceding year
to audit Landlord's books and records relating to this Lease for such year
for which additional rental payments become due; or, at Landlord's sole
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discretion, Landlord will provide such audit prepared by a national certified
public accountant. Pending resolution by agreement, Tenant shall make any
payment due as shown by Landlord's accounting without prejudice to Tenant's
position.
5.09. OPERATING COST CREDIT/DEBIT. Except as otherwise set forth
above, to the extent that the operating costs of the Building are reduced as
a result of Tenant's use of the Leased Premises for special or unusual
purposes, such operating cost savings shall be passed on to Tenant to offset
its pro rata share of increases in such operating costs. Conversely, should
it be determined that the operating costs of the Building are increased as a
result of Tenant's use of the Leased Premises for special or unusual
purposes, such operating cost increases shall be paid for by Tenant.
5.10. BASIC COST DEFINED. The term "Basic Cost" means all annual
operating expenses of the Building, adjacent parking garage serving the
Building (hereinafter called "Building Parking Garage") access roads,
easements, truck docks and grounds serving the Building and Building Parking
Garage (hereinafter called "Building Grounds") (hereinafter collectively
called the "Complex") computed on the accrual basis, determined in accordance
with generally accepted accounting principles consistently applied, and shall
consist of all expenditures to maintain all facilities in the operation of
the Complex and such facilities in subsequent years as may be necessary or
desirable in the operation of the Complex. The term "operating expenses"
shall mean all expenses, costs and disbursements (but not replacement of
capital investment items, except as stated in Section 5.10.9 below, or
specific utility costs especially billed to and paid by specific tenants) of
every kind and nature which Landlord shall reasonably pay or become obligated
to pay in connection with, and in the ordinary course of, the ownership and
operation of the Complex, including but not limited to, the following:
5.10.1. All taxes and assessments and other governmental charges
whether federal, state, county or municipal and whether they be by taxing
districts or authorities presently taxing the Leased Premises and/or the
Complex or by others subsequently created or otherwise, and any other
taxes and improvement assessments attributable to the Complex or its
operation, excluding, however, federal and state taxes on income, ad
valorem taxes paid by Tenant or other tenants, exclusive of the building
management office, in the Building for personal property and on the value
of the Leasehold improvements in the Leased Premises, or the premises of
other tenants, exclusive of the building management office, in the
Building, to the extent that same exceed the standard allowances for
"building standard" items as set forth in Exhibit "B". It is agreed that
Tenant will be responsible for ad valorem taxes on its personal property
and on the value of leasehold improvements in excess of "building
standard";
5.10.2. Cost (net of any insurance recoveries and/or monies
received by other tenants, entities or persons) of repairs and general
maintenance;
5.10.3. Cost of all utilities, including without limitation,
power, heating, lighting, air conditioning and ventilating the Complex
(excluding those costs billed to specific tenants and fuel adjustment
costs provided for in Section 5.11);
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5.10.4. Cost of all maintenance and service agreements including,
but not limited to, alarm and security related services, landscape
maintenance, window cleaning and elevator maintenance;
5.10.5. Cost of all insurance relating to the Complex,
including, but not limited to, premiums for casualty, liability and
rental value insurance applicable to the Complex and Landlord's
personal property used in connection with the operation and
maintenance of the Complex;
5.10.6. Wages and salaries of all employees (but not Landlord's
off-site executives) directly engaged in operating and maintenance,
or security, of the Complex, personnel who may provide traffic
control relating to ingress and egress to and from the Building
Parking Garage to the adjacent public streets, including such
expenses of Landlord's employees so engaged, charged directly to
the Complex. All social security taxes, unemployment taxes or
insurance, and any other taxes which may be levied on such wages
and salaries, the cost of worker's compensation, disability,
hospitalization and worker's compensation insurance and pension
retirement benefits, vacation and all other employee benefits and
payroll burden relating to employees providing these services shall
be included;
5.10.7. Management fees relating to the management of the
Complex, which shall be three percent (3%) of the total gross income of
the Complex;
5.10.8. Cost of all supplies, materials, tools and equipment
(excluding capital investment items set forth below) used in operation,
maintenance and normal repair of the Complex;
5.10.9. Amortization of the cost of capital investment items and
of the installation thereof which are primarily for the purpose of
saving energy or reducing operating costs or which may be 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 generally accepted accounting principles and in no
event to extend beyond the reasonable life of the Complex;
5.10.10. Costs incurred in compliance with new, revised or newly
interpreted federal, local or state laws or municipal ordinances or
codes or regulations promulgated under any of the same; and
5.10.11. All accounting costs, including without limitations,
Landlord's central accounting costs, and legal expenses (other than
lease/loan negotiations or matters against tenants) applicable to
the Complex.
5.11. FUEL ADJUSTMENT. If there is presently in effect or hereafter
adopted any nature of fuel adjustment, notwithstanding anything in this Lease
Agreement to the contrary, Tenant covenants and agrees to pay to Landlord,
upon delivery of written notice in the manner
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provided in Section 19.01 hereinbelow, as additional rent, on the first day
of each calendar month, for each and every month in the term of this Lease,
in lawful money of the United States of America, an amount equal to Tenant's
pro rata share of all fuel adjustment costs charged by any private, public or
municipal corporation furnishing utilities to the Building for the preceding
month. Tenant's pro rata share of such fuel adjustment costs shall be a
fraction of the total of such costs, the numerator of which shall be the Net
Rentable Area of the Leased Premises and the denominator of which shall be
the total Net Rentable Area of the Building.
5.12. RENT SALES TAX. If there is presently in effect or hereafter adopted any
nature of sales tax or use tax or other tax on rents received by Landlord
(herein referred to as "Rent Sales Tax"), then, in addition to all rent and
other payments to be made by Tenant as provided above, Tenant will, upon
delivery of written notice in the manner provided in Section 19.01 hereinbelow,
also pay Landlord, contemporaneously with its payment to Landlord of rent, a sum
equal to the amount of such Rent Sales Tax. In the event that the taxing
jurisdiction notifies Landlord that the Rent Sales Tax is due with respect to
any other sum paid by Tenant hereunder, then Tenant shall, be required to pay
Landlord a sum equal to the Rent Sales Tax or such other charges
contemporaneously with the payment thereof.
In the event that Tenant fails to pay Landlord the Rent Sales Tax at the time
required in accordance with the preceding provisions, such failure may be
treated by Landlord as an Event of Default, as defined in Article 17
hereinbelow, by Tenant in the payment of rent due and owing hereunder, and
Landlord shall be entitled to tile remedies to cure such Event of Default, as
set forth in Article 17 hereinbelow. The term "Rent Sales Tax" shall not include
any federal or state taxes on income applicable to Landlord.
5.13. GENERAL. Nothing contained in this Article 5, shall be
construed at any time so as to reduce the monthly installments of Base Rental
payable hereunder below the amount set forth in Article 4 of this Lease.
ARTICLE 6
OCCUPANCY AND USE
6.01. USE OF PREMISES. The Leased Premises shall be occupied and
used by Tenant solely for the purpose of general business offices, including
all support facilities legally permitted by the Building Code of the City of
Houston; and such facilities shall be consistent with the quality, character
and general utility of the Complex. Tenant will not use, occupy or permit the
use or occupancy of the Leased Premises for any purpose which is, directly or
indirectly, forbidden by law, ordinance or governmental or municipal
regulation or order or which may be dangerous to life, limb or property; or
permit the maintenance of any public or private nuisance; or do or permit any
other thing which may disturb the quiet enjoyment of any other tenant of the
building; or keep any substance or carry on or permit any operation which
might make undue noise or set up vibrations in the Building; or permit
anything to be done which would increase the fire and extended coverage
insurance rate on the Building or contents, and if there is any increase in
such rate by reason of acts of Tenant, then Tenant agrees to pay
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such increase promptly upon demand therefor by Landlord. Payment by Tenant of
any such rate increase shall not be a waiver of Tenant's duty to comply
herewith.
6.02. COMPLIANCE WITH LAW. Tenant shall comply with all laws,
ordinances, rules and regulations (federal, state, municipal and other
agencies or bodies having any jurisdiction thereof) relating to the use,
condition or occupancy of the Leased Premises. Such reasonable rules and
regulations applying to all tenants in the Building as may be adopted by
Landlord for the safety, care and cleanliness of, and preservation of good
order in, the Leased Premises and the Complex are hereby made a part hereof
as Exhibit "C", initialed for identification by both parties, and Tenant
agrees to comply with all such rules and regulations. Landlord shall have the
right at all times to change such rules and regulations or to amend them in
any reasonable and non-discriminatory manner. All changes and amendments will
be sent by Landlord to Tenant in writing and shall be thereafter carried out
and observed by Tenant.
6.03. SIGNS. Tenant shall not inscribe, paint, affix or display any
signs, advertisements or notices on or in the Building, except for such
tenant identification information as Landlord permits to be included or shown
on the directory board in the main lobby and adjacent to the access door or
doors to the Leased Premises, as described in Section 7.08.
6.04. ACCESS BY LANDLORD. Landlord or its authorized agents shall at
any and all reasonable times have the right to enter the Leased Premises to
inspect the same, to supply janitorial service or any other service to be
provided by Landlord to Tenant hereunder, to show the Leased Premises or any
other portion of the Building, all without being deemed guilty of an eviction
of Tenant and without abatement of Rent, and may for that purpose erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, provided the business of Tenant shall
be interfered with as little as is reasonably practicable. Tenant hereby
waives any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Leased Premises, and any other loss occasioned thereby. For each of
the aforesaid purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Leased Premises,
excluding Tenant's vaults and safes. Landlord shall have the right to use any
and all means which Landlord may deem proper to open any door(s) in an
emergency without liability therefor.
6.05. NUISANCE; WASTE. Tenant shall conduct its business and control
its agents, employees, invitees and guests in such a manner as not to create
any nuisance, or to interfere with, annoy or disturb any other tenant or
Landlord in its operation of the Building. Tenant shall not commit or allow
waste to be committed on the Leased Premises, or any portion thereof.
Landlord shall use reasonable efforts to obtain a similar covenant from the
other tenants in the Building.
6.06. QUIET POSSESSION. Upon Tenant's paying the Rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant
shall have the quiet possession of the Leased Premises for the entire term of
the Lease, subject to all of the provisions of the Lease, any underlying
leases or mortgages, all applicable laws and other governmental and legal
requirements.
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6.07. SURRENDER OF LEASED PREMISES. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
reenter tile Leased Premises without terminating this Lease, Tenant shall
immediately surrender the Leased Premises and all keys to the Leased Premises
to Landlord, together with all alterations, improvements and other property
as provided elsewhere herein, in good order, condition and repair, except for
ordinary wear and tear; provided that at Landlord's written request Tenant
shall remove at its expense improvements to the Leased Premises such as
special wall coverings and flooring which have become a part of and otherwise
would have remained with the Leased Premises. Tenant shall, at its expense,
promptly repair any damage caused by removal of any other improvements
requested by Landlord as aforesaid, and shall restore the Leased Premises to
SUBSTANTIALLY the condition existing prior to the installation of the items
removed. If Tenant fails to surrender the Leased Premises in the condition
aforesaid, then Landlord may restore the Leased Premises to such a condition
at Tenant's expense. Upon the expiration or earlier termination of the Lease,
Tenant will, at the option of Landlord, execute a "Release of Lease" and
"Waiver of Claim", in recordable form, containing Tenant's release of all its
interest in the Leased Premises.
6.08. HOLDING OVER. In the event of holding over by Tenant, or any
party claiming under Tenant, after expiration or termination of this Lease
without the written consent of Landlord, Tenant shall pay to Landlord one
hundred fifty percent (150(degree)/") of the then prevailing market rent
applicable to the Leased Premises for the entire holdover period. No holding
over by Tenant after the term of this Lease shall operate to extend the
Lease; in the event of any unauthorized holding over, Tenant shall indemnify
Landlord against all claims for damages by any other Tenant to whom Landlord
may have leased all or any part of the Leased Premises covered hereby
effective upon the termination of this Lease. Such possession shall be an
unlawful detainer, and no tenancy or interest shall result from such
possession, however, Tenant shall abide by all other terms and obligations of
this Lease during such holdover period.
ARTICLE 7
UTILITIES AND SERVICES
7.01. GENERAL. Subject to the rules and regulations herein referred
to, and provided Tenant is not in default hereunder, Landlord shall furnish
Tenant, at Landlord's expense, certain services during the term of the Lease,
as set forth in this Article 7.
7.02. PUBLIC UTILITIES. Landlord shall use its best efforts and all
reasonable diligence to cause public utilities to furnish the electricity,
gas and water utilized in operating any and all facilities serving the Leased
Premises and the Building as well as the Building Parking Garage.
7.03. SECURITY. Landlord shall contract with a reputable security
service to provide (as part of the Basic Cost of the Complex) security to the
Building and Building Parking Garage during weekends and after normal working
hours during the week. Landlord shall have no responsibility to prevent, and
shall not be liable to Tenant for and shall be indemnified by Tenant against
any liability or loss to Tenant, its agents, employees and visitors arising
out of, losses due
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to theft, burglary, or damage or injury to persons or property caused by
persons gaining access to the Building or the Leased Premises.
7.04. WATER, HEATING AND AIR CONDITIONING, JANITOR SERVICE AND
ELECTRICAL. Landlord shall furnish (as part of the Basic Cost of the
Building) Tenant while occupying the Leased Premises:
7.04.1. Hot and cold water at those points of supply provided
for general use of other tenants in the Building and at Tenant's
above "building standard" plumbing points as they exist at the date
of execution of this Lease, and cold water only at base building
chilled water risers which may be tapped into at Tenant's expense
or to the extent of Tenant's use of the Allowance; automatic
passenger elevator service for access to and egress from the Leased
Premises twenty-four (24) hours a day, seven (7) days a week;
freight elevator service in common with other tenants, during
reasonable business hours as prescribed by Landlord, and by prior
appointment on Saturdays, Sundays and holidays, central heat and
air conditioning in season from 7:00 a.m. to 6:00 p.m. Monday
through Friday, and 8:00 a.m. to 12:00 noon on Saturday, holidays
excepted, at such temperatures and in such amounts as are
reasonably required for the comfortable use and occupancy of the
Leased Premises by Tenant, but in no event less than standard for
similar first class office buildings in the immediate vicinity of
the Building, but such service at times during week clays other
than normal business hours for the Building, on Saturday
afternoons, Sundays and holidays to be furnished only upon the
advance request of Tenant, who shall bear the cost thereof in
accordance with the provisions of Section 7.04.2 below; and routine
maintenance and electric lighting service for all public areas and
special service areas of the Building in the manner and to the
extent standard in similar first class office buildings.
7.04.2. In the event that Tenant desires air conditioning or
heating at any time or times other than as specified in Section 7.04.1
above, Tenant shall be charged for such air conditioning or heating
furnished by Landlord during such periods at Landlord's then standard
hourly rate applicable during the periods when such services are
furnished. Such rate may be changed by Landlord at any time and from
time to time during the term of the Lease. In no event, however, shall
the charge to Tenant for overtime HVAC operation exceed the prevailing
hourly rate charged from time to time to other tenants in the Building.
7.04.3. Janitor service on a five (5) day week basis at no
extra charge; provided, however, if Tenant's floor covering or
other improvements are other than "building standard", Tenant shall
pay the additional cleaning cost attributable thereto as additional
rent. Tenant shall pay said additional rent upon presentation of a
statement therefor by Landlord, and Tenant's failure to pay shall
constitute default hereunder.
7.04.4. Electrical facilities to furnish sufficient power for
"building standard" lighting, typewriters, personal computers,
voice writers, calculating machines, photocopying and
communications equipment and facilities, and other machines of
similar low electrical consumption (total consumption not to exceed
2.5 watts per square foot of
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Net Rentable Area, not including "building standard" lighting), but
not including electricity required for electronic data processing
equipment, special lighting in excess of "building standard", and
any other item of electrical equipment which (singly) consumes more
than 0.5 kilowatts at rated capacity or requires a voltage other
than 120 volts single phase, and provided that if the installation
of said electrical equipment requires additional air conditioning
capacity above that provided by the building standard system then
the additional air conditioning installation and operating costs
will be the obligation of Tenant. Tenant shall pay the costs of
installing and maintaining any separate electrical circuits which
may be required in connection with Tenant's use of the Leased
Premises and all costs of furnishing electricity in excess of the
usage described above, all upon the receipt of Landlord's invoice
therefor.
7.04.5. Notwithstanding any other term or provision hereof,
Tenant shall pay to Landlord monthly, as billed, such charges as
may be separately metered or as Landlord's engineer may compute for
any electric, chilled water, air conditioning or heating service
utilized by Tenant for computers, data processing equipment or
other electrical equipment (except typewriters, dictating
equipment, adding machines and desktop calculators) or extra
lighting or other electrical such service not standard for the
Building.
7.04.6. All "building standard" fluorescent bulb replacement
in all areas and all incandescent and/or fluorescent bulb
replacement in public areas, toilet and rest room areas and
stairwells.
7.05. SERVICE INTERRUPTION. Failure by Landlord to any extent to
furnish the services described herein, or any cessation thereof, resulting
from causes beyond the reasonable control of Landlord shall not constitute an
eviction or disturbance of Tenant's use and possession of the Leased Premises
or Building or a breach by Landlord of any of its obligations hereunder or
render Landlord liable for damages or entitle Tenant to be relieved from any
of its obligations hereunder (including the obligation to pay rent) or grant
Tenant any right of set off or recoupment. In the event of any equipment or
machinery breakdown, however, Landlord shall use its best reasonable efforts
and due diligence to cause such services to be restored. Landlord shall use
its best reasonable efforts and due diligence to restore any failure or
defect in the supply or character of services furnished or to be furnished by
Landlord under this Article 7, but landlord shall not otherwise be
responsible or liable to Tenant for any such failure or defect. If any such
failure or defect (except as to defects caused by events described in Section
3.5 or Article 11) renders all or any portion of the Leased Premises
unsuitable for the conduct of Tenant's business therefrom, and Tenant
temporarily discontinues its business operations therein for a period of at
least three (3) consecutive business days (exclusive of Saturdays, Sundays,
and holidays) after Landlord receives written notice thereof, then Base
Rental shall abate for the portion of the Leased Premises as is so rendered
unsuitable for the duration (after the expiration of said three (3) day
period) of such unsuitability, and if the Leased Premises is rendered
unsuitable and Tenant discontinues its business operations therein for a
period of more than thirty (30) consecutive business days, subject to
extension due to FORCE MAJEURE (but in no event longer than sixty (60) days),
during which Landlord has failed on a continual basis to provide any one or
more of these services, and has failed to commence to repair or reinstall
these services with due diligence, and such repair or reinstallation efforts
have not been maintained with
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continuity, then Tenant, at its option, within five (5) days subsequent to
the last day of such period, may cancel this Lease upon written notice to
Landlord. Subject to Tenant's foregoing rights of abatement of Base Rental
and of termination, Landlord shall not otherwise be liable to Tenant for any
such failure or default or defect in the supplying of, or the character of,
services to be furnished by Landlord under this Article 7, and such shall not
be construed as an eviction of Tenant nor shall such entitled Tenant to any
damages from Landlord, nor shall Landlord be in breach or default under this
Lease. Subject to Tenant's foregoing rights of abatement and termination,
Tenant hereby waives and disclaims, and agrees not to claim or assert all
present and future rights to apply any rent or additional rent against any
obligations of Landlord, howsoever incurred, or to assert that any such
obligation of Landlord entitles Tenant to any counterclaim or any reduction,
abatement, offset, or refund of rent or additional rent. Tenant agrees to
notify Landlord promptly of any interruption in Building Services.
7.06. ADDITIONAL SERVICES. Landlord may impose a reasonable charge
for any utilities and services, including, but without limitation, air
conditioning, electric current and water, provided by Landlord by reason of
any substantial use of the Leased Premises at any time other than the hours
set forth in this Article 7, or for any use beyond what Landlord agrees
herein to furnish or because of special electrical, cooling and ventilating
needs created by Tenant's telephone equipment, computers and/or other
equipment or uses.
7.07. KEYS AND LOCKS. Landlord shall furnish Tenant, free of charge,
twenty-seven (27) keys for the corridor door entering the Leased Premises;
additional keys, locksets, replacement locksets, and/or cylinders shall be
furnished at a charge by Landlord equal to its cost plus fifteen percent
(15%) on an order signed by Tenant or Tenant's authorized representative. All
keys shall remain the property of the Landlord. No additional locks shall be
allowed on any door of Leased Premises without Landlord's permission, and
Tenant shall not make or permit to be made any duplicate keys, except those
furnished by Landlord.
Upon termination of this Lease, Tenant shall surrender to Landlord all keys of
the Leased Premises and give to Landlord the explanation of the combination of
all locks for safes, safe cabinets and vault doors, if any, remaining in the
Leased Premises.
7.08. DIRECTORY BOARD/GRAPHICS. Landlord shall provide and install,
Tenant's expense, all letters or numerals on Tenant's primary entry door in
the Leased Premises; all such letters and numerals shall be in "building
standard" graphics, and no others shall be used or permitted on the Leased
Premises, without Landlord's prior written consent. Landlord also agrees to
provide and install, at Tenant's expense, a listing on the Building directory
board, if any. Tenant shall not place on or in the Leased Premises any signs
which are visible from outside the Building.
7.09. TENANT'S COMPLIANCE. Tenant agrees to cooperate fully at all
times with Landlord and to abide by all regulations and requirements which
Landlord may prescribe for the use of the above utilities and services. Any
failure to pay any excess costs as described above upon demand by Landlord
shall constitute a breach of obligation to pay Rent under this Lease and
shall entitle the Landlord to the rights herein- granted for such breach.
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7.10. MODIFICATIONS. Notwithstanding anything hereinabove to the
contrary, Landlord reserves the right from time to time to make reasonable
and nondiscriminatory modifications to the above standards for utilities and
service as may be required by law or may become common in Class A office
buildings in Houston, Texas.
ARTICLE 8
REPAIR AND MAINTENANCE
8.01. REPAIRS AND MAINTENANCE BY LANDLORD. Landlord shall, at its
own cost and expense, except as may be provided elsewhere herein, make
necessary repairs of damage to the Building corridors, lobby, structural
members of the Building, outside walls, common areas, roof, and equipment
used to provide the services referred to in Article 7 of this Lease unless
any such damage is caused by acts or omissions of Tenant, its agents,
customers, employees, invitees or guests, in which event Tenant will bear the
cost of such repairs, unless covered bI insurance. Tenant will promptly give
Landlord written notice of any damages to the Leased Premises requiring
repair by Landlord, as aforesaid.
8.02. LANDLORD'S OPTION TO REPAIR. Unless otherwise stipulated
herein, Landlord shall not be required to make any improvements or repairs of
any kind or character on the Leased Premises during the term of this Lease,
except such repairs as may be required for normal maintenance operations, or
resulting from matters which are Landlord's obligation. The obligation of
Landlord to maintain and repair the Leased Premises shall be limited to
"building standard" items. Non "building standard" leasehold improvements
will, at Tenant's written request, be maintained by Landlord at Landlord's
cost, plus an additional charge, to cover overhead (of fifteen percent (15%)
of Landlord's cost thereof), which total cost shall be billed to and paid by
Tenant.
8.03. REPAIRS AND MAINTENANCE BY TENANT. Unless covered by
insurance, Tenant shall, at its own cost and expense, repair or replace any
damage or injury done to the Building, or any part thereof, caused by Tenant
or Tenant's agents, employees, or visitors; provided however, if Tenant fails
to make such repairs or replacement promptly, Landlord may, at its option,
make such repairs or replacements, and Tenant shall repay the cost thereof,
plus an additional charge of fifteen percent (15%) to cover Landlord's
overhead, to the Landlord on demand. Tenant agrees not to commit or allow any
waste or damage to be committed on any portion of the Leased Premises, and at
the termination of this Lease, by lapse of time or otherwise, to deliver up
said Leased Premises to Landlord in as good condition as at date of
possession by Tenant, ordinary wear and tear excepted, and upon such
termination of this Lease, Landlord shall have the right to reenter and
resume possession of the Leased Premises.
ARTICLE 9
ADDITIONS AND FIXTURES
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9.01. CHANGES BY TENANT. Tenant will make no alteration, change,
improvement repair, replacement or addition to the Leased Premises which
involves electrical, heating, air conditioning, or plumbing work or which
alters the appearance or structural integrity of the building without the
prior written approval of Landlord. Approval by Landlord shall not be
unreasonably withheld, however, approval or rejection shall be based, in
Landlord's sole discretion, on the general quality and utility of the work
requested as compared with that quality and utility of the Building. All work
by Tenant shall be at Tenant's expense, but by workmen of Landlord or by
workmen and contractors reasonably approved in advance, in writing, by
Landlord and in a manner and upon terms and conditions and at times
satisfactory to and approved in advance in writing by Landlord. In the event
that Landlord reasonably withholds any such consent, such withholding shall
not constitute an Event of Default under the terms of this Lease.
9.02. CONTRACTORS. In any instance where Landlord grants such
consent, Landlord may grant such consent contingent and conditioned upon
Tenant's contractors, laborers, materialmen and others furnishing labor for
materials for Tenant's job working in harmony and not interfering with any
labor utilized by Landlord, Landlord's contractors or mechanics or by any
other tenant or such other tenant's contractors or mechanics; and, if at any
time such entry and work by one or more persons furnishing labor or materials
for Tenant's work shall result in disharmony or interference with Landlord's
work, the consent granted by Landlord to Tenant may be withdrawn upon
twenty-four (24) hours' written notice to Tenant.
9.03. REMOVAL. Tenant may remove its trade fixtures, office supplies
and movable office furniture and equipment not permanently attached to the
Building provided: (i) such removal is made prior to the expiration or
earlier termination of the term of this Lease; (ii) Tenant is not in default
of any obligation or covenant under this Lease at the time of such removal;
and (iii) Tenant promptly repairs all damage caused by such removal. All
other property at the Leased Premises and any alteration or addition to the
Leased Premises (including wall-to-wall carpeting, paneling or other wall
covering), and any other articles permanently attached or affixed to the
floor, wall or ceiling of the Leased Premises shall become the property of
Landlord and shall remain upon and be surrendered with the Leased Premises as
a part thereof at the termination of this Lease, Tenant hereby waiving all
rights to any payment or compensation therefor. If, however, Landlord so
requests in writing, Tenant will, prior to the expiration or earlier
termination of the Lease, remove any and all alterations, additions,
fixtures, Premises without the written approval of Landlord, and will repair
any damage caused by such removal.
9.04. CHANGES BY LANDLORD. Landlord shall have the right at any time
to reasonably change the arrangement, location and/or size of public
entrances or passageways, doors, doorways, and corridors, toilets or other
public parts of the Building, and, upon giving Tenant reasonable notice
thereof, to change the name or number (but in the case of the numerical
street address, only as shall be required by the United States Post Office)
by which the Building is commonly known.
ARTICLE 10
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PARKING
10.01. BASIC PROVISIONS. Tenant shall at all times during the terms
of this Lease, lease parking rights for at least twenty-seven (27) vehicles
in the Building Parking Garage, to include five (5) reserved parking spaces
(two (2) reserved spaces to be located on the first floor, and three (3) to
be located on the second floor of the Building Parking Garage). No specific
spaces in the Building Parking Garage are to be assigned to Tenant, except in
the case of reserved parking spaces, but Landlord will issue to Tenant the
aforesaid number of parking stickers or tags, each of which will authorize
parking in the Building Parking Garage of a vehicle on which the sticker or
tag is displayed, or Landlord will provide a reasonable alternative means of
identifying and controlling vehicles authorized to be parked in the Building
Parking Garage. Landlord may designate the area within which each such car
may be parked, and Landlord may change such designations from time to time.
Landlord may make, modify and enforce rules and regulations relating to the
parking of vehicles in the Building Parking Garage, and Tenant will abide by
such rules and regulations. The rules and regulations in effect as of the
date of this Lease are attached hereto as a part of Exhibit "C" and initialed
for identification by both parties. Subject to the other terms hereof,
Landlord may operate or sublease operation of the garage.
10.02. PARKING CHARGES. As the charge for parking (hereinafter
called the "Basic Parking Charge"), Tenant covenants and agrees to pay
Landlord during the term of this Lease, as additional rental hereunder, the
sum of TWENTY-FIVE AND NO/100 DOLLARS ($25.00) per month for each of the
parking stickers to be issued by Landlord as herein provided, (except for
reserved parking for which Tenant shall pay SEVENTY-FIVE AND NO/100 DOLLARS
($75.00) per month), such sum to be payable monthly in advance on the first
day of each and every calendar month during the term of this Lease, and a pro
rata portion of such sum shall be payable for the first partial calendar
month in the event the term of this Lease commences on a date other than the
first calendar month. The Basic Parking Charge may be adjusted annually to
market value by the Landlord. Tenant's obligations to pay the Basic Parking
Charge shall be considered an obligation to pay rental due hereunder for all
purposes hereunder and shall be secured in like manner as in Tenant's
obligations to pay rental due hereunder. Default in payment of such Basic
Parking Charge shall be deemed a default in payment of rental due hereunder.
10.03. PARKING INFORMATION. Tenant shall provide to Landlord, within
five (5) days of written request by Landlord, license numbers and other
information requested for all Tenant's vehicles parking in the Building
Parking Garage, and shall notify Landlord immediately of any change in such
information. Landlord and Tenant hereby vehicles operated by Tenant or
Tenant's employees or guest shall be parked on the premises other than in the
Building Parking Garage.
ARTICLE 11
FIRE AND OTHER CASUALTY
11.01. In the event of a fire or other casualty in the Leased
Premises or the Building Tenant shall immediately give notice hereof to
Landlord, and, subject to the other terms an conditions hereof, Landlord
shall use its best reasonable efforts to cause the repairs to be made with
due diligence and reasonable dispatch, provided, however, that Landlord shall
not be
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required to repair or replace furnishings, furniture, or other personal
property which Tenant may be entitled to remove from the Leased Premises or
any property improvement constructed and installed by or for Tenant in excess
of "building standard" as shown on/ Exhibit "B" attached hereto. If the
Leased Premises, or any portion thereof, through no/ willful misconduct of
Tenant, its agents, employee or visitors, shall be partially destroyed r by
fire or other casualty so as to render the Leased Premises, or any portion
thereof untenantable, the rental herein shall proportionately abate
thereafter until such time as the Leased Premises, or any portion thereof,
are made tenantable. If Landlord has elected t repair and reconstruct the
Leased Premises, this Lease shall continue in full force and effect and such
repairs will be made within a reasonable time thereafter, subject to delays
arising from shortages of labor or material, strikes, acts of God, war or
other conditions beyond Landlord's reasonable control, provided, however,
that Landlord shall use its best efforts to not interfere with Tenant's use
and occupancy of the portion of the Leased Premises not destroyed or damaged.
No damages, compensation, or claims shall be payable by Landlord for any
inconvenience, loss of business, or annoyance arising from such repair and
reconstruction. Tenant and Landlord agree that the term of this Lease shall
be extended by a period of time equal to the period of such repair and
reconstruction.
11.02. In the event such destruction results in one half (1/2) or
more of the Leased Premises being untenantable for a period, reasonably
estimated by a responsible contractor selected by Landlord, to be one hundred
twenty (120) days or longer after the loss, Landlord shall so notify Tenant
promptly in writing and then either Landlord or Tenant may cancel this Lease
by delivering written notice thereof to the other party.
11.03. In the event the Leased Premises, the Building or Parking
Garage shall be so damaged that Landlord shall decide not to rebuild to the
same or substantially the same condition as immediately prior to such fire or
other casualty, then all rent owed up to the time of such destruction or
termination, as set forth in Section 11.02, shall be paid by Tenant and
thenceforth this Lease shall cease and come to an end. In the event that this
Lease is terminated as herein permitted, Landlord shall refund to Tenant the
prepaid rent (unaccrued as of the date of damage or destruction), if any,
less any sum then owing Landlord by Tenant. However, subject to the rights of
Landlord's mortgagee and insurance provisions, Landlord agrees that it will
rebuild or repair if the work can be completed within one hundred twenty
(120) days.
11.04. WAIVER. Whenever (a) any loss, cost, damage or expense
resulting from fire, explosion or any other casualty or occurrence is
incurred by either of the parties to this Lease in connection with the Leased
Premises, the Building or the Parking Garage, and (b) such party is then
covered (or is required under this Lease to be covered) in whole or in part
by insurance with respect to such loss, cost, damage or expense, then the
party so insured hereby releases the other party from any liability it may
have on account of such loss, cost, damage or expense to the extent of any
amount recovered by reason of such insurance, and waives any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof, provided that such release of liability and waiver of the right of
subrogation shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage or increase the cost thereof (provided,
that in the case of increased cost, the other party shall have the right,
within thirty (30) days following receipt of written notice, to pay such
increased cost, thereupon keeping such release and waiver in full force and
effect). Landlord and Tenant shall use their respective best efforts to
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obtain such a release and waiver of subrogation from their respective
insurance carriers and shall immediately notify the other of any failure to
obtain or maintain the same.
ARTICLE 12
INSURANCE
12.01. LANDLORD'S INSURANCE. Landlord shall, at its sole cost and
expense, maintain fire and extended coverage insurance on the Building,
excluding any improvements constructed by tenants, including "building
standard" leasehold improvements, in such amounts and with such deductibles
as desired by Landlord or as may be required by Landlord's mortgagee.
Landlord may, but shall not be obligated to, take out and carry any other
form or forms of insurance as it or Landlord's mortgagee may reasonably
determine desirable. Notwithstanding any contribution by Tenant to the cost
of insurance premiums, payments for losses thereunder shall be made solely to
Landlord, subject to the rights of the holder of any first lien mortgage or
deed of trust which may now or hereafter encumber the Building or Parking
Garage.
12.02. TENANT'S INSURANCE. Tenant shall maintain at its expense fire
and extended coverage insurance on all of its personal property, including
removable trade fixtures, located in the Leased Premises and on its non
"building standard" leasehold improvements and all additions and improvements
made by Tenant. Tenant shall also maintain, at its sole cost and expense,
comprehensive general liability insurance, including contractual liability
insurance, issued by and binding upon some solvent insurance company approved
in writing by Landlord, with limits of liability of at least $2,000,000 with
respect to death of or injuries to one or more persons and at least
$2,000,000 with respect to loss of or damage to property. Tenant shall cause
Landlord to be named as an additional insured under such policies and shall
furnish Landlord with certificates of insurance. Such policies of insurance
shall contain an endorsement that such policies cannot be amended or modified
as to Landlord without fifteen (15) days prior written notice.
12.03. LEGAL USE AND VIOLATION OF INSURANCE COVERAGE. Subject to the
provisions of Article 6, Tenant shall not occupy or use or permit any portion
of the Leased Premises to be occupied or used for any business or purpose
which is unlawful, disreputable or deemed to be extra-hazardous on account of
fire, or permit anything to be done which would in any way increase the rate
of fire insurance coverage on said Building, the Parking Garage and/or their
contents. In addition to Landlord's other rights and remedies, in the event
of a breach by Tenant under this Section 12.03, Tenant shall reimburse
Landlord upon demand for any increased insurance premiums resulting from such
breach. In determining whether increased premiums are a result of Tenant's
use of the Leased Premises, a schedule issued by the organization computing
the insurance rate on the Building or the leasehold improvements showing the
various components of such rate, shall be conclusive evidence of the several
items and charges which make up such rate. Tenant shall promptly comply with
all reasonable requirements of the insurance authority or any present or
future insurer relating to the Leased Premises. In addition, in the event of
a breach by Tenant under this Section 12.03, without notice or demand,
Landlord may enter upon the Leased Premises and attempt to remedy such
condition, in which event
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Landlord shall not be liable for any damage or injury caused to any property
of Tenant or of others located on the Leased Premises, resulting from such
entry.
ARTICLE 13
ASSIGNMENT AND SUBLETTING
13.01. LANDLORD'S OPTION. Except with respect to assignments or
subleases to affiliates (which will utilize the Leased Premises for the same
permitted purpose), which Tenant may do without approval, in the event Tenant
should desire to assign this Lease or sublet the Leased Premises or any part
thereof, or mortgage, pledge or hypothecate its leasehold interest or grant
any concession or license within the Leased Premises, Tenant shall give
Landlord written notice of such desire at least sixty (60) days in advance of
the date on which Tenant desires to make such assignment, sublease, mortgage,
pledge, hypothecation, concession or license. Landlord shall then have a
period of thirty (30) days following receipt of such notice within which to
notify Tenant in writing that Landlord elects either (1) to terminate this
Lease as to the space so affected as of the date so specified by Tenant for
the term of such assignment or sublease, in which event Tenant will be
relieved of all further obligation hereunder as to such space, or (2) to
permit Tenant to assign or sublet such space, subject, however, to prior
written approval of the proposed assignee or sublessee by Landlord; if
however, the rental rate agreed upon between Tenant and sublessee is greater
than the rental rate that Tenant must pay Landlord, then fifty percent (50%)
of such excess rental received, less any portion of the excess rental thereof
for any reasonable costs directly associated with securing the sublessee or
assignee, shall be deemed additional rent owed by Tenant to Landlord and
shall be paid by Tenant to Landlord in the same manner that Tenant pays the
Base Rental as outlined in Article 4, or (3) to refuse to consent to Tenant's
assignment or subleasing such space and to continue this Lease in full force
and effect as to the entire Leased Premises, if such action complies with
Section 13.02. If Landlord should fail to notify Tenant in writing of such
election within said thirty (30) day period, Landlord shall be deemed to have
elected option (2) above. If Landlord elects to exercise option (2) above,
Tenant agrees to provide, at Tenant's expense, direct access from such sublet
space to a public corridor of the Building.
13.02. CONDITIONS FOR APPROVAL TO SUBLEASE. Landlord shall not
unreasonably withhold or delay granting permission to an assignment of this
Lease or to a sublease proposed by Tenant; provided, however, it is agreed
that a withholding of said permission by Landlord to a proposed assignment or
sublease shall be based on certain conditions which, in Landlord's good faith
judgment, shall be deemed reasonable cause for withholding permission and
shall not be deemed unreasonable. Approval by Landlord shall not be
unreasonably withheld, provided:
(1) The usage permitted thereunder would not conflict with the
exclusive usage rights granted to any other Tenant in the Building;
(2) The proposed assignee or sublessee is a respectable party and has
sufficient financial net worth to perform its obligations under this Lease;
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(3) The occupancy by the proposed assignee or sublessee would not
create unreasonable elevator loads or otherwise interfere with standard building
operations;
(4) The proposed assignee or sublessee would not use the Leased
Premises for any use which would diminish the value or reputation or alter the
first class character of the Building;
(5) The rental rate to be charged to such assignee or sublessee is not
less than the then current market rate for similar space leased for a similar
term in the Building or like buildings in the same vicinity of the Building; and
(6) Landlord shall be paid an administrative sublease fee for review
and negotiation of proposed sublease documents, space plans, construction
documents, and inspection, in the amount of one percent (1%) of the gross rental
consideration for the term of the sublease.
If the proposed assignment or sublease is to Tenant's parent company
or a subsidiary of Tenant or its parent company, or any successor entity (as
described in Section 13.03) and such company or subsidiary has sufficient
financial net worth to perform its obligations under this Lease, the consent
of Landlord shall not be required. No assignment or subletting by Tenant
shall relieve Tenant of any obligation under this Lease, and Tenant and
Tenant's assignee or sublessee shall remain jointly and severally liable
hereunder. Expansion options, renewal options, and preferential right to
lease provisions, if applicable, shall not be assigned or subleased, other
than to a successor entity as described herein. Any attempted assignment or
sublease by Tenant in violation of the terms and covenants of this Article 13
shall be void.
13.03. CORPORATE CONDITIONS. If Tenant is a corporation, then any
transfer of this Lease from Tenant by merger, acquisition, consolidation or
dissolution or any change in ownership or power to vote a majority of the
voting stock in Tenant outstanding at the time of execution of this
instrument shall constitute an assignment to an affiliate for the purpose of
this Lease, if such corporation shall have substantially tile same financial
or greater net worth as Tenant If Tenant is a partnership, then any
withdrawal or change of any of the general partners shall constitute an
assignment for purposes of this Lease.
13.04. EFFECT OF CONSENT. Consent by Landlord to a particular
assignment or sublease or other transaction shall not be deemed a consent to
any other or subsequent transaction. If this Lease be assigned or if the
Leased Premises be subleased (whether in whole or in part), or in the event
of the mortgage, pledge or hypothecation of the leasehold interest, or grant
of any concession or license within the Leased Premises without the prior
written permission of Landlord, or if the Leased Premises be occupied in
whole or in part by anyone other than Tenant, without the prior written
permission of Landlord, Landlord may nevertheless collect rent from the
assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest
was hypothecated, concessionee or licensee or other occupant and apply the
net amount collected to the rent payable hereunder, but no such transaction
or collection of rent or application thereof by Landlord shall be deemed a
waiver of these provisions or a release of Tenant from the further
performance by Tenant of its covenants, duties and obligations hereunder.
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13.05. FEES. In any case where Landlord consents to any such
assignment, sublease or other transaction, Landlord may require that Tenant
pay Landlord a reasonable sum as attorneys' fees arising out of or incident
to such transaction and that the sublessee or assignee pay Landlord a
reasonable sum for Landlord's assistance in moving the sublessee or assignee
in and out of Leased Premises and the Building, but Landlord shall not be
obligated to provide such assistance.
ARTICLE 14
SUBORDINATION
14.01. SUBORDINATION. This Lease is and shall be subject and
subordinate at all times to all ground or underlying leases which may now
exist or hereafter be executed affecting the Building and Parking Garage
and/or the land upon which the Building and Parking Garage are situated and
to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter placed on or against the Building and Parking
Garage and/or land upon which the Building and Parking Garage are situated or
on or against the Landlord's interest or estate therein, or on or against any
ground or underlying lease, and to all renewals, modifications,
consolidations, replacements and extensions of any such leases, mortgages or
deeds of trust, without the necessity of having further instruments on the
part of Tenant to effectuate such subordination; provided, however, that at
tile option of any such lessor or mortgagee, this Lease shall be superior to
the lease or mortgage of such lessor or mortgagee. This Lease is further
subordinate to (a) all applicable ordinances of the city in which the
Building is located, relating to easements, franchises, and other interest or
rights upon, across, or appurtenant to the Building or Parking Garage or the
land upon which the same are situated, and (b) all utility easements and
agreements. Any person or entity, whether one or more, that owns such leases,
mortgages or deeds of trust, net profit, partnership venture or equity
interest in the Complex shall hereinafter be referred to as "Landlord's
Mortgagee". Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver, upon demand, such consent or further instruments
evidencing such subordination of this Lease to such ground or underlying
leases and to the lien of any such mortgages or deeds of trust as may be
required by Landlord. Tenant hereby irrevocably appoints Landlord the
attorney-in-fact of Tenant to execute and deliver any such instrument or
instruments for or in the name of Tenant. In the event of termination of any
ground or underlying lease, or in the event of foreclosure or exercise of any
power of sale under any mortgage or deed of trust superior to this Lease or
to which this Lease is subject or subordinate, Tenant shall, upon demand,
attorn to the lessor under said ground and underlying lease or to the
purchaser at any foreclosure sale or sale pursuant to the exercise of any
power of sale under any mortgage or deed of trust, provided the beneficiary
under any ground or underlying lease or any mortgage or deed of trust shall
execute a noel-disturbance agreement in favor of Tenant, in which event this
Lease shall not terminate and Tenant shall automatically be and become the
tenant of said lessor under said ground or underlying lease or to said
purchaser, whichever shall make demand thereof. In such event, such purchaser
at a foreclosure sale or beneficiary under any ground or underlying lease
shall not be bound by (i) any payment of rent or additional rent for more
than one (1) month in advance, or (ii) any amendment or modification of the
Lease without written consent of such trustee or such beneficiary or such
successor in interest. The provisions of this Article 14 shall be
selfoperative and shall require no further consent or agreement by Tenant.
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ARTICLE 15
EMINENT DOMAIN
15.01. SUBSTANTIAL AND/OR PARTIAL TAKING. If all or any part of the
Leased Premises shall be taken by virtue of eminent domain or for any public
or quasi-public use on purpose, this Lease and the estate hereby granted
shall terminate on the date the condemning authority takes possession. If
only a part of the Parking Garage or the Building (but not the Leased
Premises) is taken, this Lease and the estate hereby granted shall, at the
election of Landlord, either (1) terminate on the date the condemning
authority takes possession by giving notice thereof to Tenant within thirty
(30) days after the date of such taking possession, or (2) continue in full
force and effect as to the Leased Premises and the Base Rental shall be
reduced (from and after the date of such taking of possession in the
proportion that the number of square feet of Net Rentable Area contained in
the Leased Premises so taken, if any, bears to the total number of square
feet of Net Rentable Area contained in the Leased Premises immediately prior
to such taking. If, as a result of such partial taking, the Leased Premises,
a portion of the Building not including the Leased Premises, or the Parking
Garage or access thereto, is affected in a manner that renders the Leased
Premises untenantable or that substantially impairs Tenant's use of the
Leased Premises or the Parking Garage, then Tenant shall have the right to
terminate this Lease by giving Landlord written notice thereof within thirty
(30) days after the date condemning authority takes possession. Sale in lieu
of condemnation to an authority having and asserting the power of eminent
domain shall be a taking for purpose of this Lease.
15.02. AWARDS. Landlord shall be entitled to the whole of any and
all awards which may be paid or made in connection with any taking as
described in Section 15.01 above, and Tenant shall not be entitled to any of
such awards, Tenant hereby expressly assigning to Landlord any and all right,
title, and interest of Tenant now or hereafter arising in and to any such
awards, except to the extent that such awards specifically allocate a portion
of unamortized non "building standard" leasehold improvements or to Tenant's
fixtures or equipment.
15.03. TEMPORARY TALKING. Any temporary taking for a period of six
(6) months or longer shall be treated in the same manner as provided for in
Sections 15.01 and 15.02 above. In the event of any temporary taking of less
than six (6) months, all Base Rental shall be reduced or abated in proportion
to the interference with Tenant's enjoyment of the Leased Premises, Landlord
shall be entitled to all awards (except for use of or damage to Tenant's
tangible property and/or to the extent that the award is stipulated to be for
Tenant's unamortized, non "building standard" leasehold improvements), Tenant
shall have no liability with respect to the acts or omissions or the taking
authority or for the performance of any of Tenant's obligations hereunder
that Tenant is unable to perform, and otherwise this Lease shall continue in
full force and effect.
ARTICLE 16
LIEN FOR RENT
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16.01. INTENTIONALLY OMITTED.
ARTICLE 17
DEFAULT
17.01. DEFAULT BY TENANT. Each of the following acts or omissions of
Tenant, or occurrences shall constitute an "Event of Default":
(1) Failure or refusal by Tenant to timely pay rent or other payments
hereunder, if such failure or refusal continues for more than five (5) days
after written notice thereof is provided by Landlord; provided, however,
Landlord shall not be required to provide notice of late payment of rent (Base
Rent and/or Additional Rent) to Tenant more than two (2) times during any Lease
Year. In addition, Landlord shall have no duty to invoice Tenant for rent
payments due hereunder;
(2) Failure to perform or observe any other covenant or condition of
this Lease by Tenant, upon the expiration of a period of thirty (30) days
following written notice to Tenant of such failure;
(3) Tenant shall vacate or abandon the Leased Premises, or any
significant portion thereof, without payment of rent, or Tenant shall fail to
take possession of the Leased Premises when Landlord notifies Tenant that the
same are ready for occupancy;
(4) The filing or execution or occurrence of: a petition in bankruptcy
or other insolvency proceeding by or against Tenant; or petition or answer
seeking relief under any provision of the Bankruptcy Act; or an assignment for
the beneft of creditors or composition; or a petition or other proceeding by or
against the Tenant for the appointment of a trustee, receiver or liquidator of
Tenant or any of Tenant's property or a proceeding by any governmental authority
for the dissolution or liquidation of Tenant;
(5) Failure to peacefully surrender the Leased Premises on expiration
or termination of this Lease;
(6) The occurrence of any other event herein provided to be an Event
of Default.
17.02. REMEDIES. Upon the occurrence of any Event of Default, as
enumerated above, Landlord may, at Landlord's option, in addition to any
other remedy or right given hereunder or by law or equity do any one or more
of the following:
(1) Terminate this Lease, in which event, Tenant shall immediately
surrender possession of the Leased Premises to Landlord; '
(2) Enter upon and take possession of the Leased Premises and expel or
remove Tenant and any other occupant therefrom, with or without having
terminated the Lease;
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(3) Alter locks and other security devices at the Leased Premises.
17.03. Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Leased Premises by Tenant, whether by agreement or by
operation of law, it being understood that such surrender can be effected
only by the written agreement of Landlord and Tenant. No such alteration of
security devices and no removal or other exercise of dominion by Landlord
over the property of Tenant or others at the Leased Premises shall be deemed
unauthorized or constitute a conversion, Tenant hereby consenting, after any
Event of Default, to the aforesaid exercise of dominion over Tenant's
property within the Building. All claims for damages by reason of such
reentry and/or repossession and/or alteration of locks or other security
devises are hereby waived, as are all claims for damages by reason of any
distress warrant, forcible detainer proceedings, sequestration proceedings or
other legal process. Tenant agrees that any reentry by Landlord may be
pursuant to judgment obtained in forcible detainer proceedings or other legal
proceedings or without the necessity for any additional notice or legal
proceedings, as Landlord may elect, and Landlord shall not be liable in
trespass or otherwise.
17.04. In the event Landlord elects to terminate this Lease by
reason of an Event of Default, then notwithstanding such termination, Tenant
shall be liable for and shall pay to Landlord, at the Building Office,
located at 5151 San Felipe, Houston, Texas, the sum of all rent and other
indebtedness accrued to the date of such termination, plus, as damages, an
amount equal to the then present value of the rent reserved hereunder for the
remaining portion of the term of the Lease (had such term not been terminated
by Landlord prior to the date of expiration stated in Section 2.01), less the
then present value of the then fair rental value of the Leased Premises for
such period; the undersigned parties here stipulating that such fair rental
value shall in no event be deemed to exceed sixty percent (60%) of the then
present value of the rent reserved for such period. For purposes of
determining present value under this Section 17.04, a discount rate of six
percent (6%) shall be used.
17.05. In the event that Landlord elects to repossess the Leased
Premises without terminating the Lease, then Tenant shall be liable for and
shall pay to Landlord at the Building office, located at 5151 San Felipe,
Houston, Texas, the sum of all rent and other indebtedness accrued to the
date of such repossession, plus rent required to be paid by Tenant to
Landlord during the remainder of the term of this Lease until the date of
expiration of the term as stated in Section 2.01, diminished by any net sums
thereafter received by Landlord through reletting the Leased Premises during
said period (after deducting expenses incurred by Landlord as provided in
Section 17.06). In no event shall Tenant be entitled to any excess of any
rent obtained by reletting over and above the rent herein reserved. Actions
to collect amounts due Landlord by Tenant as provided in this Section 17.05
may be brought from time to time, on one or more occasions, without the
necessity of Landlord's waiting until expiration of the term of this Lease.
If Landlord elects to terminate Tenant's right to possession without
terminating this Lease, Landlord shall have the right at any time thereafter
to terminate this Lease, whereupon the foregoing provisions with respect to
termination of this Lease will thereafter apply.
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17.06. In case of an Event of Default, Tenant shall also be liable
for and shall pay to Landlord, at the Building office, located at 5151 San
Felipe, Houston, Texas, in addition to any sum provided to be paid above:
customary broker's fees incurred by Landlord in connection with reletting the
whole or any part of the Leased Premises; the costs of removing and storing
Tenant's or other property of any other occupant of the Leased Premises; the
costs of repairing, altering, remodeling or otherwise putting the Leased
Premises into condition acceptable to a new tenant or tenants, and all
reasonable expenses incurred by Landlord in enforcing Landlord's remedies,
including reasonable attorneys' fees. Past due rent and other past due
payments shall bear interest from maturity at the maximum lawful rate per
annum until paid.
17.07. In the event of termination of repossession of the Leased
Premises for an Event of Default, Landlord shall not have any obligation to
relet or attempt to relet the Leased Premises, or any portion thereof, or to
collect rental after reletting, except as provided by law; and, in the event
of reletting, Landlord may relet the whole or any portion of the Leased
Premises for any period, to any tenant, and for any use and purpose.
17.08. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Leased Premises for such purpose), and thereupon Tenant shall be
obligated and hereby agrees to pay Landlord, upon demand, all costs, expenses
and disbursements (including reasonable attorney's fees) incurred by Landlord
in taking such remedial action. Landlord shall not be liable for any damages
suffered by Tenant from such action whether caused by negligence of Landlord
or otherwise.
17.09. DEFAULT BY LANDLORD. In the event of any default by Landlord,
Tenant's exclusive remedy (except in the case of emergency, Tenant may take
reasonable actions to prevent further damage to its property) shall be an
action for damages (Tenant hereby waiving the benefit of any laws granting it
a lien upon the property of Landlord and/or upon rent due Landlord), but
prior to any such action, Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall thereupon have thirty
(30) days (plus such additional reasonable period as may be required in the
exercise by Landlord of due diligence) in which to cure any such default.
Unless and until Landlord fails to so cure any default after such notice,
Tenant shall not have any remedy or cause of action by reason thereof. All
obligations of Landlord hereunder shall be construed as covenants, not
conditions; and all such obligations shall be binding upon Landlord only
during the period of its possession of the Building and not thereafter. Under
no circumstances whatsoever shall Landlord ever be liable hereunder for
consequential damages or special damages.
17.10. The term "Landlord" shall mean only the owner or owner's
authorized agent, from time to time, of the Complex. Landlord and/or such
owner shall have the right to transfer, assign or convey, in whole or in
part, all its rights and obligations hereunder and in the Complex and
property referred to herein, and in the event of the transfer by Landlord and
owner of its interest in the Complex, Landlord and owner shall thereupon be
released and discharged from all covenants and obligations of the Landlord
and such owner thereafter accruing, but such covenants and obligations shall
be binding during the term of the Lease upon each new owner for
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the duration of such owner's ownership. All provisions of the Lease which
limit or release liabilities or obligations of Landlord with respect to the
Lease or the Complex, shall inure to the benefit of the owner from time to
time of the Complex.
17.11. INDEPENDENT OBLIGATIONS. The obligation of Tenant to pay all
rent and other sums hereunder provided to be paid by Tenant and the
obligation of Tenant to perform Tenant's other covenants and duties hereunder
constitute independent unconditional obligations to be performed at all times
provided for hereunder, save and except only when an abatement thereof or
reduction therein is hereinabove expressly provided for and not otherwise.
Tenant waives and relinquishes all rights which Tenant might have to claim
any nature of lien against or withhold, or deduct from or offset against any
rent and other sums provided hereunder to be paid Landlord by Tenant.
17.12. REMEDIES CUMULATIVE. Landlord may restrain or enjoin any
breach or threatened breach of any covenant, duty or obligation of Tenant
herein contained without the necessity of proving the inadequacy of any legal
remedy or irreparable harm. The remedies of Landlord hereunder shall be
deemed cumulative and no remedy of Landlord, whether exercised by Landlord or
not, shall be deemed to be in exclusion of any other.
17.13. NON-WAIVER. No provision of this Lease shall be deemed to
have been waived by Landlord unless such waiver is in writing and signed by
Landlord. Neither acceptance of rent by Landlord nor failure by Landlord to
complain of any action, non action or default of Tenant shall constitute a
waiver of any of Landlord's rights hereunder. Nor shall any custom or
practice which may grow up between the parties in the administration of the
terms of this Lease be construed to waive or burden Landlord's right to
insist upon strict performance of the terms of this Lease. Waiver by Landlord
of any right for any default of Tenant shall not constitute a waiver of any
right for either a subsequent default of the same obligation or any other
default. Receipt by Landlord of Tenant's keys to the Leased Premises shall
not constitute acceptance of surrender of the Leased Premises.
ARTICLE 18
LIABILITY AND INDEMNITY
18.01. Tenant and Landlord agree to indemnify and/or hold each other
harmless and each others respective agents, directors, officers, employees,
invitees and contractors harmless from all claims, losses, costs, damages or
expenses (including but not limited to attorney's fees) asserted by any
person, including, without limitation, the indemnifying party's agents,
directors, officers, employees, invitees and contractors, resulting or
arising or alleged to arise from any and all injuries or death of any person
or damage to any property caused by any act, omission, or neglect of the
indemnifying party's directors, officers, employees, agents, invitees,
contractors, customers or guests, which occurs during the term of this Lease
in or about the Complex. Tenant agrees to use and occupy the Leased Premises
and other facilities of the Complex at its own risk and hereby releases
Landlord and/or Landlord's agents, directors, officers, employees, invitees
and contractors from all claims for any damage or injury to the full extent
permitted by law, except to the extent that same arises out of the gross
negligence or willful acts or omissions of
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Landlord. Landlord shall not be liable to Tenant, and Tenant hereby waives
all claims against Landlord and/or Landlord's agents, directors, officers,
employees, invitees and contractors for: any damage or loss of any kind; for
direct damages, consequential damages, loss of profits, business interruption
and for any damage to and/or theft of property, death or injury to persons
from any cause including, but not limited to, acts of other tenants,
vandalism, loss of trade secrets or other confidential information; any
damage, loss or injury caused by defect in the Leased Premises, Building or
the Complex, pipes, air conditioning, heating, plumbing or by water leakage
of any kind from the roof, walls, windows, basement or other portion of the
Leased Premises, Building, or the Complex; or caused by acts of God,
electricity, wind, storm, gas, oil, fire or any cause whatsoever in, on or
about the Leased Premises, Complex, or any part thereof. The term "injury",
as used in this Lease, shall include, without limitation, mental pain,
suffering and anguish.
18.02. No party shall have any right or claim against Landlord, its
directors, officers, employees, agents, contractors, customers, invitees
and/or guests, for bodily injury (fatal or non-fatal) or property damage
(whether caused by negligence or the condition of the Leased Premises,
Building, or Complex) by way of subrogation or assignment, Tenant hereby
waiving or relinquishing any such right, including without limitation any
bodily injury or property damage caused by the gross negligence or willful
acts or omissions of Landlord, its directors, officers, employees, agents,
representatives, customers, invitees and/or guests.
18.03. Tenant agrees that Landlord shall not be responsible or
liable to Tenant, its directors, officers, employees, agents,
representatives, customers, invitees, and/or guests, for bodily injury (fatal
or non fatal) or property damage occasioned by the acts of omissions of any
other tenant or such tenant's directors, officers, employees, agents,
customers, invitees, and/or guests within the Building and/or the Complex.
18.04. The provisions of this Article 18 shall apply to all
activities of Tenant with respect to the Leased Premises or Complex, whether
occurring before or after the Commencement Date and before or after the
expiration or termination of this Lease. Tenant's obligations under this
Article 18 shall not be limited to the limits or coverage of insurance
maintained or required to be maintained by Tenant under Article 12 of this
Lease.
ARTICLE 19
NOTICE
19.01. Any notice which may or shall be given under the terms of
this Lease shall be in writing and shall be either delivered by hand or sent
by United States Registered or Certified Mail, Return Receipt Requested and
postage prepaid; if for Landlord, to the Building office, located at 5151 San
Felipe, Houston, Texas 77056; or, if for Tenant, to the Leased Premises. Such
addresses may be changed from time to time by either party giving notice as
provided above. Notice shall be deemed given when delivered (if delivered by
hand or when postmarked (if sent by mail).
Prior to the commencement of this Lease, notice to Tenant shall be
sent to:
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Name: Mr. Peter Badger
Company: Spires Financial, L.P.
Address: 5847 San Felipe, Suite 4540
City & State: Houston, Texas 77057
ARTICLE 20
LANDLORD'S MORTGAGEE
20.01. NOTICE. If the Building and/or Leased Premises are at any
time subject to a mortgage and/or mortgage and deed of trust or a net profit,
partnership venture or other equity interest independent of, or in lieu of, a
mortgage or deed of trust, then, in any instance in which Tenant gives notice
to Landlord alleging default by Landlord hereunder, Tenant will also
simultaneously give a copy of such notice to each Landlord's Mortgagee as
defined in Section 14.01 and each Landlord's Mortgagee shall have the right
(but no obligation) to cure or remedy such default during the period that is
permitted to Landlord hereunder, plus an additional period of thirty (30)
days, and Tenant will accept such curative or remedial action (if any) taken
by Landlord's Mortgagee, with the same effect as if such action had been
taken by Landlord.
20.02. CERTIFICATE. Tenant will, at such time or times as Landlord
or Landlord's Mortgagee may reasonably request, sign a certificate stating:
whether this Lease is in full force and effect; whether any amendments or
modifications exist; whether there are any defaults hereunder; and such other
information and agreements as may be reasonably requested. Tenant hereby
stipulates that it shall be reasonable for Landlord to request that the
following agreements be made if requested by Landlord's Mortgagee: (a) that
this Lease will not be modified, altered or amended in any way, without the
prior written consent of Landlord's Mortgagee; (b) that Landlord and Tenant
will not, without the prior written consent of Landlord's Mortgagee, agree to
a cancellation of this Lease, nor will Tenant surrender its rights hereunder
to Landlord (except in instances wherein the right to so do is expressly
granted to Tenant under the other terms and provisions of this Lease); (c)
that Landlord will not convey (or take any other action with respect to)
Landlord's interest in the Leased Premises in a manner which would result in
a merger of Landlord's estate in the Leased Premises with Tenant's leasehold
under this Lease unless at the time of such conveyance Tenant assumes, in
writing, any unpaid balance owing and to become owing to Landlord's Mortgagee
which is secured by a collateral assignment of this Lease or security
agreement; however, this does not prohibit an assignment of Landlord's
interest in the Leased Premises to Tenant by assignment specifically made
subject to this Lease and not having such merger effect; and (d) that Tenant
will not prepay and Landlord will not accept prepayment of any installment or
payment of rent more than thirty (30) days in advance of the due date
thereof. In the event that Tenant should fail or refuse to sign a certificate
in accordance with the provisions of this Article 20, within ten (10) days
following the second written request by Landlord submitting one or more
counterparts thereof to Tenant, then Landlord shall have the authority as
Tenant's attorney-in-fact for such limited purpose to execute such
certificate, it being stipulated by Landlord and Tenant that such power of
attorney is coupled with an interest in Landlord and is, accordingly,
irrevocable.
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ARTICLE 21
SUBSTITUTION OF SPACE
21.01. INTENTIONALLY OMITTED.
ARTICLE 22
MISCELLANEOUS PROVISIONS
22.01. BROKER. Tenant and Landlord both warrant and represent that
each has had no dealings with any third party real estate broker or agent in
connection with the negotiation of this Lease, excepting only Marathon
Holdings Corp., and that it knows of no other third party real estate
broker(s) or agent(s) who is (are) or might be entitled to a commission in
connection with this Lease. Tenant and Landlord each agree to indemnify and
hold harmless the other from and against any liability or claim (including
the costs of defending against and investigating such claims) arising in
respect to any broker(s) not named herein who is (are) claiming by, through
or under the indemnifying party. At such time as Tenant occupies the Leased
Premises and commences rental payments, Landlord will pay to Marathon Holding
Company a real estate brokerage commission equal to three percent (3%) of the
Base Rental to become due during the primary term. In the event that Tenant
exercises its expansion right pursuant to Section 24.01 hereof, or the right
to extend the Lease, a commission, calculated as above provided for
expansions, and calculated at two percent (2(degree)/a) of Base Rental due
during an extension, will be due and payable from Landlord to Marathon
I-folding Company. In the event Tenant fails to occupy the Leased Premises or
fails to commence payment of Rent or fails to pay any Rent or additional Rent
under the terms of the Lease or otherwise defaults under the Lease, Tenant
shall reimburse Landlord an amount equal to a pro rata share of all brokerage
commissions paid by Landlord by virtue of execution of this Lease and the
Registration and Commission Agreement executed by and between broker and
Landlord, or pursuant hereto. All sums which become payable by Tenant to
Landlord hereunder shall be deemed additional rent for purposes of this Lease.
22.02. NAME. Tenant shall not, without the written consent of
Landlord, use the name of the Building for any purpose other than as the
address of the business to be conducted by Tenant in the Leased Premises, and
in no event shall Tenant acquire any rights in or to such names. This
prohibition shall include, without limitation, the use of photographs,
renderings or other similar reproductions of the Building, except on its
brochures.
22.03. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery by and between both Landlord and Tenant.
22.04. TIME. Time is of the essence in this Lease and in each and
all of the provisions hereof.
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22.05. CORPORATE AUTHORITY. If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant
does hereby personally covenant and warrant that Tenant is a duly authorized
and existing corporation, that Tenant has and is qualified to do business in
Texas, that the corporation has full right and authority to enter into this
Lease, and that each person signing on behalf of the corporation was
authorized to do so.
22.06. LIENS. Tenant shall keep the Leased Premises free from any
liens arising out of the work performed, materials furnished, or obligations
incurred by or for Tenant. In the event that Tenant shall not, within ten
(10) days following the imposition of any such lien, cause the same to be
released of record by payment or posting of a proper bond, Landlord shall
have, in addition to all other remedies provided herein and by law, the right
but not the obligation, to cause the same to be released by such means as it
shall deem proper, including payment of or defense against the claim giving
rise to such lien. All sums paid and all expenses incurred by Landlord in
connection therewith shall create automatically an obligation of Tenant to
pay to Landlord, as Rent, and on demand, an equivalent amount together with
interest at the maximum lawful rate per annum from the date due until paid.
No work which Landlord permits Tenant or its contractor to perform in the
Leased Premises shall be deemed to be for the immediate use and benefit of
Landlord so that no mechanics or other lien shall be allowed against the
estate of Landlord by reason or its consent to such work.
22.07. INABILITY TO PERFORM. If, by reason of inability to obtain
and utilize labor, materials, equipment, or supplies, or by reason of
circumstances directly or indirectly the result of any state of war or
national or local emergency, or by reason of any laws, rules, orders,
regulations, action, non-action, or requirements of any governmental
authority now or hereafter in force, or by reason of strikes or riots, or by
reason of accidents in, damage to, or the making of repairs, replacements, or
improvements to the Building, the Parking Garages or the Leased Premises, or
any of the equipment of either, or by the reason of any other cause beyond
the reasonable control of Landlord, Landlord shall be unable to perform or
shall be delayed in the performance of any obligation hereunder, then this
Lease and the obligation of Tenant to pay the Rent or additional rent and to
perform and comply with all of the other covenants and agreements hereunder
shall in no way be affected or impaired, and such nonperformance or delay in
performance by Landlord shall not constitute a breach or default by Landlord
under this Lease nor give rise to any claim against Landlord for damages or
constitute a total or partial eviction, constructive or otherwise. Landlord
shall exercise due diligence in undertaking to remedy such inability to
perform or delay in performance with all reasonable dispatch, but shall not
be required to adjust a labor dispute against its will.
22.08. PUBLICITY. The parties hereto expressly agree that there
shall be no press releases, publicity or public discussions of any kind
whatsoever originated by the parties hereto, or any representatives thereof,
concerning subject Lease transaction or the Building without the prior
written consent of both Landlord and Tenant.
22.09. CONSENT. In all cases where consent shall be required of
either Tenant or Landlord pursuant to this Lease, the giving of such consent
shall not be unreasonably withheld or delayed by the party from whom such
consent is requested or required.
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22.10. MEMORANDUM OF LEASE. Upon the request of Landlord, Landlord
and Tenant shall join in executing a recordable instrument setting forth the
appropriate terms and conditions of the Lease, including with respect to any
additional space leased by Tenant during the primary term of this Lease, plus
any renewals thereof. However, without the prior written consent of Landlord,
Tenant shall not record such memorandum or other instrument with respect to
this Lease.
22.11. LANDLORD'S LIABILITY. Tenant specifically agrees to look
solely to the then current Landlord's interest in the Complex for the
recovery of any judgment against Landlord relating to this Lease, it being
agreed that Landlord shall never be personally liable for any such judgment
beyond such matters; provided, however, that such shall not limit Tenant's
right to injunctive or other relief that does not involve Landlord's payment
of money to Tenant out of assets other than the then current Landlord's
interest in the building.
22.12. SEVERABILITY. If any provision of this Lease or the
application thereof to any person or circumstances shall be held invalid,
void, illegal or unenforceable to any extent, the remainder of this Lease and
application of the remaining provisions to other persons or circumstances
shall not be affected thereby and shall be enforced to the greatest extent
permitted by law.
22.13. GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of Texas. All monetary and other
obligations of Landlord and Tenant hereunder are performable in Houston,
Harris County, Texas.
22.14. NUMBER; GENDER; CAPTIONS, REFERENCES; HEADINGS. Pronouns,
where used herein, of whatever gender, shall include natural persons,
corporations, and associations of every kind and character, and the singular
shall include the plural and vice versa where and as often as may be
appropriate. Article and section headings under this Lease are for
convenience of reference and shall not affect the construction or
interpretation of this Lease. Whenever the terms "hereof', "hereby",
"herein", or words of similar import are used in this Lease, they shall be
construed as referring to this Lease in its entirety rather than to a
particular section or provision, unless the context specifically indicates to
the contrary. Any reference to a particular "Article" or "Section" shall be
construed as referring to the indicated article or section of this Lease.
22.15. SECURITY DEPOSIT. Concurrently with the execution hereof,
Tenant has paid to Landlord the amount of Twelve Thousand Three Hundred
Seventy-Eight and 33/100 Dollars ($12,378.33) to be held as a deposit to
secure performance of Tenant's obligations hereunder. Upon the occurrence of
any Event of Default, or upon the failure by Tenant to timely pay any sum it
is obligated to pay hereunder, Landlord may, from time to time, without
prejudice to any other remedy, and without prior notice to Tenant, apply all
or part of the amount deposited to the curing of such Event of Default or the
payment of such sum. Should Landlord so apply such deposit, Tenant shall
immediately upon receipt of notice thereof deposit with Landlord a sufficient
amount to bring Tenant's total deposit to the level stated in the first
sentence of this Section 22.15. Upon termination or expiration of this Lease,
the security deposit shall be
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returned to Tenant, to the extent that same is not then applied to curing of
any Event of Default or to the payment of any sum owed by Tenant hereunder.
Landlord may keep such security deposit in its bank account and commingle
same with its other funds, and shall not be responsible for paying any
interest thereon. The amount so deposited shall not be considered as an
advance payment of rental hereunder, or as a measure of Landlord's damages in
the event of any failure to perform on the part of Tenant.
22.16. INSOLVENCY OR BANKRUPTCY. In no event shall this Lease be
assigned or assignable by operation of law and in no event shall this Lease
be an asset of Tenant in any receivership, bankruptcy, or insolvency, or
reorganization proceeding.
ARTICLE 23
ENTIRE AGREEMENT
23.01. This instrument and any attached addenda or exhibits signed
by the parties hereto constitutes the entire agreement between Landlord and
Tenant; no prior written or prior or contemporaneous verbal promises or
representations by Landlord or Tenant or any other party shall be binding.
This Lease shall not be amended, changed or extended except by written
instrument signed by both parties hereto. The provisions of this instrument
shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto, but this
provision shall in no way alter the restrictions herein in connection with
assignment and subletting by Tenant.
ARTICLE 24
RIGHT OF REFUSAL
24.01. RIGHT OF REFUSAL. Subject to the options previously granted
to other tenants, Tenant shall, at any time during the Lease term, have a
subordinated right of refusal on the 2,805 SF NRA of space adjacent to
Tenant's space on Level 13 as shown on Exhibit "A" attached hereto, such
lease to expire in September 1999. At such time Landlord has a bonafide third
party prospect to lease the 2,805 SF NRA on Level 13, Landlord shall give
written notice to Tenant setting out the terms and conditions Landlord has
offered to the third party prospect to lease the space, and Tenant shall have
ten (10) days after receipt thereof within which to notify Landlord, also in
writing, whether Tenant wishes to lease that portion of space on Level 13 at
the same rate, terms and conditions as set out in Landlord's notice. In the
event Tenant elects to lease such space, an amendment to the Lease shall be
executed by Landlord and Tenant not later than fifteen (15) days after
Landlord submits to Tenant copies of such amendment for execution purposes.
If Tenant elects to lease such space pursuant to this right of refusal
option, Tenant may not thereafter revoke such election. If there is no offer
by a third party, Tenant shall have the right to add such space to its Leased
Premises at the then market value.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement, consisting of the foregoing provisions and Article I through 24,
inclusive, together with
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Exhibits A through E incorporated herein by this reference, as of the day and
year set forth on the first page of this Lease Agreement.
BARNHART INTEREST, INC.,
AS AGENT FOR SAGE PLAZA ONE LTD.
("Landlord")
By: /s/ L. Irvin Barnhart
Name: L. Irvin Barnhart
Title: Chairman of the Board
Date: 4 August 98
SPIRES FINANCIAL, L.P.
("Tenant")
By: /s/ Peter W. Badger
Name: Peter W. Badger
Title: President
Date: August 3, 1998
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NOTARY PAGE
I. TENANT
THE STATE OF TEXAS )
)
COUNTY OF HARRIS )
BEFORE ME, the undersigned, a Notary Public in and for said County
and State, on this day personally appeared , known to me to be
the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the
act and deed of such corporation.
SUBSCRIBED AND SWORN TO BEFORE ME on this the 3 day of August, 1998.
C. A. SMITH
Notary Public - State of Texas
My Commission Expires July 29, 2001
II. LANDLORD
THE STATE OF TEXAS )
)
COUNTY OF HARRIS )
BEFORE ME, the undersigned, a Notary Public in and for said County
and State, on this day personally appeared L. IRVIN BARNHART, known to me to
be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated, and as
the act and deed of such corporation.
SUBSCRIBED AND SWORN TO BEFORE me on this the 4th day of August, 1998.
DOROTHY KELM
Notary Public - State of Texas
Commission Expires 12-19-2000
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EXHIBIT "A"
TO LEASE AGREEMENT BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES FINANCIAL, L.P. ("TENANT")
DATED AUGUST 4, 1998
Floor plan to leased area
Level 13
Approximately 7,427 Square Feet of Net Rentable Area
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EXHIBIT "B"
TO LEASE AGREEMENT BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES FINANCIAL, L.P. ("TENANT")
DATED AUGUST 4, 1998
I.
LANDLORD AND TENANT CONSTRUCTION OBLIGATIONS
(Subject to the provisions of the Lease)
A. On or before July 1, 1998, Tenant agrees to deliver to Landlord a
detailed space plan ("Space Plan"), approved in writing by Tenant,
containing all information listed in Section II of this Exhibit "B" for
all tenant improvements ("Tenant Improvements") required by Tenant in
the Leased Premises. If the Space Plan is not delivered by the date
listed above, then each calendar day of delay in delivery shall
constitute one (1) day of "Tenant Delay" hereunder.
B. At Tenant's request, Landlord's designated space planner will prepare
the Space Plan for the Leased Premises showing the location of all
"building standard" items. Tenant will cooperate with Landlord's space
planner, furnishing all reasonable information and material concerning
Tenant's organization, staffing, growth expectations, physical facility
needs, equipment inventory, etc., necessary for the space planner to
efficiently and expeditiously arrive at an acceptable lay-out of the
Leased Premises.
C. Upon receipt of the Space Plan, Landlord and/or Landlord's architect
will review the same to confirm that it conforms to the requirements
listed in Section II below. Additionally, Landlord and/or Landlord's
architect shall meet with Tenant and advise Tenant informally of
preliminary costs which may be associated with the proposed work. Upon
approval by Landlord of the Space Plan, Landlord will notify Tenant
that preparation of working drawings ("Working Drawings") has begun.
If, at any time after approval of the Space Plan, any changes to, or
redrawing of, either the Space Plan or the Working Drawings is
necessitated by Tenant's requested changes, the expense of any such
changes or redrawing will be charged to Tenant and any delay associated
with such action shall constitute one (1) day of "Tenant Delay."
D. If the Space Plan does not conform to the requirements of Section II
below, or Tenant determines that the approximate construction costs
associated with the are not within the scope of its budget, Landlord
will return the Space Plan to Tenant for corrections and/or revisions.
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Tenant will deliver a corrected Space Plan to Landlord no later than
five (5) calendar days after the initial Space Plan has been returned
to Tenant. If the corrected Space Plan is not delivered to Landlord
within such five (5) day period, then each calendar day of delay in
delivery shall constitute one (1) day of "Tenant Delay."
E. Upon final mutual approval of the Space Plan, Landlord shall authorize
the preparation of working Drawings based on the approved Space Plan.
Landlord's space planner and engineer will prepare Working Drawings for
all improvements. Tenant shall deliver the Working drawings,
accompanied by Tenant's written approval thereof, to Landlord no later
than five (5) days after Landlord authorizes preparation thereof. If
the approved Working Drawings are not delivered to Landlord within the
aforementioned period, then each day of delay in delivery shall
constitute one (1) day of "Tenant Delay."
F. If Tenant requests Landlord and/or Landlord's architect to coordinate
preparation of any additional tenant improvements or changes to the
Space Plan or the Working Drawings ("Additional Work"), Tenant shall
pay to Landlord and/or Landlord's architect the costs of modifications,
revisions and special architectural and/or engineering coordination and
detail work associated with Additional Work as additional rent, within
seven (7) days of receipt of invoice for such costs. Tenant shall cause
such plans to be completed within the same time frame as set out in
Paragraph "E" above.
G. If Tenant shall arrange for interior design services, whether with
Landlord's space planner or any other planner or designer, it shall be
Tenant's responsibility to cause necessary coordination of its agents'
efforts with Landlord's agents to ensure that no delays are caused to
either the planning or construction of the required "building standard"
or Additional Work.
H. Landlord and Tenant must approve the Working Drawings in writing prior
to the commencement of pricing and construction.
I. Upon receipt of approved Working Drawings, Landlord shall price the
cost of constructing the Tenant Improvements in accordance with the
Working Drawings, and furnish Tenant a pricing agreement letter within
fourteen (14) calendar days from the receipt of approved Working
Drawings. If the pricing agreement letter is not delivered to Tenant on
or before such date, then each day of delay in delivery shall
constitute one (1) day of "Landlord Delay" hereunder; provided,
however, that if a pricing agreement letter cannot be delivered with
fourteen (14) calendar days due to the complexity or amount of
Additional Work, any delay associated therewith shall not constitute a
"Landlord Delay."
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J. Tenant shall promptly review the pricing agreement letter and shall
approve, execute, and return same to Landlord within ten (10) calendar
days after receipt thereof. In the event the pricing agreement is not
delivered to Landlord within such time, Tenant agrees that each day of
delay shall constitute one (1) day of "Tenant Delay." In the event
Tenant, for whatever reason, does not execute the pricing agreement by
said date, Tenant agrees that the time and cost which is incurred for
completing any revisions and the associated approval of a revised
pricing agreement shall be "Tenant Delay" and at Tenant's expense.
Tenant further agrees to provide Landlord written authorization for any
revisions to the Tenant Working Drawings which may be necessitated due
to Tenant's requested revisions in the pricing agreement prior to
Landlord's proceeding with said revisions. It is understood Landlord
agrees to promptly complete any authorized revisions and submit a
revised pricing agreement to Tenant in a timely manner. Upon receipt of
said revised pricing agreement, Tenant shall comply with the provisions
and time period set forth above for review and subsequent approval of
the initial pricing agreement.
Tenant shall pay twenty-five percent (25%) of costs over the Allowance
provided in section 3.01 of the Lease presented in the pricing
agreement letter upon execution of he pricing agreement letter.
Landlord reserves the right to bill Tenant up to ninety percent (90%)
of such costs during the construction period in proportion to the
amount of work completed or materials purchased, with the final ten
percent (10%) due upon acceptance of the completed Leased Premises or
occupancy by Tenant.
K. Upon approval and execution of the pricing agreement letter by Tenant,
Landlord shall install Tenant Improvements in the Leased Premises in
accordance with the executed pricing agreement letter. While the time
required to complete any Additional Work shall betaken into account by
Landlord in estimating the completion date for the Leased Premises, the
excess of time required to complete the Additional Work over the time
which would have been required to complete the Leased Premises for
occupancy had no Additional Work or changes occurred, shall constitute
"Tenant Delay." Within twenty (20) days after receipt of Landlord's
invoice, Tenant shall pay, as additional rent, all costs incurred in
connection with all Additional Work, including the costs of materials
and labor, together with ten percent (10%) of said costs for Landlord's
overhead, and associated architectural and engineering fees, if any, at
Landlord's cost. Such architectural and/or engineering fees shall, at
Landlord's option, be payable by Tenant directly to such architect
and/or engineer performing such work.
L. Tenant, at its own expense, may authorize changes in the Tenant
Improvements during construction; provided, however, that such
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<PAGE>
authorization is directed solely in accordance with the procedures
outlined herein by Landlord. Tenant shall bear the full costs for any
and all such changes, including without limitation, architectural and
engineering costs, in the Tenant Improvements, and any delays
associated with such changes shall constitute "Tenant Delay."
M. As used herein, "Tenant Delay" shall mean and include, without
limitation, Tenant's delay or failure to prepare, revise, or correct
the Space Plans within the times specified; Tenant's delay or failure
to approve or properly disapprove the Working Drawings within the time
specified; Tenant's delay or failure to approve the pricing agreement
for any reason whatsoever; all delays arising in connection Additional
Work or changes requested by Tenant; or other delay from any other
cause reasonably attributable to the acts or omissions of Tenant. The
Commencement Date, expiration date, and commencement of installments of
Base Rent shall not be postponed or delayed as the result of "Tenant
Delay."
N. "Net Tenant Delay" shall mean the total number of days of "Tenant
Delay" minus the total number of days of "Landlord Delay." If the
Leased Premises are not ready for occupancy on or before the date
specified in Section 1.02 of this Lease, and there exists "Net Tenant
Delay," Tenant shall pay Landlord, as additional rent, a sum equal to
one (1) day's rent (including Base Rent and all other charges provided
for in this Lease) multiplied by the total "Net Tenant Delay." Such
additional rent, as well as any charges associated with Additional
Work, shall be paid by Tenant within seven (7) days of receipt of
invoice.
O. All sums due Landlord for Additional Work shall be considered Rent
under the terms of the Lease; non-payment shall constitute default and
entitle Landlord to any and all remedies specified in the Lease.
II.
MINIMUM INFORMATION REQUIRED OF
TENANT SPACE PLAN
FLOOR PLANS INDICATING:
1. Location and type of all partitions.
2. Location and types of all doors-indicate hardware and provide keying
schedule.
3. Location and type of glass partitions, windows and doors- indicate
framing if not "building standard."
4. Location of telephone equipment room accompanied by an approval of the
telephone company.
5. Indicate critical dimensions necessary for construction.
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6. Location of all "building standard" electrical items-outlets, switches,
telephone outlets. ("Building standard" lighting will be determined by
Building architect).
7. Location and type of all non "building standard" electrical items,
including lighting.
8. Location and type of equipment that will require special electrical
requirements. Provide manufacturers' specifications for use and
operation.
9. Location, weight per square foot and description of any exceptionally
heavy equipment or filing system exceeding 50 psf live load.
10. Requirements for special air conditioning or ventilation.
11. Type and color of floor covering.
12. Location, type and color of wall covering.
13. Location, type and color of "building standard" and non "building
standard" paint or finishes.
14. Location and type of plumbing.
15. Location and type of kitchen equipment.
16. Any and all other improvements specified by Tenant.
DETAILS SHOWING:
1. All millwork with verified dimensions and dimensions of all equipment
to be built in.
2. Corridor entrance.
3. Bracing or support of special walls, glass partitions, etc., if
desired. If not included with the space plan, the Building architect
will design, at Tenant's expense, all support or bracing required.
4. Any and all other details specified by Tenant.
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EXHIBIT "B-2"
TO LEASE AGREEMENT BETWEEN
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES FINANCIAL , L.P. ('TENANT')
DATED AUGUST 4, 1998
DEMOLITION
Floor plan of demolition
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EXHIBIT "C"
TO LEASE AGREEMENT BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES FINANCIAL, L.P. ("TENANT")
DATED 4 AUGUST, 1998
BUILDING RULES AND REGULATIONS
AND
PARKING RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS:
The following standards shall be observed by Tenant for the mutual
safety, cleanliness and convenience of all occupants of the Building. These
rules are subject to change from time to time, as specified in the Lease.
"Leased Premises" and "Premises" are interchangeable terms.
1. Tenant shall not use the Premises or the Building to sell any items or
services at retail price or cost without written approval of Landlord.
Stenography, typewriting, blueprinting, duplicating services of any
kind, and similar businesses, shall not be conducted from or within the
Premises or Building for the service or accommodation of occupants of
the Building, other than Tenant, without prior written consent of
Landlord.
2. Sidewalks, halls, passageways and stairwells shall not be obstructed or
used by Tenant for a purpose other than ingress and egress to and from
the Premises and Building.
3. Flammable, explosive or other hazardous liquids and materials shall not
be brought on the Premises or into the Building without the prior
written consent of Landlord. All Christmas decorations shall be made of
flame retardant materials.
4. All contractors and technicians performing work for Tenant within the
Building shall be referred to Landlord for approval before performing
such work. All work,
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including, but not limited to, installation of telephone and telegraph
equipment, electrical and electronic devices and attachments, and all
installations affecting floors, walls, windows, doors, ceilings or any
other physical feature of tile Building, shall not commence prior to
written approval by Landlord.
5. Tenant shall not conduct any auction on the Premises nor store goods,
wares or merchandise on the Premises, except for Tenant's own personal
use.
6. Movement into or out of the Building of freight, furniture, office
equipment or other material for dispatch or receipt by Tenant which
requires movement through public corridors or lobbies or entrances to
the building shall be limited to the use of service elevators only and
shall be done at hours and in a manner approved by Landlord for such
purpose from time to time. Only licensed commercial movers shall be
used for the purpose of moving height, furniture or office equipment
to and from the Premises and Building. All hand trucks shall be
equipped with rubber tires and rubber side guards.
7. Requests by Tenant for building services, maintenance or repair shall
be made in writing to the office of the Building Manager.
8. Tenant shall not change locks or install additional locks on doors
without prior written consent of Landlord. Tenant shall not make or
cause to be made duplicates of keys procured from Landlord without
prior approval of Landlord. All keys to the Premises shall be
surrendered to Landlord upon termination of tenancy.
9. Tenant shall give prompt notice to the office of the Building Manager
of any damage to or defects in plumbing, electrical fixtures or heating
and cooling equipment. Liquids, or other materials or substances which
will cause injury to the plumbing, shall not be put into the
lavatories, water closets or other plumbing fixtures, by Tenant, its
agents, employees or invitees.
10. Tenant shall not place, install or operate on the Premises, or in any
part of the Building, any stoves or cooking equipment, other than a
microwave oven, without prior written approval by Landlord.
11. Large files, safes, electronic data processing equipment and other heavy
equipment shall not be moved into the Building or installed in the
Premises without written approval of Landlord.
12. Tenant shall not lay floor covering within the Premises without written
approval of Landlord. The use of cement or other similar
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adhesive materials not easily removed with water is expressly
prohibited.
13. Tenant shall place solid pads over building standard carpet, under all
rolling chairs.
14. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Building.
15. Animals or birds shall not be kept in or about the Premises or the
Building.
16. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by Tenant on, or about or from, any
part of the Premises or the Building without prior written consent of
the Landlord.
17. Landlord reserves the right to exclude from the Building, between the
hours of 6:00 p.m. and 7:00 a.m. on weekdays and at all hours on
Saturday, Sunday and legal holidays, all persons who are not known to
the Building watchman and who do not present a pass to the building
signed by the Tenant. Each Tenant shall be responsible for all persons
for whom he supplies a pass.
18. For the purposes hereof, "holidays" shall be limited to the following:
(1) New Year's Day
(2) Memorial Day
(3) Independence Day
(4) Labor Day
(5) Thanksgiving Day
(6) Christmas Day
If, in the case of any "holiday," a different day shall be observed
other than the actual day described above, then the day observed shall
constitute the "holiday" under this Lease.
19. No parking of vehicles and no deliveries shall occur in the plaza area
of the Building.
20. Tenant will not make any alterations or physical additions in or to the
Leased Premises without prior written consent of Landlord.
21. All routine deliveries to a tenant's Leased Premises during 8:00 a.m.
to 5:00 p.m. weekdays shall be made through the underground truck dock
and freight elevator. Passenger elevators are to be used only for the
movement of persons, unless an exception is approved by the Building
Management office.
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22. Corridor doors, when not in use, shall be kept closed.
23. Tenant space that is visible from public areas must be kept neat and
clean.
24. All freight elevator lobbies are to be kept neat and clean. The
disposal of trash or storage of materials in these areas is prohibited.
25. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in Leased Premises. Landlord shall adjust thermostats as
required to maintain the building standard temperature. We request that
all window blinds remain down and tilted at a 45 degree angle toward
the street to help maintain comfortable room temperatures and conserve
energy.
26. Tenants are requested to lock all office doors leading to corridors and
to turn out all lights at the close of their working day.
27. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 5:30 p.m. and/or such work may be done at any time when
the offices are vacant. The windows, doors and fixtures may be cleaned
at any time. Tenant shall provide adequate waste and rubbish
receptacles, cabinets, bookcases, map cases, etc. necessary to prevent
unreasonable hardship to Landlord in discharging its obligation
regarding cleaning services.
28. Landlord will not be responsible for any lost or stolen personal
property, equipment, money, or jewelry from the Premises or public
rooms regardless of whether such loss occurs when such areas are locked
against entry or not, except for gross negligence
29. No draperies, shutters, or other window covering shall be installed on
exterior windows or walls or windows or doors facing public corridors
without Landlord's prior written consent. Landlord shall have the right
to require installation and continued use of uniform window coverings
for such windows.
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30. No portion of the Premises or any other part of the Building shall at
any time be used or occupied as sleeping or lodging quarters.
31. All tenant modifications resulting from initial buildout and/or
remodeling in or to the Leased Premises must conform to the City of
Houston Building and Fire codes.
32. Landlord desires to maintain high standards of environment, comfort and
convenience for its tenants. It will be appreciated if any undesirable
conditions or lack of courtesy or attention by Landlord's employees is
reported directly to Landlord.
33. Without written consent of Landlord, Tenant shall not use the name of
the Building in connection with promotion or advertising the business
of Tenant except as Tenant's address.
34. Landlord has designated the Building a "non smoking" Building and
Tenant and Tenant's employees shall abide by this rule. An area outside
the Building has been made available to Tenant for the purpose of
smoking and Tenant shall make every effort to maintain this designated
area in a clean and orderly manner.
35. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as
in its reasonable judgment shall, from time to time, be required 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. Such 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, so long as applied in a
non-discriminatory manner and not inconsistent with the Lease.
PARKING RULES AND REGULATIONS
A condition of any parking shall be compliance by the Parker with
garage rules and regulations, including any sticker or other identification
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system established by Landlord. The following rules and regulations are in
effect until notice is given to Tenant of any change. Landlord reserves the
right to modify and/or adopt such other reasonable and nondiscriminatory rules
and regulations for the garage as it deems necessary for the operation of the
garage. Landlord may refuse to permit any person who violates the rules to park
in the garage, and any violation of the rules shall subject the car to removal.
1. Cars must be parked entirely within the stall lines painted on
the floor.
2. All directional signs and arrows must be observed.
3. The speed limit shall be 5 miles per hours.
4. Parking is prohibited:
(a) in areas not striped for parking
(b) in aisles
(c) where "no parking" signs are posted
(d) on ramps
(e) in cross hatched areas
(f) in such other areas as may be designated by Landlord
or Landlord's agent(s).
5. Parking stickers or any other device or form of identification
supplied by Landlord shall remain the property of Landlord and
shall not be transferable. There will be a replacement charge
payable by Tenant equal to the amount posted from time to time
by Landlord for loss of any magnetic parking card or parking
sticker.
6. Garage managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations.
7. Every parker is required to park and lock his own car. All
responsibility for damage to cars or persons is assumed by the
parker.
8. No intermediate or full size cars shall be parked in parking
spaces limited to compact cars.
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Failure to promptly pay the rent required hereunder or persistent
failure on the part of Tenant or Tenant's designated parkers to observe the
rules and regulations above shall give Landlord the right to terminate Tenant's
right to use the parking structure. No such termination shall create any
liability on Landlord or be deemed to interfere with Tenant's right to quiet
possession of its Premises.
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EXHIBIT "D"
TO LEASE AGREEMENT BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES, FINANCIAL, L.P. ("TENANT")
DATED 4 AUGUST, 1998
CLEANING SPECIFICATIONS
A. OFFICE AREAS
1. Empty, clean and damp dust all waste receptacles and remove
waste paper and rubbish from the demised premises nightly;
wash receptacles as necessary.
2. Empty and clean all ash trays, screen all sand urns nightly,
and supply and replace sand as necessary.
3. Vacuum all carpeted traffic areas in offices, lobbies and
corridors nightly.
4. Hand dust and wipe clean with dry cloth all office furniture,
files, fixtures, paneling, window sills and other horizontal
surfaces nightly; wash window sills when necessary. Desks and
other furniture must be reasonably cleared of all items by
Tenant to be eligible hereunder.
5. Damp wipe and polish all glass furniture tops nightly.
Furniture must be reasonably cleared of all items by Tenant to
be eligible hereunder.
6. Remove all finger marks and smudges from all vertical
surfaces, including doors, door frames around light switches,
private entrance glass and partitions nightly.
7. Wash clean all water coolers nightly.
8. Sweep all private stairways nightly, vacuum if carpeted.
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9. Police all stairwells throughout the entire Building daily and
keep in clean condition.
10. Damp mop spillage in office and public areas as necessary.
11. Damp dust all telephones as necessary.
B. WASHROOMS
1. Mop, rinse and dry floors nightly.
2. Scrub floors as necessary
3. Clean all mirrors, bright work and enameled surfaces nightly.
4. Wash and disinfect all basins, urinals and bowls nightly,
remove stains, and clean undersides of rim of urinals and
bowls.
5. Wash both sides of all toilet seats with disinfectant nightly.
6. Damp wipe nightly, wash with disinfectant when necessary, all
partitions, tile walls and outside surface of all dispensers
and receptacles.
7. Empty and sanitize all receptacles and sanitary disposals
nightly; thoroughly clean and wash at least once per week.
8. Fill toilet tissue, soap, towel, and sanitary napkin
dispensers nightly.
9. Clean flushometers, piping, toilet seat hinges and other metal
work nightly.
10. Wash and polish all walls, partitions, tile walls and enamel
surfaces from trim to floor monthly.
11. Vacuum all louvers, ventilating grilles and dust light
fixtures monthly.
NOTE: It is the intention to keep the washrooms thoroughly cleaned and not to
use a disinfectant or deodorant to kill odors. If a disinfectant is necessary,
an odorless product to be used.
C. FLOORS
1. Ceramic tile, marble and terrazzo floors to be swept and
buffed nightly, and
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washed or scrubbed as necessary.
2. Vinyl asbestos, asphalt, vinyl, rubber or other composition
floors and bases to be swept nightly using dust down
preparation; such floors in public areas on multiple-tenant
floors to be waxed and buffed monthly.
3. Tile floors in office areas to be waxed and buffed monthly.
4. All floors to be stripped and rewaxed as necessary.
5. All carpeted areas and rugs to be vacuum cleaned nightly.
6. Carpet cleaning will be performed at Tenant's request and
billed to Tenant.
D. GLASS
1. Clean glass entrance doors and adjacent glass panels nightly.
2. Clean outside surface of exterior windows at least once per
year; provided, however, in the event Landlord cleans more
frequently than once per year the exterior windows of floors
of Building located above the demised premises in such a
manner so as to dirty the windows of the demised premises,
then Landlord shall clean the windows of the demised premises
as frequently as those located above same.
E. HIGH DUSTING (QUARTERLY)
1. When requested by Tenant, dust and wipe clean all closet
shelving when empty and carpet sweep or dry mop all floors in
closets if such are empty.
2. Dust all picture frames, charts, graphs and similar wall
hangings.
3. Dust clean all vertical surfaces such as walls, partitions,
doors, door bucks and other surfaces above shoulder height.
4. Damp dust all ceiling air conditioning diffusers, wall
grilles, registers and other ventilating louvers.
5. Dust the exterior surface of lighting fixtures, including
glass and plastic enclosures.
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F. DAY SERVICE
1. At least once, but not more than twice during the day, check
the men's washrooms for soap, towel and toilet tissue
replacement.
2. At least once, but not more than twice during the day, check
the ladies' washrooms for soap, towel, toilet tissue and
sanitary napkin replacement.
3. Vacuum elevator cabs as necessary.
4. There will be a constant surveillance of public areas to
ensure cleanliness.
G. GENERAL
1. Wipe all interior metal window frames, mullions and other
unpainted interior metal surfaces of the perimeter walls of
the Building each time the interior side of the windows is
washed.
2. Keep janitorial closets in a clean, neat and orderly condition
at all times.
3. Wipe clean and polish all metal hardware, fixtures and other
bright work nightly.
4. Dust and/or wash all directory boards as required, remove
fingerprints and smudges nightly.
5. Maintain Building lobby, corridors and other public areas in a
clean condition.
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CLEANING SPECIFICATIONS - FREQUENCY SUMMARY
PRIMARY ITEM Achievement Frequency
A. ENTRANCE
Front and back Police and sweep 5 x week
Door glass Rc frames Clean 5 x week
B. PUBLIC AREAS
Floors - carpet Vacuum and spot clean 5 x week
Floors - composition Dust sweep and spot mop 5 x week
Furnishings Dust S x week
Ashtrays Empty and damp wipe 5 x week
Drinking fountains Clean and disinfect 5 x week
Walls, doors & frames Spot clean S x week
Telephones Damp wipe 5 x week
Stairs Police 5 x week
Janitor closets Keep clean S x week
Stairs Sweep S x week
Metal plats & knobs Polish 1 x week
Ledges, sills & rails Dust 1 x week
Stairs (all) Dust mop and spot clean 1 x week
Light fixtures Dust or vacuum 1 x month
Walls Lambs wool dust 1 x quarter
Window coverings Dust or vacuum 1 x quarter
C. WORK AREAS (General and private offices, conference and sales rooms)
Floors - Carpet
Traffic lanes Vacuum 5 x week
All areas Vacuum 1 x week
Floors - composition Dust sweep & spot mop 5 x week
Trash receptacles Empty and clean 5 x week
Trash Collect 5 x week
Ashtrays Empty and damp wipe 5 x week
Telephones Damp wipe 5 x week
Furnishings (horiz.) Dust 5 x week
Glass desk tops Wash and dry polish 5 x week
Glass partitions Spot clean 1 x week
Doors and frames Dust and spot wash 1 x week
Walls & switchplates Spot clean 1 x week
Furnishings (vert.) Dust 1 x week
Low ledges & sills Dust 1 x month
High ledges & sills Dust 1 x 2 months
Glass partitions Wash 1 x 2 months
Light fixtures Dust or vacuum 1 x quarter
exterior surfaces
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D. REST ROOMS
Floors Mop and disinfect 5 x week
Receptacles Empty and disinfect 5 x week
Fixtures Scour and disinfect 5 x week
Dispensers Refill and clean 5 x week
Mirrors Wash and dry polish 5 x week
Bright metal Clean and polish 5 x week
Walls/dividers/doors Spot clean or wash S x week
Furnishings Dust or vacuum 5 x week
Vents and lights Dust or vacuum 1 x week
Floors Machine scrub As needed
E. FLOOR MAINTENANCE PROFILE - Top quality, anti-slip floor materials and
finishes will be used. Programmed floor care is:
Main Lobby Polish 5 x week
Other lobbies/halls Polish As needed
Lunchrooms & Lounges Buff 1 x week
Offices Buff 1 x week
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EXHIBIT "E"
TO LEASE AGREEMENT BETWEEN
BARNHART INTERESTS, INC., AS AGENT FOR
SAGE PLAZA ONE LTD. ("LANDLORD")
AND
SPIRES FINANCIAL, L.P. (" TENANT")
DATED 4 AUGUST, 1998
RENEWAL OPTION
Tenant shall have one (1) option to renew and extend the term of this Lease for
sixty (60) months as follows:
1. Provided that no Event of Default under this Lease has occurred and
is continuing, Tenant shall have the option ("Renewal Option") to extend the
term of this Lease for a period of sixty (60) months ("Renewal Period")
commencing on the day following the expiration of the original Term and ending
on the last day of the sixtieth (60th) calendar month thereafter; provided that,
in order to exercise such option, Tenant shall give Landlord written notice no
later than one hundred twenty (120) days prior to the expiration of such
original Term. Within fifteen (1 S) days thereafter, Landlord shall advise
Tenant, in writing, of the Base Rental applicable during the renewal term.
2. If this Lease is extended for the Renewal Period as hereinabove
provided, then all terms and provisions of this Lease shall continue to apply
during such Renewal Period, except that (a) the Base Rental shall be calculated
at the then prevailing rental rate for similar space in the Building as of the
date of commencement of the Renewal Period (in no event shall the rental rate
during said renewal term be less than the Base Rental in effect during the
calendar year immediately preceding the year in which said renewal term
commences, plus accrued escalation), (b) for purposes of calculating Base Rental
Adjustment under Article 5 of this Lease, the Basic Cost shall be deemed to be
the estimated Basic Cost for the calendar year in which the Renewal Period
commences and Tenant will pay its pro rata share thereof, and (c) the Leased
Premises shall be taken in its then existing condition, on an "as is" basis.
3. Within thirty (30) days after Tenant has received such Base Rental
information from Landlord, Tenant shall give Landlord written notice of exercise
of its option. Failure to give such notice by Tenant to Landlord within such
thirty (30) day period shall result in such option to be void and of no further
force and effect. If Tenant duly exercises its Renewal Option, the renewal term
shall apply to the entire premises then leased to Tenant.
4. Time is of the essence with respect to exercise of Tenant's Renewal
Option. If the option is not exercised within the time stipulated herein, then
such option shall lapse and be of no further force or effect.
5. The leasing of space under the provisions of this Addendum shall be
on the same terms and conditions as set forth in this Lease with respect to the
original Leased Premises, except as set forth to the contrary in this Addendum.
Landlord shall not be liable to Tenant for any
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holding over by any other tenant beyond its permitted term. If Tenant does
not exercise its rights granted under this Addendum when offered by Landlord,
then Tenant's rights with respect thereto and with respect to all other
portions of this Addendum shall thereupon terminate.
All other terms and conditions of the Lease shall continue unaltered and
unabated in full force and effect throughout the remainder of the term of the
Lease.
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