OFFICE LEASE
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(Quail Springs Office Building)
THIS AGREEMENT (the "Lease") is made __________, 1999, between TMK
INCOME PROPERTIES, L.P., a Delaware limited partnership, having an office at
Suite 600, 204 North Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (the "Landlord"),
and ETHOS COMMUNICATIONS, INC., having a notice and mailing address at
_______________ (the "Tenant"). Unless otherwise separately defined, the
capitalized terms used herein are defined at Paragraph 4 below.
W I T N E S S E T H:
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1. Conditions Precedent. Notwithstanding anything herein to the contrary, it is
expressly recognized and agreed --------------------- that this Lease and/or the
Tenant's right to occupy the Leased Premises are expressly conditioned upon the
satisfaction
of the following conditions precedent:
1.1 Surrender by Pioneer. Tenant acknowledges that Pioneer Natural
Resources U.S.A., Inc. ("Pioneer") has certain rights in and
to the Leased Premises by virtue of that certain Office Lease
dated July 11, 1996, entered into by the respective
predecessors of Landlord and Pioneer, as amended (collectively
the "Pioneer Lease"), which rights are to be surrendered on or
before the Effective Date. Accordingly, this Lease is
expressly conditioned upon Pioneer and Landlord having fully
executed a Surrender and Acceptance Agreement in a form
satisfactory to Landlord on or before the Effective Date and
in the event such condition is not satisfied, then this Lease
shall be null and void and the parties shall have no further
rights or liabilities to each other hereunder.
1.2 Vacation by Pioneer. Tenant acknowledges that its occupancy of
the Leased Premises as of the Commencement Date is expressly
conditioned upon Pioneer's vacation of the Leased Premises at
least _____ (____) days before the Commencement Date.
Accordingly, in the event Pioneer has not vacated the Leased
Premises by such date, then Tenant's occupancy shall be
delayed pursuant to the terms of Paragraph 2.1.2 hereinbelow.
1.3 Rights of Refusal. Tenant acknowledges that Sonat Exploration Company
("Sonat") and Xxxxx Xxxxxxx Natural Gas ----------------- Corp ("Xxxxx Xxxxxxx")
have certain rights of refusal in and to the Leased Premises, which rights of
refusal should be exercised or expire prior to the Effective Date hereof.
Accordingly, this Lease is expressly conditioned upon Sonat and Xxxxx Xxxxxxx,
respectively, either failing to exercise or expressly waiving their rights of
refusal in and to the Leased Premises, on or before the Effective Date and in
the event such conditions are not satisfied then this Lease shall be null and
void and the parties shall have no further rights or liabilities to each other
hereunder.
1.4 Leased Premises. Provided that the conditions precedent set forth in
Paragraphs 1.1 and 1.3 hereinabove are ---------------- satisfied on or before
the Effective Date, Landlord hereby leases the Leased Premises to Tenant and
Tenant hereby leases the same from Landlord. As reflected on Schedule "1", the
Leased Premises will be comprised of approximately 3,978 square feet of Net
Rentable Area on the third (3rd) floor of the Building; provided, however, the
square feet of Net Rentable Area within the Leased Premises will be increased or
decreased to reflect the actual square footage of Net Rentable Area reflected on
the Final Working Drawings and documented by an amendment to this Lease.
2. Term. The Lease Term is five (5) years having a Commencement Date on the
earlier of: (a) thirty (30) days after the Effective Date of this Agreement (the
"Projected Commencement Date"); or (b) Substantial Completion of the Leasehold
Improvements; subject to postponement, acceleration or extension as hereafter
provided. If the Commencement Date occurs (aa) on the first day of a month, the
Expiration Date will be five (5) years from the last day of the preceding month;
or (bb) on a date other than the first day of the month, the Expiration Date
will be five (5) years from the last day of the month in which the Commencement
Date occurs; unless extended as hereafter provided.
2.1 Late Occupancy. If for any reason construction of the Leasehold Improvements
has not reached --------------- Substantial Completion by the Projected
Commencement Date, this Lease will nevertheless continue in
effect.
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2.1.1 Tenant's Causation. If the failure to reach
Substantial Completion arises from: (a) any delay
in the installation of the Leasehold Improvements
caused by any change in or addition to the work
ordered by Tenant; (b) Tenant's nonpayment of
Tenant's Construction Cost; or (c) any other
default, delay or omission by Tenant or anyone
acting under or for Tenant; the payment of Rent
will commence on the Projected Commencement Date in
accordance with Paragraph 3.1 and the Lease Term
will not be modified.
2.1.2 Other Causation. If the failure to reach
Substantial Completion by the Projected
Commencement Date arises through no fault of
Tenant, Rent will xxxxx and not commence until the
date of Substantial Completion and the Lease Term
will be extended by the period of time which
elapses between the Projected Commencement Date and
the date of Substantial Completion.
2.1.3 Outside Date. If through no fault of Tenant,
Substantial Completion is not reached within one
hundred eighty (180) days from the Projected
Commencement Date, either party may terminate this
Lease and neither party shall have any obligation
to the other party for any action taken prior to
the termination. The abatement of Rent through
Substantial Completion or termination as provided
herein will constitute full settlement of all
claims which Tenant might otherwise have against
Landlord by reason of any delay in occupancy of the
Leased Premises.
3. Rent. Tenant shall pay Rent to be mailed to Landlord at P. O. Xxx 00000,
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000 or ---- delivered to Landlord at Xxxxx 000,
000 X. Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000. All Base Rent is payable in
advance and without prior notice or demand, beginning on the date provided
herein and continuing thereafter on the first day of each month through the
Expiration Date.
3.1 Base Rent. During the Lease Term, Tenant shall pay to Landlord
as Base Rent an aggregate amount equal to the products of: (a)
$18.00 ; times (b) the total square feet of Net Rentable Area
actually in the Leased Premises; times (c) five (5) Lease
Years in the Lease Term. If there is an increase or decrease
in the square feet of Net Rentable Area in accordance with
Paragraph 1, the Base Rent will be adjusted according to the
preceding formula. Any such required adjustment to Base Rent
reflecting an increase or decrease in the square feet of Net
Rentable Area, shall be confirmed in an amendment to this
Lease, signed by both parties and attached hereto as a part
hereof for all purposes, which amendment will also confirm the
effective Commencement Date for all purposes hereunder.
3.2 Operating Cost Increase. In the event the Estimated Operating
Cost for any calendar year during the Lease Term exceeds the
Base Operating Cost, Tenant agrees to pay to Landlord on the
first day of the month following receipt of a statement
therefor and monthly thereafter an amount which is equal to
one-twelfth (1/12) of Tenant's Share of the excess amount.
3.3 Rent Adjustment. On or before March 15 of each calendar year
during the Lease Term, Landlord will provide Tenant a
statement of Landlord's Actual Operating Cost incurred during
the preceding calendar year. If the Estimated Operating Cost
exceeds or is less than the Actual Operating Cost for any
calendar year ending during the Lease Term, the amount of
Tenant's Share of such excess or deficiency will be added to
or credited against the subsequent installments of Additional
Rent payable during the remaining months of that calendar
year. Any sums owed by reason of such adjustment will not bear
interest and will, except with respect to final settlement on
the Expiration Date, be payable only as a reduction or
increase in the amount of Additional Rent to accrue and under
no circumstances will Rent be reduced to an amount less than
the Base Rent.
3.4 Prorations. If the Commencement Date is a date other than the
first day of a month, or if the Expiration Date is a date
other than the last day of a month, the installment of Base
Rent for the month in which such date occurs will be prorated
based on a thirty (30) day month. If any assessment for
Additional Rent is computed for a term beginning before the
Commencement Date or extending beyond the Expiration Date, the
assessment will be prorated based on a three hundred sixty
(360) day year.
3.5 Late Charges. In the event Tenant fails to make timely payment
of Rent or any other amount due and owing hereunder and the
amount remains unpaid for a period of ten (10) days from such
due date, in addition to any and all other sums due and owing
herein, Landlord may collect from Tenant as Additional Rent an
administrative service fee in an amount equal to $100.00 per
day for the period of time Rent remains unpaid.
4. Construction and Definitions. Unless otherwise herein defined, the terms used
in this Lease have the meanings indicated in this Paragraph 4 and shall include
the plural as well as the singular. The word "including" shall be construed to
be followed by the words "without limitation" or "but not limited to." The words
"herein", "hereof", "hereunder", "hereafter" and other words of similar import
shall refer to this Lease as a whole and not to any particular Paragraph or
other subdivision. All references to Schedules or other attachments shall refer
to Schedules, exhibits, diagrams and special provisions attached to this Lease
and all of which are incorporated by reference herein for all purposes.
4.1 Actual Operating Cost. Operating Cost in fact incurred by
Landlord in any given calendar year.
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4.2 Additional Rent. The sums described at Paragraphs 3.2, 3.3
and 3.5 and any other amounts required to be
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paid by Tenant hereunder.
4.3 Base Operating Cost. The Actual Operating Cost for calendar
year 1999.
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4.4 Base Rent. The sum described at Paragraph 3.1.
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4.5 Building. The structure owned by the Landlord known as "Quail
Springs Parkway Plaza - East Tower" (sometimes herein called
"East Tower") and Quail Springs Parkway Plaza - West Tower"
(sometimes herein called "West Tower") (as used herein East
Tower and West Tower are collectively called the "Building"),
are located on the following described tract of land:
A tract of land lying in the Southeast Quarter of Section 12,
Township 13 North, Range 4 West of the Indian Meridian,
Oklahoma County, Oklahoma, and being more particularly
described as follows:
Commencing at the Southwest corner of said
Southeast Quarter; THENCE North 00o20'07" West
along the West line of said Southeast Quarter a
distance of 307.43 feet to a point lying on the
North right-of-way line for West Memorial Road;
THENCE continuing North 00o20'07" West along said
West line a distance of 1222.99 feet; XXXXXX Xxxxx
00x00'00" Xxxx a distance of 81.70 feet to a point
on the East right-of-way line for Quail Springs
Parkway, said point also being the POINT OF
BEGINNING; THENCE continuing North 89o30'46" East a
distance of 622.89 feet; THENCE Xxxxx 00x00'00"
Xxxx a distance of 501.00 feet; THENCE South
89o30'46" West a distance of 103.81 feet; THENCE
South 44o30'46" West a distance of 102.53 feet;
THENCE South 89o30'46" West a distance of 403.08
feet to a point on the Easterly right-of-way line
for Quail Springs Parkway; THENCE Northerly along
said right-of-way line on the arc of a curve to the
left, said curve having a radius of 1662.16 feet (a
chord bearing North 02o24'30" West, a chord length
of 335.70 feet) an arc distance of 336.27 feet to a
point of tangent; THENCE continuing along said
right-of-way North 08o12'15" West a distance of
240.16 feet to the POINT OF BEGINNING. And contains
328,625 square feet or 7.5442 Acres, more or less.
4.6 Business Hours. The hours of operation for the Building will be 7:30 a.m.
until 5:30 p.m. every Monday --------------- through Friday and 8:00 a.m. until
12:30 p.m. on Saturdays, excluding those days designated by the government of
the United States as the following holidays, which shall be deemed outside of
the Business Hours: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day (which for purposes of this Lease shall include the day after
Thanksgiving Day), and Christmas Day.
4.7 Building Regulations. The rules and regulations adopted and
published from time to time by Landlord to promote the
convenience, peace, safety and welfare of the tenants of the
Building and to govern the Building use and the distribution
of services which are applicable to all tenants of the
Building. The current Building Regulations are set out at
Schedule "4". Any modification to the Building Regulations
shall bind Tenant upon delivery of a copy thereof to Tenant.
Landlord shall not be responsible to Tenant for the
nonperformance of any portion of the Building Regulations by
any other tenants, occupants, or invitees of the Building.
4.8 Commencement Date. The date on which the Lease Term commences as specified
at Paragraph 2, which may or ------------------ may not be the Projected
Commencement Date.
4.9 Common Areas. Parts of the Building designated by Landlord
from time to time as intended for non-exclusive common use by
the public and other tenants of the Building, including,
stairways, elevators, service corridors, delivery areas,
public restrooms, lobby entrances, and plaza areas.
4.10 Construction Agreement. Pursuant to Paragraph 5, the contract to be
executed and delivered by Landlord ----------------------- and Tenant calling
for the construction of the Leasehold Improvements by Landlord or Landlord's
designees, in substantially the form of Schedule "3".
4.11 Construction Cost. All costs incurred in constructing the
initial Leasehold Improvements, including contractors',
subcontractors', architects', engineers' and designers' fees
and expenses (including costs of Final Working Drawings), and
Landlord's construction supervision fee, all as set forth in
the Construction Agreement.
4.12 Effective Date. The date inserted on the first page of this Lease following
execution by the last party -------------- signing the counterparts of this
Lease.
4.13 Encumbrance(s). All mortgages, deeds of trust, security
agreements, collateral assignments, and other encumbrances and
all ground leases, master leases and other primary leases
which might now or hereafter affect any portion of Landlord's
interest in this Lease, the Building, the Land and/or any
other property associated therewith and all advancements
thereunder and all increases, renewals, modifications,
consolidations, replacements and extensions thereof.
4.14 Estimated Operating Cost. Landlord's good faith estimate of the Operating
Cost to be incurred in any -------------------------- given calendar year.
4.15 Expiration Date. The date when the Lease Term expires as specified at
Paragraph 2 or such earlier date ---------------- as specifically provided
herein.
4.16 Final Working Drawings. The plans, specifications and drawings for
construction of the Leasehold
------------------------
Improvements attached hereto as Schedule "2".
4.17 Governmental Authorities. All federal, state, county, and
municipal governmental bodies and agencies or
instrumentalities thereof, including all judicial,
quasi-judicial and administrative bodies, having jurisdiction
over the Land and Building, Landlord's ownership and operation
thereof, and Tenant's business and use and occupancy of the
Leased Premises and Building.
4.18 Guarantor. Any Person executing a full or partial guaranty of payment or
performance of any one or more
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of Tenant's obligations under this Lease.
4.19 Hazardous Material. Any hazardous or toxic substance, material
or waste, including, but not limited to, those substances,
materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table or by the
Environmental Protection Agency as hazardous substances and
amendments thereto, or such substances, materials and wastes
that are or become regulated under any applicable Law.
4.20 Holder. The mortgagee, beneficiary, secured party or lessor under any
Encumbrance and such party's
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successors and assigns.
4.21 Improvement Allowance. The credit to Tenant for Tenant's
Construction Cost incurred in the construction ---------------------- and
installation of the Leasehold Improvements, in an amount as provided in
Paragraph 5.3.
4.22 Land. The tract of land upon which the Building is located
and all appurtenances thereto.
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4.23 Landlord. TMK Income Properties, L.P., a Delaware limited
partnership, and its successors and assigns.
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4.24 Laws. All laws, statutes, regulations, rules, ordinances and
orders of any Governmental Authority, including common law and
rulings, decisions and interpretations of all judicial,
quasi-judicial, and administrative bodies.
4.25 Lease. This lease agreement and all subsequent amendments and
modifications, together with all schedules, exhibits, diagrams
and special provisions attached hereto or subsequently
attached hereto or thereto, and to any amendments or
modifications thereof.
4.26 Lease Term. The period of time designated at Paragraph 2
as the same might be modified from time to
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time by the written agreement of Landlord and Tenant.
4.27 Leased Premises. The space in the Building described at
Schedule "1" and the Leasehold Improvements
----------------
related thereto.
4.28 Lease Year. Twelve (12) complete months following the
Commencement Date and each successive twelve (12)
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month period thereafter during the Lease Term.
4.29 Leasehold Improvements. All improvements located within the
Leased Premises on the Commencement Date as constructed or
installed pursuant to the Final Working Drawings and the
Construction Agreement, and all subsequent alterations and
additions thereto, all of which are a part of the Building and
the property of Landlord from the time of installation and
shall be surrendered by Tenant to Landlord upon the Expiration
Date or earlier termination of this Lease.
4.30 Legal Requirements. All Laws and all recorded covenants,
conditions and restrictions to the extent that they pertain to
the access to, and maintenance, operation and occupancy of,
the Land, the Building, the Leased Premises and Tenant's
conduct of its business therein.
4.31 Net Rentable Area. The area included within the Leased
Premises as computed by Landlord on the
-------------------
following basis:
4.31.1 Entire Floor. If any portion of the Leased Premises
consists of a full floor, the area constituting a
full floor will be one hundred five percent (105%)
of the square footage enclosed within a perimeter
line constituting the midpoint of the outer wall or
the glass line of the Building, after deducting
space occupied by elevator shafts and other
vertical penetrations of the Leased Premises for
the use of other tenants of the Building but
without deducting space occupied by columns or
other intrusions into the Leased Premises which
constitute structural components of the Building.
4.31.2 Partial Floor. If the Leased Premises or any
portion thereof consists of less than a full
--------------
floor of the Building, the area thereof will be one hundred fourteen percent
(114%) of the square footage enclosed within a perimeter line constituting the
midpoint of the outer wall or the glass line of the Building and the midpoint of
the common walls separating the Leased Premises from the Common Areas or other
tenants of the Building, after deducting space occupied by elevator shafts and
other vertical penetrations of the Leased Premises for the use of other tenants
of the Building but without deducting space occupied by columns or other
intrusions into the Leased Premises which constitute structural components of
the Building.
4.32 Operating Cost. All costs incurred or to be incurred by
Landlord for any given calendar year in connection with the
management, operation, safety, security, replacement and
maintenance of the Building and the Park, the Land, the Common
Areas, all other improvements on the Land. The costs with
respect to the Building will be adjusted to reflect the
greater of actual or a minimum of ninety-five percent (95%)
occupancy of the Building and computed on an accrual basis.
4.32.1 Included Costs. By way of illustration,
but not limitation, Operating Cost will include
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expenditures for:
(a) Taxes;
(b) utility and sewerage charges;
(c) the Building's share of the assessments
and other expenses of Quail Springs Office
Park Owner's Association (the "Owner's
Association"), as may from time to time be
designated pursuant to recorded
declarations and other documents;
(d) the Building's share of the construction,
operation, maintenance, security and
repair of any parking areas and parking
structures, whether constructed, installed
and operated: (a) by the Owner's
Association; or (b) by any Person; and
whether available in common to all owners
of buildings within the Park or allocated
to all or one or more specified buildings
in varying proportions;
(e) cleaning (including supplies and
janitorial services);
(f) pest control;
(g) licenses, permits and inspection fees;
(h) insurance premiums;
(i) heating and cooling charges;
(j) repairs;
(k) management expenses, including management
fees and other costs paid directly by
Landlord under the terms of any real
property management agreement or
administrative services agreement and
direct costs incurred by Landlord other
than as provided in any such agreement;
(l) expenditures for personnel, including
payroll and related expenses of those
Persons directly involved with the
operation, maintenance, security and
management of the Building and the
Building's share of such expenses relating
to the Park;
(m) equipment rental;
(n) ground rental;
(o) reasonable reserves for repair and
replacement;
(p) labor;
(q) supplies;
(r) access monitoring charges attributable to
the Building;
(s) expenditures, whether by purchase or lease, for capital improvements and
capital equipment that under generally applied real estate practices are
expensed or regarded as deferred expenses and capital expenditures that are made
by reason of requirements of Law or for emergency or labor-saving devices or in
lieu of a repair, in which case such capital improvements shall be included in
Operating Costs for the calendar year in which such costs are incurred and every
subsequent calendar year, amortized on a straight-line basis over an appropriate
period with interest calculated at an annual rate of ten and one-half percent
(10-1/2%);
(t) charges of independent contractors performing work included within the
definition of Operating Costs;
(u) exterior and interior landscaping not included in assessments of the Owner's
Association;
(v) all additional costs of compliance with
Laws and other Legal Requirements directly
applicable to the improvement or
alteration, maintenance and operation of
the Building, including ADA and all
environmental Laws; and
(w) legal, accounting and other professional fees and disbursements incurred in
the operation and management of the Land and Building.
4.32.2 Excluded Costs. The following will be excluded
from Operating Cost:
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(a) charges which are reimbursed to Landlord for any reason, including without
limitation reimbursements of payments made from reserves previously accrued;
(b) depreciation;
(c) debt service, including interest and late
charges, except as specifically described
above;
(d) costs of constructing the Building and
initial Leasehold Improvements or the
repair and restoration thereof following
casualty loss or condemnation to the
extent reimbursed by insurance or by a
condemnation award;
(e) leasing commissions, rental concessions
and buy-outs;
(f) income, franchise and similar Taxes which
are personal to Landlord; and
(g) legal, accounting and other professional
fees incurred in preparation of leases for
tenants and prospective tenants or
otherwise not attributable to the
operation or management of the Building
and Land or for preparation of leases.
4.33 Park. The commercial mixed-use development currently known
as Quail Springs Office Park, within which
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the Building is located.
4.34 Person. A natural person, or a corporation, partnership,
limited liability company, or any other legal
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entity, or a Governmental Authority, as the case may be.
4.35 Rent. The sums to be paid by Tenant to Landlord as Base Rent
and Additional Rent pursuant to Paragraph 3 and such other
amounts as required to be paid by Tenant to Landlord pursuant
to the terms hereof.
4.36 Substantial Completion. The completion of the construction of
the Leasehold Improvements to the extent that the same can be
occupied by Tenant for the conduct of Tenant's business. The
completion of minor construction deficiencies or completion of
punch list items will not delay Substantial Completion.
4.37 Taxes. All (a) real and personal property and ad valorem taxes
or other tax levied in lieu of real property taxes, (b)
municipal taxes, special assessments or similar charges, and
(c) all other taxes, assessments and governmental charges
(including taxes on rents or services), levied or assessed
against the Building, the Land, or any other improvements,
fixtures or personal property owned by Landlord and located on
or incorporated into the Building. If any special assessments
are payable over a period of years, only that portion required
to be paid during a calendar year, together with interest
thereon, shall be treated as a Tax allocable to such year.
4.38 Tenant. The party executing this Lease in such capacity
and such party's permitted successors and
------
assigns.
4.39 Tenant's Default or Default by Tenant. The events set forth
herein constituting a breach or default by Tenant hereunder
upon the failure of Tenant to cure the same within applicable
cure or grace periods.
4.40 Tenant's Construction Cost. That portion of the final
Construction Cost of the Leasehold Improvements to be paid by
Tenant pursuant to Paragraph 5.3, being an amount equal to the
Construction Cost minus the Improvement Allowance as adjusted
for any additional charges, credits or adjustments provided
herein or reflected in the Construction Agreement.
4.41 Tenant's Share. A fraction computed by Landlord having as the
numerator the Net Rentable Area contained within the Leased
Premises and as the denominator the Net Rentable Area for
office space in the Building. Tenant's Share is agreed by
Landlord and Tenant to be 3,978/321,312, or 1.24%, subject to
adjustment based upon the final determination of Net Rentable
Area.
50 Leasehold Improvements. Landlord and Tenant agree that the Leasehold
Improvements shall be constructed and ----------------------- installed in
accordance with the procedures and provisions set forth in this Paragraph 5.
5.1 Final Working Drawings. Landlord has prepared at Tenant's
expense Final Working Drawings for the Leasehold Improvements
to be installed on behalf of Tenant which Final Working
Drawings have been mutually approved by Landlord and Tenant
and are attached hereto as Schedule "2".
5.2 Construction Agreement. Within five (5) days after the
Effective Date Landlord will prepare and submit to Tenant the
Construction Agreement setting forth the Construction Cost.
Within five (5) days after Tenant's receipt of the
Construction Agreement and the Construction Cost, Tenant will
either: (a) approve the Construction Agreement and
Construction Cost in writing; or (b) deliver a written notice
to Landlord requesting specific changes. Thereafter Landlord
will have five (5) days within which to submit to Tenant a
revised Construction Agreement and final Construction Cost.
Landlord and Tenant agree to negotiate in good faith to reach
a mutually satisfactory Construction Agreement and
Construction Cost. In the event Landlord and Tenant are both
acting in good faith, but cannot agree on a mutually
acceptable final Construction Agreement and Construction Cost
within one hundred fifty (150) days from the Effective Date
then Landlord will have the right during a ten (10) day period
thereafter to terminate this Lease by written notice to
Tenant; and upon such notice of termination, neither Party
will have any further rights or obligations to the other
hereunder; provided, however, Tenant shall be obligated to pay
the costs incurred for preparation of the Final Working
Drawings. If no such notice of termination is given within
such 10-day period, this Lease shall continue in full force
and effect, and Landlord will have the final authority to
complete the Construction Agreement and the Construction Cost,
which Tenant shall execute within two (2) days of delivery of
the same to Tenant.
5.3 Construction. The Leasehold Improvements reflected in the
Final Working Drawings will be installed by Landlord at
Tenant's expense except that Landlord agrees to credit Tenant
with an improvement allowance against the Construction Cost in
an amount equal to the product of: (a) five and No/100 Dollars
($5.00); times (b) the square feet of Net Rentable Area in the
Leased Premises (the "Improvement Allowance"). The
Construction Cost reduced by the Improvement Allowance will be
"Tenant's Construction Cost." Subsequent to the approval and
the execution of the Construction Agreement, Landlord will
construct or cause to be constructed the Leasehold
Improvements. Landlord will have no obligation to commence
construction of the Leasehold Improvements until: (a) Landlord
and Tenant have approved the Construction Cost and executed
the Construction Agreement; and (b) Tenant has paid to
Landlord an amount equal to one-half (2) of Tenant's
Construction Cost in the amount set forth in the Construction
Agreement. The balance of Tenant's Construction Cost will be
paid by Tenant to Landlord within ten (10) days after receipt
by Tenant of written notice of the date of Substantial
Completion of the Leasehold Improvements. In the event Tenant
orders any change in or addition to the work called for by the
Final Working Drawings, all additional costs resulting
therefrom will be paid by Tenant within ten (10) days of
Tenant's receipt of an invoice from Landlord.
5.4 Fixtures and Personalty. All fixtures (including trade
fixtures attached to the Leased Premises), equipment,
improvements, and appurtenances attached to, or built into,
the Leased Premises as reflected in the Final Working Drawings
or subsequently installed pursuant to any other provisions
hereof, whether by Landlord at Landlord's expense or at
Tenant's expense, or by the Tenant, shall be and remain part
of the Leased Premises and shall not be removed by Tenant at
the expiration of the Lease Term, unless otherwise expressly
provided in this Lease.
5.4.1 Fixtures. All electric ceiling and lighting
fixtures and outlets; plumbing; heating;
sprinkling; telephone, telegraph and built-in
communication systems; partitions, railings, doors,
panelling, molding, cabinetry, shelving, flooring,
floor and wall coverings; and all ventilating,
silencing, air conditioning, cooling and heating
equipment; where installed within or to interior
walls, floors and ceilings, shall be deemed as
fixtures and to comprise a part of the Leased
Premises and shall not be removed by Tenant except
as otherwise specifically provided herein.
5.4.2 Movable Items. Where not built into the Leased
Premises or attached to interior walls,
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floors and ceilings, and if furnished by or at Tenant's expense without credit
by the Improvement Allowance, all readily removable electric fixtures,
non-attached carpets or rugs, electric fans, water coolers, kitchen appliances,
furniture, furnishings, movable trade fixtures and equipment shall not be deemed
fixtures and a part of the Leased Premises, and may be removed by Tenant upon
the condition that such removal does not damage the Leased Premises and upon
condition also that Tenant shall pay the cost of repairing any damage to the
Leased Premises arising from any such removal.
60 Tenant Deposit. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord an amount equal to two (2) month's Base Rent. Such deposit
will be held by Landlord throughout the Lease Term without liability for
interest and as security for the performance by Tenant of Tenant's obligations
under this Lease. The deposit will not be considered an advance payment of Rent
or a measure of Landlord's damages for any Default by Tenant. Landlord may
commingle the deposit with Landlord's other funds and may, from time to time,
without prejudice to any other remedy, use the deposit to satisfy any arrearages
of Rent or any other obligation of Tenant hereunder. Following any such
application of the deposit, Tenant, on demand, shall restore the deposit to its
original amount and Tenant's failure to do so within five (5) days of written
notice from Landlord shall be a Default hereunder. If Tenant is not in Default
at the termination of this Lease, the balance of any such deposit remaining
after any such application will be returned to Tenant. If Landlord transfers
Landlord's interest in the Building during the Lease Term, Landlord shall assign
the deposit to the transferee and thereafter the transferor will have no further
liability with respect to any such deposit so assigned.
70 Payments. Tenant agrees to pay all Rent at the times and in the manner herein
provided. Tenant's obligation to pay Rent is an independent covenant and no act
or circumstance whatsoever (whether constituting a default by Landlord or not)
will release Tenant from the obligation to pay Rent timely or give rise to a
counterclaim, offset or deduction unless specifically otherwise provided herein.
Time is of the essence in the performance of each of Tenant's obligations
hereunder. In the event any payment of Rent is not made within five (5) days
after its due date, then Late Charges will be assessed as set forth in Paragraph
3.5 above, and in addition to Late Charges, such amount shall bear interest
daily until paid at the lesser of: (a) the rate of eighteen percent (18%) per
annum; or (b) the highest lawful rate per annum allowed under applicable Law,
with such interest accruing from the due date.
80 Use. Tenant will occupy the Leased Premises continuously and in entirety and
will not use or permit any portion of the Leased Premises to be used for any
purpose other than for general office space and related administrative
activities. Tenant may not use the Leased Premises for any purpose which is
unlawful, disreputable, adversely affects Landlord's leasing of the Building or
increases the risk of casualty or the rate of fire or casualty insurance
covering the Building or its contents. In the event that any act of Tenant
results in any increase in the cost of insurance covering the Building or its
contents, Tenant agrees to pay to Landlord the amount of such increased cost as
Additional Rent. Tenant will conduct Tenant's business and will control Tenant's
agents, employees, licensees and invitees in such a manner as not to create any
nuisance, or interfere with, annoy or disturb other tenants or Landlord. Tenant
will maintain the Leased Premises in a clean and healthful condition. Tenant, at
Tenant's expense, shall comply and shall cause Tenant's agents, employees,
licensees and invitees to comply fully with: (a) the Building Regulations; (b)
all Laws pertaining to Tenant's use of the Leased Premises; (c) all other Legal
Requirements, including all applicable Laws pertaining to air and water quality,
hazardous materials, waste disposal, all emissions and other environmental
matters; and (d) all zoning and other land use matters and with any directive of
any Governmental Authority, pursuant to Law, which shall impose any duty upon
Landlord or Tenant with respect to the use or occupancy of the Leased Premises.
Tenant will not erect or install any sign or other type of display whatsoever,
either upon the exterior of the Building or on the Land, upon or in any window
of the Building, or any Common Area, without the prior written consent of
Landlord, which may be granted or withheld in Landlord's sole discretion. Any
signs or other type of display which Tenant installs without Landlord's prior
written consent may be removed by Landlord and Tenant shall reimburse Landlord
for such cost promptly upon receipt of an invoice from Landlord.
90 Americans With Disabilities Act Requirements. Landlord is responsible for and
will maintain the Common Areas of the Building in substantial compliance with
the public accommodations provisions of Title III of the Americans With
Disabilities Act of 1990, as amended (the "ADA"), and Landlord shall bear the
cost of any improvements, repairs, renovations or modifications to the Common
Areas that may from time to time be required to bring the Building into
compliance or maintain the Building's compliance with Title III of the ADA.
Tenant shall indemnify and hold Landlord harmless from and against any losses,
costs, damages or claims of whatever nature, arising out of or in connection
with the compliance requirements set forth in the ADA, as amended, relating to
the use and occupancy of the Leased Premises and/or alteration and/or renovation
of the Leasehold Improvements, including, but not limited to, any changes
necessitated because of the specific needs of Tenant's employees.
100 Landlord's Services and Other Obligations. Landlord and Tenant hereby agree
as follows:
-----------------------------------------
10.1 Standard Services. So long as Tenant is not in Default and
subject to the limitations prescribed by the Building
Regulations, Landlord agrees to furnish to Tenant during the
Business Hours the following services: (a) access to running
water at the points of supply generally provided in the
Building and in reasonable quantities consistent with
customary office usage; (b) heated and refrigerated air
conditioning at such times, temperatures and in such amounts
as Landlord regularly provides to tenants of the Building
(specifically excluding, however, service, if necessary, for
the operation of Tenant's supplemental heating, ventilation
and air conditioning system for Tenant's computer equipment or
similar high electricity consumption equipment, if any, all of
which is considered excess service and will be provided at
additional cost to Tenant in accordance with the following
subparagraph); (c) elevator service in common with other
tenants of the Building; (d) access to electrical power for
normal occupancy and general office use (i) at a capacity of
up to two and one-half (2.5) xxxxx per month per square foot
of Net Rentable Area on 120 volt for power distribution
through outlets and for non-277 volt lighting fixtures; and
(ii) for 277-volt lighting at capacities Landlord reasonably
determines and Tenant agrees to be appropriate for normal
occupancy and general office use; (e) janitorial services as
Landlord regularly provides to other tenants of the Building;
(f) ordinary maintenance services as Landlord determines to be
reasonably required to maintain the exterior and mechanical
systems of the Building and the Common Areas; (g) electric
lighting for the Common Areas in the manner and to the extent
deemed by Landlord to be reasonably required; and (h) main
telephone service to the Building, such service to be made
available in a telecommunications equipment area located on
same floor of the Building as the Leased Premises.
10.2 Excess Services. To the extent Tenant requests, uses or
requires services: (a) in excess of the services regularly
provided by Landlord pursuant hereto, or (b) requests, uses or
requires services at times other than when such services are
regularly provided by Landlord pursuant hereto; then Tenant
agrees to pay to Landlord as Additional Rent such charges as
Landlord might from time to time prescribe for such additional
services.
10.2.1 Excess Electricity Requirements. Tenant shall pay monthly in arrears as
Additional Rent for --------------------------------- any electrical consumption
costs in excess of the levels set forth in Paragraph 10.1 above. Consumption of
electricity supplied to the Leased Premises under subparagraph 10.1(d)(i) above
shall be separately metered through a meter installed by Landlord at Tenant's
expense and Tenant shall pay Landlord's actual costs incurred in connection with
the furnishing of such excess electrical consumption. Consumption of electricity
supplied to the Leased Premises under subparagraph 10.1(d)(ii) above shall be
monitored by the Building's lighting control system. All 277-volt lighting
service beyond the Business Hours of the Building relating to the Leased
Premises will be monitored by the lighting control system and will be billed
monthly to Tenant as Additional Rent, in an amount equal to Landlord's actual
costs incurred in connection with the furnishing of such excess lighting
service, payable in arrears. Unless previously included, installed and paid
pursuant to the Final Working Drawings, Tenant shall pay the cost of installing,
servicing and maintaining any special or additional lines, risers or other
equipment that may be required for Tenant's computer, electro-data processing or
other equipment requiring high electrical consumption, all of which will be
installed under Landlord's supervision.
10.2.2 Excess HVAC Services. Heating, ventilation and air conditioning services
("HVAC Services") -------------------- provided to the Leased Premises by
Landlord to Tenant beyond the Business Hours of the Building and not separately
metered will be monitored by Landlord's HVAC control system and will be provided
to Tenant at rates and charges established, from time to time, by Landlord for
such excess HVAC Services. On the Commencement Date, the initial rate and charge
for additional HVAC Service is Thirty Dollars ($30.00) per hour for the time
period beyond the Business Hours of the Building in which such additional HVAC
Service is provided. All invoices for Additional Rent attributable to excess
HVAC Services will be due and payable within five (5) days after receipt thereof
by Tenant.
10.3 Landlord's Services and Repairs. Landlord shall make all
inspections and repairs to the mechanical, electrical,
plumbing and HVAC systems within the Building or providing
service to the Leased Premises as customarily required for
such equipment to be functional for their intended purposes.
Landlord will promptly endeavor to repair any malfunction of
such equipment when required following any notice of
malfunction from Tenant, but the failure to any extent to
furnish or any stoppage or interruption of the foregoing
services will not render Landlord liable in any respect for
damages to Tenant or any other Person or be construed as an
eviction of Tenant or entitle Tenant to any abatement of Rent
or relieve Tenant from performing any obligation contained
herein. Tenant will promptly notify Landlord of any damage or
malfunction of such systems of which Tenant has knowledge. Any
such repairs made necessary by the act, neglect, fault or
omission of Tenant or Tenant's agents, employees, invitees, or
visitors shall be made by Landlord at Tenant's expense; and
Tenant promptly shall remit such cost to Landlord, as
Additional Rent, upon written demand therefor.
10.4 Landlord's Reservation. Notwithstanding the foregoing,
Landlord reserves the right, without any liability to Tenant
and without being in breach of any covenant or agreement of
this Lease, to temporarily interrupt or discontinue all or any
portion of Landlord's services hereunder at such times, and
for so long as may be necessary in Landlord's reasonable
judgment by reason of accident, unavailability of employees,
strikes, riots, acts of God or other events beyond the control
of Landlord. Reasonable advance notice shall be given to
Tenant for any anticipated interruption.
110 Quiet Enjoyment. If Tenant pays Rent herein reserved and performs the
obligations of Tenant hereunder, Tenant
----------------
will peacefully hold and enjoy the Leased Premises throughout the Lease Term.
120 Insurance. Tenant and Landlord shall each maintain during the Lease Term, at
their respective expense, the insurance coverages provided in this Paragraph 12.
12.1 Tenant's Insurance. Tenant will maintain the following policy
or policies of insurance insuring Tenant and naming Landlord
as an additional insured: (a) fire and extended coverage
insurance covering the Leased Premises, the Leasehold
Improvements and Tenant's property located in the Leased
Premises for the full replacement cost thereof; and (b)
commercial general liability insurance, including contractual
liability insurance, for injury to or death of any person
occasioned by or arising out of or in connection with
occupancy of the Leased Premises, the limits of such policy or
policies to be in an amount of not less than $1,000,000.00
with respect to injuries to or death of any one person and in
an amount of not less than $3,000,000.00 with respect to any
one occurrence. 12.1.1 Evidence of Coverage. Tenant will
furnish to Landlord on or before the Commencement Date a
certificate of insurance satisfactory to Landlord
confirming the maintenance of such insurance and
the payment of all premiums. Renewal certificates
or copies of renewal policies will be delivered to
Landlord at least thirty (30) days prior to the
expiration of any policy. Tenant will obtain a
written obligation on the part of each insurance
company to notify Landlord at least ten (10) days
prior to cancellation of such insurance.
12.1.2 Carriers. All insurance required under this
Paragraph shall be issued by insurance companies
licensed to do business in the State of Oklahoma
and acceptable to Landlord.
12.2 Landlord's Insurance. Landlord will maintain the following
policy or policies of insurance: (a) fire and extended
coverage insurance covering the Building and the Common Areas
for the full insurable value thereof; and (b) commercial
general liability insurance insuring injury to or death of any
person occasioned by or arising out of or in connection with
the ownership, maintenance, management, leasing and operation
of the Building, the limits of such policy or policies to be
in an amount of not less than $1,000,000.00 with respect to
injuries to or death of any one person and in an amount of not
less than $3,000,000.00 with respect to any one occurrence.
12.3 Waiver of Certain Claims. Each of the parties hereby releases
the other from all liability for damage due to any act or
neglect of the other (except as hereinafter provided)
occasioned to property owned by said parties which is or might
be incident to or the result of any casualty for which either
of the parties is now carrying, is required by this Lease to
carry or may hereafter carry insurance; provided, however, the
releases herein contained shall not apply to any loss or
damage occasioned by the deliberate, harmful act of either of
the parties hereto or their agents, employees, or other
Persons acting on their behalf. Landlord and Tenant further
agree that any insurance they obtain pursuant hereto shall
contain an appropriate provision whereby the insurance
company, or companies, consent to the mutual release of
liability contained in this Paragraph and waive all right of
recovery by way of subrogation against Landlord or Tenant in
connection with any loss or damage covered by any such
policies. Upon request by either party, Tenant or Landlord
shall provide the other with proof of insurance containing
evidence of the insurer's acknowledgment of the provisions of
this Paragraph 12.3.
130 Acceptance. By taking possession of the Leased Premises, Tenant will be
deemed conclusively to have accepted the Leased Premises (including the
Leasehold Improvements) as being in substantial compliance with the Final
Working Drawings and as suitable for the purposes for which the same are leased,
to have accepted the Building and to have waived any defects therein, excepting
latent defects; subject, however, to the completion by Landlord within a
reasonable time after occupancy by Tenant of certain minor details or
deficiencies to the Leasehold Improvements reflected on a written punchlist
submitted by Tenant to Landlord within ten (10) days after the date of
Substantial Completion.
140 Maintenance and Alterations. Landlord and Tenant agree as follows:
---------------------------
14.1 Landlord's Responsibilities. Subject to the provisions herein
regarding damage by fire or other casualty and to the
provisions of Xxxxxxxxx 00.0, Xxxxxxxx agrees to maintain the
Building and Common Areas in good order and repair and to make
all necessary structural repairs to the Building, including
the Leased Premises, as and when required. Landlord reserves
the right to connect to, maintain and repair pipes, ducts,
conduits, cables, plumbing, vents and wiring in, to and
through the Leased Premises as and to the extent Landlord
deems reasonably necessary, convenient or appropriate for the
proper operation and maintenance of the Building (including
the servicing of other tenants therein). Landlord shall not be
liable to Tenant for any damage or inconvenience and Tenant
shall not be entitled to any abatement or reduction of Rent by
reason of any repairs, alterations or additions made by
Landlord.
14.2 Tenant's Maintenance Obligations. Tenant will, at Tenant's
expense, maintain the non-structural portions of the interior
of the Leased Premises in sound condition and good repair.
Additionally, upon prior written approval of Landlord, Tenant
will repair or replace any damage done to the Building or the
Leased Premises by Tenant or Tenant's agents, employees,
licensees or invitees. Tenant will not commit or allow any
waste or damage to be committed on any portion of the Leased
Premises. If Tenant fails to make such repairs promptly,
Landlord, at Landlord's option, may make such repairs and
Tenant shall pay Landlord as Additional Rent, within five (5)
days following receipt of an invoice therefor, Landlord's
actual costs incurred in making the repairs plus a supervision
fee equal to ten percent (10%) of such cost to cover
Landlord's overhead.
14.3 Alterations. Tenant will make no alterations or additions to
the Leased Premises without the prior written consent of
Landlord. Any approved alterations or additions shall be
undertaken in compliance with the provisions of Schedule "5".
Tenant shall make no modifications or alterations to the
Building structure and systems without Landlord's prior
written approval, which Landlord may grant or withhold in
Landlord's sole discretion.
14.4 Work Performance. All repairs and permitted alterations or
additions to the Leased Premises will be performed by Landlord
or Persons designated by Landlord, or by Tenant or by Persons
designated by Tenant and approved by Landlord, at Tenant's
expense. If the projected costs for such repairs and permitted
alterations or additions to the Leased Premises are estimated
to exceed $5,000 Landlord shall obtain bids from at least two
parties and shall accept the lowest bid; provided, however,
Landlord shall not be required to accept the lowest bid if
Landlord, in Landlord's professional judgment, has a
reasonable basis to question the accuracy and industry
standard of the bid pricing and Landlord advises Tenant of the
reasoned basis on which Landlord questions the bid.
150 Assignment; Subletting. Tenant will not assign or encumber this Lease or any
interest herein or sublet the Leased Premises in whole or in part or suffer any
other person to occupy the Leased Premises or any portion thereof without the
prior written consent of Landlord. Any such assignment, encumbrance, subletting
or occupancy without such consent will be void. If Tenant desires to assign or
encumber this Lease or sublet the Leased Premises or any part thereof, Tenant
will give Landlord written notice of such desire specifying the name of the
proposed assignee, mortgagee, or sublessee, the proposed effective date and all
other terms of the proposed assignment, encumbrance or sublease at least sixty
(60) days prior to the date such assignment, encumbrance or sublease is proposed
to be effective. Landlord will have the option for a period of thirty (30) days
after receipt of such notice to: (a) terminate this Lease as of the proposed
effective date specified by Tenant as to all or the portion of the Leased
Premises affected; or (b) permit Tenant to assign, encumber or sublet such
portion of the Leased Premises; or (c) refuse to consent to the proposed
assignment, encumbrance or subletting and continue this Lease in effect as to
the entire Leased Premises. The failure by Landlord to exercise any of the
foregoing options within the time provided will be deemed an exercise of option
(c) above. Notwithstanding any consent granted by Landlord, Tenant and each
assignee, mortgagee, and sublessee will at all times remain fully liable for the
payment of Rent and for the performance of Tenant's obligations hereunder. No
consent granted by Landlord will constitute a waiver of the provisions of this
Lease except as to the specific instance covered thereby. Tenant shall pay for
the costs of Landlord's expenses in reviewing the proposal and drafting the
necessary documents, if any, including reasonable attorney fees incurred by
Landlord.
160 Condemnation. If the Leased Premises or the Building is taken or condemned
in whole or part for any public use or purpose by right of eminent domain or is
transferred by agreement in connection with or in lieu of or under threat of
condemnation, the Lease Term and the leasehold estate created hereby will, at
the option of Landlord, terminate as of the date title vests in the condemnor or
transferee. Landlord will receive the entire award from such taking (or the
entire compensation paid on account of any transfer by agreement). Tenant will
have no claim to any such award and Tenant assigns any right it might have to
recover any money by the taking to Landlord. Tenant, however, shall be entitled
to claim, prove and receive in any condemnation proceeding such awards as may be
allowed under applicable Laws for fixtures and other equipment installed by
Tenant, but only if such award shall be made by the court in addition to (and
shall in no manner whatsoever reduce) the award made by the court to Landlord
for the Land and Building (including the Leasehold Improvements) or part thereof
so taken.
170 Casualty. The following provisions shall apply to damage or destruction to
the Building or the Leased Premises.
--------
17.1 Damage to Leased Premises Only. If the Leased Premises are
damaged by fire or other casualty, Tenant shall give prompt
written notice thereof to Landlord. If such damage cannot be
repaired within one hundred eighty (180) days from the date of
such casualty (as estimated by Landlord as soon as reasonably
practicable after the occurrence of such damage), this Lease,
at the option of either, exercised by giving written notice
thereof to the other within sixty (60) days after the
occurrence of such damage, will terminate as of the date such
notice is given. On such termination Tenant will pay Rent and
all other obligations of Tenant apportioned to the date on
which such damage occurred and will immediately surrender the
Leased Premises to Landlord. If the damage can be repaired
within one hundred eighty (180) days, or if the damage cannot
be repaired within one hundred eighty (180) days but neither
Landlord nor Tenant exercises the option to terminate this
Lease, Landlord will make the necessary repairs to the Leased
Premises and Leasehold Improvements, at Tenant's expense (to
the extent not covered by the proceeds of insurance carried by
either party pursuant to the terms hereof), and this Lease
will continue in effect, but Rent will be equitably reduced or
abated (as determined in the good faith judgment of Landlord)
until such repairs are made. Rent will not be abated or
reduced so long as Tenant's continued occupancy of the Leased
Premises is not materially interrupted.
17.2 Damage to Building. If the Building, but not the Leased
Premises, shall be so damaged by casualty that substantial
alteration or reconstruction of the Building shall, in
Landlord's sole judgment, be required or in the event of any
material uninsured loss to the Building, Landlord may, at
Landlord's option, terminate this Lease by notifying Tenant in
writing of such termination within one hundred eighty (180)
days after the date of casualty. On such termination Tenant
will pay Rent and all other obligations of Tenant apportioned
to the date of termination and Tenant will immediately
surrender the Leased Premises to Landlord. If Landlord does
not exercise the option to terminate this Lease within one
hundred eighty (180) days following such casualty, Landlord
will repair and restore the Building and the Common Areas at
Landlord's expense. Rent will not be abated or reduced during
such restoration or repair so long as Tenant's continued
occupancy of the Leased Premises is not materially
interrupted.
17.3 Damage to Building and Leased Premises. If damage to the
Building also includes damage to the Leased Premises and if
Landlord has not elected to terminate this Lease pursuant to
Xxxxxxxxx 00.0, Xxxxxxxx shall commence and proceed with
reasonable diligence to restore the Building, including the
Leased Premises, to substantially the same condition in which
it was immediately prior to the casualty. Landlord's
obligation to restore the Building shall not exceed the scope
of work required to be done by Landlord in originally
constructing the Building, nor shall Landlord be required to
spend for such restoration an amount in excess of insurance
proceeds actually received by Landlord as a result of the
casualty. All cost and expense of restoring the Leased
Premises and the Leasehold Improvements (to the extent not
covered by the proceeds of insurance carried by either party
pursuant to the terms hereof) shall be paid by Tenant.
17.4 No Liability. Landlord shall not be liable to Tenant for any
inconvenience or annoyance to Tenant or injury to the business
of Tenant resulting in any way from such damage or Landlord's
restoration work other than abatement of Rent as and when
applicable in accordance with this Paragraph 17.
Notwithstanding anything herein to the contrary, if the Leased
Premises or any other portion of the Building is damaged by
any casualty resulting from the fault or negligence of Tenant
or any of Tenant's agents, employees, or invitees, the Rent
hereunder shall not xxxxx and Tenant shall be liable to
Landlord for the cost of repair and restoration of the
Building and Leased Premises to the extent such cost and
expenses are not covered by insurance proceeds.
180 Entry. Landlord and Landlord's agents, employees and contractors will have
the right to enter the Leased Premises at all reasonable hours (or, in any
emergency, at any hour), to inspect, clean, repair or alter the Leased Premises
as Landlord may deem necessary or to comply with Legal Requirements. Tenant will
not be entitled to any abatement or reduction of Rent by reason thereby nor
shall any such entry for such purposes constitute an actual or constructive
eviction of Tenant. Landlord may also enter the Leased Premises at any time upon
reasonable notice to Tenant to conduct economic appraisal of the Building or to
show the Leased Premises to prospective purchasers, mortgagees, and tenants.
190 Security Interest. For valuable consideration and as security for the
payment of Rent and all other obligations of Tenant under this Lease, Tenant
hereby grants Landlord a security interest in all of Tenant's equipment,
furnishings, inventory, trade, fixtures, accounts receivable and intangible
property and all proceeds and products from such property located in or arising
out of Tenant's use of the Leased Premises (all such property is referred to as
"Collateral"). Upon the occurrence of a Default in any provision of this Lease,
Landlord shall be entitled to all remedies of a secured creditor under the
Uniform Commercial Code of the State of Oklahoma. Tenant agrees that adequate
notice of any public or private sale of Collateral under the Uniform Commercial
Code shall be five (5) days prior notice. Tenant agrees to sign any financing
statement, amendment, or continuation statement, Landlord may present to Tenant
covering the Collateral within ten (10) days of presentment. Tenant hereby
appoints Landlord as Tenant's attorney-in-fact to sign and file any and all such
financing statements, amendments or continuation statements at the expense of
Tenant in the event Tenant fails to do so.
200 Surrender of Leased Premises. Upon the Expiration Date or other termination
of this Lease, Tenant shall quit and surrender the Leased Premises, together
with all items comprising the Leasehold Improvements as set forth in Paragraph
5.4 herein, and such Leased Premises shall be broom clean and in good condition
and repair, reasonable wear and tear excepted. Tenant shall ascertain from
Landlord at least thirty (30) days prior to the Expiration Date or other
termination of this Lease whether Landlord requires Tenant to restore the Leased
Premises or any particular part thereof to the condition which existed at the
Commencement Date. Upon notification from Landlord, Tenant, at Tenant's sole
cost and expense, shall restore the same before the Expiration Date or other
termination date and Tenant shall remove from the Leased Premises all property
Tenant is entitled to remove under Paragraph 5.5 together with any alterations,
additions, and improvements which Landlord has given Tenant written instructions
to remove. Tenant, at Tenant's expense, shall immediately repair any damage to
the Leased Premises resulting from the removal of Tenant's unattached, movable
property or property Landlord has given Tenant written instructions to remove,
unless such damage is caused by Landlord's negligence. If the Leased Premises
are not surrendered as provided herein, Tenant shall indemnify Landlord against
any loss or liability resulting from the delay of Tenant in surrendering the
Leased Premises including, without limitation, any claims made by any succeeding
tenant whose occupancy of the Leased Premises has been delayed. Tenant's
obligation under the preceding sentence shall survive the Expiration Date or
other termination of the Lease.
20.1 Holding Over. If Tenant continues to occupy the Leased
Premises after the Expiration Date or other termination of the
Lease, such holding over will, unless otherwise agreed by
Landlord in writing, constitute a month to month tenancy and
Tenant shall pay to Landlord an amount equal to twice the
amount of Rent payable during the last month prior to the
scheduled Expiration Date or other termination of the Lease
and be subject to all of the other provisions set forth
herein.
20.2 Abandoned Property. Landlord may, at Landlord's option, take
possession of all personal property not removed by Tenant from
the Leased Premises if no employee of Tenant enters the Leased
Premises for a period of twenty (20) days or if Landlord
receives notice or has a reasonable belief Tenant has
abandoned or failed to continue to occupy, the Leased
Premises. Additionally, any personal property not removed by
Tenant within five (5) days of the Expiration Date, or any
other termination of the Lease, will be conclusively presumed
to have been abandoned by Tenant. On the occurrence of any
such event Landlord may remove and store such property, at the
expense of Tenant, without being liable to Tenant therefor.
Landlord will thereafter comply with all notice requirements,
as applicable, and other procedures required by the Law of the
State of Oklahoma with respect to the disposition of abandoned
or unclaimed property and notify Tenant in writing, at the
notice address herein set forth or as otherwise required by
Law, of such event and if Tenant fails to recover such
property from Landlord within thirty (30) days after such
notice, Landlord may dispose of such property in any
commercially reasonable manner permitted by such Laws and
apply any net proceeds, after deducting any actual and direct
costs and fees incurred in securing, storing and selling such
property, against any Rent or other amounts due hereunder, or
if no amounts are due Landlord hereunder, then to Tenant.
210 Default. The following events shall be deemed to be events of default by
Tenant under this Lease ("Tenant Defaults" or "Default") if not cured within the
applicable cure period.
21.1 Monetary Default. Tenant's failure to pay any Rent or other sums payable by
Tenant hereunder within ----------------- five (5) days from the due date.
21.2 Non-Monetary Defaults. Tenant's failure to cure any of the following events
within thirty (30) days ----------------------
after written notice thereof to Tenant:
(a) material failure to comply with any term of this
Lease or the Building Regulations to be observed by
Tenant other than non-payment of any Rent when due;
(b) failure by Tenant to continue to occupy all of the
Leased Premises and to conduct and operate Tenant's
business within the Leased Premises during the
Business Hours of the Building for a period of more
than three (3) consecutive days;
(c) Tenant's abandonment of the Leased Premises;
(d) discovery of any material misrepresentation or omission made with respect to
Tenant's disclosure of Tenant's financial condition as submitted by Tenant to
Landlord; or
(e) the making by Tenant of a transfer in fraud of creditors or an assignment
for the benefit of
creditors.
21.3 Other Defaults. The following events shall also be deemed events of default
by Tenant if the same are
---------------
not dismissed within sixty (60) days of the filing thereof:
(a) the filing by or against Tenant of any proceeding under the federal
bankruptcy act or any
similar Law;
(b) the adjudication of Tenant as bankrupt or insolvent in proceedings filed
under the federal bankruptcy act or any similar Law; or
(c) the appointment of a receiver for Tenant or for any assets of Tenant.
220 Remedies. On the occurrence of any Default, Landlord has the option to do
any one or more of the following without any further notice or demand, in
addition to and not in limitation of any other remedy permitted by Law, in
equity, or by this Lease:
22.1 Application of Tenant Deposit. Landlord may apply Tenant's deposit held by
Landlord against any amounts ----------------------------- owing or to pay part
or all of the cost of remedying the Default.
22.2 Termination. Landlord may terminate this Lease by written
notice, in which event Tenant will immediately surrender the
Leased Premises to Landlord (in accordance with the provisions
set forth hereinabove), but if Tenant fails to do so, Landlord
may without notice and without prejudice to any other remedy
Landlord might have, enter and take possession of the Leased
Premises and remove Tenant and Tenant's property therefrom
without being liable to prosecution or any claim for damages
therefor.
22.3 Reletting. Landlord may enter and take possession of the
Leased Premises without terminating this Lease and without
being liable to prosecution or any claim for damages therefor,
and Landlord may change the locks on the doors to the Leased
Premises to exclude Tenant therefrom and immediately
discontinue furnishing any utilities and other services
Landlord has been providing. If Landlord terminates Tenant's
possession of the Leased Premises, either with or without
terminating the Lease, then either: (a) the aggregate amount
of the Base Rent for the remainder of the Lease Term shall at
once mature and be immediately due and payable by Tenant to
Landlord, and Landlord shall have the right to immediate
recovery of all such amounts, together with interest thereon
as provided hereinabove; or (b) Landlord may relet the Leased
Premises either in the name of Landlord or as the agent of
Tenant and receive the rent therefor, in which event Tenant
will pay to Landlord, on demand, the costs of renovating,
repairing and altering the Leased Premises and any deficiency
that might arise by reason of such reletting. Such reletting,
if undertaken at Landlord's sole discretion, may be for such
term or terms (which may be greater or less than the then
balance of the Lease Term hereunder) and on such conditions
(which may include concessions or free rent) as Landlord in
Landlord's absolute discretion may determine. Landlord will
have no duty to relet the Leased Premises and the failure of
Landlord to relet the Leased Premises will not release or
affect Tenant's liability for Rent or for damages determined
as provided hereinbelow. In addition, Landlord shall have the
right, from time to time, to recover from Tenant all
Additional Rent thereafter accruing pursuant to Paragraph 3.2.
22.4 Rents from Reletting. Landlord may collect the rents from any
reletting and apply the same in the following order: (a) the
payment of the cost and expenses of reentry (including
reasonable attorney's fees), redecoration, repair and
alterations; and (b) to the payment of Rent accrued and to
accrue hereunder. Any excess shall belong solely to Landlord.
Landlord may, at any time and from time to time, xxx and
recover judgment for any deficiencies remaining after the
application of the proceeds of reletting as provided above.
22.5 No Abatement. Any action committed by Landlord pursuant to this Paragraph
shall in no way cause or ------------- result in any abatement of Rent or any
other charge payable by Tenant under this Lease.
22.6 Liquidated Damages. Landlord may require Tenant to pay liquidated damages
in an amount equal to the sum ------------------- of the following:
(a) an amount equal to the product of:
(i) the sum of:
(aa) the monthly Base Rent; plus
(bb) the amount of Tenant's portion of the increase in Operating Cost
as determined under Paragraph 3.2 for the month in which the Default
occurs; times:
(ii) the average length of time that it has taken Landlord to lease
comparable space within the Park;
plus
(b) the then reasonable average cost of remodeling office space within
the Park (including a 10% supervision fee;
plus
(c) the attorney fees and other costs incurred by Landlord through the earlier
of: (i) the date of obtaining a judgment against Tenant for the liquidated
damages; or (ii) Tenant's voluntary payment of the liquidated damage amount as
determined hereunder;
plus
(d) the unamortized balance of Tenant's Construction
Cost loan, if any, owing by Tenant to Landlord
pursuant to Paragraph 5.
Nothing herein contained shall limit or prejudice the right of
Landlord to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum
allowed by any Law in effect at any time when, and governing
the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than
the amount of the difference referred to above.
22.7 Option to Perform. Landlord may perform or cause to be
performed, but is under no obligation to perform, the
obligations of Tenant under this Lease and may enter the
Leased Premises to accomplish such purpose without being
liable to prosecution or any claim for damages therefor.
Tenant agrees to reimburse Landlord on demand for any expense
or cost, including reasonable attorneys' fees, which Landlord
might or does incur in effecting compliance with this Lease on
behalf of Tenant. Tenant further agrees that Landlord shall
not be liable or responsible for any loss, inconvenience,
annoyance or damage resulting to Tenant or anyone holding
under Tenant for any action taken by Landlord pursuant to this
Paragraph 22, whether caused by the negligence of Landlord or
otherwise.
22.8 Attorney Fees. If Landlord is the prevailing party in any
action under this Lease as a result of Tenant's Default or
consults or places this Lease or any amount payable by Tenant
hereunder with an attorney for the enforcement of any of
Landlord's rights hereunder, Tenant agrees in each such case
to pay to Landlord the reasonable fees and other expenses
incurred by Landlord in connection therewith (including
without limitation, all costs and reasonable attorney's fees
incurred by Landlord in enforcing and collecting on any
judgment rendered against Tenant in Landlord's favor) to the
extent permitted by Law.
22.9 Reservation of Rights. The rights granted to or reserved by
Landlord in this Lease are cumulative of every other right or
remedy which Landlord might otherwise have at law or in equity
and the exercise of one or more rights or remedies will not
prejudice the concurrent or subsequent exercise of other
rights or remedies.
22.10 Landlord Non-Waiver of Remedies. No action by Landlord during
the Lease Term will be deemed an acceptance of an attempted
surrender of the Leased Premises and no agreement to accept a
surrender of the Leased Premises will be valid unless made in
writing and signed by Landlord. No re-entry or taking
possession of the Leased Premises by Landlord will be
construed as an election by Landlord to terminate this Lease,
unless a written notice of termination is given to Tenant.
Notwithstanding any such reletting, re-entry or taking
possession, Landlord may at any time thereafter elect to
terminate this Lease for a previous Default. Landlord's
acceptance of Rent following the occurrence of a Default will
not be construed as Landlord's waiver of such Default. No
waiver by Landlord of any Default will be deemed to constitute
a waiver of any other or future Default hereunder. Forbearance
by Landlord to enforce one or more of the remedies herein
provided will not be deemed to constitute a waiver of any
Default. The failure of Landlord to enforce the Building
Regulations against Tenant or any other tenant in the Building
will not be deemed a waiver thereof. No provision of this
Lease will be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord.
23. Landlord's Transfer. In the event Landlord transfers Landlord's interest in
the Building, Landlord will thereby be released from any further obligation
hereunder and the transferee will thereafter be liable for the performance of
any obligations of Landlord hereunder and Tenant agrees to attorn and look
solely to the transferee for the performance of such obligations. The agreement
of Tenant to attorn to the transferee of Landlord will survive any termination
of rights of Landlord in the Building and Tenant agrees to execute and deliver
to the transferee or Landlord from time to time within ten (10) days after
written request therefor all instruments which might be required by Landlord to
confirm such attornment.
24. Subordination. This Lease and all rights of Tenant hereunder will, at
Landlord's option, be subject and subordinate to all Encumbrances. Tenant agrees
to execute and deliver to Landlord from time to time within ten (10) days after
written request by Landlord all instruments which might be required by any
Holder to confirm such subordination. Notwithstanding the foregoing, Tenant
agrees that any Holder will have the right at any time to subordinate any rights
of such Holder to the rights of Tenant under this Lease on such terms and
subject to such conditions as such Holder deems appropriate in such Holder's
absolute discretion.
25. Certificates. Tenant agrees to execute and deliver from time to time within
ten (10) days after written request by Landlord a certificate, to the extent
true or except as otherwise set forth in the certificate, certifying that: (a)
Tenant has entered into occupancy of the Leased Premises and is presently open
and conducting Tenant's business with the public in the Leased Premises; (b) the
amount of Base Rent payable by Tenant hereunder; (c) this Lease is in full force
and effect and has not been assigned, modified, supplemented or amended; (d)
neither Landlord nor Tenant is in default hereunder; (e) this Lease represents
the entire agreement between Landlord and Tenant pertaining to the Leased
Premises; (f) the Expiration Date; (g) all conditions under this Lease to be
performed by Landlord have been satisfied; (h) no Rent has been paid more than
thirty (30) days in advance of its due date; (i) no defense or offset currently
exists or is claimed by Tenant against Landlord or against enforcement of this
Lease by Landlord; (j) the address for notices to be sent to Tenant is as set
forth in such certificate or at the Leased Premises; (k) Tenant will look only
to Landlord for return of any deposit hereunder; (l) and such other
certifications which might reasonably be required by Landlord. The certificate
will also contain an agreement by Tenant with Holder that after the date of such
certificate, Tenant will not: pay any Rent more than thirty (30) days in advance
of its due date; surrender or consent to the modification, amendment or
termination of this Lease by Landlord without the prior written consent of the
Holder; or seek to terminate this Lease by reason of any default by Landlord
until Tenant has given thirty (30) days prior written notice of such default to
Holder and such default shall not have been cured within a reasonable time after
giving such notice. Tenant will furnish to Landlord from time to time when
requested by Landlord a statement of the financial condition of Tenant prepared
by an independent, certified public accountant the chief financial officer of
Tenant in form reasonably satisfactory to Landlord.
26. Hazardous Materials. Tenant shall not cause or permit any Hazardous Material
to be brought upon, kept or used in or about the Building or the Leased Premises
by Tenant, its agents, employees, contractors or invitees without the prior
written consent of Landlord, which Landlord shall not unreasonably withhold as
long as Tenant demonstrates to Landlord's reasonable satisfaction that such
Hazardous Material is necessary or useful to Tenant's business and will be used,
kept and stored within the Leased Premises in a manner that complies with all
Laws regulating any such Hazardous Material.
26.1 Indemnification. If Tenant breaches the obligations of this
Paragraph, or if the presence of Hazardous Material within the
Building or the Leased Premises caused or permitted by Tenant
results in contamination of the Leased Premises, or if
contamination of the Building or the Leased Premises by
Hazardous Material otherwise occurs for which Tenant is
legally liable to Landlord for damage resulting therefrom,
then Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines,
costs, liabilities or losses incurred by Landlord (including
diminution in value of the Leased Premises, damages for the
loss or restriction on use of rentable or usable space or of
any amenity of the Leased Premises, damages arising from any
adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees and
expert fees) which arise during or after the Lease Term as a
result of such contamination. This indemnification of Landlord
by Tenant includes costs incurred by Landlord in connection
with any investigation of site conditions and any action to
remedy any contamination of the Land, Building or Leased
Premises (a "Discharge"), including any clean-up, remedial,
removal or restoration work required by any Governmental
Authority because of Hazardous Material present in the soil or
ground water on or under the Land. Without limiting the
foregoing, if the presence of any Hazardous Material within
the Building or the Leased Premises caused or permitted by
Tenant results in Discharge, Tenant shall promptly take all
actions at its sole expense as are necessary to return the
Land, Building or Leased Premises to the condition existing
prior to the Discharge; provided, that Landlord's approval of
such actions shall first be obtained. The foregoing indemnity
shall survive the Expiration Date or earlier termination of
this Lease.
26.2 Disclosure. Within thirty (30) days of receipt of written
request from Landlord, Tenant shall disclose to Landlord the
names and amounts of all Hazardous Materials, or any
combination thereof, which were stored, used or disposed of on
the Leased Premises, or which Tenant intends to store, use or
dispose of on the Leased Premises.
26.3 Inspection. Landlord and its agents shall have the right, but
not the duty, to inspect the Leased Premises at any time to
determine Tenant's compliance with the terms of this
Paragraph. Notwithstanding any other provision of this Lease,
if Tenant is not in compliance with this Paragraph, Landlord
shall have the right to immediately enter upon the Leased
Premises to remedy any Discharge caused by Tenant's failure to
comply and Tenant shall reimburse Landlord for all costs and
expenses incurred by Landlord as provided in this Paragraph.
Landlord shall use reasonable efforts, under the
circumstances, to minimize interference with Tenant's
business, but shall not be liable for any interference caused
thereby.
26.4 Default. Any default under this Paragraph shall be a material Default
enabling Landlord to exercise any ------- of the remedies set forth herein.
27. Relocation. Landlord shall have the right, upon giving Tenant sixty (60)
days' written notice, to relocate Tenant to other space elsewhere in the
Building, of approximately the same size, configuration and decor as the Leased
Premises, and to move and place Tenant in such new space at Landlord's sole
expense; provided, however, Tenant shall have no obligation to move until such
remodeling is completed. Tenant shall acknowledge Landlord's right to relocate
Tenant and Tenant's acceptance of the new space within ten (10) days of receipt
by Tenant of Landlord's written relocation notice referenced above. In the event
Tenant does not sign such an acknowledgment within said ten (10) day period,
then at Landlord's option this Lease will automatically terminate at the
expiration of the relocation period. In the event Landlord moves Tenant to said
relocation space, then this Lease and each and all of the terms, covenants and
conditions hereof shall remain in full force and effect, such relocation space
will be deemed to be the Leased Premises hereunder and Landlord and Tenant will
promptly execute an amendment to the Lease evidencing such relocation.
28. Parking. So long as this Lease is in full force and effect and no Default
has occurred, Landlord will provide to Tenant, at no cost to Tenant, the
nonexclusive use of surface parking on a first-come, first-served basis, in the
designated parking areas located proximate to the Building. Such parking will be
provided on a basis of not less than one parking space for every two hundred
seventy-five (275) square feet of Net Rentable Area in the Leased Premises.
Tenant agrees to use its best efforts to prevent its employees, invitees and
licensees from utilizing more than one parking space for every two hundred
seventy-five (275) square feet of Net Rentable Area contained in the Leased
Premises. If Tenant's employees, invitees and licensees regularly use more than
the maximum number of parking spaces allocated to Tenant under this Paragraph,
Tenant agrees to remedy such excess use by complying with Landlord's direction
to either: (a) pay to Landlord as Additional Rent the actual cost incurred by
Landlord in providing such additional parking, or (b) relocate such excess
parking to an off-site location designated by Landlord.
29. Signage. Tenant will be provided, at Landlord's expense, one building
standard strip on the lobby directory per 2,500 square feet of Net Rentable Area
contained in the Leased Premises. Landlord will also provide, at Tenant's
expense, one suite identification sign adjacent to the main entry door of the
Leased Premises in Landlord's standard form. Tenant will pay Landlord's
reasonable charges for changing such building directory and identification sign
at Tenant's request.
30. Miscellaneous. Landlord and Tenant further agree as follows:
-------------
30.1 Park and Building Name. Landlord reserves the right at any time to change
the name of either the Park ------------------------ or the Building without
liability to Tenant.
30.2 Brokerage. Landlord and Tenant hereby acknowledge that the
lease of space contemplated herein was brought about solely by
the efforts of TMK/Xxxxx Joint Venture, doing business as
TMK/Xxxxx Commercial Real Estate Services ("Landlord's
Broker") and Xxxxxxx X. Xxxxxxxx and Company ("Tenant's
Broker") and Tenant has dealt with no other broker in
connection with the leasing of the Leased Premises. Landlord
agrees to pay the brokerage commission earned by each
Landlord's Broker and Tenant's Broker in accordance with
separate written agreements between Landlord and each such
broker. If any other claims for commissions are ever made
against either Landlord or Tenant in connection with this
Lease, all such claims shall be handled and paid by the party
whose actions form the basis of such claims, and such party
shall indemnify and hold harmless the other from and against
any and all such claims or demands with respect to any
commissions asserted by any Person in connection with this
Lease. Additionally, in the event Landlord has paid any
commission installment to Tenant's Broker, and (a) this Lease
is terminated by Tenant prior to the Commencement Date; or (b)
Tenant fails to occupy and accept the Leased Premises for any
reason constituting a Default by Tenant, Tenant promptly upon
written demand from Landlord shall reimburse Landlord for any
portion of such commission installment which has not been
cancelled and returned to Landlord. These reimbursement and
indemnification provisions shall survive any such termination
of this Lease.
30.3 Notices. Any notice to be given hereunder will be deemed to be
given three (3) days after being deposited with the United
States Postal Service, certified or registered mail, return
receipt requested, with sufficient postage prepaid, addressed
as stated below, or on the day of its personal delivery to the
office of the respective party set forth below; and if
telecopied or delivered by overnight courier, such notice will
be deemed to be given on the business day immediately
following the day on which it was telecopied or deposited with
the courier.
Any Notice to Tenant shall be sent to:
ETHOS COMMUNICATIONS, INC.
Attention: Xxx Xxxxx, President and CEO
Telephone: (___)
Facsimile: (___)
Any Notice to Landlord shall be sent to:
TMK Income Properties, L.P.
Suite 300, 0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy at the same time and in the same manner
to:
Xxxxx X. Xxxxxx, Xx., Esq.
Xxxxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx & Price
Suite 500, 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may at any time designate any other address for
notices by giving written notice thereof to the other party.
30.4 Joint and Several Liability. If Tenant comprises more than
one Person, Tenant's obligations hereunder
---------------------------
are joint and several.
30.5 Attorneys' Fees. If either party is required to hire an
attorney because of the breach by the other of any provision
of this Lease, then the prevailing party will be entitled to
receive its reasonable attorneys' fees and expenses from the
other to the extent permitted by Law.
30.6 Entire Agreement and Amendment. Tenant agrees that there are
no representations, understandings, stipulations, agreements
or promises pertaining to this Lease or the Leased Premises
which are not incorporated herein. This Lease will not be
altered, waived, amended or extended, except by a written
agreement signed by Landlord and Tenant.
30.7 Severability. If any clause or provision of this Lease is
illegal, invalid or unenforceable under any present or future
Law, the remainder of this Lease will not be affected thereby.
It is the intention of the parties that if any provision is
held to be illegal, invalid or unenforceable, there will be
added in lieu thereof a provision as similar in terms to such
provision as is possible and be legal, valid and enforceable.
30.8 Binding Effect. The provisions of this Lease will be
binding on and inure to the benefit of Landlord
---------------
and Tenant and their respective successors and permitted
assigns.
30.9 Governing Law. This Lease will be construed and enforced
according to the internal Laws of the State of Oklahoma. All
claims, disputes and other matters in question arising out of
or relating to this Lease, or the breach thereof, will be
decided by proceedings instituted and litigated in a court of
competent jurisdiction in the State of Oklahoma.
18
30.10 Limitation of Damages to Tenant. In the event of any alleged
default of Landlord under this or any other provision of the
Lease, Tenant shall not seek to secure any claim for damages
or indemnification by any attachment, levy, judgment,
garnishment or other security proceedings against any property
of Landlord other than Landlord's interest in the Building, it
being agreed and understood, however, that the maximum
recovery of Tenant against Landlord shall be in an amount
equal to Landlord's equity interest in the Building. It is
understood and agreed that in no event shall Tenant have any
right to levy execution against any property of Landlord other
than its interest in the Building. Such right of execution
shall be subordinate and subject to any Encumbrance upon the
Building.
30.11 Time. Time is of the essence in the performance of
Landlord's and Tenant's respective obligations
----
hereunder.
IN WITNESS WHEREOF, this Lease has been executed and delivered at Quail
Springs Parkway Plaza, by the duly authorized officers of the parties on the
date first above written.
Landlord:
--------
TMK INCOME PROPERTIES, L.P.,
a Delaware limited partnership
By: Stonegate Realty Corporation,
a Delaware corporation,
as General Partner
By:
Xxxxxx X. XxXxxx, Vice President
Tenant:
------
ETHOS COMMUNICATIONS, INC.,
a(n) __________________ corporation
By:
Name: Xxx Xxxxx, President and CEO
List of Attachments and Schedules:
Schedule 1: Description of Leased Premises
Schedule 2: Final Working Drawings
Schedule 3: Form of Construction Agreement
Schedule 4: Building Regulations
Schedule 5: Additional Construction Compliance Requirements
103086v1em.
Schedule "1"
Page 1 of 1 Page
SCHEDULE "1"
Description of the Leased Premises
(floor plan to be inserted)
The Leased Premises consists of approximately 3,978 square feet of Net
Rentable Area located on the third (3rd) floor of the West Tower of the
Building, designated as Suite _____.
Schedule "2"
Page 1 of 1 page
SCHEDULE "2"
Final Working Drawings
[Attached]
103086v1em Schedule "3"
Page 1 of 2 Pages
SCHEDULE "3"
Construction Agreement
THIS AGREEMENT is made the _______ day of _____________, 1999,
between TMK INCOME PROPERTIES, L.P., a Delaware
------- -------------
limited partnership, having an office at 000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxxxx 00000 (the "Landlord"), and ETHOS COMMUNICATIONS, INC., a(n)
__________________ corporation, having an office at
________________________________, Oklahoma ______________ (the "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have heretofore executed and delivered a
certain Office Lease (the "Lease") dated __________________, ____, covering
certain space (the "Leased Premises") located on the third (3rd) floor of the
West Tower of the Quail Springs Office Building, and providing for a
Commencement Date of _____________, _____;
WHEREAS, Landlord has prepared the Final Working Drawings for
construction of the Leasehold Improvements which are more particularly described
at Exhibit "A" attached as a part hereof; and
WHEREAS, by means of this Agreement, Landlord and Tenant desire to
record their agreements with respect to the construction of the Leasehold
Improvements.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained it is agreed as follows:
1. Definitions. The capitalized terms used in this Agreement will have
the meanings indicated in the Lease.
-----------
2. Agreement to Construct. Landlord hereby agrees to diligently construct or
cause to be constructed the Leasehold Improvements in substantial compliance
with the Final Working Drawings. All instructions to contractors and workmen on
the Leased Premises to be made by Tenant, if any, will be made through Landlord
and Tenant will not issue any other directions to such contractors or workmen.
3. Construction Cost. The Construction Cost of the Leasehold
Improvements to be installed pursuant to the Final
------------------
Working Drawings will be the following:
Contractor's guaranteed maximum cost $___________
Less: The Improvement Allowance
($5.00 per square foot of
Net Rentable Area) ($___________)
Plus: Landlord's supervision fee $___________
of 10% of Contractor's
guaranteed maximum cost
Total Construction Cost to be
paid by Tenant
("Tenant's Construction Cost") $
4. Payment by Tenant. Tenant approves the foregoing Construction Cost. Tenant
agrees to pay one-half of Tenant's ----------------- Construction Cost upon the
execution of this Construction Agreement. The balance of Tenant's Construction
Cost will be paid to Landlord on the date of Substantial Completion of the
Leasehold Improvements.
5. Changes. In the event Tenant orders any change in or addition to the work
described in the Final Working ------- Drawings, all increased costs resulting
therefrom will be paid by Tenant.
Schedule "3" Page 2 of 2 Pages
6. Tenant's Access for Finishes. Landlord will permit Tenant and its agents or
contractors (provided any such agents and/or contractors have been previously
approved by Landlord) to enter the Leased Premises no less than fifteen (15)
days prior to the date of Substantial Completion of the Leasehold Improvements
to perform finish work or such other work and decorations in the Leased Premises
in accordance with the approved Final Working Drawings or as otherwise approved
by Landlord. Tenant shall ensure that Tenant's agents and contractors do not
interfere with Landlord's agents, contractors and subcontractors in completing
the timely construction of the Leasehold Improvements. Any such access to the
Leased Premises prior to Substantial Completion of the Leasehold Improvements
will be at the sole risk of Tenant, its employees, agents and representatives
and Landlord shall have no liability therefor. Tenant shall save and hold
Landlord harmless from any claims and liabilities asserted by Tenant or other
Persons arising from the early access to the Leased Premises granted herein.
7. Substantial Completion. Landlord will certify to Tenant the date on which
Substantial Completion occurs. Tenant will thereafter inspect the Leased
Premises and provide to Landlord in writing a listing of any defects therein
observed by Tenant within ten (10) days after Tenant's first day of occupancy of
the Leased Premises. Landlord agrees to expeditiously cause such defects to be
cured to the reasonable satisfaction of Tenant.
IN WITNESS WHEREOF, this Agreement has been executed and delivered at
Oklahoma City, Oklahoma the date first above written.
Landlord:
--------
TMK INCOME PROPERTIES, L.P.,
a Delaware limited partnership
By: Stonegate Realty Corporation,
a Delaware corporation,
as General Partner
By:
Xxxxxx X. XxXxxx, Vice President
Tenant
ETHOS COMMUNICATIONS, INC.,
a(n) corporation
------------------------------
By:
Name: Xxx Xxxxx, President and CEO
Schedule "4"
Page 1 of 3 Pages
SCHEDULE "4"
Building Regulations
1. Access. The entrances, lobbies, passages, corridors, elevators, stairways and
other Common Areas will not be encumbered or obstructed by any Tenant or its
agents, employees, licensees or invitees or be used for any purpose other than
for access to the Leased Premises. Tenant will not use the Leased Premises to
engage or pay any employees who do not work in the Building, provide an address
in the Building in any advertisement seeking employees who will not actually
work in the Building or otherwise permit persons to visit the Leased Premises in
such numbers or under such conditions as to interfere with the use of the Common
Areas by other tenants. Landlord reserves the right to regulate the use of the
Common Areas of the Building by Tenant, its agents, employees, licenses and
invitees and by persons making deliveries to Tenant (including, without
limitation, the right to designate hours for deliveries, Building entrances and
elevators for such use). No showcases or other articles will be placed in the
Common Areas without the prior written consent of Landlord.
2. Air Conditioning. Heat and air conditioning will be provided by Landlord only
during the published Business Hours for the Building as set forth in the Lease.
Tenant may request heating or air conditioning during periods in addition to
such Business Hours by use of Tenant's telephone system to access procedures
with Landlord's HVAC control system computer in accordance with that systems
access procedures. Such request will state the beginning and ending hours of
such additional service. Tenant will submit to Landlord a list of all personnel
who are authorized to make such requests. Charges for such additional services
will be determined by Landlord for the hours of operation and will be based on
the operating costs incurred by Landlord by reason of such additional service.
3. Building Hours. Landlord from time to time will establish and provide Tenant
with a schedule of Business Hours for the Building. Landlord reserves the right
to exclude from the Building during nonbusiness hours all persons not authorized
in writing, by pass or otherwise, to have access to the Building and the Leased
Premises. Each Tenant will be responsible for all persons authorized by such
Tenant to have access to the Building and will be liable to Landlord for all
acts of such persons while in the Building. Landlord may require all persons
given access to the Building during nonbusiness hours to sign a register on
entering and leaving the Building. Any person whose presence in the Building at
any time might adversely affect, in the judgment of Landlord, the safety,
character, reputation or interests of the Building or its tenants may be denied
access to the Building or may be ejected therefrom. During the continuance of
any public disturbance, Landlord may prevent all access to the Building.
Landlord may require any person leaving any area of the Building with any
package or other object to exhibit a pass from Tenant authorizing such removal.
The failure to establish or enforce any of the foregoing requirements will not
impose any liability on Landlord to any Tenant for the removal of any property
from the Building or otherwise. Landlord will not be liable to any Tenant or
other person for damages or loss arising from the admission, exclusion or
ejection of any person to or from the Leased Premises or the Building.
4. Care. Tenant will not xxxx, paint, drill into or in any way deface any part
of the Leased Premises or the Building; provided, however, that the preceding
prohibition will not preclude Tenant from hanging typical frames and artwork, so
long as such is performed in a careful fashion and with appropriate wall hanging
attachments that reasonably would be expected to limit the damage or restoration
to the Leasehold Improvements. No boring, cutting or stringing of wires will be
permitted except with the prior written consent of Landlord and as Landlord
might direct. Tenant will not install any tile or other similar floor covering
without the prior written consent of Landlord. Tenant will refer all
contractors, representatives and installation technicians rendering any service
to Tenant to Landlord for Landlord's supervision, approval and control before
the performance of any such service (the foregoing provisions will apply to all
work performed in the Building at Tenant's request, including, but not limited
to, installations of telephone, telegraph equipment, electrical devices and all
installations of every nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment and any other portion of the Building).
5. Dangerous Substances. Neither Tenant nor its agents, employees, licensees or
invitees will at any time bring or keep on the Leased Premises any flammable,
combustible or explosive fluid, chemical or substance. No acids, vapors or other
damaging materials will be discharged into the waste lines, vents or flues of
the Building.
6. Doors. Corridor doors, when not in use, will be kept closed. Each Tenant on
leaving the Leased Premises will ----- lock all corridor doors.
Schedule "4"
Page 2 of 3 Pages
7. Drapes. No awnings or other projections will be attached to the outside walls
of the Building. No curtains, blinds, shades, screens or covering other than
those approved by Landlord will be attached to, hung in, or used in connection
with any window or door of the Leased Premises without the prior written consent
of Landlord. Such coverings will be of a quality, type, design and color
approved by Landlord and attached in the manner approved by Landlord.
8. Equipment. Without first obtaining Landlord's written permission, Tenant will
not install, attach or bring into the Leased Premises any machinery or
equipment, other than normal office equipment, or any instrument, duct,
refrigerator, air conditioner, heater, water cooler or other appliance
(excepting normal kitchen appliances such as microwave ovens, coffee pots, and
dishwasher) requiring the use of gas, electric current or water. Tenant agrees
to limit the use of electric current to the capacity of existing feeders, risers
and wiring installation. All additional electrical wiring will be done by or
supervised by Landlord and Tenant will bear the expense of any additional
installation. Any breach of the foregoing will authorize Landlord to enter the
Leased Premises, remove what Tenant has installed and charge the cost of such
removal and any damage that may be sustained thereby to Tenant.
9. Exterminators. From time to time, Landlord will cause the Leased
Premises to be exterminated to the satisfaction
-------------
of and by exterminators approved by Landlord.
10. Food. Tenant will not, without Landlord's prior written approval, permit any
cooking (other than the conduct of cooking and heating of items in microwave
ovens, toasters and coffee makers which is customary for offices similar to the
type being leased by Tenant under the Lease), conduct any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to
Tenant's employees or to others, or cause or permit any odors of cooking or
other processes or any unusual or objectionable odors to emanate from the Leased
Premises. Tenant will not, without Landlord's prior written approval, install or
permit the installation or use of any food, beverage, cigarette, cigar or stamp
dispensing and/or vending machine, or permit the delivery of any food or
beverages (except for take out lunch delivery services) to the Leased Premises,
except by such persons as are approved by Landlord. No food or beverages will be
carried in the Common Areas or elevators except in closed containers.
11. Locks. Landlord will provide all locks in the Leased Premises and no
additional locks or bolts of any kind will be placed on any door or window by
Tenant, nor will any changes be made in existing locks or the mechanism thereof
without the prior written consent of Landlord. A reasonable number of keys to
such locks will be furnished by Landlord to each Tenant and Tenant will not
permit any duplicate keys to be made by any person other than Landlord. Tenant
will, on the termination of its Lease, restore to Landlord all keys furnished to
Tenant and in the event of the loss of any keys so furnished Tenant will pay
Landlord the cost thereof.
12. Maintenance. Tenant will promptly notify Landlord of any accident which
occurs and any defect or maintenance required on the Leased Premises. The
requests of Tenant will be attended to only on application to Landlord's office
and Landlord's employees will not perform any work unless under instructions
from Landlord's office.
13. Moving. No load shall be placed on the Leased Premises exceeding an average
weight of eighty (80) pounds of live load per square foot of floor area. All
movement of safes, freight, furniture or bulky items of any description will be
performed by persons approved by Landlord under the supervision of Landlord
during the hours and according to such routes and methods as Landlord designates
from time to time. Each Tenant will notify Landlord prior to the delivery of any
such items and Landlord will approve the weight and position of safes and other
heavy items, which will in all cases stand on weight distribution devises
approved by Landlord. Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight which
violates any of these Regulations or Tenant's Lease. All damages done to the
Building by the movement or positioning of any property of a Tenant will be
repaired at the expense of such Tenant and Landlord will not be liable for the
acts of any person engaged in or any damage or loss of any property or person
resulting from any act in connection with such movement or positioning.
14. Noise. Tenant will not make or permit to be made any unseemly or disturbing
noises or disturb or interfere with
-----
other Tenants of the Building.
15. Plumbing. The water closets and other plumbing fixtures will not be used for
any purpose other than that for which they were constructed and no improper
substances will be thrown therein. Landlord will have the right to regulate and
limit the water usage of Tenant and to impose such charges as might be required
to prevent waste thereof. All damages resulting from the misuse of any plumbing
fixture by Tenant, its agents, employees, licensees or invitees will be borne by
Tenant.
103086v1em. Schedule "4"
Page 3 of 3 Pages
16. Prohibited Use. No space in the Building will be used for manufacturing or
for lodging, sleeping or any immoral or illegal purpose. No space other than
space so designated by Landlord will be used for the storage of merchandise or
for the sale of merchandise, goods or property and no auction sales will be
conducted by Tenant without the prior written consent of Landlord. Tenant will
not occupy or permit any portion of the Leased Premises to be occupied for any
purpose or in any manner which is contrary to the provisions of the "Declaration
of Protective Covenants of Quail Springs Office Park" and any amendments thereto
all as filed in the Office of the County Clerk of Oklahoma County, Oklahoma, or
any zoning, building code or other law or regulation governing the Building.
17. Services. Unless expressly permitted by Landlord, no person will be employed
by any Tenant to perform janitorial or maintenance services on the Leased
Premises. Each Tenant and its agents, employees, licensees and invitees will
cooperate with Landlord in keeping the Building neat and clean. Tenant will not
throw or sweep anything into the Common Areas of the Building. Each Tenant will
provide light, electrical power and water to the employees of Landlord
performing janitorial services and maintenance in the Leased Premises. Landlord
will be in no way responsible to any Tenant (a) for theft, mysterious
disappearance or loss of property from the Leased Premises, however occurring,
or (b) for damage done to the furniture or other effects of any Tenant arising
from the gross negligence of Landlord's agents, employees or contractors working
in the Leased Premises.
18. Signs. One Building directory will be furnished in the main lobby of the
Building at the expense of Landlord and Landlord will determine the number of
listings thereon for each Tenant. No sign, advertisement, notice or other
lettering will be exhibited, inscribed, painted or affixed by Tenant on any
window or other part of the Leased Premises or the Building without the prior
written consent of Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove the same without any liability and may charge the
expense incurred in such removal to Tenant. All markings on the doors in the
Leased Premises will be inscribed, painted or affixed for Tenant by Landlord or
by personnel approved by Landlord, at the expense of Tenant, and will be of a
size, color, style and location acceptable to Landlord. Landlord will have the
right to prohibit any advertising by any Tenant which, in Landlord's opinion,
tends to impair the reputation of the Building or its desirability as an office
building and on written notice from Landlord, Tenant will refrain from or
discontinue such advertising. Tenant will not use the name of the Building or
Landlord in any advertising without the express written consent of Landlord.
19. Vendors. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant will cooperate with
-------
Landlord to prevent the same. No Tenant will purchase water, ice, towels or
other like services from any person not
approved by Landlord.
20. Vehicles and/or Animals. No bicycles, vehicles or animals of any kind will
be brought into the Building or kept in the Leased Premises. Only hand trucks
equipped with rubber tires and side guards will be used in the Building by
Tenant or its agents, employees, licensees or invitees.
21. Windows. The windows, doors and vents which admit light and/or air into the
Common Areas or the Building will not be obstructed by Tenant and no bottles,
parcels, plants or other articles will be placed on any windowsills. Tenant will
at all times keep draperies adjusted to block the direct rays of the sun and to
reduce the Building's air conditioning requirements.
22. Modification. Landlord reserves the right to rescind any of the foregoing
regulations and to make such other and further reasonable regulations as in
Landlord's judgment are needed from time to time 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 Tenants and their agents,
employees, licensees and invitees. Such additional regulations will be binding
on Tenant when written notice thereof is given to Tenant by Landlord.
Schedule "5"
Page 1 of 1 Page
SCHEDULE "5"
Additional Construction Compliance Requirements
(a) Tenant's Obligations. In the event Tenant in any instance is
permitted under the Lease to separately construct or contract for the
construction of all or any portion of the Leasehold Improvements (including any
fixtures or equipment to be installed by Tenant and attached to the walls,
floors or ceiling) or to make alterations thereto, Tenant will cause such
installation, construction or alteration ("Tenant Installations") to be
performed on the following basis: (a) Tenant will have previously furnished the
identity of Tenant's proposed general contractor to Landlord for approval, which
approval by Landlord will not be unreasonably withheld; (b) such Tenant
Installations shall not weaken, impair or in any other way have a detrimental
impact on the structural integrity of the Leased Premises, the Building or the
leasehold improvements of other tenants of the Building or in any way adversely
affect the mechanical or electrical systems of the Building; (c) Tenant shall
obtain all necessary licenses, permits and similar authorizations from
Governmental Authorities in a timely manner and shall further cause all such
Tenant Installations to comply with all applicable Laws and other Legal
Requirements; (d) all Tenant Installations shall be completed with due
diligence, in a good and workmanlike manner and in compliance with the Final
Working Drawings (approved by Landlord, whether in compliance with the following
procedure, or otherwise); (e) prior to commencing construction and at all times
during construction, Tenant shall cause Tenant's contractor to obtain and
maintain builder's risk insurance in form, amounts and from carriers reasonably
acceptable to Landlord, naming such contractor, Tenant, Landlord, and any Holder
as additional insureds, as their interests appear; (f) Tenant shall obtain and
furnish lien waivers from all mechanics, materialmen and laborers involved in
the Tenant Installations and Tenant hereby further agrees to indemnify and hold
Landlord harmless from and against any and all mechanics', materialmen's and
laborers' liens which may be filed on the basis of any work performed or
materials supplied in connection with such Tenant Installations; (g) with
respect to such Tenant Installations, Tenant agrees to protect, indemnify,
defend and hold Landlord and its agents, employees, invitees and licensees
(including all other tenants of the Building and their respective agents,
employees, licensees and invitees) free and harmless from and against any and
all claims, liens, demands, and causes of action of every kind and character,
including, without limitation, the amounts of judgments, penalties, interest,
court costs and legal fees incurred by Landlord in defense of same, arising in
favor of any third person (including employees of any contractor or any
subcontractor) or Governmental Authority on account of taxes, claims, liens,
debts, personal injuries, death or damage occurring or in any wise instant to,
whether direct or indirect, or in connection with or arising out of such Tenant
Installations; and (h) Tenant shall cause the construction to be performed in a
manner that will (i) occur either at times other than the Building Hours for the
Building as established in accordance with the Building Regulations or at times
as otherwise approved in writing by Landlord; and (ii) not interfere with other
tenants' use and occupancy of the Building and the Park, as determined by
Landlord in Landlord's sole discretion.
(b) Additional Final Working Drawing Requirements. In the event Tenant
is in any instance after the Commencement Date obligated to furnish Final
Working Drawings, then the following provisions shall apply: (a) Tenant shall
prepare, at Tenant's expense, Final Working Drawings for the applicable space
and shall submit the same to Landlord for approval on or before the date within
thirty (30) days subsequent to the event requiring preparation of Final Working
Drawings; (b) Landlord shall have fifteen (15) days from its receipt of the
Final Working Drawings to either approve them in writing or provide Tenant with
a request for specific changes, together with an explanation of the need for
such changes; (c) Tenant shall have fifteen (15) days from its receipt of
Landlord's written request for changes in which to respond with revised Final
Working Drawings incorporating Landlord's requirements and/or a written
objection to making such changes on the grounds that Landlord's requirements are
unreasonable; (d) Landlord and Tenant will diligently work together in good
faith to resolve any differences in the Final Working Drawings; provided,
however, Landlord shall have final authority with respect to the Final Working
Drawings in the event, in Landlord's reasonable opinion, Tenant's proposed
Tenant Installations: (i) threaten to weaken or impair the structural integrity
of the Building or the Leased Premises or the leasehold improvements of other
tenants of the Building; (ii) will increase the risk of casualty to, or the
rates of insurance coverages for, the Building; or (iii) are visible from either
the Common Areas or from the exterior of the Building.
