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Exhibit 10.21
STANDARD LEASE AGREEMENT
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This Standard Lease Agreement (this "Lease") is made this 11th day of
June, 1995 between LASALLE PARTNERS MANAGEMENT LIMITED (in its capacity as agent
for Xxxxxx Street Limited Partnership, a Delaware limited partnership), as
Landlord ("Landlord"), and WOLF COMMUNICATIONS COMPANY, a Texas corporation, as
Tenant ("Tenant"). This Lease consists of this paragraph, the Basic Lease
Provisions, the Supplemental Lease Provisions and each exhibit, rider, and
schedule or other attachment to the Basic Lease Provisions and/or Supplemental
Lease Provisions as listed at the end of the Basic Lease Provisions or in the
Table of Exhibits and Riders attached to the Basic Lease Provisions and
preceding the Supplemental Lease Provisions.
BASIC LEASE PROVISIONS
1. Building and Property:
a. The "Building" is the structure commonly known as the 0000 Xxxxxx
Xxxxxx Building located on the land bounded by Fannin, San Jacinto,
Polk and Clay Streets (Block 294), Houston, Texas and more
particularly described in Exhibit B attached to the Supplemental
Lease Provisions (the "Land").
b. Agreed Rentable Area of the Building: 784,143 square feet.
c. The Building, the Land, the parking garage located on the Land and
serving the Building (the "Garage") and all improvements and
appurtenances to the Building, the Garage and the Land are referred
to collectively in this Lease as the "Property."
2. Premises and Agreed Rentable Area of the Premises:
Building Agreed Rentable Area
Floor (in Square Feet)
7 12,312
Total Agreed Rentable Area of the Premises:
The Premises are hereby defined to mean 12,312 square feet on
Building Floor 7. The Suite Number for the Premises is 775. Tenant shall
initially occupy 7,500 square feet of Rentable Area. An additional 2,465
square feet of Rentable Area shall be added on the third month anniversary
of the Commencement Date and an additional 2,347 square feet of Rentable
Area shall be added on the sixth month anniversary of the Commencement
Date.
3. Basic Rent (See Article 2, Supplemental Lease Provisions):
Annual
Rate Per Square Basic
Rental Foot of Agreed Monthly
Period Rentable Area Rent
------ ------------- ----
Months 1-3 $15.00 $ 9,375.00
Months 4-6 $15.00 $12,456.25
Months 7-72 $15.00 $15,390.00
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A "Lease Month" shall mean any calendar month during the Term of this
Lease.
4. Tenant's Pro Rata Share Percentage: 1.57% (the Agreed Rentable Area of the
Premises divided by the Agreed Rentable Area of the Building, expressed in
a percentage). This percentage shall be modified during the first six
months of the Term as necessary to reflect the stepped occupancy.
5. Tenant's Operating Expense Stop: Equal to actual Operating Expenses for
the calendar year 1995, grossed up in accordance with subsection 2.202 of
the Supplemental Lease Provisions (see Article 2, Supplemental Lease
Provisions).
6. Initial Term: six (6) years (see Article 1, Supplemental Lease
Provisions).
7. Commencement Date: the earlier to occur of Substantial Completion or 10
weeks from Landlord's approval of the Construction Plans per Exhibit C
(see Article 1, Supplemental Lease Provisions).
8. Expiration Date: sixth anniversary of the Commencement Date (see Article
1, Supplemental Lease Provisions).
9. Security Deposit: $261,074.21 (see Article 3, Supplemental Lease
Provisions).
10. Tenant's Broker: Xxxxxxx Realty Corporation.
11. Permitted Use: General office and computer facility use and other uses
incidental or ancillary to the foregoing so long as consistent with a
Class A office building (see Article 4, Supplemental Lease provisions).
12. All payments shall be sent to Landlord in care of LaSalle Partners
Management Limited ("Property Manager") at 0000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, or such other place as Landlord may designate from
time to time by notice given in accordance with the Lease. All payments
shall be in the form of check or other delivery of good funds (such as
electronic transfer), provided that payment by check shall not be
considered made if the check is not duly honored with good funds upon
proper and timely presentation.
13. Parking: See Exhibit E attached to the Supplemental Lease Provisions.
14. Addresses for notices due under this Lease (see Article 14, Supplemental
Lease provisions):
Landlord: Tenant:
LASALLE PARTNERS PRIOR TO COMMENCEMENT DATE:
MANAGEMENT LIMITED
1301 Xxxxxx Wolf Communications Company
Xxxxx 0000 0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attention: Xx Xxxxxxxx Attn: Xxxxxxx X. August
Fax: 000-000-0000 Fax: 713/000-0000
With a copy to: ON AND AFTER COMMENCEMENT
DATE:
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LASALLE PARTNERS The Premises
MANAGEMENT LIMITED
The Plaza at Las Colinas With a copy to:
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000 Wolf Exploration, Inc.
Attention: Xxxx X. Xxxxxxx 0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Limited Partnership Attn: Xxxxxxx X. August
c/o GE Investments
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Southwest Asset Manager
Fax:000-000-0000
and
GE Investments
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Real Estate Counsel
Fax:000-000-0000
Landlord and Tenant are initialing these Basic Lease Provisions in the
appropriate space provided below as an acknowledgment that they are a part of
this Lease.
Initial:
Landlord: ______
Tenant: ________
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TABLE OF EXHIBITS AND RIDERS
TO
SUPPLEMENTAL LEASE PROVISIONS
Exhibit A Floor Plan
Exhibit A-1 Secure Area
Exhibit B Land Legal Description
Exhibit C Work Letter
Exhibit D Acceptance of Premises Memorandum
Exhibit E Parking Agreement
Exhibit F Amortization Schedule
Exhibit G Operating Expense Exclusions
Exhibit H Janitorial Specifications
Guaranty _____ Check, if applicable
Addendum _____ Check, if applicable
Rider 1 Renewal Option
Rider 2 Expansion Option
Rider 3 Right of First Opportunity and First Offer
Rider 4 Rules and Regulations
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TABLE OF CONTENTS
FOR
SUPPLEMENTAL LEASE PROVISIONS
Description Page
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ARTICLE I TERM AND POSSESSION ................................ 1
SECTION 1.1 LEASE OF PREMISES, COMMENCEMENT AND EXPIRATION ..... 1
1.101 Lease of Premises ....................... 1
1.102 Initial Term and Commencement ........... 1
SECTION 1.2 INSPECTION AND DELIVERY OF PREMISES, CONSTRUCTION
OF LEASE SPACE IMPROVEMENTS AND POSSESSION ......... 1
1.201 Delivery and Completion ................. 1
1.202 Acceptance of Premises Memorandum ....... 2
SECTION 1.3 REDELIVERY OF THE PREMISES ......................... 2
SECTION 1.4 HOLDING OVER ....................................... 2
ARTICLE 2 RENT ............................................... 2
SECTION 2.1 BASIC RENT ......................................... 3
SECTION 2.2 ADDITIONAL RENT .................................... 3
2.201 Definitions ............................. 3
2.202 Gross-Up ................................ 4
2.203 Payment Obligation ...................... 4
2.204 Revisions in Estimated Additional Rent .. 5
SECTION 2.3 RENT DEFINED AND NO OFFSETS ........................ 5
SECTION 2.4 LATE CHARGES ....................................... 5
ARTICLE 3 SECURITY DEPOSIT ................................... 5
ARTICLE 4 OCCUPANCY AND USE .................................. 6
SECTION 4.1 USE OF PREMISES .................................... 6
4.101 General ................................. 6
4.102 Hazardous and Toxic Materials ........... 6
4.103 Disability Acts ......................... 7
SECTION 4.2 PERMITS ............................................ 8
SECTION 4.3 COMPLIANCE WITH LAWS ............................... 8
SECTION 4.4 RULES AND REGULATIONS .............................. 8
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SECTION 4.5 ACCESS ............................................. 8
SECTION 4.6 QUIET POSSESSION ................................... 9
ARTICLE 5 UTILITIES AND SERVICES ............................. 9
SECTION 5.1 SERVICES TO BE PROVIDED ............................ 9
5.101 Elevator Service ........................ 9
5.102 Heat and Air Conditioning ............... 9
5.103 Electricity ............................. 10
5.104 Water ................................... 11
5.105 Janitorial Services ..................... 11
5.106 Common Areas ............................ 11
5.107 Bulbs and Ballasts ...................... 11
SECTION 5.2 SERVICE INTERRUPTION ............................... 11
5.201 Service Interruption .................... 11
5.202 Limited Right to Abatement of Rent ...... 12
ARTICLE 6 MAINTENANCE, REPAIRS, ALTERATIONS AND IMPROVEMENTS . 12
SECTION 6.1 LANDLORD'S OBLIGATION TO MAINTAIN AND REPAIR ....... 12
SECTION 6.2 TENANT'S OBLIGATION TO MAINTAIN AND REPAIR ......... 12
6.201 Tenant's Obligation ..................... 12
6.202 Rights of Landlord ...................... 13
SECTION 6.3 IMPROVEMENTS AND ALTERATIONS ....................... 13
6.301 Landlord's Construction Obligation ...... 13
6.302 Alteration of Building .................. 13
6.303 Alterations, Additions, Improvements and
Installations by Tenant ................. 14
6.304 Approvals ............................... 14
ARTICLE 7 INSURANCE, FIRE AND CASUALTY ....................... 14
SECTION 7.1 TOTAL OR PARTIAL DESTRUCTION OF THE BUILDING OR THE
PREMISES ........................................... 14
7.2 TENANT'S INSURANCE ................................. 15
7.201 Types of Coverage ....................... 15
7.202 Other Requirements of Insurance ......... 16
7.203 Proof of Insurance ...................... 16
SECTION 7.3 LANDLORD'S INSURANCE ............................... 16
7.301 Types of Coverage ....................... 16
7.302 Blanket Insurance ....................... 16
SECTION 7.4 WAIVER OF SUBROGATION .............................. 16
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SECTION 7.5 INDEMNITY .......................................... 17
ARTICLE 8 CONDEMNATION ....................................... 17
SECTION 8.1 CONDEMNATION RESULTING IN CONTINUED USE NOT
FEASIBLE ........................................... 17
SECTION 8.2 TOTAL CONDEMNATION OF PREMISES ..................... 17
SECTION 8.3 CONDEMNATION WITHOUT TERMINATION ................... 17
SECTION 8.4 CONDEMNATION PROCEEDS .............................. 17
ARTICLE 9 LIENS .............................................. 18
ARTICLE 10 TAXES ON TENANT'S PROPERTY ......................... 18
ARTICLE 11 SUBLETTING AND ASSIGNING ........................... 18
SECTION 11.1 SUBLEASE AND ASSIGNMENT ............................ 18
SECTION 11.2 TENANT'S CONTINUING OBLIGATIONS .................... 18
SECTION 11.3 LANDLORD'S RIGHTS RELATING TO ASSIGNEE OR SUBTENANT 19
SECTION 11.4 ERISA AND UBTI RESTRICTIONS ........................ 19
SECTION 11.5 ASSIGNMENT BY OPERATION OF LAW ..................... 19
ARTICLE 12 TRANSFERS BY LANDLORD, SUBORDINATION AND TENANT'S
ESTOPPEL CERTIFICATE ............................... 20
SECTION 12.1 SALE OF THE PROPERTY ............................... 20
SECTION 12.2 SUBORDINATION, ATTORNMENT AND NOTICE ............... 20
SECTION 12.3 TENANT'S ESTOPPEL CERTIFICATE ...................... 20
ARTICLE 13 DEFAULT ............................................ 21
SECTION 13.1 DEFAULTS BY TENANT ................................. 21
13.101 Failure to Pay Rent ..................... 21
13.102 Failure to Perform ...................... 21
13.103 Continual Failure to Perform ............ 21
13.104 Bankruptcy, Insolvency, Etc ............. 21
13.105 Loss of Right to do Business ............ 21
13.106 Dissolution or Liquidation .............. 21
SECTION 13.2 REMEDIES OF LANDLORD ............................... 21
13.201 Termination of the Lease ................ 22
13.202 Repossession and Re-Entry ............... 22
13.203 Cure of Default ......................... 23
13.204 Continuing Obligations .................. 23
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13.205 Cumulative Remedies ..................... 23
SECTION 13.3 DEFAULTS BY LANDLORD ............................... 23
SECTION 13.4 LANDLORD'S LIABILITY ............................... 23
13.401 Tenant's Rights in Respect of Landlord
Default ................................. 23
13.402 Certain Limitations on Landlord's
Liability ............................... 24
SECTION 13.5 WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT ...... 24
SECTION 13.6 LANDLORD'S LIEN .................................... 25
SECTION 13.7 LEASE CANCELLATION OPTIONS ......................... 25
13.701 Initial Cancellation Options ............ 25
13.702 Additional Cancellation Option .......... 25
SECTION 13.8 SATELLITE DISH ..................................... 26
ARTICLE 14 NOTICES ............................................ 26
ARTICLE 15 MISCELLANEOUS PROVISIONS ........................... 26
SECTION 15.1 BUILDING NAME AND ADDRESS .......................... 26
SECTION 15.2 SIGNAGE ............................................ 26
SECTION 15.3 NO WAIVER .......................................... 26
SECTION 15.4 APPLICABLE LAW ..................................... 27
SECTION 15.5 COMMON AREAS ....................................... 27
SECTION 15.6 SUCCESSORS AND ASSIGNS ............................. 27
SECTION 15.7 BROKERS ............................................ 27
SECTION 15.8 SEVERABILITY ....................................... 28
SECTION 15.9 EXAMINATION OF LEASE ............................... 28
SECTION 15.10 INTEREST ON TENANT'S OBLIGATIONS ................... 28
SECTION 15.11 TIME ............................................... 28
SECTION 15.12 DEFINED TERMS AND MARGIN HEADINGS .................. 28
SECTION 15.13 AUTHORITY OF TENANT ................................ 28
SECTION 15.14 FORCE MAJEURE ...................................... 28
SECTION 15.15 RECORDING .......................................... 28
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SECTION 15.16 NO REPRESENTATIONS ................................. 28
SECTION 15.17 ATTORNEYS' FEES .................................... 29
SECTION 15.18 NO LIGHT, AIR OR VIEW EASEMENT ..................... 29
SECTION 15.19 RELOCATION ......................................... 29
SECTION 15.20 SURVIVAL OF INDEMNITIES ............................ 30
SECTION 15.21 ENTIRE AGREEMENT ................................... 30
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SUPPLEMENTAL LEASE PROVISIONS
ARTICLE I
TERM AND POSSESSION
SECTION 1.1 LEASE OF PREMISES, COMMENCEMENT AND EXPIRATION.
1.101 Lease of Premises. In consideration of the mutual covenants herein,
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to all the terms and conditions of this Lease, the
portion of the Building (as described in Item 1 of the Basic Lease
Provisions) described as the Premises in Item 2 of the Basic Lease
Provisions and that is more particularly described by the
crosshatched area on Exhibit A attached hereto (hereinafter called
(the "Premises"). The agreed rentable area of the Premises is hereby
stipulated to be the "Agreed Rentable Area" of the Premises set
forth in Item 2.b of the Basic Lease Provisions, irrespective of
whether the same should be more or less as a result of minor
variations resulting from construction of Tenant's Improvements (as
defined in the Work Letter (herein so called) attached hereto as
Exhibit C). The agreed rentable area of the Building is hereby
stipulated to be the "Agreed Rentable Area" of the Building set
forth in Item 1.b of the Basic Lease Provisions, irrespective of
whether the same should be more or less as a result of minor
variations resulting from actual construction or repair of the
Building. Landlord also grants Tenant a non-exclusive license for
the Term to use the Common Areas (as hereinafter defined) of the
Building in common with others entitled to use the Common Areas,
including, without limitation, Landlord, other tenants of the
Building and their respective employees and invitees, and other
persons authorized by Landlord, subject to the terms and conditions
of this Lease and the rules and regulations applicable to the Common
Areas.
1.102 Initial Term and Commencement. The initial term of this Lease shall
be the period of time specified in Item 6 of the Basic Lease
Provisions. The initial term shall commence on the Commencement Date
(herein so called) set forth in Item 7 of the Basic Lease Provisions
(as such Commencement Date may be adjusted pursuant to Sections 4
and $ of the Work Letter) and, unless sooner terminated pursuant to
the terms of this Lease, the initial term shall expire, without
notice to Tenant, on the Expiration Date (herein so called) set
forth in Item 8 of the Basic Lease Provisions (as such Expiration
Date may be adjusted pursuant to Sections 4 and 5 of the Work
Letter). As used in this Lease, "Term" shall mean the Initial Term
and any validly exercised Renewal Term (as defined in Rider 1
attached hereto).
SECTION 1.2 INSPECTION AND DELIVERY OF PREMISES, CONSTRUCTION OF LEASE SPACE
IMPROVEMENTS AND POSSESSION.
1.201 Delivery and Completion. Tenant hereby acknowledges that Tenant has
inspected the Premises and the Common Areas (as hereinafter defined)
and, except for latent defects discovered and reported to Landlord
by Tenant within one hundred eighty (180) days from the Commencement
Date, hereby (i) accepts the Common Areas in "as is" condition for
all purposes, subject to Landlord's completion of its obligations
under the Work Letter and (ii) subject to Landlord's completion of
its obligations under the Work Letter, accepts the Premises
(including the suitability of the Premises for the Permitted Use)
for all purposes. Tenant will perform or cause to be performed the
work and/or construction of Tenant's Improvements (as defined in the
Work Letter) in accordance with the terms of the Work Letter and
will use reasonable efforts to Substantially Complete (as defined in
the Work Letter) Tenant's Improvements by the Commencement Date set
forth in Item 7 of the Basic Lease Provisions. If Tenant's
Improvements are not Substantially Complete by the Commencement Date
set forth in Item 7 of the Basic Lease Provisions for any reason
whatsoever (including, without limitation, because of any delays
caused by Landlord), Tenant's sole remedy shall be an adjustment of
the Commencement Date and the Expiration Date to the extent
permitted under Sections 4 and 5 of the Work Letter.
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1.202 Acceptance of Premises Memorandum. Upon Substantial Completion (as
defined in the Work Letter) of Tenant's Improvements, Landlord and
Tenant shall execute the Acceptance of Premises Memorandum (herein
so called) attached hereto as Exhibit D. If Tenant occupies the
Premises without executing an Acceptance of Premises Memorandum,
Tenant shall be deemed to have accepted the Premises for all
purposes and Substantial Completion shall be deemed to have occurred
on the earlier to occur of (i) actual occupancy or (ii) the
Commencement Date set forth in Item 7 of the Basic Lease Provisions.
SECTION 1.3 REDELIVERY OF THE PREMISES. Upon the expiration or earlier
termination of this Lease or upon the exercise by Landlord of its right to
re-enter the Premises without terminating this Lease and subject to Tenant's
remaining obligations under this Section, Tenant shall immediately deliver to
Landlord the Premises, ordinary wear and tear excepted, but free of offensive
odors and in a safe, clean, neat, sanitary and operational condition, together
with all keys and parking and access cards. Tenant shall (i) within seven (7)
days after the expiration or earlier termination of this Lease, remove from the
Premises, at the sole expense of Tenant and unless Landlord is asserting its
lien rights therein, any equipment, machinery, trade fixtures and personalty
installed or placed in the Premises by or on behalf of Tenant and (ii) if
requested by Landlord for improvements designated at the time Landlord grants
consent to the construction or installation of the Tenant Improvements, (a)
remove all or any part of said improvements made to and conduit installed in the
Premises or the Building by or on behalf of Tenant and (b) restore the Premises
to the condition existing prior to the installation of such improvements. All
removals and work described above shall be accomplished in a good and
workmanlike manner and shall be conducted in a fashion so as not to damage the
Premises or the Building or any portion thereof. Tenant shall, at its expense,
promptly repair any damage caused by any such removal or work. If Tenant fails
to deliver the Premises in the condition aforesaid, then Landlord may restore
the Premises to such a condition at Tenant's expense. All property required to
be removed pursuant to this Section not removed within the time period required
hereunder shall thereupon be conclusively presumed to have been abandoned by
Tenant and Landlord may, at its option, take over possession of such property
and either (a) declare the same to be the property of Landlord by written notice
to Tenant at the address provided herein or (b) at the sole cost and expense of
Tenant, remove and store and/or dispose of the same or any pan thereof in any
manner that Landlord shall choose without incurring liability to Tenant or any
other person.
SECTION 1.4 HOLDING OVER. In the event Tenant or any party under Tenant claiming
rights to this Lease, retains possession of the Premises after the expiration or
earlier termination of this Lease, such possession shall constitute and be
construed as a tenancy at will only, subject, however, to all of the terms,
provisions, covenants and agreements on the pan of Tenant hereunder; such
parties shall be subject to immediate eviction and removal and Tenant or any
such party shall pay Landlord as rent for the period of such holdover an amount
equal to the greater of (i) one and one-half (1.5) times the Basic Annual Rent
and Additional Rent (as hereinafter defined) in effect immediately preceding
expiration or termination, as applicable, prorated on a daily basis or (ii) the
then prevailing market rental rate, prorated on a daily basis. Landlord and
Tenant agree that they have included the foregoing provision for liquidated
damages because the actual damages to be incurred by Landlord can reasonably be
expected to approximate the amount of liquidated damages called for herein and
because the actual amount of such damages would be difficult if not impossible
to measure accurately. Tenant shall also pay and agrees to indemnify and hold
Landlord harmless from any and all damages sustained by Landlord as a result of
such holdover. The rent during such holdover period shall be payable to Landlord
in accordance with the provisions of Article 2. Tenant will vacate the Premises
and deliver same to Landlord within fourteen (14) days after Landlord's delivery
of written notice to Tenant to vacate the Premises. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend the term of
this Lease; no payments of money by Tenant to Landlord after the expiration or
earlier termination of this Lease shall reinstate, continue or extend the term
of this Lease; and no extension of this Lease after the expiration or earlier
termination thereof shall be valid unless and until the same shall be reduced to
writing and signed by both Landlord and Tenant.
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ARTICLE 2
RENT
SECTION 2.1 BASIC RENT. Tenant shall pay as annual rent for the Premises the
applicable Basic Annual Rent shown in Item 3 of the Basic Lease Provisions. The
Basic Annual Rent shall be payable in advance, in monthly installments equal to
the applicable Basic Monthly Rent shown in Item 3 of the Basic Lease Provisions,
which monthly installments shall commence on the Commencement Date and shall
continue on the first (1st) day of each calendar month thereafter. If the
Commencement Date occurs on a day other than the first day of a calendar month
or the Expiration Date occurs on a day other than the last day of a calendar
month, the Basic Monthly Rent for such partial month shall be prorated on a
daily basis.
SECTION 2.2 ADDITIONAL RENT.
2.201 Definitions. For purposes of this Lease, the following definitions
shall apply:
(a) "Additional Rent," for a particular calendar year, shall equal
the sum of (i) Tenant's Pro Rata Share Percentage multiplied
by the amount by which Operating Expenses (as hereinafter
defined) for such year exceed Tenant's Operating Expense Stop
(as set forth in Item 5 of the Basic Lease Provisions), plus
(ii) the total Monthly Submetered BTU Charges (as hereinafter
defined) for such calendar year, plus (iii) the total Monthly
Submetered Electrical Charges (as hereinafter defined) for
such calendar year, plus (iv) the total charges for after
hours HVAC delivered to Tenant pursuant to subsection
5.102(b).
(b) "Operating Expenses" shall mean all of the costs and expenses
Landlord incurs, pays or becomes obligated to pay in
connection with operating, maintaining, insuring and managing
the Property for a particular calendar year or portion thereof
as determined by Landlord in accordance with generally
accepted accounting principles, including, but not limited to,
the following: (i) insurance premiums; (ii) water, sewer,
electrical and other utility charges; (iii) service, testing
and other charges incurred in the operation and maintenance of
the elevators and the plumbing, fire sprinkler, security,
heating, ventilation and air conditioning system; (iv)
cleaning and other janitorial service (inclusive of window
cleaning); (v) tools and supplies costs; (vi) repair costs;
(vii) costs of landscaping, including landscape maintenance
and sprinkler maintenance costs and rental and supply costs in
connection therewith; (viii) security and alarm services; (ix)
license, permit and inspection fees; (x) management fees; (xi)
wages and related benefits payable to employees, including
taxes and insurance relating thereto; (xii) accounting
services; (xiii) legal services, unless incurred in connection
with tenant defaults or lease negotiations; (xiv) trash
removal; (xv) maintenance, repair, repaving and operating
costs associated with the Garage; (xvi) Real Estate Taxes (as
hereinafter defined); (xvii) Additional Pass Through Costs (as
hereinafter defined); (xviii) the charges assessed against the
Property pursuant to any contractual covenants or recorded
declaration of covenants or the covenants, conditions and
restrictions of any other similar instrument affecting the
Property; and (xix) costs of inspection, testing, repair, and
maintenance (including preventative maintenance) for the
Building's uninterruptible power supply systems, emergency
generating systems, chillers and related equipment serving the
Premises (or portions thereof) or other Rentable Area within
the Building.
Notwithstanding any contrary provision in subsection 2.201
above, "Operating Expenses" shall not include any of the items
set forth in Exhibit G.
(c) "Real Estate Taxes" shall mean (i) all real estate taxes and
other taxes or assessments which are levied with respect to
the Property or any portion thereof for each calendar year,
(ii) any tax, surcharge or assessment which shall he levied in
addition or as a
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supplement to or in lieu of real estate taxes, (iii) the costs
and expenses of a consultant, if any, or of contesting the
validity or amount of such real estate or other taxes, and
(iv) any rental, excise, sales, transaction, privilege or
other tax or levy, however denominated, imposed upon or
measured by the rental reserved hereunder or on Landlord's
business of leasing the Premises, excepting only Landlord's
net income taxes.
(d) "Additional Pass Through Costs" shall mean the following costs
and expenses incurred by Landlord from and after January 1 of
the calendar year in which this Lease is executed: (i) subject
to the limitations of clause (ii) following, the cost of any
improvement made to the Property by Landlord that is required
under any governmental law or regulation which is not in
effect, or is in effect but is not interpreted to affect the
Building, on the date this Lease is executed, amortized over
its useful life, together with an amount equal to interest at
the rate often percent (10%) per annum (the "Amortization
Rate") on the unamortized balance thereof; (ii) the cost of
any improvement made to the Common Areas of the Property that
is required under interpretations or regulations issued after
the Commencement Date under, or any amendments made after the
Commencement Date to, the provisions of Tex. Rev. Civ. Stat.
Xxx. art. 9102 and the provisions of the Americans With
Disabilities Act of 1990, 42 U.S.C.ss.ss.12101-12213
(collectively, the "Disability Acts"), amortized over such
period as Landlord shall reasonably determine, together with
an amount equal to interest at the Amortization Rate on the
unamortized balance thereof; and (iii) the cost of any
labor-saving or energy-saving device or other equipment
installed in the Building (provided Landlord reasonably
anticipates that the installation thereof will reduce
Operating Expenses), amortized over such period as is
reasonably determined by Landlord, together with an amount
equal to interest at the Amortization Rate on the unamortized
balance thereof.
(e) Adjustments on Account of Submetered Electricity. So long as
Tenant's electrical usage is submetered, then the electrical
expenses component of Operating Expenses, for purposes of
calculating Tenant's pro rata share of Operating Expenses,
shall be reduced by the amount of Monthly Submetered
Electrical Charges for the applicable year, the electrical
component included in Monthly Submetered BTU Charges for the
applicable year, and the cost of submetered electricity
provided to other tenants of the Building during the
applicable year; Tenant's pro rata share of Operating Expenses
shall include the electrical expenses attributable to areas of
the Building other than tenant occupied or occupiable areas
multiplied by a fraction, the numerator of which is the Agreed
Rentable Area of the Premises and denominator of which is the
Agreed Rentable Area of the Building.
2.202 Gross-Up. Operating Expenses shall be grossed up to include all
additional costs and expenses of owning, operating, maintaining and
managing the Building which Landlord reasonably determines that it
would have incurred, paid or been obligated to pay during such year
if the Building had been one hundred percent (100%) occupied.
2.203 Payment Obligation. In addition to the Basic Rent specified in this
Lease, Tenant shall pay to Landlord the Additional Rent, in each
calendar year or partial calendar year during the term of this
Lease, payable in monthly installments as hereinafter provided. At
least thirty (30) days prior to each calendar year commencing after
the Commencement Date (or as soon thereafter as is reasonably
possible), Landlord shall give Tenant written notice of Tenant's
estimated Additional Rent (other than Monthly Submetered Electrical
Charges, Monthly Submetered BTU Charges and the charge for after
hours HVAC, each of which will be payable monthly in arrears within
thirty (30) days after receipt of an invoice therefor) for the
applicable calendar year and the amount of the monthly installment
due for each month during such year. Tenant shall pay to Landlord on
the first day of each month beginning the first calendar year
occurring after the Commencement Date the amount of the applicable
monthly installment; provided, however, if the applicable
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installment covers a partial month, then such installment shall be
prorated on a daily basis. Within one hundred twenty (120) days
after the end of (i) each calendar year and (ii) the Expiration Date
or as soon thereafter as is reasonably possible, Landlord shall
prepare and deliver to Tenant a statement showing Tenant's actual
Additional Rent for the applicable calendar year, provided that with
respect to the calendar year in which the Expiration Date occurs,
(x) that calendar year shall be deemed to have commenced on January
1 of that year and ended on the Expiration Date (the "Final Calendar
Year") and (y) Landlord shall have the right to estimate the actual
Operating Expenses allocable to the Final Calendar Year but which
are not determinable within such 120 day period. If Tenant's total
monthly payments of Additional Rent for the applicable year are less
than Tenant's actual Additional Rent, then Tenant shall pay to
Landlord the amount of such underpayment. If Tenant's total monthly
payments of Additional Rent for the applicable year are more than
Tenant's actual Additional Rent, then Landlord shall credit against
the next Additional Rent payment or payments due from Tenant the
amount of such overpayment; provided, however, with respect to the
Final Calendar Year, Landlord shall pay to Tenant the amount of such
excess payments, less any amounts then owed to Landlord. Unless
Tenant takes written exception to any item within ninety (90) days
after the furnishing of an annual statement, such statement shall be
considered as final and accepted by Tenant. Any amount due Landlord
as shown on any such statement shall be paid by Tenant within thirty
(30) days after it is furnished to Tenant.
2.204 Revisions in Estimated Additional Rent. If Real Estate Taxes,
utility expenses or Additional Pass Through Costs increase during a
calendar year (based on new information and supporting documentation
from actual or anticipated operations of the Building) or if the
number of square feet of rentable area in the Premises increases,
Landlord may revise the estimated Additional Rent during such year
by giving Tenant written notice to that effect and thereafter Tenant
shall pay to Landlord, in each of the remaining months of such year,
an additional amount equal to the amount of such increase in the
estimated Additional Rent divided by the number of months remaining
in such year.
SECTION 2.3 RENT DEFINED AND NO OFFSETS. Basic Annual Rent, Additional Rent and
all other sums (whether or not expressly designated as rent) required to be paid
to Landlord by Tenant under this Lease (including, without limitation, any sums
payable to Landlord under any addendum, exhibit, rider or schedule attached
hereto) shall constitute rent and are sometimes collectively referred to as
"Rent." Each payment of Rent shall be paid by Tenant when due, without prior
demand therefor and without deduction or setoff, except as specifically set
forth in Sections 5.202, 7.1 and 8.3.
SECTION 2.4 LATE CHARGES. If any installment of Basic Annual Rent or Additional
Rent or any other payment of Rent under this Lease shall not be paid when due, a
"Late Charge" of five cents (5.05) per dollar so overdue may be charged by
Landlord to defray Landlord's administrative expense incident to the handling of
such overdue payments. Each Late Charge shall be payable on demand.
ARTICLE 3
SECURITY DEPOSIT
Tenant will provide to Landlord on the date this Lease is executed by Tenant the
Security Deposit set forth in Item 9 of the Basic Lease Provisions as security
for the performance of the terms hereof by Tenant. The Security Deposit may be
in the form of an unconditional and irrevocable letter of credit with a term of
no less than one year and on a form satisfactory to Landlord, which shall be
renewed or shall provide for adjustment in a manner reasonably satisfactory to
Landlord each year in accordance with the following schedule:
End of first Lease year - renew in same amount
End of second Lease year - renew in 2/3 of original amount
End of third Lease year - renew in 1/2 of original amount
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No Security Deposit shall be required after the fourth anniversary of the
Commencement Date. Tenant shall, at the proper times prior to the fourth
anniversary of the Commencement Date, provide an additional Security Deposit
with Landlord on the same prorata percentages and for the same time frames with
respect to any future finish allowance given to Tenant in connection with an
expansion or other addition to the Premises. Tenant shall not be entitled to
interest thereon and Landlord may commingle such Security Deposit with any other
funds of Landlord. The Security Deposit shall not be considered an advance
payment of rental or a measure of Landlord's damages in case of default by
Tenant. If Tenant defaults with respect to any provision of this Lease, Landlord
may, but shall not be required to, from time to time, without prejudice to any
other remedy, draw on any letter of credit and use, apply or retain all or any
part of this Security Deposit for the payment of any Rent or any other sum in
default or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default, including, without limitation, costs and attorneys' fees
incurred by Landlord to recover possession of the Premises. If Tenant is not in
default of the Lease on the fourth anniversary of the Commencement Date, the
Security Deposit shall be reduced to $0.00 and any letter of credit shall
promptly be returned to Tenant. Tenant agrees that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as the
Security Deposit and that Landlord and its successors and assigns shall not be
bound by any such actual or attempted assignment or encumbrance. Regardless of
any assignment of this Lease by Tenant, Landlord may return the Security Deposit
to the original Tenant, in the absence of evidence satisfactory to Landlord of
an assignment of the right to receive the Security Deposit or any part of the
balance thereof.
ARTICLE 4
OCCUPANCY AND USE
SECTION 4.1 USE OF PREMISES.
4.101 General. The Premises shall, subject to the remaining provisions of
this Section, be used solely for the Permitted Use (herein so
called) specified in Item II of the Basic Lease Provisions. Without
in any way limiting the foregoing, Tenant will not use, occupy or
permit the use or occupancy of the Premises for any purpose (and the
Permitted Use shall not include any use) which is forbidden by or in
violation of any law, ordinance or governmental or municipal
regulation, order, or certificate of occupancy, or which may be
dangerous to life, limb or property; or permit the maintenance of
any public or private nuisance; or do or permit any other thing
which may disturb the quiet enjoyment of any other tenant of the
Property; or keep any substance or carry on or permit any operation
which might emit offensive odors or conditions from the Premises; or
commit or suffer or permit any waste in or upon the Premises; or
sell, or permit the sale in any form by or to any of Tenant's agents
or employees or other parties in the Premises except through vending
machines in employee lunch or rest areas within the Premises for use
by Tenant's employees only; or use any apparatus which makes undue
noise or vibrations in the Building; or permit anything to be done
which would increase the fire and extended coverage insurance rate
on the Building or Building contents and, if there is any increase
in such rate by reason of acts of Tenant, then Tenant agrees to pay
such increase upon demand therefor by Landlord; or use, occupy or
permit the use or occupancy of the Premises as offices or agencies
of a foreign government or political subdivision, offices of any
governmental bureau or agency of the United States or any state or
political subdivision thereof, or offices of personnel agencies.
Payment by Tenant of any such rate increase shall not be a waiver of
Tenant's duty to comply herewith. Tenant shall keep the Premises
neat and clean at all times. Tenant shall promptly correct any
violation of a governmental law, rule or regulation relating to the
Premises. Tenant shall comply with any direction of any governmental
authority having jurisdiction which imposes any duty upon Tenant or
Landlord with respect to the Premises or with respect to the
occupancy or use thereof.
4.102 Hazardous and Toxic Materials.
(a) For purposes of this Lease, "Hazardous Materials" shall mean
asbestos containing materials and all other materials,
substances, wastes and chemicals classified as hazardous
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or toxic substances, materials, wastes or chemicals under
then-current applicable governmental laws, rules or
regulations.
(b) Tenant shall not knowingly incorporate into, or use or
otherwise place or dispose of at, the Premises, the Building
or on the Land any Hazardous Materials, except for use and
storage of cleaning and office supplies used in the ordinary
course of Tenant's business and then only if (i) such
materials are in small quantities, properly labeled and
contained, (ii) such materials are handled and disposed of in
accordance with the highest accepted industry standards for
safety, storage, use and disposal, (iii) notice of and a copy
of the current material safety data sheet is provided to
Landlord for each such hazardous or toxic material and (iv)
such materials are used, transported, stored, handled and
disposed of in accordance with all applicable governmental
laws, rules and regulations. Landlord shall have the right to
periodically inspect, take samples for testing and otherwise
investigate the Premises for the presence of Hazardous
Materials.
(c) Landlord shall not knowingly dispose of at the Premises,
Building or the Land any Hazardous Materials and shall
otherwise deal with all Hazardous Materials at the Premises,
Building or Land of which Landlord is aware in a manner that
will not materially and adversely affect Tenant's access, use
or occupancy of the Premises.
(d) If Landlord or Tenant ever has knowledge of the presence in
the Premises or the Building or the Land of Hazardous
Materials which affect the Premises, the party having
knowledge shall notify the other party thereof in writing
promptly after obtaining such knowledge.
(e) If Tenant or its employees, agents or contractors shall ever
violate the provisions of paragraph (a) of this subsection
4.102 or otherwise contaminate the Premises or the Property,
then Tenant shall clean up, remove and dispose of the material
causing the violation, in compliance with all applicable
governmental standards, laws, rules and regulations and then
prevalent industry practice and standards and shall repair any
damage to the Premises or Building within such period of time
as may be reasonable under the circumstances after written
notice by Landlord (collectively, "Tenant's Environmental
Corrective Work"). Tenant shall notify Landlord of its method,
time and procedure for any clean up or removal and Landlord
shall have the right to require reasonable changes in such
method, time or procedure or to require the same to be done
after normal business hours. Tenant's obligations under this
subsection 4.102(e) shall survive the termination or
expiration of this Lease.
(f) If any Tenant's Environmental Corrective Work (i) is to occur
outside of the Premises or (ii) will in any way affect any
portion of the Building other than the Premises, then Landlord
shall have the right to undertake Tenant's Environmental
Corrective Work. Tenant shall allow Landlord, its agents,
employees and contractors such access to the Premises as
Landlord may reasonably request in order to perform such
Tenant's Environmental Corrective Work.
(g) To the actual knowledge of Landlord, (i) no Hazardous
Materials are present on the Property or the soil, surface
water or groundwater thereof in amounts exceeding applicable
law, (ii) no underground storage tanks are present on the
Property in violation of applicable law, and (iii) no action,
proceeding or claim is pending or threatened regarding the
Property concerning any Hazardous Materials or pursuant to any
environmental law.
4.103 Disability Acts. From and after the Commencement Date, Tenant shall
cause the Premises to be in compliance with all existing
requirements of and regulations issued under the Disability Acts,
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as interpreted and enforced, for each of the following: (i)
alterations or improvements to any portion of the Premises
(including the initial build-out of the Premises); (ii) obligations
or complaints resulting in obligations, arising under or out of
Title I of the Americans With Disabilities Act or Tenant's
employer-employee obligations; (iii) obligations, or complaints
resulting in obligations, arising under or out of the conduct or
operations of Tenant's business, including any obligations or
requirements for barrier removal to customers or invitees as a
commercial facility or as a public accommodation (as defined in the
Disability Acts); and (iv) any change in the nature of Tenant's
business, or its employees, or financial net worth, or Tenant's
business operations that triggers an obligation under the Disability
Acts. Notwithstanding the foregoing, in the event the Premises
should be expanded to include a full floor, Landlord (and not
Tenant) shall be responsible for compliance with the Disabilities
Acts with respect to all Common Areas within the Premises, provided
that Landlord's responsibilities shall not exceed those applicable
to Landlord if the Premises were on a multi-tenant floor and shall
not increase by virtue of Tenant's specific use of the Premises.
SECTION 4.2 PERMITS. Tenant shall obtain the certificate of occupancy, if any,
required for occupancy of the Premises following construction of Tenant's
Improvements. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof, Tenant, at its expense, shall procure and thereafter maintain such
license or permit. Additionally, if Tenant's Improvements or any subsequent
alteration or improvement made to the Premises by Tenant or Tenant's use of the
Premises require any modification or amendment of any certificate of occupancy
for the Building or the issuance of any other permit of any nature whatsoever,
Tenant shall, at its expense, take all actions to procure any such modification
or amendment or additional permit.
SECTION 4.3 COMPLIANCE WITH LAWS. Tenant shall comply with all laws, statutes,
ordinances, orders and regulations affecting (i) Tenant's use and occupancy of
the Premises, (ii) any improvements constructed within the Building by or on
behalf of Tenant and (iii) any equipment installed within the Building by Tenant
or installed by a party other than Landlord on behalf of Tenant as same may be
interpreted and enforced, including (without limitation) the Americans with
Disabilities Act, the Texas Elimination of Architectural Barriers Act and the
Clean Air Act. Landlord shall comply with all laws, statutes, ordinances, orders
and regulations affecting the base Building structural, mechanical and life
safety systems outside of the Premises and in the Common Areas, as same may be
interpreted and enforced, including (without limitation) the Americans with
Disabilities Act, the Texas Elimination of Architectural Barriers Act and the
Clean Air Act.
SECTION 4.4 RULES AND REGULATIONS. Tenant will comply with such rules and
regulations (the "Rules and Regulations") generally applying to tenants in the
Building as may be reasonably adopted from time to time by Landlord for the
management, safety, care and cleanliness of, and the preservation of good order
and protection of property in, the Premises and the Building and at the
Property. All such Rules and Regulations are hereby made a part hereof.
Notwithstanding anything contained herein to the contrary, Tenant shall not be
required to comply with any new or amended rules and regulations, if the same
are designed to have a discriminatory effect on Tenant or unreasonably and
materially interfere with Tenant's permitted use of the Premises. The Rules and
Regulations in effect on the date hereof are on file with the Property Manager
and are attached hereto as Rider 4. All changes and amendments to the Rules and
Regulations sent by Landlord to Tenant in writing and conforming to the
foregoing standards shall be carried out and observed by Tenant. Landlord hereby
reserves all rights necessary to implement and enforce the Rules and Regulations
and each and every provision of this Lease.
SECTION 4.5 ACCESS. Without being deemed guilty of an eviction of Tenant and
without abatement of Rent, Landlord or its authorized agents shall have the
right to enter the Premises, upon reasonable notice, to inspect the Premises, to
show the Premises to prospective lenders, purchasers or tenants and to fulfill
Landlord's obligations or exercise its rights under this Lease. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises
and any other loss occasioned by Landlord's reasonable exercise of its rights
under this Section 4.5. For each of the aforesaid purposes, Landlord shall at
all times have and retain a key with which to unlock the doors to and within the
Premises, excluding Tenant's vaults and safes. Landlord shall have the right to
enter the Premises in
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an emergency without notice to Tenant and in such event shall have the right to
use any and all means which Landlord may deem proper to enter the Premises
without liability therefor. Landlord and Landlord's agents, except in the case
of emergency, shall provide Tenant with twenty-four (24) hours' notice prior to
entry of the Premises and shall be accompanied by a representative of Tenant
when entering the secured area (shown as the cross-hatched area on Exhibit A-1).
Any such entry by Landlord and Landlord's agents shall comply with all
reasonable security measures of Tenant, and shall be made so as not to
unreasonably interfere with the conduct of Tenant's business.
SECTION 4.6 QUIET POSSESSION. Provided Tenant timely pays Rent and observes and
performs all of the covenants, conditions and provisions on Tenant's part to be
observed and performed hereunder, Tenant shall have the quiet possession of the
Premises for the entire term hereof, subject to all of the provisions of this
Lease and all laws and restrictive covenants to which the Property is subject.
ARTICLE 5
UTILITIES AND SERVICES
SECTION 5.1 SERVICES TO BE PROVIDED. Landlord agrees to furnish or cause to be
furnished to the Premises, the utilities and services described in subsections
5.101 through 5.109 below, subject to all other provisions of this Lease.
5.101 Elevator Service. Landlord shall provide normal elevator service 24
hours a day, seven days a week, subject only to temporary
interruption in service caused by maintenance or repairs of the
elevators, but shall at all times have at least one elevator
servicing the Premises.
5.102 Heat and Air Conditioning.
(a) Hours and Standards. On Monday through Friday from 7:00 a.m.
to 6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m.
(other than holidays which are defined as New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving
holidays, and Christmas holidays), Landlord shall ventilate
the Premises and furnish heat or air conditioning from the
heating, ventilation and air conditioning ("HVAC") system
serving the Building, at such temperatures and in such amounts
as is customary in buildings of comparable size, quality and
in the general vicinity of the Building, with such adjustments
as Landlord reasonably deems necessary for the comfortable
occupancy of the Premises, subject to events of force majeure
and to any governmental requirements, ordinances, rules,
regulations, guidelines or standards relating to, among other
things, energy conservation. Landlord shall, on a continuous
basis and at all times, supply the Premises with chilled water
from the Building's HVAC system to meet the following
performance standards: chilled water meeting the load
requirements of one (1) ton per 200 square feet of Agreed
Rentable Area leased by Tenant delivered at a specified
constant temperature (+/-5(0) F.) selected from temperatures
in a range from 42 - 48 F. The specific temperature may be
changed by Landlord from time to time within the range
indicated in the preceding sentence.
(b) After Hours HVAC. If Tenant requires HVAC to the Premises
during times other than the hours stated above, Landlord shall
make such services available upon request by Tenant if
requested by Tenant within the time periods specified by
Landlord, and provided Tenant pays, as Additional Rent,
Landlord's then current actual cost to provide after hours
HVAC. The current actual cost is $25.00 per hour.
(c) Submetering of Air Conditioning. Tenant, as part of Tenant's
Improvements, shall install, maintain and repair at Tenant's
expense separate metering for all of Tenant's mainframe
computer heat exchangers, Tenant's HVAC air handling units,
and Tenant's fan coil units in the Computing Center (such
mainframe computer heat exchangers, HVAC air handling units,
and fan coil units are called the "HVAC Equipment" and such
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meters are called "BTU Meters"). The BTU Meters measure the
energy consumed by the HVAC Equipment by British Thermal Units
("BTUs"). As part of Additional Rent, Tenant will pay
Landlord, monthly, the cost of the energy consumed by the HVAC
Equipment ("Monthly Submetered BTU Charges"), which cost shall
be the product of (x) the BTUs consumed during such month by
the HVAC Equipment (as evidenced by the BTU Meters),
multiplied by (y) the per hour amount then charged to tenants
in the Building generally, but not to exceed Landlord's then
current actual cost, which rate is currently $8.56 per
1,000,000 BTUs per hour.
5.103 Electricity.
(a) Consumption. Landlord shall furnish to the Premises electric
current for normal office purposes at the electrical panel on
the Building Floor on which the Premises are located;
provided, however, Tenant shall be solely responsible for the
costs of electrical consumption (without duplication) within
the Premises which is in excess of 7.0 xxxxx per square foot
of the Agreed Net Rentable Area of the Premises (such
consumption is herein referred to as "Excess Consumption" and
the costs of Excess Consumption are herein referred to as
"Excess Consumption Costs"). Without in any way limiting
Tenant's responsibility for Excess Consumption Costs, Tenant
shall not (i) without the express prior written consent of
Landlord (except as provided below), install or use or permit
the installation or use of any computer or electronic data
processing equipment or any other electrical equipment which
(singly) requires a voltage other than 120 volts single phase
or otherwise has high electrical consumption or (ii) use
electric current in excess of the capacity of the feeders or
lines to the Building or the risers or wiring installation of
the Building or the Premises.
(b) Submetering Electrical Usage. All electricity delivered to the
Premises shall be submetered, and in that regard Tenant shall,
at Tenant's expense and as part of Tenant's Improvements,
install or cause to be installed, maintain and repair
submeters. All electrical lines to or panel boxes for the
Premises that are submetered are herein referred to as
"Submetered Lines," and each such submeter which measures
electrical consumption of the Submetered Lines or the Premises
is herein referred to as a "Submeter." As a part of Additional
Rent, Tenant shall pay Landlord the Excess Consumption Costs,
which shall be equal to the kilowatt hours of Excess
Consumption multiplied by the then current cost per kilowatt
hour of electricity charged by the electric utility provider
to the Building. Billing for metered electricity will be on an
actual cost basis from the electric utility without xxxx-up to
Landlord.
(c) UPS. Landlord shall also furnish, twenty-four (24) hours a
day, seven (7) days a week, to the Premises uninterruptible
power supply ("UPS") power with the characteristics described
below to meet Tenant's loads in an amount not to exceed 50
kVA. Tenant shall have the right to install, at its sole cost
and expense and with Landlord's prior written approval,
equipment of high electrical consumption (480 volts) which may
be connected to the UPS source on Tenant's floor. Tenant may
install, at its sole cost and expense and with Landlord's
prior written approval, circuits within the Premises to
connect to the UPS. All requirements for UPS will be
separately metered and billed to the Tenant as additional
rent. The Building shall also provide for Tenant's use an
alternate electrical power supply to the Premises from standby
generators located in the Building ("Building Backup
Generators"). Such alternate supply shall be used only in case
the Building's normal power supply is interrupted or during
temporary, scheduled testing of such equipment, or as deemed
necessary by Landlord. Such power supply shall be sufficient
to supply, under normal operating conditions, electrical power
adequate for the operation of the Building, subject to the
limitations described herein, and the Premises. For purposes
of this 5.103(c), the total power requirements for all
equipment in the Premises,
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whether non-emergency or emergency, shall not exceed 111 kVA.
In the event Tenant desires to exceed the 111 kVA limit,
Tenant must obtain the written approval of Landlord and, if
approved (and subject to availability), Tenant shall pay a
one-time charge of Landlord's cost to provide such additional
power, which cost is currently $750 per kVA. The Building
Back-up Generators shall be maintained so as to start up and
operate automatically in the event of interruption of normal
power supply, and shall provide emergency power to all
Building systems on a priority basis. As generator capacity
becomes available, the system begins loading the critical load
groups in order of priority. The system will not add load
unless generator capacity is available. Those Building systems
receiving priority in order of their importance are fire and
life safety systems, elevator systems, chilled water and
building automation systems, UPS power and data center floors
of the Building. Tenant acknowledges that in the event of an
emergency, the Building Back-up Generators may be required to
shed non-critical loads servicing standard Building systems
lighting to office space and Common Areas, power to the
cafeteria, components of the transportation systems and other
Building systems not critical to the continued operation of
the data center floors.
5.104 Water. Landlord shall furnish regular (not deionized) water for
humidification, drinking, cleaning and lavatory purposes only in the
Premises and to appropriate places in the Common Areas.
5.105 Janitorial Services. Landlord shall provide janitorial services to
the Premises after 6:00 p.m. in accordance with the standards set
forth on Exhibit H attached hereto and made a part hereof, provided
Tenant complies with subsection 6.201 below.
5.106 Common Areas. Landlord shall perform routine maintenance in the
Common Areas (hereinafter defined).
5.107 Bulbs and Ballasts. Landlord shall provide Building standard bulbs
and ballasts as necessary in the Premises. Landlord shall also
provide non-building standard bulbs and ballasts provided Tenant
shall pay the cost thereof, together with an administrative fee
equal to ten percent (10%) of such cost.
5.108 Fire Suppression. Landlord shall provide Tenant access to the
existing Building fire alarm system to accommodate a separate
pre-action fire suppression system to be installed by Tenant at its
sole cost and expense within the Premises. The Tenant fire
suppression system shall be compatible with the Building fire alarm
system and shall otherwise be acceptable to Landlord in its sole
discretion. Tenant shall provide to Landlord written plans and
specifications for the Tenant fire suppression system. All wiring
and other improvements necessary for the system outside of the
Building fire alarm closet, including (without limitation) control
wires for indication of system alarm, system trouble, system tamper,
and flow condition, shall be installed and paid for by Tenant.
5.109 Security. Landlord shall provide security personnel, equipment, and
access control in accordance with the practice generally of other
Class A high-rise office buildings in the Xxxxxxx Xxxxxxxx Xxxxxxxx
xx Xxxxxxx, Xxxxx. Tenant acknowledges that, currently, Landlord
maintains security personnel on site twenty-four (24) hours per day,
seven (7) days per week and a security officer at the main lobby
security desk from 8 a.m. to 7 p.m., with the building security
control center manned twenty-four (24) hours per day. Landlord shall
permit Tenant, at Tenant's sole cost and expense, to utilize the
Building's security control systems to limit access to the Premises
upon terms and conditions currently followed by other tenants of the
Building using such system. Landlord shall provide Tenant, at no
expense to Tenant, one hundred (100) security cards for purposes of
permitting Tenant and its employees to access the Building security
system.
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SECTION 5.2 SERVICE INTERRUPTION.
5.201 Service Interruption. Landlord shall not be liable for and, except
as provided in subsection 5.202 below, Tenant shall not be entitled
to any abatement or reduction of Rent by reason of, Landlord's
failure to maintain temperature or electrical constancy levels or to
furnish any of the foregoing services when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor
disturbance or labor dispute of any character, governmental
regulation, moratorium or other governmental action, inability by
exercise of reasonable diligence to obtain electricity, water or
fuel, or by any other cause beyond Landlord's reasonable control
(collectively, "Uncontrollable Events"), nor shall any such
Uncontrollable Event or results or effects thereof be construed as
an eviction (constructive or actual) of Tenant or as a breach of any
implied warranty, or relieve Tenant front the obligation to perform
any covenant or agreement herein and in no event shall Landlord be
liable for damage to persons or property (including, without
limitation, business interruption), or be in default hereunder, as a
result of any such Uncontrollable Event or results or effects
thereof. However, promptly upon any interruption, curtailment,
stoppage or suspension of services and/or utilities to be furnished
by Landlord under Section 5.1, Landlord will commence diligent good
faith efforts to restore same and will diligently proceed with such
efforts until such services and/or utilities are restored.
5.202 Limited Right to Abatement of Rent. If any portion of the Premises
becomes unfit for occupancy because Landlord fails to deliver any
service as required under Section 5.1 above for any period (other
than a reconstruction period conducted pursuant to Section 7.1 or
Article 8 below) exceeding five (5) consecutive days after written
notice by Tenant to Landlord and provided such failure is not caused
by Tenant, Tenant's contractors or any of their respective agents or
employees, Tenant shall be entitled to a fair partial abatement of
Basic Annual Rent and Additional Rent for any such portion of the
Premises from the expiration of such five (5) consecutive day period
until such service is restored. If the failure to furnish services
which causes the Premises to be unfit for occupancy is caused by the
failure of Landlord, its employees, agents or contractors, to
perform Landlord's duties under this Lease and is not cured within
thirty (30) consecutive days after receipt of Tenant's notice to
Landlord, or if the failure to furnish services which causes the
Premises to be unfit for occupancy is not caused by such failure and
is not cured within ninety (90) consecutive days after receipt of
Tenant's notice to Landlord, then Tenant at its option may terminate
this Lease and all of its obligations for the remaining balance of
the Term by delivering notice to Landlord within ten (10) days after
the applicable thirty (30) consecutive day period or ninety (90)
consecutive day period, as the case may be. For purposes of this
Section 5.202, the term "unfit for occupancy" shall mean the
Premises cannot reasonably be used for its then current Permitted
Use.
ARTICLE 6
MAINTENANCE, REPAIRS, ALTERATIONS AND IMPROVEMENTS
SECTION 6.1 LANDLORD'S OBLIGATION TO MAINTAIN AND REPAIR. Landlord shall
(subject to Section 7.1, Section 7.4, Article 8 below and Landlord's rights
under Section 2.2 above and except for ordinary wear and tear) maintain exterior
walls, roof and load bearing elements and Common Areas of the Building. Except
for load bearing elements of the Building located within the Premises, Landlord
shall not be required to maintain or repair any portion of the Premises.
SECTION 6.2 TENANT'S OBLIGATION TO MAINTAIN AND REPAIR.
6.201 Tenant's Obligation. Tenant shall, at Tenant's sole cost and
expense, (i) maintain and keep the interior of the Premises
(including, but not limited to, all fixtures, walls, ceilings,
floors, doors, windows [except replacement of exterior plate glass
unless the replacement is by reason of damage caused by Tenant],
appliances and equipment which are a part of the Premises) in good
repair and condition, (ii) repair or replace any damage or injury
done to the Building or any other part of the
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property caused by Tenant, Tenant's agents, employees, licensees,
invitees or visitors or resulting from a breach of its obligations
under this Section 6.2 and (iii) indemnify and hold Landlord
harmless from, and reimburse Landlord for and with respect to, any
and all costs, expenses (including reasonable attorneys' fees),
claims and causes of action arising from or incurred by and/or
asserted in connection with such maintenance, repairs, replacements,
damage or injury. All repairs and replacements performed by or on
behalf of Tenant shall be performed in a good and workmanlike manner
and in accordance with the standards applicable to alterations or
improvements performed by Tenant. Tenant shall continue to pay Rent,
without abatement, during any period that repairs or replacements
are performed or required to be performed by Tenant under this
Section 6.2.
6.202 Rights of Landlord. Landlord shall have the same rights with respect
to repairs performed by Tenant as Landlord has with respect to
improvements and alterations performed by Tenant under subsection
9.303 below. In the event Tenant fails, in the reasonable judgment
of Landlord, to maintain the Premises in good order, condition and
repair, or otherwise satisfy its repair and replacement obligations
under subsection 6.201 above, Landlord shall have the right to
perform such maintenance, repairs and replacements at Tenant's
expense. Tenant shall pay to Landlord on demand any such cost or
expense incurred by Landlord, together with interest thereon at the
rate specified in Section 15.10 below from the date of demand until
paid.
SECTION 6.3 IMPROVEMENTS AND ALTERATIONS.
6.301 Landlord's Construction Obligation. Landlord's sole construction
obligation under this Lease is as set forth in the Work Letter.
6.302 Alteration of Building. Subject to Section 4.5, Landlord hereby
reserves the right and at all times shall have the right to repair,
change, redecorate, alter, improve, modify, renovate, enclose or
make additions to any, part of the Property (including, without
limitation, structural elements and load bearing elements within the
Premises) and to enclose and/or change the arrangement and/or
location of driveways or parking areas or landscaping or other
Common Areas of the Property, all without being held guilty of an
actual or constructive eviction of Tenant or breach of any implied
warranty and without an abatement of Rent (the "Reserved Right").
Without in any way limiting the generality of the foregoing,
Landlord's Reserved Right shall include, but not be limited to, the
right to do any of the following: (i) erect and construct
scaffolding, pipe, conduit and other structures on, within and
outside of the Premises when reasonably required by the nature of
the changes, alterations, improvements, modifications, renovations
and/or additions being performed, (ii) repair, change, renovate,
remodel, alter, improve, modify or make additions to the
arrangement, appearance, location and/or size of entrances or
passageways, doors and doorways, corridors, elevators, elevator
lobbies, stairs, toilets or other Common Areas or Service Areas,
(iii) temporarily close any Common Area and/or temporarily suspend
Building services and facilities in connection with any repairs,
changes, alterations, modifications, renovations or additions to any
part of the Building, (iv) repair, change, alter or improve
plumbing, pipes and conduits located in the Building, including
without limitation, those located within the Premises, the Common
Areas, the Service Corridors or the Service Areas (hereinafter
defined) of the Building and (v) repair, change, modify, alter,
improve, renovate or make additions to the Building's central
heating, ventilation, air conditioning, electrical, mechanical or
plumbing systems. When exercising the Reserved Right, Landlord will
interfere with Tenant's use and occupancy of the Premises as little
as is reasonably practicable. Landlord shall schedule all repairs
and alterations, except emergencies, with twenty-four (24) hours
notice to Tenant and shall, to the extent possible, conduct the same
before or after normal business hours so as to minimize disruption
of Tenant's business operations. Absent an emergency, Landlord shall
not enter the secure area identified in Exhibit A-I unless
accompanied by a representative of Tenant. Landlord shall be
relieved of all obligations to provide services to the secured area
chat require Landlord's access to the secured area, such as
janitorial service. If Landlord enters such secure area during an
emergency,
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Landlord shall use reasonable efforts to notify Tenant of such entry
immediately thereafter. For purposes of this Lease, an emergency
shall be deemed to exist if Landlord reasonably believes that a
condition within the Premises presents an imminent danger of injury
or loss of life or damage to property.
6.303 Alterations, Additions, Improvements and Installations by Tenant.
Tenant shall not, without the prior written consent of Landlord,
make any changes, modifications, alterations, additions or
improvements (other than Tenant's Improvements under the Work
Letter) to, or install any equipment or machinery (other than office
equipment and unattached personal property) on, the Premises (all
such changes, modifications, alterations, additions, improvements
(other than Tenant's Improvements under the Work Letter] and
installations are herein collectively referred to as
"Installations") if any such Installations would (i) affect any
structural element of the Property, (ii) reduce the load bearing
capacity of any portion of the Building or the Garage (other than by
reason of the weight of the Installations themselves, as long as
total load capacity is not exceeded), (iii) involve slab
penetrations or curtain wall penetrations in the Building or Garage,
(iv) penetrate into portions of the Building outside of the
Premises, or (iv) adversely affect (A) the functioning of the
Building HVAC system, or the electrical, mechanical, plumbing,
lighting, life safety or any other system of the Building or (B)
Landlord's ability to deliver Building services to other tenants of
the Building. As to Installations not covered by the preceding
sentence, Tenant will not perform same without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. All Installations shall be at
Tenant's sole cost and expense. Without in any way limiting
Landlord's consent rights, Tenant shall not be permitted to proceed
until (a) Landlord approves the contractor or person making such
Installations and approves such contractor's insurance coverage to
be provided in connection with the work, (b) Landlord approves final
and complete plans and specifications for the work and (c) the
appropriate governmental agency, if any, has approved the plans and
specifications for such work. All work performed by Tenant or its
contractor relating to the Installations shall conform to applicable
governmental laws, rules and regulations, including, without
limitation, the Disability Acts. Upon completion of the
Installations, Tenant shall deliver to Landlord "as built" plans. If
Landlord performs such Installations, Tenant shall pay Landlord, as
Additional Rent, the cost thereof plus fifteen percent (15%) as
reimbursement for Landlord's overhead. Each payment shall be made to
Landlord within ten (10) days after receipt of an invoice from
Landlord. All Installations that constitute improvements constructed
within the Premises shall be surrendered with the Premises at the
expiration or earlier termination of this Lease, unless Landlord
requests that same be removed pursuant to Section 1.3 above. Tenant
shall indemnify and hold Landlord harmless from, and reimburse
Landlord for and with respect to, any and all costs, expenses
(including reasonable attorneys' fees and court costs), demands,
claims, causes of action and liens arising from or in connection
with any Installations performed by or on behalf of Tenant. All
Installations performed by or on behalf of Tenant will be performed
diligently and in a first-class workmanlike manner and in compliance
with all applicable laws, ordinances, regulations and rules of any
public authority having jurisdiction over the Building and/or
Tenant's and Landlord's insurance carriers. Landlord will have the
right, but not the obligation, to inspect periodically the work on
the Premises and may require reasonable changes in the method or
quality of the work.
6.304 Approvals. Any approval by Landlord (or Landlord's architect and/or
engineers) of any of Tenant's contractors or Tenant's drawings.
plans or specifications which are prepared in connection with any
construction of improvements (including, without limitation,
Tenant's Improvements) in the Premises shall not in any way be
construed as or constitute a representation or warranty of Landlord
as to the abilities of the contractor or the adequacy or sufficiency
of such drawings, plans or specifications or the improvements to
which they relate, for any use, purpose or condition.
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ARTICLE 7
INSURANCE, FIRE AND CASUALTY
SECTION 7.1 TOTAL OR PARTIAL DESTRUCTION OF THE BUILDING OR THE PREMISES. In the
event that the Building is totally destroyed by fire or other casualty or in the
event the Building (or any portion thereof) is so damaged that the Premises will
be, in Landlord's reasonable opinion, unfit for occupancy (as defined in Section
5.202 hereof) for a period exceeding one hundred eighty (180) days after the
date of such damage, Landlord or Tenant may terminate this Lease, in which event
Basic Annual Rent and Additional Rent shall be abated during the unexpired
portion of this Lease effective with the date of such damage. Landlord or Tenant
shall exercise the termination right pursuant to the preceding sentence, if at
all, by delivering written notice of termination within ten (10) days after
Landlord's determination given to Tenant in writing that the repairs cannot be
completed within such one hundred eighty (180) day period. In the event the
Building or the Premises are damaged by fire or other casualty and, in
Landlord's reasonable opinion, the Premises can be made tenantable within one
hundred eighty (180) days after the date of such damage, or if the damage is
more serious but neither Landlord nor Tenant elects to terminate this Lease
pursuant to this Section, in either such event Landlord shall, within sixty (60)
days after the date of such damage, commence rebuilding or repairing the
Building and the Premises (including Tenant's Improvements), but only to the
extent of insurance proceeds actually received by Landlord for such repairs, to
substantially the same condition which existed immediately prior to the
happening of the casualty. Landlord shall allow Tenant a fair diminution of
Basic Annual Rent and Additional Rent during the time the Premises are unfit for
occupancy; provided, that if such casualty was caused by Tenant, its agents,
employees, or contractors, Basic Annual Rent and Additional Rent shall be abated
only to the extent Landlord is compensated for such Basic Annual Rent and
Additional Rent by loss of rents insurance, if any. Notwithstanding any
provision or inference herein to the contrary, Landlord's obligation to restore
the Building and the Premises is expressly limited to the amount of casualty
insurance proceeds actually received by Landlord. Without limiting the preceding
sentence, Tenant understands and agrees that if any mortgagee under a deed of
trust, security agreement or mortgage on the Building should require that the
insurance proceeds be used to retire or reduce the mortgage debt or if the
insurance company issuing Landlord's fire and casualty insurance policy fails or
refuses to pay Landlord the proceeds under such policy, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice by Landlord to
Tenant. Any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or to the Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control.
SECTION 7.2 TENANT'S INSURANCE.
7.201 Types of Coverage. Tenant covenants and agrees that from and after
the date of delivery of the Premises from Landlord to Tenant, Tenant
will carry and maintain, at its sole cost and expense, the insurance
set forth in paragraphs (a), (b), (c) and (d) of this subsection.
(a) Commercial General Liability Insurance. Commercial General
Liability Insurance coverage including personal injury, bodily
injury, property damage, operations hazard and contractual
liability, such insurance to insure both Tenant and, as
additional insureds, Landlord and the Property Manager, and to
afford protection to the limit of not less than $3,000,000.00,
combined single limit, in respect to injury or death to any
number of persons and all property damage arising out of any
one (1) occurrence, with a deductible reasonably acceptable to
Landlord.
(b) Property Insurance. Property insurance on an all risk, full
replacement cost basis (including coverage against fire, wind,
tornado, vandalism, malicious mischief, water damage and
sprinkler leakage) covering Tenant's Improvements,
Installations and all other fixtures, equipment and personalty
located in the Premises. Such policy will be written in the
names of Tenant, Landlord and any other parties reasonably
designated by Landlord from time to time, as their respective
interests may appear. The property insurance may, with the
consent of the Landlord, provide for a reasonable deductible.
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(c) Workers Compensation Insurance. Worker's compensation
insurance insuring against and satisfying Tenant's obligations
and liabilities mandated by the worker's compensation laws of
the State of Texas.
(d) Employers Liability Insurance. Employer's liability insurance
in an amount not less than $1,000,000.00.
7.202 Other Requirements of Insurance. All such insurance will be issued
and underwritten by companies reasonably acceptable to Landlord and
will contain endorsements that (a) such insurance may not lapse with
respect to Landlord or Property Manager or be canceled or amended
with respect to Landlord or Property Manager without the insurance
company giving Landlord and Property Manager at least thirty (30)
days prior written notice of such cancellation or amendment, (b)
Tenant will be solely responsible for payment of premiums, (c) in
the event of payment of any loss covered by such policy, Landlord or
Landlord's designees will be paid first by the insurance company for
Landlord's loss (but only if Landlord elects to rebuild the Building
and/or the Premises) and (d) Tenant's insurance is primary in the
event of overlapping coverage which may be carried by Landlord.
7.203 Proof of Insurance. Tenant shall deliver to Landlord certified
copies of all policies of insurance required by this Section 7.2 or
duly executed Certificates of Insurance evidencing in-force coverage
of the required insurance, within ten (10) days prior to the
commencement of construction of Tenant's Improvements. Further,
Tenant shall deliver to Landlord renewals thereof at least thirty
(30) days prior to the expiration of the respective policy terms.
SECTION 7.3 LANDLORD'S INSURANCE.
7.301 Types of Coverage. Landlord covenants and agrees that from and after
the date of delivery of the Premises from Landlord to Tenant,
Landlord will carry and maintain, at its sole cost and expense, the
insurance set forth in paragraphs (a) and (b) of this subsection.
(a) Commercial General Liability Insurance. Commercial General
Liability Insurance coverage including personal injury, bodily
injury, broad form property damage, operations hazard and
contractual liability, such insurance to afford protection to
the limit of not less than $3,000,000 combined single limit in
respect to injury or death to any number of persons and
property damage arising out of any one (1) occurrence.
(b) Fire and Extended Coverage Insurance. A policy or policies of
property insurance covering the Property on an all risk
replacement cost basis, including without limitation,
sprinkler and water damage, vandalism, malicious mischief,
fire, wind and tornado and with any such deductibles as
Landlord may from time to time determine.
7.302 Blanket Coverage. Any insurance provided for in subsection 7.301
above may be effected by a policy or policies of blanket insurance
covering additional items or locations or assureds, provided that
the requirements of this Section 7.3 are otherwise satisfied. Tenant
shall have no rights in any policy or policies maintained by
Landlord.
SECTION 7.4 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any
rights it may have against the other (including, but not limited to, a direct
action for damages) on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be (even if such loss or damage is caused by the fault,
negligence or other tortious conduct, acts or omissions of the released party or
the released party's directors, employees, agents or invitees), to their
respective property, the Premises, its contents or to any other portion of the
Building or the Property arising from any risk covered by the fire and extended
coverage property insurance required to be carried by Tenant and Landlord,
respectively, under subsections 7.201(b) and 7.301(b) above or, if the coverage
provided thereby is broader, the fire and extended property insurance actually
carried by the damaged
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party. Without in any way limiting the foregoing waivers and to the extent
permitted by applicable law, the parties hereto each, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that Landlord or
Tenant or their respective insurers may have against the other party or their
respective officers, directors, employees, agents or invitees and all rights of
their respective insurance companies based upon an assignment from its insured.
Each party to this Lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers contained in
this Section and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waiver shall be effective whether or not the parties
maintain the required insurance.
SECTION 7.5 INDEMNITY. Tenant will indemnify and hold Landlord, Property Manager
and their respective officers, directors, employees and agents harmless from,
and reimburse Landlord for and with respect to, all claims, demands, actions,
damages, loss liabilities, judgments, costs and expenses, including without
limitation, reasonable attorney's fees and court costs (each a "Claim" and
collectively the "Claims") which (i) are suffered by, recovered from or asserted
against Landlord, (ii) are not paid by insurance carried by Tenant or Landlord
(without in any way affecting the requirements of or Landlord's rights under
subsection 7.202(d) above) and (iii) arise from or in connection with (a) the
use or occupancy of the Premises and/or any accident, injury or damage occurring
in or at the Premises or (b) any breach by Tenant of any representation or
covenant in this Lease; provided, however, such indemnification of Landlord by
Tenant shall not include any Claim waived by Landlord under Section 7.4 above or
any Claim to the extent caused by the negligence, gross negligence or willful
misconduct of Landlord. Landlord will indemnify and hold Tenant, its officers,
directors, employees and agents harmless from, and reimburse Tenant for and with
respect to, all Claims which (i) are suffered by, recovered from or asserted
against Tenant, (ii) are not paid by insurance carried by Tenant or Landlord,
and (iii) arise from or in connection with any negligent act or omission or
willful misconduct of Landlord or Landlord's agents, employees or contractors;
provided, however, such indemnification of Tenant by Landlord shall not include
any Claim waived by Tenant under Section 7.4 above or any Claim to the extent
caused by the negligence, gross negligence or willful misconduct of Tenant.
ARTICLE 8
CONDEMNATION
SECTION 8.1 CONDEMNATION RESULTING IN CONTINUED USE NOT FEASIBLE. If the
Property or any portion thereof that, in Landlord's reasonable opinion, is
necessary to the continued efficient and/or economically feasible use of the
Property shall be taken or condemned in whole or in part for public purposes, or
sold to a condemning authority in lieu of taking, then the term of this Lease
shall, at the option of Landlord, forthwith cease and terminate.
SECTION 8.2 TOTAL CONDEMNATION OF PREMISES. In the event that all or
substantially all of the Premises is taken or condemned or sold in lieu thereof
or if Tenant will be unable to use a substantial portion of the Premises or it
is reasonably anticipated that safe and reasonable access to the Building will
not be available or that Tenant's use of the Premises in the manner used
immediately prior to such taking will be substantially impaired for a period of
one hundred eighty (180) consecutive days by reason of a taking, either Landlord
or Tenant may terminate this Lease by delivering written notice thereof to the
other within ten (10) business days after notice of the taking, condemnation or
sale in lieu thereof to be effective as of the date of such taking, condemnation
or sale in lieu thereof.
SECTION 8.3 CONDEMNATION WITHOUT TERMINATION. If upon a taking or condemnation
or sale in lieu of the taking of all or less than all of the Property which (a)
does not give either Landlord or Tenant the right to terminate this Lease or (b)
gives either Landlord or Tenant the right to terminate this Lease pursuant to
Section 8.1 or 8.2 above and neither Landlord nor Tenant elect to exercise such
termination right, then this Lease shall continue in full force and effect,
provided that, if the taking, condemnation or sale includes any portion of the
Premises, the Basic Annual Rent and Additional Rent shall be redetermined on the
basis of the remaining square feet of Agreed Rentable Area of the Premises.
Landlord, at Landlord's sole option and expense, shall restore and reconstruct
the Building to substantially its former condition to the extent that the same
may be reasonably feasible, but such work shall not be required to exceed the
scope of the work done by Landlord in originally constructing
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the Building, nor shall Landlord in any event be required to spend for such work
an amount in excess of the amount received by Landlord as compensation or
damages (over and above amounts going to the mortgagee of the property taken)
for the part of the Building or the Premises so taken.
SECTION 8.4 CONDEMNATION PROCEEDS. Landlord shall receive the entire award
(which shall include sales proceeds) payable as a result of a condemnation,
taking or sale in lieu thereof. Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in and to
any such award. Tenant shall, however, have the right to recover from such
authority through a separate award which does not reduce Landlord's award, any
compensation as may be awarded to Tenant on account of moving and relocation
expenses and depreciation to and removal of Tenant's physical property.
ARTICLE 9
LIENS
Tenant shall keep the Premises free from all liens arising out of any work
performed, materials furnished or obligations incurred by or for Tenant and
Tenant shall indemnify and hold Landlord harmless from, and reimburse Landlord
for and with respect to, any and all claims, causes of action, damages, expenses
(including reasonable attorneys' fees), arising from or in connection with any
such liens. In the event that Tenant shall not, within ten (10) days following
notification to Tenant of the imposition of any such lien, cause the same to be
released of record by payment or the posting of a bond in amount, form and
substance reasonably acceptable to Landlord, Landlord shall have, in addition to
all other remedies provided herein and by law, the right but not the obligation,
to cause the same to be released by such means as it shall deem proper,
including payment of or defense against the Claim giving rise to such lien. All
amounts paid or incurred by Landlord in connection therewith shall be paid by
Tenant to Landlord on demand and shall bear interest from the date of demand
until paid at the rate set forth in Section 15.10 below. Nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration or repair
of or to the Building or the Premises or any part thereof, nor as giving Tenant
any right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to the filing
of any mechanic's or other liens against the interest of Landlord in the
Property or the Premises.
ARTICLE 10
TAXES ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, prior to their becoming delinquent,
any and all taxes and assessments levied against, and any increases in Real
Estate Taxes as a result of, any personal property or trade or other fixtures
placed by Tenant in or about the Premises and any improvements (other than
Tenant's Improvements) constructed in the Premises by or on behalf of Tenant.
ARTICLE 11
SUBLETTING AND ASSIGNING
SECTION 11.1 SUBLEASE AND ASSIGNMENT. Tenant shall not assign this Lease, or
allow it to be assigned, in whole or in part, by operation of law or otherwise
(it being agreed that for purposes of this Lease, assignment shall include,
without limitation, the transfer of a majority interest of stock, partnership or
other forms of ownership interests, merger or dissolution) or mortgage or pledge
the same, or sublet the Premises or any part thereof or permit the Premises to
be occupied by any firm, person, partnership or corporation or any combination
thereof, other than Tenant, without the prior written consent of Landlord. In no
event shall any assignment or sublease ever release Tenant from any obligation
or liability hereunder.
SECTION 11.2 TENANT'S CONTINUING OBLIGATIONS. Without limiting Landlord's
consent rights and as a condition to obtaining Landlord's consent, (i) each
assignee must assume all obligations under this Lease and (ii) each subtenant
must confirm that its sublease is subject and subordinate to this Lease. In
addition, each assignee and subtenant shall agree to cause the Premises to
comply at all times with all requirements of the Disability Acts
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(as amended), including, but not limited to, obligations arising out of or
associated with such assignee's or subtenant's use of or activities or business
operations conducted within the Premises. No assignee or subtenant of the
Premises or any portion thereof may assign or sublet the Premises or any portion
thereof. Consent by Landlord to one or more assignments or sublettings shall not
operate as a waiver of Landlord's rights as to any subsequent assignments and/or
sublettings. All reasonable legal fees and expenses incurred by Landlord in
connection with any assignment or sublease proposed by Tenant will be the
responsibility of Tenant and will be paid by Tenant upon receipt of an invoice
from Landlord.
SECTION 11.3 LANDLORD'S RIGHTS RELATING TO ASSIGNEE OR SUBTENANT. To the extent
the rentals or income derived from any sublease or assignment exceed the rentals
due hereunder, all such excess rentals (after first deducting all reasonable
costs associated with such sublease or assignment) shall be the property of and
paid over to Landlord in consideration for Landlord's consent to the applicable
assignment or sublease. Landlord may at its option collect directly from such
assignee or subtenant all rents becoming due to Tenant under such assignment or
sublease. Tenant here by authorizes and directs any such assignee or subtenant
to make such payments of rent directly to Landlord upon receipt of notice from
Landlord, and Tenant agrees that any such payments made by an assignee or
subtenant to Landlord shall, to the extent of the payments so made, be a full
and complete release and discharge of rent owed to Tenant by such assignee or
subtenant. No direct collection by Landlord from any such assignee or subtenant
shall be construed to constitute a novation or a release of Tenant or any
guarantor of Tenant from the further performance of its obligations hereunder.
Receipt by Landlord of any rent from any assignee, subtenant or occupant of the
Premises or any part thereof shall not be deemed a waiver of the above covenant
in this Lease against assignment and subletting or a release of Tenant under
this Lease. In the event that, following an assignment or subletting, this Lease
or the rights and obligations of Tenant hereunder are terminated for any reason,
including without limitation in connection with default by or bankruptcy of
Tenant (which, for the purposes of this Section 11.3, shall include all persons
or entities claiming by or through Tenant), Landlord may, at its sole option,
consider this Lease to be thereafter a direct lease to the assignee or subtenant
of Tenant upon the terms and conditions contained in this Lease.
SECTION 11.4 ERISA AND UBTI RESTRICTIONS. Notwithstanding anything to the
contrary contained herein, including, without limitation Sections 11.1 and 11.2
above, no assignment or subletting shall be permitted if (i) the proposed
assignee or subtenant or any person which, directly or indirectly, controls, is
controlled by, or is under common control with, the proposed assignee or
subtenant directly or indirectly, controls, is controlled by, or is under common
control with Landlord or any person who controls Landlord; and (ii) the proposed
assignment or sublease (1) provides for a rental or other payment for the
leasing, use, occupancy or utilization of all or any portion of the Premises
based, in whole or in part, on the income or profits derived by any person from
the property so leased, used, occupied or utilized other than an amount based on
a fixed percentage or percentages of gross receipts or sales or (2) does not
provide that such assignee or subtenant shall not enter into any lease,
sublease, license, concession or other agreement for the use, occupancy or
utilization of all or any portion of the Premises which provides for a rental or
other payment for such use, occupancy or utilization based, in whole or in part,
on the income or profits derived by any person from the property so leased,
used, occupied or utilized other than an amount based on a fixed percentage or
percentages of gross receipts or sales; or (iii) in the reasonable opinion of
Landlord's counsel, such proposed assignment or subletting will (1) cause a
violation of the Employee Retirement Income Security Act of 1974 by such
proposed assignee or subtenant, by Landlord, or by any person which, directly or
indirectly, controls, is controlled by, or is under common control with,
Landlord or any person who controls Landlord or (2) result in Landlord, or any
person which, directly or indirectly controls Landlord, receiving "unrelated
business taxable income" (as defined in the Internal Revenue Code).
SECTION 11.5 ASSIGNMENT BY OPERATION OF LAW. The dissolution of a corporation or
partnership which is Tenant, the transfer of a majority of the assets of Tenant,
the addition and withdrawal of shareholders in a corporation which is Tenant and
the withdrawal from and addition of partners to any partnership which is Tenant
shall constitute an assignment of this Lease which is prohibited without
Landlord's consent. However, notwithstanding the foregoing and for purposes of
this Lease, the following shall not be considered assignments prohibited
hereunder or otherwise require Landlord's consent: (1) the dissolution of Tenant
(if Tenant is a partnership) and immediate reconstitution into a partnership or
the addition or withdrawal of partners, or the reallocation of interests among
partners of Tenant; (2) the dissolution of Tenant (if Tenant is a corporation)
and the
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immediate reconstitution of Tenant into a new corporation, or the addition of
stockholders and the withdrawal of stockholders in the normal course of Tenant's
business, (3) the assignment of this Lease to any successor of Tenant (A) into
which or with which Tenant is merged or consolidated, (B) arising from the
transfer of Tenant's interest under this Lease made in conjunction with the
transfer of a majority of the assets and liabilities of Tenant, or (C) arising
from the acquisition of the assets and liabilities of another corporation by
Tenant so long as in each of the circumstances described in (1) through (3)
above the surviving partnership, corporation or assignee shall assume all
obligations of Tenant hereunder and include a majority of the partners that were
partners (in the case of a partnership) or include the same controlling
shareholders (in the case of a corporation) of Tenant during the twelve (12)
month period immediately prior to the time of the applicable event and the
surviving partnership, corporation or assignee can demonstrate to Landlord's
reasonable satisfaction the same or better financial strength as possessed by
Tenant on the date hereof. Further, Landlord agrees to not unreasonably withhold
or delay its consent to any proposed sublease or assignment to an Affiliate of
Tenant.
ARTICLE 12
TRANSFERS BY LANDLORD, SUBORDINATION AND
TENANT'S ESTOPPEL CERTIFICATE
SECTION 12.1 SALE OF THE PROPERTY. In the event of a sale, transfer or
conveyance by Landlord of the Property (which sale, transfer or conveyance by
Landlord may be consummated freely without consent or approval of Tenant), the
same shall operate to release Landlord from any and all liability under this
Lease arising after the date of such sale, provided that if a Security Deposit
has been made by Tenant, Landlord shall not be released from liability with
respect thereto unless Landlord transfers the Security Deposit to the purchaser.
SECTION 12.2 SUBORDINATION, ATTORNMENT AND NOTICE. This Lease is subject and
subordinate to (i) any lease wherein Landlord is the tenant and to the liens of
any and all mortgages and deeds of trust, regardless of whether such lease,
mortgage or deed of trust now exists or may hereafter be created with regard to
all or any part of the Property, (ii) any and all advances (including interest
thereon) to be made under any such lease, mortgage or deed of trust and (iii)
all modifications, consolidations, renewals, replacements and extensions of any
such lease, mortgage or deed of trust. Tenant also agrees that any lessor,
mortgagee or trustee may elect (which election shall be revocable) to have this
Lease superior to any lease or lien of its mortgage or deed of trust and, in the
event of such election and upon notification by such lessor, mortgagee or
trustee to Tenant to that effect, this Lease shall be deemed superior to the
said lease, mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of said lease, mortgage or deed of trust. Tenant shall,
in the event of the sale or assignment of Landlord's interest in the Premises
(except in a sale-leaseback financing transaction), or in the event of the
termination of any lease in a sale-leaseback financing transaction wherein
Landlord is the lessee, attorn to and recognize such purchaser, assignee or
mortgagee as Landlord under this Lease. Tenant shall, in the event of any
proceedings brought for the foreclosure of, or in the event of the exercise of
the power of sale under, any mortgage or deed of trust covering the Premises,
attorn to and recognize purchaser at such sale, assignee or mortgagee, as the
case may be, as Landlord under this Lease. The above subordination and
attornment clauses shall be self-operative and no further instruments of
subordination or attornment need be required by any mortgagee, trustee, lessor,
purchaser or assignee. In confirmation thereof, Tenant agrees that, upon the
request of Landlord, or any such lessor, mortgagee, trustee, purchaser or
assignee, Tenant shall execute and deliver whatever instruments may be required
for such purposes and to carry out the intent of this Section 12.2. If an
Affiliate of Landlord shall be the mortgagee, then it shall be an express
condition precedent to the effectiveness of the agreement to subordinate set
forth in this Section 12.2 that Landlord obtain from Landlord's mortgagee an
agreement, on mortgagee's standard form, that, notwithstanding any foreclosure
by Landlord's mortgagee's, or deed, or other conveyance in lieu of foreclosure
with respect thereto, Tenant's leasehold estate created hereunder and Tenant's
other options and rights arising out of this Lease should not be disturbed or
affected so long as no default by Tenant exists under the terms of this Lease
(after notice and opportunity to cure as provided herein).
SECTION 12.3 TENANT'S ESTOPPEL CERTIFICATE. Tenant shall, upon the request of
Landlord or any mortgagee of Landlord, without additional consideration, deliver
an estoppel certificate, consisting of reasonable statements required by
Landlord, any mortgagee or purchaser of any interest in the Property, which
statements may include but shall not be limited to the following: this Lease is
in full force and effect, with rental paid through [a
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current date]; this Lease has not been modified or amended; Landlord is not in
default and Landlord has fully performed all of Landlord's obligations
hereunder; and such other statements as may reasonably be required by the
requesting party. If Tenant is unable to make any of the statements contained in
the estoppel certificate because the same is untrue, Tenant shall with
specificity state the reason why such statement is untrue. Tenant shall, if
requested by Landlord or any such mortgagee, deliver to Landlord a fully
executed instrument in form reasonably satisfactory to Landlord evidencing the
agreement of Tenant to the mortgage or other hypothecation by Landlord of the
interest of Landlord hereunder.
ARTICLE 13
DEFAULT
SECTION 13.1 DEFAULTS BY TENANT. The occurrence of any of the events described
in subsections 13.101 through 13.106 shall constitute a default by Tenant under
this Lease.
13.101 Failure to Pay Rent. Any failure by Tenant to pay Rent or to make
any other payment required to be made by Tenant hereunder within
five (5) days following written notice to Tenant; however, no notice
shall be required for default in payment of Rent after the second
such monetary default during any twelve (12) month period.
13.102 Failure to Perform. Except for a failure covered by subsection
13.101 above or 13.103 below, any failure by Tenant to observe and
perform any provision of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after
written notice to Tenant, provided that if such failure cannot be
cured within said thirty (30) day period, Tenant shall not be in
default hereunder so long as Tenant commences curative action within
such thirty (30) day period, diligently and continuously pursues the
curative action and fully and completely cures the failure within
ninety (90) days after such written notice to Tenant. However, such
ninety (90) days may be extended as necessary if the default does
not adversely impact the Building operations or Building systems or
any other tenant in the Building and so long as Tenant diligently
and continuously pursues the curative action.
13.103 Continual Failure to Perform. The third failure by Tenant in any
twelve (12) month period to perform and observe a particular
provision of this Lease to be observed or performed by Tenant (other
than the failure to pay Rent, which in all instances will be covered
by subsection 13.101 above), no notice being required for any such
third failure.
13.104 Bankruptcy, Insolvency, Etc. Tenant or any guarantor of Tenant's
obligations hereunder (hereinafter called "Guarantor", whether one
(1) or more), (i) cannot meet its obligations as they become due,
(ii) becomes or is declared insolvent according to any law, (iii)
makes a transfer in fraud of creditors according to any applicable
law, (iv) assigns or conveys all or a substantial portion of its
property for the benefit of creditors or (v) files a petition for
relief under the Federal Bankruptcy Code or any other present or
future federal or state insolvency, bankruptcy or similar law
(collectively, "applicable bankruptcy law"); a receiver or trustee
is appointed for Tenant or Guarantor or its property; the interest
of Tenant or Guarantor under this Lease is levied on under execution
or under other legal process; any involuntary petition is filed
against Tenant or Guarantor under applicable bankruptcy law; or any
action is taken to reorganize or modify Tenant's or Guarantor's
capital structure if Tenant or Guarantor is a corporation or other
entity (provided that no such levy, execution, legal process or
petition filed against Tenant or Guarantor shall constitute a breach
of this lease if Tenant or Guarantor shall vigorously contest the
same by appropriate proceedings and shall remove or vacate the same
within ninety (90) days from the date of its creation, service or
filing).
13.105 Loss of Right to do Business. If Tenant is a corporation or limited
partnership, Tenant fails to maintain its right to do business in
the State of Texas or fails to pay any applicable annual
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franchise taxes as and when same become finally due and payable and
such failure continues for a period of thirty (30) days after
written notice of same from Landlord to Tenant.
13.106 Dissolution or Liquidation. If Tenant is a corporation or
partnership, Tenant dissolves or liquidates or otherwise fails to
maintain its corporate or partnership structure, as applicable.
SECTION 13.2 REMEDIES OF LANDLORD.
13.201 Termination of the Lease. Upon the occurrence of a default by Tenant
hereunder, Landlord may, without judicial process, terminate this
Lease by giving written notice thereof to Tenant (whereupon all
obligations and liabilities of Landlord hereunder shall terminate)
and, without further notice and without liability, repossess the
Premises. Landlord shall be entitled to recover all loss and damage
Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise,
including without limitation, the following (without duplication of
any element of damages):
(1) accrued Rent to the date of termination and Late
Charges, plus interest thereon at the rate established
under Section 15.10 below from the date due through the
date paid or date of any judgment or award by any court
of competent jurisdiction, the unamortized cost of
Tenant's Improvements, brokers' fees and commissions,
attorneys' fees, moving allowances and any other costs
incurred by Landlord in connection with making or
executing this Lease, the cost of recovering the
Premises and the costs of reletting the Premises
(including, without limitation, advertising costs,
brokerage fees, leasing commissions, reasonable
attorneys' fees and refurbishing costs and other costs
in readying the Premises for a new tenant);
(2) the present value of the Rent (discounted at a rate of
interest equal to six percent [6%] per annum [the
"Discount Rate"]) that would have accrued under this
Lease for the balance of the Lease term but for such
termination, reduced by the reasonable fair market
rental value of the Premises for such balance of the
Lease term (determined from the present value of the
actual base rents, discounted at the Discount Rate,
received and to be received from Landlord's reletting of
the Premises or, if the Premises are not relet, the base
rents, discounted at the Discount Rate, that would be
received from a comparable lease and comparable tenant
for a comparable term and taking into account among
other things, the condition of the Premises, market
conditions and the period of time the Premises may
reasonably remain vacant before Landlord is able to
re-lease the same to a suitable replacement tenant, it
being agreed that Landlord shall have no obligation to
relet or attempt to relet the Premises);
(3) plus any other costs or amounts necessary to compensate
Landlord for its damages.
13.202 Repossession and Re-Entry. Upon the occurrence of a default by
Tenant hereunder, Landlord may, without judicial process,
immediately terminate Tenant's right of possession of the Premises
(whereupon all obligations and liability of Landlord hereunder shall
terminate), but not terminate this Lease, and, without notice,
demand or liability, enter upon the Premises or any part thereof,
take absolute possession of the same, expel or remove Tenant and any
other person or entity who may be occupying the Premises and change
the locks. If Landlord terminates Tenant's possession of the
Premises under this subsection 13.202, (i) Landlord shall have no
obligation whatsoever to tender to Tenant a key for new locks
installed in the Premises, (ii) Tenant shall have no further right
to possession of the Premises and (iii) Landlord shall have no
obligation whatsoever to relet or attempt to relet the Premises.
Landlord may, however, at its sole option relet the Premises or
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any part thereof for such terms and such rents as Landlord may in
its sole discretion elect. If Landlord elects to relet the Premises,
rent received by Landlord from such reletting shall be applied
first, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord (in such order as Landlord shall
designate), second, to the payment of any costs of such reletting,
including, without limitation, refurbishing costs, reasonable
attorneys' fees, advertising costs, brokerage fees and leasing
commissions and third, to the payment of Rent due and unpaid
hereunder (in such order as Landlord shall designate), and Tenant
shall satisfy and pay to Landlord any deficiency upon demand
therefor from time to time. Landlord shall not be responsible or
liable for any failure to relet the Premises or any part thereof or
for any failure to collect any rent due upon any such reletting. No
such re-entry or taking of possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such termination is given to
Tenant pursuant to subsection 13.201 above. If Landlord relets the
Premises, either before or after the termination of this Lease, all
such rentals received from such lease shall be and remain the
exclusive property of Landlord, and Tenant shall not be, at any
time, entitled to recover any such rental. Landlord may at any time
after a reletting elect to terminate this Lease.
13.203 Cure of Default. Upon the occurrence of a default hereunder by
Tenant, Landlord may, without judicial process and without having
any liability therefor, enter upon the Premises and do whatever
Tenant is obligated to do under the terms of this Lease and Tenant
agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations
under this Lease, and Tenant further agrees that Landlord shall not
be liable for any damages resulting to Tenant from such action,
whether caused by the negligence of Landlord, its agents, employees,
contractors or otherwise.
13.204 Continuing Obligations. No repossession of or re-entering upon the
Premises or any part thereof pursuant to subsection 13.202 or 13.203
above or otherwise and no reletting of the Premises or any part
thereof pursuant to subsection 13.202 above shall relieve Tenant or
any Guarantor of its liabilities and obligations hereunder, all of
which shall survive such repossession or re-entering. In the event
of any such repossession of or re-entering upon the Premises or any
part thereof by reason of the occurrence of a default, Tenant will
continue to pay to Landlord Rent required to be paid by Tenant.
13.205 Cumulative Remedies. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right
or remedy set forth herein or otherwise available to Landlord at law
or in equity and each and every right and remedy shall be cumulative
and in addition to any other right or remedy given hereunder or now
or hereafter existing at law or in equity or by statute. In addition
to the other remedies provided in this Lease and without limiting
the preceding sentence, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease, or to
a decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy
allowed to Landlord at law or in equity.
SECTION 13.3. DEFAULTS BY LANDLORD, Landlord shall be in default under this
Lease if and only if Landlord fails to perform any of its obligations hereunder
and said failure continues for a period of thirty (30) days after Tenant
delivers written notice thereof to Landlord and each mortgagee who has a lien
against any portion of the Property and whose name and address has been provided
to Tenant, provided that if such failure cannot reasonably be cured within said
thirty (30) day period, Landlord shall not be in default hereunder if the
curative action is commenced within said thirty (30) day period and is
thereafter diligently pursued until cured. In no event shall (i) Tenant claim a
constructive or actual eviction or that the Premises have become unsuitable
hereunder or (ii) a constructive or actual eviction or breach of any implied
warranty be deemed to have occurred under this Lease, prior to the expiration of
the notice and cure periods provided under this Section 13.3. Any notice of a
failure to perform by Landlord shall be sent to Landlord at the addresses and to
the attention of the parties set forth
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in the Basic Lease Provisions. Any notice of a failure to perform by Landlord
not sent to Landlord at all addresses and/or to the attention of all parties
required under this Section and to each mortgagee who is entitled to notice or
not sent in compliance with Article 14 below shall be of no force or effect.
SECTION 13.4 LANDLORD'S LIABILITY.
13.401 Tenant's Rights in Respect of Landlord Default. Tenant is granted no
contractual right of termination by this Lease, except to the extent
and only to the extent set forth in Sections 5.202, 7.1 and 8.2
above and Section 13.7 below. If Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out
of the right, title and interest of Landlord in the Property (as the
same may then be encumbered) and, subject to the rights of
mortgagees, any insurance carried in the name of Landlord and
Landlord shall not be liable for any deficiency. If Landlord is
found to be in default hereunder by reason of its failure to give a
consent that it is required to give hereunder, Tenant's sole remedy
will be an action for specific performance or injunction. The
foregoing sentence shall in no event be construed as mandatorily
requiring Landlord to give consents under this Lease. In no event
shall either Landlord or Tenant be liable to the other for
consequential or special damages by reason of a failure to perform
(or a default) by the respective party hereunder. In no event shall
Tenant have the right to levy execution against any property of
Landlord other than its interest in the Property as hereinbefore
expressly provided.
13.402 Certain Limitations on Landlord's Liability. Unless caused by
Landlord's gross negligence or willful misconduct and without
limiting the provisions of Section 7.4, Landlord shall not be liable
to Tenant for any claims, actions, demands, costs, expenses, damage
or liability of any kind (i) arising out of the use, occupancy or
enjoyment of the Premises by Tenant or any person therein or holding
under Tenant or by or through the acts or omissions of any of their
respective employees, officers, agents, invitees or contractors,
(ii) caused by or arising out of fire, explosion, falling sheetrock,
gas, electricity, water, rain, snow or dampness, or leaks in any
part of the Premises, (iii) caused by or arising out of damage to
the roof, pipes, appliances or plumbing works or any damage to or
malfunction of heating, ventilation or air conditioning equipment or
(iv) caused by Tenants or any persons either in the Premises or
elsewhere in the Building (other than Common Areas) or by occupants
of property adjacent to the Building or Common Areas or by the
public or by the construction of any private, public or quasi-public
work. In no event shall Landlord be liable to Tenant for any loss of
or damage to property of Tenant or of others located in the Premises
or the Building by reason of theft or burglary.
SECTION 13.5 WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT. IT IS THE INTENT OF
LANDLORD AND TENANT TO WAIVE ALL OF THE PROVISIONS (OTHER THAN SECTION 17.555)
OF THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT, SUBCHAPTER E
OF CHAPTER 17 OF THE TEXAS BUSINESS AND COMMERCE CODE (THE "DTPA") AS SUCH
PROVISIONS ARE OR MAY BE APPLICABLE TO THIS LEASE AND THE TRANSACTIONS EVIDENCED
HEREBY. Accordingly, Landlord and Tenant hereby represent and agree as follows:
(1) Tenant represents to Landlord that Tenant is not in a
significantly disparate bargaining position with respect to
this Lease and the transaction evidenced hereby.
(2) Tenant represents to Landlord that Tenant is represented by
legal counsel in connection with this Lease.
(3) Tenant represents to Landlord that this Lease does not involve
a purchase or lease of a family residence occupied or to be
occupied as Tenant's residence and that, with respect to this
Lease, Tenant is a business consumer as that term is used in
the DTPA (i.e., Tenant is an individual, partnership or
corporation who seeks or acquires by purchase or lease, any
goods or services for commercial or business use).
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(4) Landlord and Tenant agree that the total consideration paid or
to be paid by Tenant over the term of this Lease exceeds
$500,000.00, failing which this part (4) shall be deemed
deleted.
(5) Tenant represents to Landlord that Tenant has assets of $5
million or more according to the most recent financial
statement of Tenant prepared in accordance with generally
accepted accounting principles, failing which Landlord and
Tenant shall have their respective legal counsel sign this
Lease in the space provided on the signature page hereof.
Tenant further represents that it has knowledge and experience
in financial and business matters that enable it to evaluate
the merits and risks of this transaction.
(6) Landlord and Tenant hereby agree, for themselves, their
agents, property managers, brokers and contractors and their
respective heirs, personal representatives, successors and
assigns, that all of the provisions of the DTPA (except for
Section 17.555 thereof) which are or may be applicable to this
Lease and the transaction evidenced hereby are hereby waived,
including specifically, without limitation, all rights and
remedies resulting from or arising out of any and all acts or
practices of the other party or their agents, property
managers or brokers or their respective heirs, personal
representatives or assigns in connection with this Lease
and/or the transaction evidenced hereby, regardless of whether
such acts or practices occurred before or after the execution
of this Lease. The provisions of this Section shall survive
the execution and any termination of this Lease.
If part (4) above is deemed deleted, this Section 13.5 shall not be applicable
and shall be without force or effect.
SECTION 13.6 LANDLORD'S LIEN. Landlord expressly waives and relinquishes any
contractual or statutory rights to any lien against any of Tenant's personal
property.
SECTION 13.7 LEASE CANCELLATION OPTIONS.
13.701 Initial Cancellation Options. Tenant shall have two (2) options to
terminate this Lease, such termination to be effective at the
expiration of the twenty-fourth (24th) full calendar month following
the Commencement Date or the thirty-sixth (36th) full calendar month
following the Commencement Date, respectively (each a "Termination
Date") by providing written notice to Landlord no later than six (6)
full calendar months prior to the applicable Termination Date and by
paying to Landlord on or prior to the applicable Termination Date,
the Cancellation Payment. The term "Cancellation Payment" shall mean
an amount, as of the Termination Date, equal to Landlord's
unamortized leasing costs, which shall consist of the remaining book
balance of the sum of the following costs, based on straight line
depreciation over the initial Term using a 10% interest factor:
(i) the Finish Allowance provided for in Exhibit C: and
(ii) all amounts due to brokers or other third parties in
connection with the Lease
, all as more specifically shown on Exhibit F, attached hereto and
made a part hereof. Notwithstanding the foregoing, Tenant's right to
terminate the Lease may not be exercised unless (a) Landlord is
unable to accommodate Tenant's actual expansion requirements on
Floor 7 of the Building within one hundred eighty (180) days after
written notice from Tenant of its good faith actual expansion needs,
or (b) Tenant or any subsequent permitted third party nonaffiliated
assignee of Tenant's rights hereunder completely ceases doing
business in any form.
13.702 Additional Cancellation Option. In addition to the lease
cancellation options granted above, Tenant shall have a third option
to terminate the Lease at any time after the end of the second
annual
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anniversary of the Commencement Date and until six (6) months prior
to the expiration of the Initial Term, to be exercised in the manner
provided for in Section 13.701 above in the event that (a)
substantially all of the assets of Tenant are sold or 50 percent or
more of the voting stock of Tenant is sold or transferred, in each
instance as part of an arms length sale to a bonafide third party
that is unaffiliated with Tenant in any respect, and (b) thereafter,
Tenant's principal place of business operation shall be moved to a
location that is outside Xxxxxx County, Texas or any county
adjoining Xxxxxx County. In such event, and in addition to the
Cancellation Payment provided for in Section 13.701 above, Tenant
shall pay an additional payment ("Relocation Cancellation Payment")
equal to (6) months of Basic Rent as provided for in this Lease.
SECTION 13.8 SATELLITE DISH. Tenant may, at Tenant's sole cost and expense
(including any above Building standard utilities used therefor), construct,
install, operate and secure no more than one (1) satellite antenna on the roof
of the Building in an area designated by Landlord (the "Satellite") and the
necessary cabling from the Satellite to the Premises, all in accordance with
specifications approved by Landlord (the "Satellite System"). Landlord shall
charge Tenant for the lease of the roof space at the current rate generally
prevailing from time to time for other tenants in the Building. The Satellite
System shall be for Tenant's sole use and not for use by others. Landlord may
cause Tenant to relocate the Satellite on the roof of the Building from time to
time at Tenant's expense if required for maintenance purposes or if required by
law or upon request by Landlord because of any other cause beyond Landlord's
control. Tenant agrees to install, use, and maintain the Satellite System so as
not to interfere with other operations from the roof of the Building, including
existing satellite or antenna transmissions, and in full compliance with all
applicable laws including rules, regulations, and guidelines promulgated by the
Federal Communications Commission, and Tenant agrees to indemnify and hold
Landlord harmless from and against all costs (including attorneys' fees and
court costs), claims, liabilities or obligations arising from the placement,
construction or use of the Satellite System. Tenant shall maintain the Satellite
System in good condition and shall, at the end of the Term, remove the Satellite
System and all related improvements installed by Tenant and repair all damage to
the roof caused by such removal.
ARTICLE 14
NOTICES
Any notice or communication required or permitted in this Lease shall be given
in writing, sent by (1) personal delivery, (2) expedited delivery service with
proof of delivery, (3) United States mail, postage prepaid, registered or
certified mail, return receipt requested or (4) prepaid telegram (provided that
such telegram is confirmed by expedited delivery service or by mail in the
manner previously described), addressed as provided in Item 14 of the Basic
Lease Provisions and Section 13.3 above or to such other address or to the
attention of such other person as shall be designated from time to time in
writing by the applicable party and sent in accordance herewith. Notice also may
be given by telex or fax, provided each such transmission is confirmed (and such
confirmation is supported by documented evidence) as received and further
provided a telex or fax number, as the case may be, is set forth in Item 14 of
the Basic Lease Provisions. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of telegram or telex
or fax, upon receipt.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.1 BUILDING NAME AND ADDRESS. Tenant shall not, without the written
consent of Landlord, use the name of the Building for any purpose other than as
the address of the business to be conducted by Tenant in the Premises and in no
event shall Tenant acquire any rights in or to such names. Landlord shall have
the right at any time to change the name, number or designation by which the
Building is known.
SECTION 15.2 SIGNAGE. Tenant shall not inscribe, paint, affix or display any
signs, advertisements or notices on or in the Building, except for such tenant
identification information as Landlord permits to be included or shown on the
directory in the main lobby and adjacent to the access door or doors to the
Premises.
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SECTION 15.3 NO WAIVER. No waiver by Landlord or by Tenant of any provision of
this Lease shall be deemed to be a waiver by either party of any other provision
of this Lease. No waiver by Landlord of any breach by Tenant shall be deemed a
waiver of any subsequent breach by Tenant of the same or any other provision. No
waiver by Tenant of any breach by Landlord shall be deemed a waiver of any
subsequent breach by Landlord of the same or any other provision. The failure of
Landlord or Tenant to insist at any time upon the strict performance of any
covenant or agreement or to exercise any option, right, power or remedy
contained in this Lease shall not be construed as a waiver or a relinquishment
thereof for the future. Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act of Tenant. Tenant's consent to or approval of any act by Landlord requiring
Tenant's consent or approval shall not be deemed to render unnecessary the
obtaining of Tenant's consent to or approval of any subsequent act of Landlord.
No act or thing done by Landlord or Landlord's agents during the term of this
Lease shall be deemed an acceptance of a surrender of the Premises, unless done
in writing signed by Landlord, The delivery of the keys to any employee or agent
of Landlord shall not operate as a termination of this Lease or a surrender of
the Premises. The acceptance of any Rent by Landlord following a breach of this
Lease by Tenant shall not constitute a waiver by Landlord of such breach or any
other breach. The payment of Rent by Tenant following a breach of this Lease by
Landlord shall not constitute a waiver by Tenant of any such breach or any other
breach. No waiver by Landlord or Tenant of any provision of this Lease shall be
deemed to have been made unless such waiver is expressly stated in writing
signed by the waiving party. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly installment of Rent due under this Lease shall be
deemed to be other than on account of the earliest Rent due hereunder, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy which may be available to
Landlord.
SECTION 15.4 APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Texas.
SECTION 15.5 COMMON AREAS. "Common Areas" will mean all areas, spaces,
facilities and equipment (whether or not located within the Building) made
available by Landlord for the common and joint use of Landlord, Tenant and
others designated by Landlord using or occupying space in the Building,
including but not limited to, tunnels, walkways, sidewalks and driveways
necessary for access to the Building, Building lobbies, landscaped areas, public
corridors, public rest rooms, Building stairs, elevators open to the public,
service elevators (provided that such service elevators shall be available only
for tenants of the Building and others designated by Landlord), drinking
fountains and other such facilities not part of space leased or held for lease
to tenants, and any such other areas and facilities, if any, as are designated
by Landlord from time to time as Common Areas. Common Areas shall not include
the Garage. "Service Corridors" shall mean all loading docks, loading areas and
all corridors that are not open to the public but which are available for use by
Tenant and others designated by Landlord. "Service Areas" will refer to areas,
spaces, facilities and equipment serving the Building (whether or not located
within the Building) but to which Tenant and other occupants of the Building
will not have access, including, but not limited to, mechanical, telephone,
electrical and similar rooms and air and water refrigeration equipment. Tenant
is hereby granted a nonexclusive right to use the Common Areas and Service
Corridors during the term of this Lease for their intended purposes, in common
with others designated by Landlord, subject to the terms and conditions of this
Lease, including, without limitation, the Rules and Regulations. The Building,
Common Areas, Service Corridors and Service Areas will be at all times under the
exclusive control, management and operation of the Landlord. Tenant agrees and
acknowledges that the Premises (whether consisting of less than one floor or
consisting of one or more full floors within the Building) do not include, and
Landlord hereby expressly reserves for its sole and exclusive use, any and all
mechanical, electrical, telephone and similar rooms, janitor closets, elevator,
pipe and other vertical shafts and ducts, flues, stairwells, any area above the
acoustical ceiling and any other areas not specifically shown on Exhibit A as
being part of the Premises.
SECTION 15.6 SUCCESSORS AND ASSIGNS. Subject to Article II hereof, all of the
covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
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SECTION 15.7 BROKERS. Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease,
excepting only the broker named in Item 10 of the Basic Lease Provisions and
that it knows of no other real estate brokers or agents who are or might be
entitled to a commission in connection with this Lease. Tenant agrees to
indemnify and hold harmless Landlord from and against, and reimburse Landlord
for and with respect to, any liability or claim, whether meritorious or not,
arising in respect to brokers and/or agents not so named. Landlord has agreed to
pay the fees of the broker (but only the broker) named in Item 10 of the Basic
Lease Provisions in accordance with a separate written agreement with such
broker.
SECTION 15.8 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the application of such provisions to other persons or circumstances and
the remainder of this Lease shall not be affected thereby and shall be enforced
to the greatest extent permitted by law.
SECTION 15.9 EXAMINATION OF LEASE. Submission by Landlord of this instrument to
Tenant for examination or signature does not constitute a reservation of or
option for lease. This Lease will be effective as a lease only upon execution by
and delivery to both Landlord and Tenant.
SECTION 15.10 INTEREST ON TENANT'S OBLIGATIONS. Any amount due from Tenant to
Landlord which is not paid within thirty (30) days after the date due shall bear
interest at the lower of (i) eighteen percent (18%) per annum or (ii) the
highest rate from time to time allowed by applicable law, from the date such
payment is due until paid, but the payment of such interest shall not excuse or
cure the default.
SECTION 15.11 TIME. Time is of the essence in this Lease and in each and all of
the provisions hereof. Whenever a period of days is specified in this Lease,
such period shall refer to calendar days unless otherwise expressly stated in
this Lease.
SECTION 15.12 DEFINED TERMS AND MARGIN HEADINGS. Definitions of terms defined in
the singular or plural shall be equally applicable to the plural or singular, as
the case may be, unless otherwise indicated. If more than one person is named as
Tenant, the obligations of such persons are joint and several. The headings and
titles to the articles, sections and subsections of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part of this Lease.
SECTION 15.13 AUTHORITY OF TENANT. Tenant and each person signing this Lease on
behalf of Tenant represents to Landlord as follows: Tenant, if a corporation, is
duly incorporated and legally existing under the laws of the state of its
incorporation and is duly qualified to do business in the State of Texas.
Tenant, if a partnership or joint venture, is duly organized under the Texas
Uniform Partnership Act. Tenant, if a limited partnership, is duly organized
under the applicable limited partnership act of the State of Texas or, if
organized under the laws of a state other than Texas, is qualified under said
Texas limited partnership act. Tenant has all requisite power and all
governmental certificates of authority, licenses, permits, qualifications and
other documentation to lease the Premises and to carry on its business as now
conducted and as contemplated to be conducted. Each person signing on behalf of
Tenant is authorized to do so. The foregoing representations in this Section
15.13 shall also apply to any corporation, partnership, joint venture or limited
partnership which is a general partner or joint venturer of Tenant.
SECTION 15.14 FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord or Tenant, the party taking the action shall not
be liable or responsible for, and there shall be excluded from the computation
for any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
reasonable control of such party; provided, however, in no event shall the
foregoing apply to the financial obligations of either Landlord or Tenant to the
other under this Lease, including Tenant's obligation to pay Basic Annual Rent,
Additional Rent or any other amount payable to Landlord hereunder.
SECTION 15.15 RECORDING. This Lease shall not be recorded.
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SECTION 15.16 NO REPRESENTATIONS. LANDLORD AND LANDLORD'S AGENTS HAVE MADE NO
WARRANTIES, REPRESENTATIONS OR PROMISES (EXPRESS OR IMPLIED) WITH RESPECT TO THE
PREMISES, THE BUILDING OR ANY OTHER PART OF THE PROPERTY (INCLUDING, WITHOUT
LIMITATION, THE CONDITION, USE OR SUITABILITY OF THE PREMISES, THE BUILDING OR
THE PROPERTY), EXCEPT AS HEREIN EXPRESSLY SET FORTH AND NO RIGHTS, EASEMENTS OR
LICENSES ARE ACQUIRED BY TENANT BY IMPLICATION OR OTHERWISE EXCEPT AS EXPRESSLY
SET FORTH IN THE PROVISIONS OF THIS LEASE.
SECTION 15.17 ATTORNEYS' FEES. In the event of any legal action or proceeding
brought by either party against the other arising out of this Lease, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs incurred in such action (including, without limitation, all costs of
appeal) and such amount shall be included in any judgment rendered in such
proceeding.
SECTION 15.18 NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which may be erected on the Property or
lands adjacent to the Property shall in no way affect this Lease or impose any
liability on Landlord (even if Landlord is the adjacent land owner).
SECTION 15.19 RELOCATION.
(a) Landlord shall have the right to relocate the Premises to
substantially identical space (as to tenant improvements), of
at least the same size insofar as square footage, and at the
same monthly rental as set out in the Lease, within the
Building upon giving Tenant one hundred twenty (120) days
prior written notice of such intention to relocate Tenant,
which notice shall set forth the relevant details with respect
to such new space in the Building ("Substituted Premises").
Effective on the date of such relocation, this lease shall be
amended via an amendment to same, to be executed by both
Landlord and Tenant, by deleting the description of the
original Premises and substituting therefor the description of
the Substituted Premises, it being understood and agreed that
all other terms and conditions of this Lease shall remain the
same. In no event shall the term for the Substituted Premises
commence prior to the date when the leasehold improvements in
the Substituted Premises are substantially completed by
Landlord and/or its contractors, at Landlord's sole cost and
expense, on Tenant's behalf. Anything in the foregoing
provisions of this Section 15.19 (a) to the contrary
notwithstanding, Landlord shall not have the right to relocate
the Premises if less than twelve (12) months remain in the
Term (except if Tenant shall have exercised its Renewal Option
pursuant to Rider 1) or in the Renewal Term, as the case may
be.
(b) Landlord shall pay for or otherwise reimburse Tenant for all
reasonable out-of-pocket expense incurred by Tenant pursuant
to the relocation to the Substituted Premises, including, but
not limited to, the following: (i) all reasonable costs and
expenses, including filing fees and building permits, of
reconstructing leasehold improvements in the Substituted
Premises to substantially the same condition and level of
improvements as existed in the Premises prior to such
relocation (i.e. to replicate the Premises); (ii) reasonable
moving costs insofar as furniture, fixtures and equipment,
filing cabinets and the contents thereof, supplies, telephone
and equipment (including disconnect and connect charges),
computer equipment, and all other property (including personal
property) of Tenant and its employees located in the Premises
(using a commercial mover reasonably approved by Tenant or if
Tenant elects to do the moving itself, Landlord will reimburse
Tenant for the reasonable costs it would have incurred had a
commercial mover acceptable to Landlord been hired on a
competitive basis; (iii) fiber network, and other
communications- and computer-related cabling and connections
setup charges; (iv) space planning/interior architecture and
engineering fees; (v) reasonable reprinting of stationary,
brochures and all other printed materials used by Tenant in
its business (on which the address of the Premises appears) of
the same quality and quantity as on hand immediately
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prior to Landlord's notice to Tenant of its exercising of this
relocation right; and (vi) reasonable costs of
change-of-address announcement cards, plus postage costs,
directly related to such change-of-address notification to
Tenant's clients and vendors.
(c) Landlord shall provide substantially the same expansion and
first offer rights in generally similar locations and
condition (including contiguity), relative to the existing
location of the Premises and the expansion and first offer
space, on the same terms and conditions as available to Tenant
pursuant to Riders 2 and 3; and Tenant's Renewal Option, as
set forth in Rider 1, shall remain in full force and effect.
Landlord agrees to use reasonable efforts to accommodate the
schedule upon which Tenant desires to be relocated so as to
avoid an unreasonable interruption of Tenant's operation of
its business.
SECTION 15.20 SURVIVAL OF INDEMNITIES. Each indemnity agreement and hold
harmless agreement contained herein shall survive the expiration or termination
of this Lease.
SECTION 15.21 ENTIRE AGREEMENT. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease and
no prior agreement, understanding or representation pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Lease, as of the date first written in this Lease.
LANDLORD
LASALLE PARTNERS MANAGEMENT LIMITED, solely in
its capacity agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Xxxx X. Xxxxxxx
Senior Vice President
For purposes of Section 13.5 (e) TENANT
only, Tenant's attorney has
executed this Lease:
WOLF COMMUNICATIONS COMPANY
Tenant's attorney By: /s/ Xxxxxx Xxxx
------------------------------------------
[ILLEGIBLE] Name: XXXXXX XXXX
------------------------------ ----------------------------------------
Title: PRESIDENT
---------------------------------------
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EXHIBIT A
FLOOR PLAN
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of ______________________, 1995. executed by and between LASALLE
PARTNERS MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware Limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas Corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree that the floor plans attached to this Exhibit are the floor plans
for the Premises.
[GRAPHIC OMITTED]
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EXHIBIT A-1
FLOOR PLAN
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of______________________, 1995, executed by and between LASALLE
PARTNERS MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas Corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree that the floor plans attached to this Exhibit are the floor plans
for the Premises.
[GRAPHIC OMITTED]
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EXHIBIT B
LAND LEGAL DESCRIPTION
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of ______________________, executed by and between LASALLE PARTNERS
MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree that the metes and bounds legal description of the Land is as
follows:
A 1.4463 acre (63,000 square feet) tract in the X.X. Xxxxxx Survey, Abstract No.
323, being all of Block Two Hundred Ninety-Four (294), South Side of Buffalo
Bayou (S.S.B.B) of the City of Houston, Xxxxxx County, Texas, (being the
identical property constituting the entirety of Block Two Hundred Ninety-Four
(294), described as Parcel A" in that certain Deed of Trust and Security
Agreement dated as of September 29, 1981 and filed for record under Xxxxxx
County Clerk's File H-534676), being more particularly described by metes and
bounds as follows:
COMMENCING at the City of Houston Engineering Department survey control rod
number 43 located in the intersection of Xxxxxxxx Street and Polk Street;
THENCE, North 55 deg 00 min 00 sec West, along the City of Houston Engineering
Department survey reference line in Polk Street, at a distance of 330.00 feet
crossing the Xxx Xxxxxxx Xxxxxx Xxxx xx Xxxxxxx Engineering Department survey
reference line and continuing in all a distance of 370.00 feet to a point;
THENCE, South 35 deg 00 min 00 sec West, 40.00 feet to a nail set at the
intersection of the northwesterly right-of-way line of San Jacinto Street and
the southwesterly right-of-way line at Polk Street, the most easterly corner of
Block 294 and marking the POINT OF BEGINNING of the herein described tract;
THENCE, South 35 deg 00 sec 00 min West, along the northwesterly right-of-way
line of San Jacinto Street, a distance of 250.00 feet to a nail set for corner
at the northeasterly right-of-way line of Clay Avenue, marking the most
southerly corner of Block 294;
THENCE, North 55 deg 00 min 00 sec West, along the northeasterly right-of-way
line of Clay Avenue, a distance of 252.00 feet to an "x" cut set in the
southeasterly right-of-way line of Xxxxxx Street, the most westerly corner of
Block 294;
THENCE, North 35 deg 00 min 00 sec East, along the southeasterly right-of-way
line of Xxxxxx Street, a distance of 250.00 feet to an "X" cut set in the
southwesterly line of Polk Avenue, xxxx the most northerly corner of Block 294;
THENCE, South 55 deg 00 min 00 sec East, along the southwesterly line of Polk
Avenue, a distance of 252.00 feet to the POINT OF BEGINNING of the herein
described tract and containing 1.4463 acres (63,000 square feet) of land.
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EXHIBIT C
WORK LETTER
PLANS TO BE APPROVED
/FINISH ALLOWANCE
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of __________________, 1995 executed by and between LASALLE PARTNERS
MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree as follows:
1. Plans.
1.1 Construction Plans. Tenant's architect shall prepare and deliver to
Landlord, within fourteen (14) calendar days after execution of the Lease,
construction plans (such construction plans, when approved, and all changes and
amendments thereto agreed to by Landlord and Tenant in writing, are herein
called the `Construction Plans") for all of Tenant's improvements in the
Premises, (all improvements required by the Construction Plans are herein called
"Tenant's Improvements"), including complete detail and finish drawings for
partitions, doors, reflected ceiling, telephone outlets, electrical switches and
outlets and building standard heating, ventilation and air conditioning
equipment and controls. Within five (5) business days after Construction Plans
are delivered to Landlord, Landlord shall approve (which approval shall not be
unreasonably withheld) or disapprove same in writing and if disapproved,
Landlord shall provide Tenant, Tenant's architect and Tenant's engineer specific
reasons for disapproval. Tenant shall promptly revise and redeliver the
Construction Plans for Landlord's review. The foregoing process shall continue
until the Construction Plans are approved by Landlord.
1.2 Changes to Approved Plans. If any re-drawing or re-drafting of the
Construction Plans is necessitated by Tenant's requested changes (all of which
shall be subject to Landlord's approval), the expense of any such re-drawing or
re-drafting required in connection therewith, Landlord's review of such
re-drawing or re-drafting, and the expense of any work and improvements
necessitated by such re-drawing or re-drafting will be charged to Tenant.
1.3 Coordination of Planners and Designers. It shall be Tenant's responsibility
to cause necessary coordination of its agents' efforts with Landlord's agents to
ensure that no delays are caused to either the planning or construction of the
Tenant's Improvements. Tenant shall reimburse Landlord the cost incurred for
Landlord's engineers to review the Construction Plans ("Construction Plans
Review Fee"). The Construction Plans Review Fee shall not exceed $3,840.00.
1.4 Compliance With Disability Acts. Tenant shall cause the construction of
Tenant's Improvements to be completed such that Tenant, the Premises and
Tenant's Improvements (as constructed) will be in compliance with the Disability
Acts. Tenant shall indemnify and hold harmless Landlord from and against, and
reimburse Landlord for and with respect to, any and all claims, liabilities and
expenses (including, without limitation reasonable attorneys' fees and expenses)
incurred by or asserted against Landlord by reason of or in connection with any
violation of the Disability Acts by Tenant and/or Tenant's Improvements or the
Premises not being in compliance with the Disability Acts. The foregoing
indemnity shall not include any claims or expenses arising out of the negligence
or gross negligence of Landlord or Landlord's employees, agents or contractors.
2. Construction and Costs of Tenant's Improvements.
2.1 Construction Obligation and Finish Allowance. Landlord shall provide Tenant
with an allowance of up to $16.00 per square foot of Agreed Rentable Area of the
Premises (the "Finish Allowance"), which allowance shall be disbursed by
Landlord, from time to time upon Landlord's receipt of satisfactory evidence of
appropriate expenditures for payment of the contract sum required to be paid to
the general contractor engaged to construct
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Tenant's Improvements (the "Contract Sum"). Any unused Finish Allowance may be
applied to future Tenant Improvements or refurbishments in the initial Premises
or additional space leased by Tenant during the Term. Tenant acknowledges that
demolition of existing improvements, addition or movement of lights,
refurbishment of the ceiling system, balancing of HVAC, movement and alteration
of the sprinkler system, and some secondary duct installation will be deducted
from the Finish Allowance. Landlord agrees to provide Tenant, in addition to the
Finish Allowance, building standard materials that include fifteen (15) building
standard doors, frames and hardware and building standard lighting at a rate of
one (1) fixture per eighty (80) rentable square foot leased. Tenant may
additionally utilize raised flooring panels and ceiling tile from space outside
of the Premises on the 7th Floor to replace panels/tiles in the Premises and may
utilize all existing improvements in the Premises.
2.2 Excess Costs. If the sum of the Permitted Costs exceeds the Finish
Allowance, then Tenant shall pay all such excess costs.
3. Tenant's Contractor.
(a) Notwithstanding anything in this Exhibit C to the contrary, Tenant
shall contract with Xxxx Computer Environments, Inc. (the "Tenant's
Contractor") to construct Tenant's Improvements. Tenant's Contractor
shall (and its contract shall so provide that it shall):
(i) be capable of working in harmony with the Landlord's space
planners, architects, engineers, contractors, workmen,
mechanics, or other agents or independent contractors in the
performance of their work ("Landlord's Agents") and shall
comply with such reasonable rules and regulations as may be
promulgated by Landlord;
(ii) maintain such payment and performance bonds and insurance in
force and effect as may be reasonably requested by Landlord or
as required by applicable law; and
(iii) use reasonable efforts to reach an understanding with
Landlord's Agents as to the conduct of their work, including
but not limited to those matters relating to hoisting,
Building systems, systems interfacing, clean-up, use of
temporary utilities, protection of installed materials or-
equipment, sanitary facilities, temporary heating, lighting
and cooling and access to the Premises (it being understood
that the Tenant's Contractor shall arrange with and pay to
Landlord's Agents an amount, if any, negotiated by such
parties in good faith, with respect to such functions and
services).
(b) Landlord's sole obligation with respect to construction of the
Tenant's Improvements shall be to deliver the Premises in its as-is
condition and contribute the Finish Allowance in accordance with
Section 2 of this Exhibit C.
(c) Tenant's Contractor shall use only subcontractors pre-approved by
Landlord for all mechanical, electrical, plumbing or fire protection
work within the Building. Landlord and Tenant agree that Xxxx
Electric shall be the electrical subcontractor.
(d) The Construction Plans Review Fee shall be payable to Landlord in
consideration of Landlord's engineers (CHP & Associates) review of
Tenant's Construction Plans drawn by Tenant's engineers, and may be
offset against the Finish Allowance as invoices are received by
Landlord from CHP & Associates.
Prior to the Commencement Date, Tenant, Tenant's Contractor and other authorized
representatives of Tenant shall have the right to enter upon the Premises for
the purposes of preparing the Premises for construction and for construction of
Tenant's Improvements. Landlord shall not be liable for any injury, loss or
damage to any of Tenant's installations or decorations made prior to the
Commencement Date and not installed by Landlord. Tenant shall indemnify and hold
harmless Landlord and Landlord's Agents from and against and reimburse Landlord
for and with respect to, any and all costs, expenses, claims, liabilities and
causes of action arising out of or in
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connection with work performed in the Premises by or on behalf of Tenant.
Landlord is not responsible for the function and maintenance of Tenant's
Improvements which are different than Landlord's standard improvements at the
Property or improvements, equipment, cabinets or fixtures not installed by
Landlord. Such entry by Tenant and the Tenant's Contractor pursuant to this
Section 3 shall be deemed to be under all of the terms, covenants, provisions
and conditions of the Lease except the covenant to pay Rent.
4. Delays. Delays in the completion of Construction Plans or completion of
construction of Tenant's Improvements or in obtaining a certificate of
occupancy, if required by the applicable governmental authority, caused by
Tenant, Tenant's Contractor (hereinafter defined) or any person, firm or
corporation employed by Tenant or Tenant's Contractor shall constitute "Tenant
Delay". If the completion of Tenant's Improvements are affected by any Tenant
Delay, then the date Substantial Completion shall be deemed to have occurred
shall be the date the Premises are Substantially Complete, but moved up by one
day for each day of Tenant Delay (by way of example, if the Premises would have
been Substantially Complete on December 1 but for three (3) days of Tenant
Delay, the date of Substantial Completion shall be deemed to have occurred on
November 28). If the completion of Tenant's Improvements are affected by any
delay other than Tenant Delay, then the date Substantial Completion shall be
deemed to have occurred shall be the date the Premises are Substantially
Complete, but moved back (i.e., extended) by one day for each day of such delay
(by way of example, if the Premises would have been Substantially Complete on
December 1 but for three days of delay that are not Tenant Delays, the date of
Substantial Completion shall be deemed to have occurred on December 4).
5. Substantial Completion and Punch List. The terms "Substantial Completion" and
"Substantially Complete," as applicable, shall mean when Tenant's Improvements
are sufficiently completed in accordance with the Construction Plans so that
Tenant can reasonably use the Premises for the Permitted Use (as described in
Item 11 of the Basic Lease Provisions). When Landlord considers Tenant's
Improvements to be Substantially Complete, Landlord will notify Tenant and
within two (2) business days thereafter, Landlord's representative and Tenant's
representative shall conduct a walk-through of the Premises and identify any
necessary touch-up work, repairs and minor completion items as are necessary for
final completion of Tenant's Improvements. Neither Landlord's representative nor
Tenant's representative shall unreasonably withhold his agreement on punch list
items. The Commencement Date set forth in No. 7 of the Basic Lease Provisions is
calculated based on Tenant substantially completing all of Tenant's Improvements
within ten (10) weeks after Landlord's approval of Construction Plans. The
Commencement Date shall be adjusted commensurately with adjustments in
Substantial Completion as set forth in Paragraph 4 above and shall occur on the
date of Substantial Completion whether or not occurring before or after the date
set forth in the Basic Lease Provisions.
6. Temporary Supply of Power. Prior to the Commencement Date and during
construction of Tenant's Improvements, Landlord shall supply temporary power,
HVAC, freight elevator and security during construction, at no additional charge
to Tenant so long as and to the extent that Tenant's usage is reasonable.
7. Special Improvements. Tenant shall have the right to include the following
improvements within Tenant's Improvements, provided the construction and
installation of same are performed by contractors acceptable to Landlord:
(a) modification of existing sprinkler system in Premises in a manner
acceptable to Landlord; and
(b) tie in by Tenant into the Building's security system in a manner
acceptable to Landlord.
8. Landlord's Work. Landlord's sole obligation shall be to construct, at
Landlord's expense, the Landlord's Work, as follows:
(i) All Labor, materials, equipment, services and other items
necessary to complete the multi-tenant corridor(s) and core
finishes, including the elevator lobby on Level 7, in a manner
consistent with the other low rise multi-tenant floors in the
Building.
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(ii) All terminations and modifications necessary to existing fire
alarm system to accommodate the signals from the tenant system
requiring integration with the Building's system.
(iii) Terminations made at the electrical closet, transformers,
risers, conduits, feeders and switchboards necessary to
furnish the Premises with electrical power as outlined in
Paragraph 5.103 of this Lease.
9. Construction Representatives. Landlord's and Tenant's representatives for
coordination of construction and approval of change orders will be as follows,
provided that either party may change its representative upon written notice to
the other:
LANDLORD'S REPRESENTATIVE:
NAME Xx Xxxxxxxx
ADDRESS 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
PHONE 000-000-0000
TENANT'S REPRESENTATIVE:
NAME Xxxxxxxx, Inc.
ADDRESS 0000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
PHONE (000) 000-0000
FACSIMILE (000) 000-0000
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EXHIBIT D
ACCEPTANCE OF PREMISES MEMORANDUM
This Acceptance of Premises Memorandum is being executed pursuant to that
certain Lease Agreement (the "Lease") dated the _____ day of ____________, 1995,
between LASALLE PARTNERS MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx
Street Limited Partnership, a Delaware limited partnership) ("Landlord"), and
WOLF COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"), pursuant to which
Landlord leased to Tenant and Tenant leased from Landlord certain space in the
office building located at 1301 Xxxxxx in Houston, Texas (the "Building").
Landlord and Tenant hereby agree that:
1. Except for the Punch List Items (as shown on the attached Punch List), all
work required under the terms of the Lease and the Work Letter attached
thereto has been completed.
2. The Premises are tenantable, Landlord has no further obligation for
construction, and Tenant acknowledges that the Building, the Premises and
Tenant's Improvements are satisfactory in all respects, except for the
Punch List Items and are suitable for the Permitted Use.
3. The Commencement Date of the Lease is the ________ day of _____________,
19__. If the date set forth in Item 7 of the Basic Lease Provisions is
different than the date set forth in the preceding sentence, then Item 7
of the Basic Lease Provisions is hereby amended to be the Commencement
Date set forth in the preceding sentence.
4. The Expiration Date of the Lease is the ______ day of __________, 19__. If
the date set forth in Item 8 of the Basic Lease Provisions is different
than the date set forth in the preceding sentence, then Item 8 of the
Basic Lease Provisions is hereby amended to be the Expiration Date set
forth in the preceding sentence.
5. Tenant acknowledges receipt of the current Rules and Regulations for the
Building.
6. Tenant represents to Landlord that Tenant has obtained a Certificate of
Occupancy covering the Premises.
7. All capitalized terms not defined herein shall have the meaning assigned
to them in the Lease.
Agreed and Executed this ______ day of ___________, 19__.
LANDLORD
LASALLE PARTNERS MANAGEMENT
LIMITED, solely in its
capacity as agent for Xxxxxx
Street Limited Partnership, a
Delaware limited partnership
By:
---------------------------
Xxxx X. Xxxxxxx,
Senior Vice President
D-i
48
TENANT
------------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
D-ii
49
(b) All directional signs and arrows must be observed.
(c) The speed limit shall be five (5) miles per hour.
(d) Parking is prohibited in areas not striped for parking, aisles,
areas where "no parking" signs are posted, in cross hatched areas
and in such other areas as may be designated by Landlord or
Landlord's agent(s) including, but not limited to, areas designated
as "Visitor Parking" or reserved spaces not rented under this
Exhibit.
(e) Every xxxxxx is required to park and lock his own car. All
responsibility for damage to cars or persons or loss of personal
possessions is assumed by the xxxxxx.
(f) Spaces which are designated for small, intermediate or full-sized
cars shall be so used. No intermediate or full-size cars shall be
parked in parking spaces limited to compact cars.
8. Default. Failure to promptly pay the parking rent required hereunder plus
all applicable taxes shall constitute a default under the Lease, and
Landlord may, at its option and in addition to all other remedies provided
for in the Lease, terminate Tenant's rights to use the Garage. Landlord
may refuse to permit any person who violates the rules to park in the
Garage and any violation of the rules shall subject the car to removal at
the car owner's expense. No such refusal or removal shall create any
liability on Landlord or be deemed to interfere with Tenant's right to
quiet possession of the Premises.
E-ii
50
EXHIBIT F
------------------------------------------------------
Amortization Period 72 Monthly/RSF $ 0.39
Interest Rate 10.0% Annual/RSF $ 4.68
Principal Amount 261,074.21 RSF 12,312
------------------------------------------------------
------------------------------------------------------------------------------------
Lease Principal Term Monthly Interest Principle Cancellation
Month Amount (months) Payment Payment
------------------------------------------------------------------------------------
1 261,074.21 72 4,796.65 -- 4,796.65 N/A
2 256,277.56 71 4,796.65 2,135.65 2,661.00 N/A
3 253,616.56 70 4,796.65 2,113.47 2,683.17 N/A
4 250,933.33 69 4,796.65 2,091.11 2,705.53 N/A
5 248,227.85 68 4,796.65 2,068.57 2,728.08 N/A
6 245,499.77 67 4,796.65 2,045.83 2,750.81 N/A
7 242,748.95 66 4,796.65 2,022.91 2,273.74 N/A
8 239,975.21 65 4,796.65 1,999.79 2,796.85 N/A
9 237,178.36 64 4,796.65 1,976.49 2,820.16 N/A
10 234,358.20 63 4,796.65 1,952.99 2,843.66 N/A
11 231,514.54 62 4,796.65 1,929.29 2,867.36 N/A
12 228,647.18 61 4,796.65 1,905.39 2,891.25 N/A
13 225,755.93 60 4,796.65 1,881.30 2,915.35 N/A
14 222,840.58 59 4,796.65 1,857.00 2,939.64 N/A
15 219,900.94 58 4,796.65 1,832.51 2,964.14 N/A
16 216,936.80 57 4,796.65 1,807.81 2,988.84 N/A
17 213,947.96 56 4,796.65 1,782.90 3,013.75 N/A
18 210,934.22 55 4,796.65 1,757.79 3,038.86 N/A
19 207,895.35 54 4,796.65 1,732.46 3,064.19 N/A
20 204,831.17 53 4,796.65 1,706.93 3,089.72 N/A
21 201,741.45 52 4,796.65 1,681.18 3,115.47 N/A
22 198,625.98 51 4,796.65 1,655.22 3,141.43 N/A
23 195,484.55 50 4,796.65 1,629.04 3,167.61 N/A
----------
24 192,316.94 49 4,796.65 1,602.64 3,194.01 189,122.94(1)
----------
25 189,122.94 48 4,796.65 1,576.02 3,220.62 185,902.32
26 185,902.32 47 4,796.65 1,549.19 3,247.46 182,654.86
27 182,654.86 46 4.796.65 1,522.12 3,274.52 179,380.33
28 179,380.33 45 4,796.65 1,494.84 3,301.81 176,078.52
29 176,078.52 44 4.796.65 1,467.32 3,329.33 172.749.20
30 172,749.20 43 4,796.65 1,439.58 3,357.07 169,392.13
31 169,392.13 42 4,796.65 1,411.60 3,385.05 166,007.08
32 166,007.08 41 4,796.65 1,383.39 3,413.25 162,593.83
F-i
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------------------------------------------------------------------------------------
Lease Principal Term Monthly Interest Principle Cancellation
Month Amount (months) Payment Payment
------------------------------------------------------------------------------------
33 162,593.83 40 4,796.65 1,354.95 3,441.70 159,152.13
34 159,152.13 39 4,796.65 1,326.27 3,470.38 155,681.75
35 155,681.75 38 4,796.65 1,297.35 3,499.30 152,182.46
----------
36 152,182.46 37 4,796.65 1,268.19 3,528.46 148,654.00(2)
----------
37 148,654.00 36 4,796.65 1,238.78 3,557.86 145,096.13
38 145,096.13 35 4,796.65 1,209.13 3,587.51 141,508.62
39 141,508.62 34 4,796.65 1,179.24 3,617.41 137,891.21
40 137,891.21 33 4,796.65 1,149,09 3,647.55 134,243.66
41 134,243.66 32 4,796.65 1,118.70 3,677.95 130,565.71
42 130,565.71 31 4,796.65 1,088.05 3,708.60 126,857.11
43 126,857.11 30 4,796.65 1,057.14 3,739.50 123,117.61
44 123,117.61 29 4,796.65 1,025.98 3,770.67 119,346.94
45 119,346.94 28 4,796.65 994.56 3,802.09 115,544.85
46 115,544.85 27 4,796.65 962.87 3,833.27 111,711.08
47 111,711.08 26 4,796.65 930.93 3,865.72 107,845.36
48 107,845.36 25 4,796.65 898.71 3,897.93 103,947.43
49 103,947.43 24 4,796.65 866.23 3,930.42 103,017.01
50 100,017.01 23 4,796.65 833.48 3,963.17 96,053.84
51 96,053.84 22 4,796.65 800.45 3,996.20 92,057.64
52 92,057.64 21 4,796.65 767.15 4,029.50 88,028.14
53 88,028.14 20 4,796.65 733.57 4,063.08 83,965.06
54 83,965.06 19 4,796.65 699.71 4,096.94 79,868.12
55 79,868.12 18 4,796.65 665.57 4,131.08 75,737.05
56 75,737.05 17 4,796.65 631.14 4,165.50 71,571.54
57 71,571.54 16 4,796.65 596.43 4,200.22 67,371.32
58 67,371.32 15 4,796.65 561.43 4,235.22 63,136.11
59 63,136.11 14 4,796.65 526.13 4,270.51 58,865.59
60 58,865.59 13 4,796.65 490.55 4,306.10 54,559.49
61 54,559.49 12 4,796.65 454.66 4,341.98 50,217.51
62 50,217.51 11 4,796.65 418.48 4,378.17 45,839.34
63 45,839.34 10 4,796.65 381.99 4,414.65 41,424.69
64 41,424.69 9 4,796.65 345.21 4,451.44 36,973.25
65 36,973.25 8 4,796.65 308.11 4,488.54 32,484.71
66 32,484.71 7 4,796.65 270.71 4,525.94 27,958.27
67 27,958.27 6 4,796.65 232.99 4,563.66 23,395.12
68 23,395.12 5 4,796.65 194.96 4,601.69 18,793.43
69 18,793.43 4 4,796.65 156.61 4,640.03 14,153.40
70 14,153.40 3 4,796.65 117.94 4,678.70 9,474.70
71 9,474.70 2 4,796.65 78.96 4,717.69 4,757.00
72 4,757.00 1 4,796.65 39.64 4,757.00 (0.00)
--------------------------------------------------------------------------------
(1) Cancellation Payment for Termination Date effective at the end of the 24th
month per Section 13.701.
(2) Cancellation Payment for Termination Date effective at the end of the 36th
month per Section 13.701.
52
EXHIBIT G
EXCLUSIONS FROM OPERATING EXPENSES
(1) Costs of repairs, replacements or other work occasioned by fire,
windstorm or other casualty, or the exercise by governmental
authorities of the right of eminent domain, to the extent reimbursed
by insurance or condemnation proceeds.
(2) Leasing commissions, attorney's fees, costs, disbursements and other
expenses incurred by Landlord or its agents in connection with
negotiations for leases with tenants, other occupants or prospective
tenants or other occupants of the Building, and similar costs
incurred in connection with disputes with and/or enforcement of any
leases with tenants, other occupants, or prospective tenants or
other occupants of the Building.
(3) "Tenant allowances", "tenant concessions", workletters, and other
costs or expenses (including permit, license and inspection fees)
incurred in completing, fixturing, furnishing, renovating or
otherwise improving, decorating or redecorating space leased to
tenants or other occupants of the Building, or vacant, leasable
space in the Building (in either instance, excepting Common Areas),
including space planning/interior design fees for same.
(4) Depreciation and other "non-cash" expense items or amortization,
except for amortization charges as provided for in Section 2.202(d)
above.
(5) Costs of a capital nature, except as provided for in Section 2202(d)
above, including, but not limited to, capital additions, capital
improvements, capital alterations, capital replacements, capital
equipment and capital tools, and/or capital redesign, all in
accordance with generally accepted accounting principles,
consistently applied.
(6) Costs in connection with services (including electricity), items or
other benefits of a type which are not standard for the Building and
which are not available to Tenant without specific charge therefor,
but which are provided to another tenant or occupant of the
Building, whether or not such other tenant or occupant is
specifically charged therefor by Landlord.
(7) Services, items and benefits for which Tenant or any other tenant or
occupant of the Building specifically reimburses Landlord (other
than through its percentage share of Operating Expenses) or for
which Tenant or any other tenant or occupant of the Building wholly
pays third persons.
(8) Penalties or interest charged for (i) failure to pay equipment lease
payments, ad valorem taxes and/or special assessments before they
became delinquent or (ii) failure to promptly comply with laws
related to the Building, but, in either case, only if said penalties
or interest were not caused by Tenant.
(9) Costs directly resulting from the gross negligence or willful
misconduct of Landlord, its employees, agents and/or contractors.
(10) Payments in respect of overhead and/or profit to any Affiliate
(hereinafter defined) of Landlord, as a result of a non-competitive
selection process for services (other than the management fee) on or
to the Building and/or the Land, or for goods, supplies or
other materials, to the extent that the costs of such services,
goods, supplies and/or materials exceed the costs that would have
been paid had the services, goods, supplies or materials been
provided by parties unaffiliated with Landlord, of at least equal
skill, competence and experience.
(11) Payments of principal, finance charges or interest on debt or
amortization on any mortgage, deed of trust or other debt, and
rental payments (or increases in same) under any ground or
underlying
G-i
53
lease or leases (except to the extent the same may be made to pay or
reimburse, or may be measured by, real estate taxes or insurance
premiums).
(12) Real estate taxes allocable to the leasehold improvements of other
tenants in the Building, to the extent separately assessed by the
taxing authorities.
(13) Costs associated with the operation of the entity which constitutes
Landlord, as distinguished from Landlord's operation of the
Building, such as general overhead and general administrative
expenses (individual, partnership or corporate, as the case may be),
which costs would not be chargeable to operating expenses of the
Building in accordance with generally accepted accounting
principles, consistently applied.
(14) Compensation paid to clerks, attendants or other persons in
commercial concessions (such as a snack bar, restaurant or
newsstand), if any, operated by Landlord or any subsidiary or
Affiliate of Landlord.
(15) Rentals and other related expenses, if any, incurred in leasing air
conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment which is used
in providing janitorial services and which is not affixed to the
Building, and except as would be permitted under Section 2.02(d).
(16) Costs incurred in installing, operating, maintaining and owning any
specialty items or services not normally installed, operated and
maintained in buildings comparable to the Building and not necessary
for Landlord's operation, repair and maintenance of, and the
providing of required services for, the Building and/or any
associated parking facilities, such as for example, an observatory,
broadcasting facilities (other than the Building's music system, and
life support and security systems), luncheon club, athletic or
recreational club or helipad.
(17) Advertising and promotional expenses.
(18) Costs in connection with the ownership, operation and maintenance of
any off-site garage facilities associated with the Building, and
costs in connection with the operation and maintenance of any
parking facilities in the basement of the Building, in both cases
only to the extent offset by operating revenues from such
facilities.
(19) Costs or expenses for sculpture, paintings or other works of art,
including costs incurred with respect to the purchase, ownership,
leasing, showing, and promotion of same, but not including the costs
of cleaning same.
(20) Costs for which Landlord is compensated through or reimbursed by
insurance.
(21) Except as may be permitted under Section 2.02(d) above, costs of
correcting or repairing defects in the Building and/or any
associated parking facilities, and/or equipment or the replacement
of defective equipment, to the extent such costs are covered by
warranties of manufacturers, suppliers or contractors, or are
otherwise borne by parties other than Landlord.
(22) Contributions to reserve accounts designed to pay for Operating
Expenses attributable to periods subsequent to the calendar year for
which Operating Expenses are being determined;
(23) Contributions to charitable organizations.
(24) Costs incurred in removing the property of former tenants and/or
other occupants of the Building.
G-ii
54
(25) Consulting costs and expense incurred by Landlord, except to the
extent same relate to the improved management or operation of the
Building.
(26) The costs of any "tap fees" or one-time lump sum sewer or water
connection fees for the Building.
(27) Costs or fees relating to the defense of Landlord's title to
or interest in the Building and/or the Land, or any part thereof.
(28) Compensation in the form of wages, salaries and such other
compensation and benefits, as well as any adjustments thereto, for
all executive employees and personnel of Landlord above the level of
the on-premises manager of the Building.
(29) An equitable allocation of the wages, salaries and other
compensation and benefits of Landlord's employees and personnel who
work on other projects, including, without limitation, those being
periodically developed, managed and/or operated by Landlord, in
addition to the Building and/or the Land, based on the extent to
which such parties are performing services other than for- the
Property.
(30) Federal, state, county, or municipal taxes on income, death taxes,
excess profit taxes, franchise taxes, or any taxes imposed or
measured on or by the income, gross receipts or revenue of Landlord
from the operation of the Building or imposed in connection with or
as a result of any change in the ownership of the Building and/or
the Land, except to the extent any of the foregoing are due in lieu
of ad valorem or real estate taxes or assessments.
(31) Taxes on Tenant's personal property and on the value of the
leasehold improvements in the Premises to the extent that the same
exceed "building standard" (as to quality but not quantity),
provided the amount of tax attributable thereto is expressly stated
and allocated by the respective taxing authority in its tax
statement to Landlord and is paid by Tenant.
(32) Any other expense which, under generally accepted accounting
principles, consistently applied, would not be considered to be a
normal maintenance or operating expense of the Property.
The term "Affiliate" shall mean and refer to any person or entity controlling,
controlled by, or under common control with another such person or entity.
"Control", as used herein, shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
controlled person or entity; the ownership, directly or indirectly, of at least
fifty-one percent (51%) of the voting securities of, or possession of the right
to vote, in the ordinary direction of its affairs, at least fifty-one percent
(51%) of the voting interest in, any person or entity shall be presumed to
constitute such control.
Landlord shall maintain complete and accurate records of all costs, expenses and
disbursements which shall be paid or incurred by Landlord, its employees, agents
and/or contractors, with respect to Operating Expenses, and Tenant, at its sole
cost and expense, and/or its authorized representatives, shall have the right to
inspect and/or audit Landlord's books and records relating solely to the
calculation of Operating Expenses under this Lease for the immediately prior
year for which additional rental payments shall become due by providing written
notice to Landlord within the period required by Section 2.203 hereof, any such
inspection and/or audit to be conducted at Landlord's office during normal
business hours; provided, however, Landlord agrees to reimburse Tenant for the
reasonable cost of any such inspection and/or audit conducted by or for it in
the event said inspection and/or audit shall prove that the operating expenses
for the period of time covered by such inspection and/or audit shall have been
overstated by five percent (5%) or more. Such audit may only be conducted by a
nationally recognized accounting firm reasonably acceptable to Landlord, and
shall be performed so as not to disturb Landlord's operations at the Building.
G-iii
55
EXHIBIT H
CLEANING FREQUENCIES
Cleaning and janitorial services to be furnished shall include, but are not
limited to the following: GENERAL CLEANING will be performed nightly, Sunday
through Thursday, five (5) days per week, fifty-two (52) weeks per year.
SPECIFIC CLEANING will be performed according to the times and frequencies
listed below. Elevator and Public Area Shampooing, as well as Lobby
Refinishing/Resurfacing should be performed on Sunday when possible, to allow
maximum drying time with minimum traffic. COMPUTER AREAS will be cleaned five
(5) days each week.
A. GENERAL CLEANING - NIGHTLY
1. All carpeting will be vacuumed and spot cleaned as needed.
2. All trash receptacles will be emptied and trash removed to a
designated trash area.
3. All horizontal surfaces of desks, enclosures, and horizontal
surfaces of all other furniture, files, woodwork, etc., shall be
damp dusted with clean or treated cloth.
4. All desk accessories will be dusted and returned to their proper
place.
5. Drinking fountains will be cleaned and disinfected, and all exposed
metal shall be polished and kept free of foreign matter.
6. All hard surfaces including doors, walls, floors, ceramic tile,
etc., will be wiped or mopped clean where liquid and other foreign
materials have been spilled on the surface.
7. All interior doors and partition panels will be cleaned to remove
smudge marks, fingerprints and dust.
8. All glass doors, glass panels (including bright metal finishes and
handrails) will be cleaned, rubbed and polished. Partition glass
will be spot cleaned to remove smudges and fingerprints.
9. Cleaning personnel will work behind locked doors when possible, and
will close and lock all doors when cleaning is complete. All lights
are to be turned off in unoccupied tenant spaces immediately upon
arrival and after completion of work.
10. Dock/delivery areas will be policed to maintain a clean appearance,
hosed down weekly, and scrubbed as necessary.
B. FIRST FLOOR LOBBY
1. All granite areas will be swept, damp mopped and buffed nightly,
stripped and refinished quarterly.
2. Outside Entrances - All pavers and dock area will be policed daily,
scrubbed and hosed down weekly.
1
56
C. DAILY RESTROOM CLEANING
1. All restroom fixtures including lavatories, toilet bowls and
urinals, will be scoured and disinfected and kept free of scale at
all times. All bright metal accessories, including hardware on
plumbing fixture, partitions and dispensing accessories shall be
cleaned and polished.
2. Sanitary napkin receptacles will be emptied, cleaned and
disinfected. All other receptacles will be emptied and damp dusted
on the inside.
3. Soap, towel and tissue dispensers will be filled nightly.
4. All mirrors will be cleaned and polished clear.
5. Restroom walls and partitions will be kept free of spots, smudges
and foreign matter.
6. Restroom floors will be cleaned and mopping and rinsing with a
disinfecting mopping solution.
D. WEEKLY GENERAL AND RESTROOM CLEANING
1. All vertical surfaces of desks, files and other furniture will be
damp dusted with clean or treated cloth.
2. All air supply and return grills will be thoroughly cleaned.
3. All restroom partitions will be washed with disinfecting solution
and a light coat of polish applied.
4. A minimum of two (2) gallons of fresh, clean water will be poured
into each restroom floor-drain twice weekly.
E. PERIODIC GENERAL CLEANING
1. Paneled walls will be dusted with a clean or treated cloth once each
month.
2. All ceiling recessed light fixture exteriors will be dusted
quarterly.
3. Draperies will be vacuumed quarterly.
4. All upholstery will be spot cleaned as needed or requested.
5. All flocked wall coverings in common areas of building will be
vacuumed monthly, and as necessary during any interior construction
or remodeling.
6. All vinyl wall coverings in common areas of building will be dusted
monthly and as necessary during any interior construction or
remodeling. Care shall be used in spot cleaning vinyl coverings.
2
57
F. ELEVATOR CLEANING
1. Tiled floors will be swept and spray buffed nightly, scrubbed and
re-coated weekly. Strip and refinish quarterly.
2. Carpet floors will be vacuumed and spot cleaned nightly, and
shampooed weekly.
3. Exterior and interior doors and trim will be dusted nightly and
polished monthly.
4. Cabs will be dusted nightly.
5. Control and dispatch panels will be dusted and polished nightly.
6. Elevator thresholds will be cleaned and polished nightly.
G. ESCALATORS
1. Clean and polish treads nightly.
2. Clean traveling handrails nightly.
3. Wipe and polish all side panels nightly.
4. Remove gum or other stains, etc., nightly.
5. Clean plastic or glass section nightly.
H. FLOOR CLEANING
1. Hard Surfaces - V.A. Tile, Etc.
a. Public Areas - Sweep, wet mop and spray buff twice weekly,
scrub and refinish monthly, strip and refinish semi-annually.
b. Tenant Areas - Dust mop and damp mop nightly, spray buff
weekly, scrub and refinish monthly, strip and refinish
annually.
c. Restroom Floors - Strip and reseal monthly. Keep grout clean
at all times.
d. Scrub and polish door thresholds daily.
2. Concrete Floors and Janitorial Closets
a. Dust mop nightly, damp mop weekly, scrub and seal quarterly.
b. Police building stairwells nightly, dust mop nightly, damp mop
weekly, scrub and seal quarterly.
3
58
I. CARPET CARE
1. Thorough vacuuming.
2. Correct spot removal.
3. Elevator lobbies and public corridors will be pile lifted weekly.
4. Anti-static electricity treatment.
5. Shampooing will be dictated largely by population or traffic
patterns in the public areas. The elevator lobbies and corridors
will require more frequent shampooing. Extraction method shall be
used for all areas. All carpeting shall be kept free of dirt, spots
and all unsightly conditions that can be removed by spot cleaning
and normal vacuuming.
J. COMPUTER AREA CLEANING
CARPETS
1. Cleaned and shampooed by Bonnet Method shampooing.
2. Spot cleaning will be performed by the Bonnet Method.
3. Anti-static treatment will be applied as requested.
K. GARAGE - FIVE (5) LEVELS PLUS GROUND LEVEL
1. Light fixtures in all elevator vestibules will be dusted as
necessary, but no less than one (1) time each week.
2. All tiled areas will be swept, damp mopped and spray buffed nightly,
scrub and refinish monthly, strip and refinish semi-annually.
The outlined specifications for work tasks and frequencies of such tasks listed
herein are intended as a framework for the cleaning operation of a first class
office building. Additional work will often be required and since it will
usually be minor in scope, it is intended that the vast majority of such extra
or additional work can and will be absorbed within the cleaning and maintenance
operation. When unscheduled work of a major proportion is required and requested
of the Contractor, the cost of such will be negotiated to provide a fair and
equitable arrangement for both parties.
4
59
RIDER I
RENEWAL OPTION
SINGLE RENEWAL TERM
This Rider is attached to and a part of that certain Lease Agreement dated
as of _____________________, 1995, executed by and between LASALLE PARTNERS
MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree as follows:
1. If, and only if, on the Expiration Date and the date Tenant notifies
Landlord of its renewal of the term of this Lease (as provided below), (i)
Tenant is not in default under this Lease, (ii) Tenant then occupies, and
the Premises then consist of, at least all the original Premises and (iii)
this Lease is in full force and effect, then Tenant (or any approved
Assignee, but not any subtenant of Tenant) shall have and may exercise an
option to renew this Lease for a contiguous portion of the Premises equal
to or exceeding 12,312 square feet (the "Renewal Space") for one (1)
additional term of five (5) years (the "Renewal Term") upon the sane terms
and conditions contained in this Lease with the exceptions that (x) this
Lease shall not be further available for renewal and (y) the rental for
the Renewal Term shall be the "Market Rental Rate", but in no event will
the Base Annual Rent for the Renewal Term be less than the Base Annual
Rent for the last twelve (12) calendar months of the initial term of the
Lease. If Tenant renews for less than all of the Premises, then the
configuration of the Renewal Space and the portion of the Premises not
renewed must be reasonably acceptable to Landlord.
2. The Market Rental Rate is hereby defined to mean the then prevailing fair
market rental rate in the Building determined on a "gross" lease basis as
of the exercise of the respective provision by Tenant, which a willing
tenant would pay and a willing landlord would accept for space of
comparable size and condition, taking into consideration all relevant
factors, including the following:
(1) use, location, size and/or floor level(s) of the space in question,
including view, elevator lobby exposure, etc.;
(2) tenant improvement or refurbishment allowance to be provided;
(3) abatement (including with respect to base rental, operating expenses
and real estate taxes, and parking charges);
(4) inclusion of parking charges in rental (or abatement thereof);
(5) lease takeovers/assumption;
(6) relocation/moving allowance;
(7) space planning/interior architecture/engineering allowance(s);
(8) refurbishment and repainting allowances;
(9) club membership;
(10) any other concessions or inducements;
(11) extent of services provided or to be provided (including overtime
cooling and heating, plus hourly charges therefor);
Rider 1-i
60
(12) distinction between "gross" and "net" lease
(13) base year or dollar amount for escalation purposes (both operating
expenses and real estate taxes);
(14) any other adjustments (including by way of indexes) to base rental;
(15) credit standing and financial stature of the tenant;
(16) term of length of lease;
(17) the time the particular rental rate under consideration is to become
effective.
Landlord will take into consideration the tenant inducements offered in
the transactions considered by Landlord in determining the Market Rental
Rate.
3. If Tenant desires to renew this Lease, Tenant must notify Landlord in
writing of its intention to renew on or before the date which is at least
nine (9) months but no more than twelve (12) months prior to the
Expiration Date. If Tenant timely notifies Landlord of Tenant's exercise
of its right to renew, this Lease shall be extended as provided herein and
Landlord and Tenant shall enter into an amendment to this Lease to reflect
the extension of the term and changes in Rent in accordance with this
Rider. If Tenant fails to timely notify Landlord in writing of Tenant's
exercise of its right to renew, this Lease shall end on the Expiration
Date and Landlord shall have no further obligations or liability
hereunder.
4. The Renewal Space shall be delivered to Tenant in an "as is", broom-clean
condition. Landlord will, however, provide Tenant with a refurbishment
allowance in an amount not to exceed $5.00 per square foot of Rentable
Area within the Renewal Space. Such finish allowance shall be used to
refurbish improvements in the Renewal Space in accordance with plans
approved by Landlord. The refurbishment allowance shall be taken into
consideration in determining the Market Rental Rate for the renewal. Any
unused allowance shall, at Tenant's option, be applied to future leasehold
improvements or refurbishments in the Renewal Space.
Rider 1-ii
61
RIDER 2
EXPANSION OPTION
This Rider is attached to and a part of that certain Lease Agreement dated
as of __________________, 1995, executed by and between LASALLE PARTNERS
MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree as follows:
A. Subject to the remaining provisions of this Rider, Tenant shall have the
option and right (the "Expansion Option") during the first eighteen (18)
months following the Commencement Date, and provided that Tenant shall
deliver, six (6) months prior written notice of the exercise of the option
and right, to lease from Landlord all, but not less than all, of the area
of the Building more particularly described on Schedule A attached hereto
(the "Expansion Space"). The agreed rentable area of the Expansion Space
is 5,500 square feet, irrespective of whether the same should be more or
less as a result of minor variations resulting from actual construction of
improvements therein.
B. Expansion Space shall be delivered to Tenant (i) in an "as is" condition,
except for latent defects reported to Landlord within one hundred eighty
(180) days after delivery, and (ii) within one hundred eighty (180) days
after Landlord's receipt of the expansion notice from Tenant. The
Expansion Space will become part of the Premises and be leased to Tenant
on the same terms as the initial Premises, including Landlord's
obligations to furnish Tenant with the same finish allowance and
concessions as provided for the initial Premises, reduced, however, as
necessary to permit Landlord to fully amortize on a straight line basis
using a 10% interest factor the finish allowance and concessions over the
balance of the Term (not including renewal terms). Such finish allowance
shall be used to refurbish and/or construct improvements in the Expansion
Space. Within fifteen (15) days after delivering to Landlord the Expansion
Notice, Landlord and Tenant shall enter into a work letter in
substantially the form of Exhibit C attached to the Lease (including a
reasonable Construction Plans Review Fee), it being understood, however,
that such form shall be modified to reflect appropriate dates, and such
other changes as are necessary to reflect the agreement of the parties.
C. Basic Annual Rent for the Expansion Space will be equal to the product of
the Agreed Rentable Area per square foot rent applicable to the Premises
(at the time such Basic Annual Rent is calculated) under Item 3 of the
Basic Lease Provisions, multiplied by the agreed rentable area of the
Expansion Space. Basic Monthly Rent for the Expansion Space will be equal
to one-twelfth (1/12th) of the Basic Annual Rent for the Expansion Space.
Basic Annual Rent and Additional Rent for the Expansion Space shall
commence on the earlier to occur of (i) the earlier of Substantial
Completion or ten weeks after Landlord's delivery of the Expansion Space
to Tenant for construction of improvements (subject to extension for-
Force Majeure and subject to Landlord's not unreasonably delaying its
approval of Construction Plans, as provided in the Expansion Space work
letter) and (ii) the date that Tenant commences use of the applicable
Expansion Space. Upon such rent commencement date. (w) the Agreed Rentable
Area of the Premises shall be deemed increased by the agreed rentable area
for the Expansion Space, (x) the Basic Annual Rent for the Premises shall
be deemed increased by an amount equal to the Basic Annual Rent for the
Expansion Space, (y) Basic Monthly Rent for the Premises shall be deemed
increased to an amount equal to one twelfth (1/12th) of the Basic Annual
Rent for the Premises (as increased) and (z) Additional Rent for the
Premises shall be recalculated on the basis of the increased Agreed
Rentable Area of the Premises.
D. At such time as Basic Annual Rent commences with respect to any Expansion
Space, Landlord and Tenant will enter into an amendment to this Lease
accurately reflecting the addition of the Expansion Space to the Premises,
(ii) the increase in the Basic Annual Rent and Additional Rent payable
under this Lease, (iii) the increase in Tenant's Pro Rata Share Percentage
and (iv) such other amendments as are necessary.
Rider 2-i
62
E. Landlord and Tenant shall promptly execute an Acceptance of Premises
Memorandum in substantially the form of Exhibit D attached to the Lease.
If Tenant occupies the Expansion Space without executing the Acceptance of
Premises Memorandum, Tenant shall be deemed to have accepted the Expansion
Space for all purposes.
F. Notwithstanding any provision or inference in this Rider to the contrary,
the Expansion Option shall expire and be of no further force or effect on
the earlier of (i) the expiration or earlier termination of the initial
term of this Lease, (ii) a default by Tenant under this Lease beyond any
applicable grace period or (iii) the eighteen month anniversary of the
Commencement Date. In the event Tenant has not exercised the Expansion
Option on or before the eighteen (18) month anniversary of the
Commencement Date, the Expansion Space shall revert to being controlled by
the Right of Opportunity and Offer set forth in Rider 3.
Rider 2-ii
63
SCHEDULE A
[GRAPHIC OMITTED]
64
RIDER 3
TENANT'S RIGHT OF OPPORTUNITY AND FIRST OFFER
This Rider is attached to and a part of that certain Lease Agreement dated
as of _____________, 1995, executed by and between LASALLE PARTNERS MANAGEMENT
LIMITED (in its capacity as agent for Xxxxxx Street Limited Partnership, a
Delaware limited partnership), and WOLF COMMUNICATIONS COMPANY, a Texas
corporation ("Tenant"). Any capitalized term not defined herein shall have the
meaning assigned to it in the Lease. Landlord and Tenant agree as follows:
A. Prior to leasing to a third party any of the area described on Schedule A
attached to this Rider (the "Opportunity Expansion Space"), Landlord shall
deliver to Tenant a written statement ("Statement") setting forth that the
entire Opportunity Expansion Space, or named portion thereof, is or will
be available for direct lease and, in the case of space for which Landlord
has received an offer to lease from a bona ride prospective tenant (a
"Third Party Offer"), the name of such tenant. A prospective tenant shall
be considered bona fide when such prospective tenant has delivered to
Landlord a counter-proposal to lease the space, at which time Landlord
shall provide Tenant with the amount of space and the term (including
renewal terms) contained within the offer. Tenant shall have ten (10)
business days after receipt of the Statement in the case of a Third Parry
Offer, or twenty (20) business days otherwise, within which to notify
Landlord in writing that it desires to lease the entire applicable
Opportunity Expansion Space set forth in the Statement (each such written
notice is herein referred to as a "Notice"). Failure by Tenant to notify
Landlord within such applicable period shall be deemed an election by
Tenant not to lease the applicable Opportunity Expansion Space and
Landlord shall have the right to lease such space. If Landlord does not
lease such Opportunity Expansion Space within the later of (x) one hundred
twenty (120) days after Landlord's receipt of Tenant's Notice or (y)
termination of continuous good faith negotiations with the prospective
tenant, then Landlord will again comply with the provisions of this Rider
prior to leasing such space to any other third party. Tenant may at any
time during the Term express interest in any space which is available in
the Opportunity Expansion Space, and Landlord shall provide a Statement to
Tenant covering such space. If and when Tenant leases all Opportunity
Expansion Space (including any Expansion Space which may then be subject
to this Rider 3), Tenant's rights hereunder shall be extended to all space
on the 7th floor of the Building which is or may become available for
lease, subject to (a) prior rights of other tenants in the Building and
(b) renewals by tenants actually occupying space on the 7th floor whether
or not such renewals are set forth in their leases.
B. If Tenant exercises a right to take any Opportunity Expansion Space prior
to the eighteen (18) month anniversary of the Commencement Date, then such
Opportunity Expansion Space shall be provided upon the same terms as the
initial Premises, including Landlord's obligation to furnish the same
finish allowance and concessions as provided for the initial Premises,
reduced, however, as necessary to permit Landlord to fully amortize on a
straight line basis using a 10% interest factor the finish allowance and
concessions over the balance of the Term (not including any renewal term).
Thereafter, the Opportunity Expansion Space shall be leased to Tenant upon
all terms and conditions of this Lease with the following exceptions: (i)
all Opportunity Expansion Space shall be delivered to Tenant in "as is"
condition, except for latent defects reported to Landlord within one
hundred eighty (180) days after delivery; (ii) Basic Annual Rent for the
Opportunity Expansion Space will be the Market Rental Rate determined as
set forth in Rider 1; (iii) the Basic Monthly Rent for the agreed rentable
area of the Opportunity Expansion Space will be equal to one-twelfth
(1/12th) of the Basic Annual Rent for the Opportunity Expansion Space;
(iv) the Opportunity Expansion Space will be improved in accordance with
paragraph D of this Rider; (v) Tenant shall not be entitled to any
allowances or inducements with respect to the applicable Opportunity
Expansion Space; and (vi) Basic Annual Rent and Additional Rent with
respect to the applicable Opportunity Expansion Space shall commence on
the earlier to Occur of (x) the date that Tenant commences use of the
applicable Opportunity Expansion Space for any purpose or (y) the earlier
of Substantial Completion or ten (10) weeks from the date Landlord
delivers the Opportunity Expansion Space to Tenant for construction of
leasehold improvements (subject to extension for Force Majeure and
Landlord not unreasonably delaying its consent
Rider 3-i
65
to the Construction Plans, as provided in the Opportunity Expansion Space
work letter). Upon such rent commencement date, (1) the Agreed Rentable
Area of the Premises shall be deemed increased by the agreed rentable area
of the Opportunity Expansion Space, (2) Basic Annual Rent for the Premises
shall be deemed increased by an amount equal to the Basic Annual Rent for
the Opportunity Expansion Space, (3) Basic Monthly Rent for the Premises
shall be deemed increased to an amount equal to one twelfth (1/12th) of
the Basic Annual Rent for the increased Premises and (4) Additional Rent
for the Premises shall be recalculated on the basis of the increased
Agreed Rentable Area of the Premises.
C. The failure of Tenant to exercise its rights to take Opportunity Expansion
Space in any given instance shall not prejudice its right to exercise its
rights to lease with respect to any other space or the same space after
the appropriate period, should all or any part of such space again become
available for direct lease or should Landlord again have a bona fide,
prospective tenant for such space.
D. Within fifteen (15) days after Landlord's receipt of a Notice, Tenant and
Landlord will enter into a work letter substantially in the form of
Exhibit C attached to the Lease (including a reasonable Construction Plans
Review Fee), provided that such form shall be amended to (i) set forth
appropriate dates, (ii) amend the finish allowance to be an amount
calculated in accordance with the other provision of this Rider 3 and
(iii) provide for such other matters as are necessary to reflect the
agreements of the parties with respect to the finish out of the applicable
Opportunity Expansion Space. Pursuant to the work letter, Tenant shall
construct or cause to be constructed improvements in the applicable
Opportunity Expansion Space in substantial accordance with construction
plans agreed to by Landlord and Tenant.
E. Landlord and Tenant shall promptly upon request of Landlord execute an
Acceptance of Premises Memorandum in substantially the form of Exhibit D
attached to the Lease. If Tenant occupies any Opportunity Expansion Space
without executing the Acceptance of Premises Memorandum, Tenant shall be
deemed to have accepted such Opportunity Expansion Space for all purposes.
F. Within fifteen (15) days after Landlord's receipt of a Notice, Landlord
and Tenant will enter into an amendment to this Lease accurately
reflecting (i) the addition of the applicable Opportunity Expansion Space
to the Premises, (ii) the increase in Basic Annual Rent and Additional
Rent payable under this Lease, (iii) the increase in Tenant's Pro Rata
Share Percentage and (iv) such other amendments as are necessary.
G. Notwithstanding any other provision or inference herein to the contrary,
Tenant's rights and Landlord's obligations under this Rider shall expire
and be of no further force or effect on the expiration or earlier
termination of the initial term of this Lease, or during the continuation
of a default by Tenant under this Lease.
Rider 3-ii
66
SCHEDULE A
[GRAPHIC OMITTED]
67
RIDER 4
RULES AND REGULATIONS
This Rider is attached to and a part of that certain Lease Agreement dated
as of ___________________________, 199__, executed by and between LASALLE
PARTNERS MANAGEMENT LIMITED (in its capacity as agent for Xxxxxx Street Limited
Partnership, a Delaware limited partnership) ("Landlord"), and WOLF
COMMUNICATIONS COMPANY, a Texas corporation ("Tenant"). Any capitalized term not
defined herein shall have the meaning assigned to it in the Lease. Landlord and
Tenant agree as follows:
Subject to the Lease, the following rules, regulations and standards shall be
observed by Tenant:
1. Except as expressly, permitted in the Lease, Tenant shall not use the
Premises, the Building or any other part of the Property to sell any items or
services at retail price or cost to the general public without prior written
approval of Landlord. The sale of services for stenography, typewriting,
blueprinting, duplicating and similar businesses shall not be conducted from or
within the Premises, the Building or any other part of the Property for the
service or accommodation of occupants of the Building or users of any other part
of the Property without the prior written consent of Landlord. Tenant shall not
conduct any auction on the Premises or any other part of the Property nor store
goods, wares or merchandise on the Premises (except for Tenant's own personal
use) or any other part of the Property.
2. Sidewalks, halls, doorways, vestibules, passageways, stairwells and other
similar areas shall not be obstructed or used by Tenant for a purpose other than
normal ingress and egress to and from the Premises and Building.
3. Fire arms, weapons, flammable, explosive or other hazardous liquids and
materials shall not be brought on the Premises or into the Building or on the
Property without the prior written consent of Landlord.
4. Except as expressly permitted in the Lease, Tenant shall not make any
alterations or improvements to the Premises without the prior written consent of
Landlord. All improvements and the methods of installing and constructing such
improvements must be approved in writing by Landlord prior to commencement of
installation and/or construction. Should Tenant require telegraphic, telephonic,
annunciator or other communication service, Landlord will direct the electrician
as to where and how wires are to be introduced and placed, and none shall be
introduced or placed except as Landlord shall direct. All contractors and
technicians performing work for Tenant within the Building shall be referred to
Landlord for approval by Landlord before performing any work, such approval not
to be unreasonably withheld, conditioned or delayed.
5. Movement into or out of the Building of freight, furniture, or office
equipment for dispatch or receipt by or on behalf of Tenant that requires
movement through public corridors or lobbies or entrances to the Building shall
be limited to the use of service elevators only and shall be done at hours and
in a manner approved in writing by Landlord for such purposes from time to time.
Only licensed commercial movers or Tenant's employees shall be used for the
purpose of moving freight, furniture or office equipment to and from the
Premises and Building. All hand trucks shall be equipped with rubber tires and
rubber side guards. Tenant shall be responsible for all damage to the Building
inflicted by Tenant's agents and employees in moving equipment or furniture into
or out of the Building.
6. Requests by Tenant for building services, maintenance or repair may be made
by telephone or in writing to the office of the Building manager.
7. Tenant shall not change locks or install additional locks on doors without
the prior written consent of Landlord, Tenant shall not make or cause to be made
duplicates of keys procured from Landlord. All keys to the Premises, and
combinations to vaults shall be surrendered to Landlord upon termination of
tenancy. Landlord will furnish Tenant, free of charge, two (2) keys for each
corridor door entering the Leased Premises. Additional keys
Rider 4-i
68
will be furnished by the Landlord at a reasonable charge to the Tenant when
requested in writing by the Tenant. All such keys shall remain the property of
the Landlord.
8. Tenant shall give prompt notice to the office of the Building manager of any
damage to or defects in plumbing, electrical fixtures or heating and cooling
equipment. Liquids, or other materials or substances which may cause injury to
the plumbing, shall not be put into the lavatories, water closets or other
plumbing fixtures by Tenant, its agents, employees or invitees, and damages
resulting to such fixtures or appliances from misuse by Tenant or Tenant's
agents, employees or invitees shall be paid by Tenant, and Landlord shall not in
any case by liable therefor. The water closets and other water fixtures shall
not be used for any purpose other than those for which there were constructed
and any damage resulting to them from misuse by Tenant shall be borne by the
Tenant. Tenant shall not waste water by interfering with the faucets or
otherwise.
9. Except as expressly permitted in the Lease, no food shall be prepared in or
distributed from the Premises without the prior written approval of the Building
manager. Vending machines or dispensing machines of any kind will not be placed
in the Premises by Tenant unless prior written approval has been obtained from
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed.
10. Landlord shall have the power to prescribe the weight and position of safes,
filing cabinets or other heavy equipment which may overstress any portion of the
floor. Any damage done to the Building by the improper placement of heavy items
which overstress the floor will be repaired at the sole expense of Tenant.
Tenant shall notify the Building manager when safes or other heavy equipment are
taken in or out of the Building, and the moving shall be done under the
supervision of the Building manager, after prior written approval from Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed,
11. Trash shall not be swept or thrown into the corridors, halls, elevator
shafts or stairways. Trash shall only be disposed of in appropriate receptacles.
12. Tenant, its employees, or agents, or anyone else who desires to enter the
Building after normal working hours, will be required to identify themselves and
to sign in upon entry and sign out upon leaving, giving their location during
their stay and their time of arrival and departure. The Building will normally
be open for business from 7:00 a.m. until 6:00 p.m. Monday through Friday and
8:00 a.m. until 1:00 p.m. on Xxxxxxxxx, xxx following holidays excepted: January
1st (New Year's Day); Last Monday in May (Memorial Day); July 4th (Independence
Day); First Monday in September (Labor Day); Fourth Thursday in November
(Thanksgiving Day); December 25th (Christmas Day) and any other day on which
tenants in other First Class Office Buildings are generally closed.
13. Tenant shall not install any solar screen material, window shades, blinds,
drapes, awnings, window ventilators, or other similar equipment and any window
treatment of any kind whatsoever, without Landlord's prior written consent.
Landlord will control all signage visible from the exterior of the Building or
Common Areas.
14. No sign, advertisement, notice or handbill shall be exhibited, distributed,
painted or affixed by Tenant, its employees or agents, on, about or from any
part of the Premises or any other part of the Property without the prior written
consent of Landlord. Landlord will provide and maintain a directory in the
Building and no other directory shall be permitted.
15. Tenant shall not permit any improper, objectionable or unpleasant noises or
odors to be emitted from the Premises.
16. Tenant shall keep all corridor doors, when not in use, closed.
17. Tenant shall at no time use, or permit the use of, the Premises or any
portion thereof as sleeping or lodging quarters.
18. Tenant shall not sell lottery tickets or conduct any other form of gambling
from or within the Premises or any other part of the Property.
Rider 4-ii
69
19. Except for seeing eye dogs assisting the disabled, Tenant shall not keep any
animals or birds in or about the Premises or the Building.
20. Tenant shall comply with parking rules and regulations as may be posted and
distributed from time to time.
21. Landlord will not be responsible for personal property, equipment, money or
jewelry lost or stolen from the Premises.
22. Without in any way limiting any rights retained by Landlord under the Lease,
Landlord shall have the right to temporarily close lobby areas and other common
areas within the Building in order to complete any renovation or repairs of the
Building.
Landlord reserves the right to rescind any of these rules and regulations and to
make such other further reasonable rules and regulations as shall front time to
time be needed for the safety, protection, care and cleanliness of the Building
or any other portion of the Property, the operation of the Building, the
preservation of good order in the Building and on the Property, the orderly
management of the Building and/or the protection and comfort of the tenants and
their agents, employees and invitees, which rules and regulations shall be
applicable generally to all tenants in the Building and, when made and written
notice thereof is given to a tenant, shall be binding upon it in like manner as
if originally herein prescribed; provided, however, that no such rules and
regulations shall materially affect Tenant's ability to use the Premises for the
Permitted Use. These Rules and Regulations and no amendments hereto shall ever
be construed to create any obligation on Landlord. In the event of any conflict
between these Rules and Regulations and the Lease of which they are a part, the
Lease shall control.
Rider 4-iii
70
Exhibit F-1
Initial Space
--------------------------------------------------------------------------------
Amortization Period 72 Monthly/RSF $ 0.39
Interest Rate 10.0% Annual/RSF $ 4.68
Principal Amount (1) 261,074.21 RSF 12,312
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Lease Principal Remaining Monthly Interest Principle Cancellation
Month Amount Lease Months Payment Penalty
--------------------------------------------------------------------------------------------------------------
8/15/95 261,074.21 72 4,796.65 -- 4,796.65 n/a
9/15/95 256,277.56 71 4,796.65 2,135.65 2,661.00 n/a
10/15/95 253,616.56 70 4,796.65 2,113.47 2,683.17 n/a
11/15/95 250,933.38 69 4,796.65 2,091.11 2,705.53 n/a
12/15/95 248,227.85 68 4,796.65 2,068.57 2,728.08 n/a
1/15/96 245,499.77 67 4,796.65 2,045.83 2,750.81 n/a
2/15/96 242,748.95 66 4,796.65 2,022.91 2,773.74 n/a
3/15/96 239,975.21 65 4,796.65 1,999.79 2,796.85 n/a
4/15/96 237,178.36 64 4,796.65 1,976.49 2,820.16 n/a
5/15/96 234,358.20 63 4,796.65 1,952.99 2,843.66 n/a
6/15/96 231,514.54 62 4,796.65 1,929.29 2,867.36 n/a
7/15/96 228,647.18 61 4,796.65 1,905.39 2,891.25 n/a
8/15/96 225,755.93 60 4,796.65 1,881.30 2,915.35 n/a
9/15/96 222,840.58 59 4,796,65 1,857.00 2,939.64 n/a
10/15/96 219,900.94 58 4,796.65 1,832.51 2,964.14 n/a
11/15/96 216,936.80 57 4,796.65 1,807.81 2,988.84 n/a
12/15/96 213,947.96 56 4,796.65 1,782.90 3,013.75 n/a
1/15/97 210,934.22 55 4,796.65 1,757.79 3,038.86 n/a
2/15/97 207,895.35 54 4,796.65 1,732.46 3,064.19 n/a
3/15/97 204,831.17 53 4,796.65 1,706.93 3,089.72 n/a
4/15/97 201,741.45 52 4,796.65 1,681.18 3,115.47 n/a
5/15/97 198,625.98 51 4,796.65 1,655.22 3,141.43 n/a
6/15/97 195,484.55 50 4,796.65 1,629.04 3,167.61 n/a
------------
7/15/97 192,316.94 49 4,796.65 1,602.64 3,194.01 189,122.94 (2)
------------
8/15/97 189,122.94 45 4,796.65 1,576.02 3,220.62 185,902.32
9/15/97 185,902.32 47 4,796.65 1,549.19 3,247.46 182,654.86
10/15/97 182,654.86 46 4,796.65 1,522.12 3,274.52 179,380.33
11/15/97 179,380.33 45 4,796.65 1,494.84 3,301.81 176,078.52
12/15/97 176,078.52 44 4,796.65 1,467.32 3,329.33 172,749.20
1/15/98 172,749.20 43 4,796.65 1,439.58 3,357.07 169,392.13
2/15/98 169,392.13 42 4,796.65 1,411.60 3,385.05 166,007.08
3/15/98 166,007.08 41 4,796.65 1,383.39 3,413.25 162,593.83
4/15/98 162,593.13 40 4,796.65 1,354.95 3,441.70 159,152.13
5/15/98 159,152.83 39 4,796.65 1,326.27 3,470.38 155,681.75
6/15/98 155,681.75 33 4,796.65 1,297.35 3,499.30 152,182.46
------------
7/15/98 152,182.46 37 4,796.65 1,268.19 3,528.46 148,654.00 (3)
------------
8/15/98 148,654.00 36 4,796.65 1,238.78 3,557.86 145,096.13
9/15/98 145,096.13 35 4,796.65 1,209.13 3,587.51 141,508.62
10/15/98 141,508.62 34 4,796.65 1,179.24 3,617.41 137,891.21
11/15/98 137,891.21 33 4,796.65 1,149.09 3,647.55 134,243.66
12/15/98 134,243.66 32 4,796.65 1,118.70 3,677.95 130,565.71
1/15/99 130,565.71 31 4,796.65 1,088.05 3,708,60 126,857.11
2/15/99 126,857.11 30 4,796.65 1,057.14 3,739.50 123,117.61
3/15/99 123,117.61 29 4,796.65 1,025.98 3.770.67 119,346.94
4/15/99 119,346.94 28 4,796.65 994.56 3,802.09 115,544.85
5/15/99 115,544.85 27 4,796.65 962.87 3,833.77 111,711.08
6/15/99 111,711.08 26 4,796.65 930.93 3,865.72 107,845.36
7/15/99 107,845.36 25 4,796.65 898.71 3,897.93 103,947.43
71
8/15/99 103,947.43 24 4,796.65 866.23 3,930.42 100,017.01
9/15/99 100,017.01 23 4,796.65 833.48 3,963.17 96,053.84
10/15/99 96,053.84 22 4,796.65 800.45 3,996.20 92,057.64
11/15/99 92,057.64 21 4,796.65 767.15 4,029.50 88,028.14
12/15/99 88,028.14 20 4,796.65 733.57 4,063.08 83,965.06
1/15/00 83,965.06 19 4,796.65 693.71 4,096.94 79,868.12
2/15/00 79,868.12 18 4,796.65 665.57 4,131.08 75,737.05
3/15/00 75,737.05 17 4,796.65 631.14 4,165,50 71,571.54
4/15/00 71,571.54 16 4,796.65 596.43 4,200.22 67,371.32
5/15/00 67,371.32 15 4,796.65 561.43 4,235.22 63,136.11
6/15/00 63,136.11 14 4,796.65 526.13 4,270.51 58,865.59
7/15/00 58,865.59 13 4,796.65 490.55 4,306.10 54,559.49
8/15/00 54,559.49 12 4,796.65 454.66 4,341.98 50,217.51
9/15/00 50,217.51 11 4,796.65 418.48 4,378.17 45,839.34
10/15/00 45,839.34 10 4,796.65 381.99 4,414.65 41,424.69
11/15/00 41,424.69 9 4,796.65 345.21 4,451.44 n/a
12/15/00 36,973.25 8 4,796.65 308.11 4,488.54 n/a
1/15/01 32,484.71 7 4,796.65 270.71 4,525.94 n/a
2/15/01 27,958.77 6 4,796.65 232.99 4,563.66 n/a
3/15/01 23,395.12 5 4,796.65 194.96 4,601.69 n/a
4/15/01 18,793.43 4 4,796.65 156.61 4,640.03 n/a
5/15/01 14,153.40 3 4,796,65 117.94 4,678.70 n/a
6/15/01 9,474.70 2 4,796.65 78.96 4,717.69 n/a
7/15/01 4,757.00 1 4,796.65 39.64 4,757.00 n/a
(1) Initial pricnipal far the initial premises of 12,312 square feet of Agreed
Rentable Area.
(2) Cancellation Payment for Termination Date effective at the end of the 24th
month. (i.e. 8/14/97)
(3) Cancellation Payment for Termination Date effective at the end of the 36th
month. (i.e. 1/14/98)
72
Exhibit F-2
Initial Expansion Space
--------------------------------------------------------------------------------
Amortization Period 65 Monthly/RSF $ 0.38
Interest Rate 10.0% Annual/RSF $ 4.57
Principal Amount (1) 210,393.00 RSF 10,948
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Lease Principal Remaining Monthly Interest Principle Cancellation
Month Amount Lease Months Payment Penalty
--------------------------------------------------------------------------------------------------------------
3/15/96 210,393.00 65 4,170.60 - 4,170.60 n/a
4/15/96 206,222.40 64 4,170.60 1,718.52 2,452.08 n/a
5/15/96 203,770.32 63 4,170.60 1,698.09 2,472.51 n/a
6/15/96 201,297.81 62 4,170.60 1,677.48 2,493.12 n/a
7/15/96 198,804.69 61 4,170.60 1,656.71 2,513.89 n/a
8/15/96 196,290.80 60 4,170.60 1,635.76 2,534.84 n/a
9/15/96 193,755.95 59 4,170.60 1,614.63 2,555.97 n/a
10/15/96 191,199.99 58 4,170.60 1,593.33 2,577.27 n/a
11/15/96 188,622.72 57 4,170.60 1,571.86 2,598.74 n/a
12/15/96 186,023.98 56 4,170.60 1,550.20 2,620.40 n/a
1/15/97 183,403.58 55 4,170.60 1,528.36 2,642.24 n/a
2/15/97 180,761.34 54 4,170.60 1,506.34 2,664.25 n/a
3/15/97 178,097.09 53 4,170.60 1,484.14 2,686.46 n/a
4/15/97 175,410.63 52 4,170.60 1,461.76 2,708.84 n/a
5/15/97 172,701.79 51 4,170.60 1,439.18 2,731.42 n/a
6/15/97 169,970.37 50 4.170.60 1,416.42 2,754.18 n/a
------------
7/15/97 167,216.19 49 4,170.60 1,393.47 2,777.13 164,439.06 (2)
------------
8/15/97 164,439.06 48 4,170.60 1,370.33 2,800.27 161,638.78
9/15/97 161,638.78 47 4,170.60 1,346.99 2,823.61 158,815.17
10/15/97 158,815.17 46 4,170.60 1,323.46 2,847.14 155,968.04
11/15/97 155,968.04 45 4,170.60 1,299.73 2,870.87 153,097.17
12/15/97 153,097.17 44 4,170.60 1,275.81 2,894.79 150,202.38
1/15/98 150,202.38 43 4,170.60 1,251.69 2,918.91 147,283.47
2/15/98 147,283.47 42 4,170.60 1,227.36 2,943.24 144,340.23
3/15/98 144,340.23 41 4,170.60 1,202.84 2,967.76 141,372.47
4/15/98 141,372.47 40 4,170.60 1,178.10 2,992.50 138,379.97
5/15/98 138,379.97 39 4,170.60 1,153.17 3,017.43 135,362.54
6/15/98 135,362.54 38 4,110.60 1,128.02 3,042.58 132,319.96
------------
7/15/98 132,319.96 37 4,170.60 1,102.67 3,067.93 129,252.03 (3)
------------
8/15/98 129,252.03 36 4,170.60 1,077.10 3,093.50 126,158.53
9/15/98 126,158.53 35 4,170.60 1,051.32 3,119.28 123,039.25
10/15/98 123,039.25 34 4,170.60 1,025.33 3,145.27 119,893.98
11/15/98 119,893.98 33 4,170.60 999.12 3,171.48 116,722.49
12/15/98 116,722.49 32 4,170.60 972.69 3,197.91 113,524.58
1/15/99 113,524.58 31 4,170.60 946.04 3,224.56 110,300.02
2/15/99 110,300.02 30 4,170.60 919.17 3,251.43 107,048.59
3/15/99 107,048.59 29 4,170.60 892.07 3,278.53 103,770.06
4/15/99 103,770.06 28 4,170.60 864.75 3,305.85 100,464.21
5/15/99 100,464.21 27 4,170.60 837.20 3,333.40 97,130.81
6/15/99 97,130.81 26 4,170,60 809.42 3,361.18 93,769.64
7/15/99 93,769.64 25 4,170.60 781.41 3,389.19 90,380.45
8/15/99 90,380.45 24 4,170.60 753.17 3,417.43 86,963.02
9/15/99 86,963.02 23 4,170.60 724.69 3,445.91 83,517.12
10/15/99 13,517.12 22 4,170.60 695.98 3,474.62 80,042.49
11/15/99 80,042.49 21 4,170.60 667.02 3,503.58 76,538.91
12/15/99 76,538.91 20 4,170.60 637.82 3,532.78 73,006.14
1/15/00 73,006.14 19 4,170.60 608.38 3,562.21 69,443.92
2/15/00 69,443.92 18 4,170.60 578.70 3.591,90 65,852.02
73
3/15/00 65,852.02 17 4,170.60 548.77 3,621.83 62,230.19
4/15/00 62,230.19 16 4,170.60 518.58 3,652.01 58,578.18
5/15/00 58,578.18 15 4.170.60 488.15 3,682.45 54,895.73
6/15/00 54,895.73 14 4,170.60 457.46 3,713.13 51,182.60
7/15/00 51,182.60 13 4,170.60 426.52 3,744.08 47,438.52
8/15/00 47,438.52 12 4,170.60 395.32 3,775.28 43,663.24
9/15/00 43,663.24 11 4,170.60 363.86 3,806.74 39,856.50
10/15/00 39,856.50 10 4,170.60 332.14 3,838.46 36,018.04
11/15/00 36,018.04 9 4,170.60 300.15 3,870.45 32,147.59
12/15/00 32,147.59 8 4,170.60 267.90 3,902.70 28,244.89
1/15/01 28,244.89 7 4,170.60 235.37 3,935.23 24,309.66
2/15/01 24,309.66 6 4,170.60 202.58 3,968.02 20,341.64
3/15/01 20,341.64 5 4,170.60 169.51 4,001.09 16,340.56
4/15/01 16,340.56 4 4,170.60 136.17 4,034.43 12,306.13
5/15/01 12,306.13 3 4,170.60 102.55 4,068.05 8,238.08
6/15/01 8,238.08 2 4,170.60 68.65 4,101.95 4,136.13
7/15/01 4,136.13 1 4,170.60 34.47 4,136.13 (0.00)
(1) Additional principal of $158,019.12 added to the principal as a result of
the initial expansion of 10,948 square feet of Agreed Rentable Area.
(effective 3/15/96)
(2) Cancellation Payment for Termination Date effective at the end of the 24th
month. (i.e. 8/14/97)
(3) Cancellation Payment for Termination Date effective at the end of the 36th
month. (i.e. 8/14/98)
74
Exhibit F-3
Second Expansion Space
--------------------------------------------------------------------------------
Amortization Period 57 Monthly/RSF $ 0.37
Interest Rate 10.0% Annual/RSF $ 4.38
Principal Amount (1) 610,264.00 RSF 36,625
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Lease Principal Remaining Monthly Interest Principle Cancellation
Month Amount Lease Months Payment Penalty
--------------------------------------------------------------------------------------------------------------
11/15/96 610,264.00 57 13,381.91 - 13,381.91
12/15/96 596,882.09 56 13,381.91 4,974.02 8,407.89 n/a
1/15/97 588,474.20 55 13,381.91 4,903.95 8,477.96 n/a
2/15/97 579,996.24 54 13,381.91 4,833.30 8,548.61 n/a
3/15/97 571,447.63 53 13,381.91 4,762.06 8,619.85 n/a
4/15/97 562,827.79 52 13,381.91 4,690.23 8,691.68 n/a
5/15/97 554,136.11 51 13,381.91 4,617.80 8,764.11 n/a
6/15/97 545,372.00 50 13,381.91 4,544.77 8,837.14 n/a
------------
7/15/97 536,534.86 49 13,381.91 4,471.12 8,910.79 527,624.07 (2)
------------
8/15/97 527,624.07 48 13,381.91 4,396.87 8,985.04 518,639.03
9/15/97 518,639.03 47 13,381.91 4,321.99 9,059.92 509,579.11
10/15/97 509,579.11 46 13,381.91 4,246.49 9,135.42 500,443.69
11/15/97 500,443.69 45 13,381.91 4,170.36 9,211.55 491,232.15
12/15/97 491,232.15 44 13,381.91 4,093.60 9,288.31 481,943.84
1/15/98 481,943.84 43 13,381.91 4,016.20 9,365.71 472,578.13
2/15/98 472,578.13 42 13,381.91 3,938.15 9,443.76 463,134.37
3/15/98 463,134.37 41 13,381.91 3,859.45 9,522.46 453,611.92
4/15/98 453,611.92 40 13,381.91 3,780.10 9,601.81 444,010.11
5/15/98 444,010.11 39 13,381.91 3,700.08 9,681.83 434,328.28
6/15/98 434,328.28 38 13,381.91 3,619.40 9,762.51 424,565.77
------------
7/15/98 424,565.77 37 13,381.91 3,538.05 9,843.86 414,721.91 (3)
------------
8/15/98 414,721.91 36 13,381.91 3,456.02 9,925.89 404,796.02
9/15/98 404,796.02 35 13,381.91 3,373.30 10,008.61 394,787.41
10/15/98 394,787.41 34 13,381.91 3,289.90 10,092.01 384,695.39
11/15/98 384,695.39 33 13,381.91 3,205.79 10,176.11 374,519.28
12/15/98 374,519.28 32 13,381.91 3,120.99 10,260.92 364,258.36
1/15/99 364,258.36 31 13,381.91 3,035.49 10,346.42 353,911.94
2/15/99 353,911.94 30 13,381.91 2,949.27 10,432.64 343,479.30
3/15199 343,479.30 29 13,381.91 2,862.33 10,519.58 332,959.71
4/15/99 332,959.71 28 13,381.91 2,774.66 10,607.25 322,352.47
5/15/99 322,352.47 27 13,381.91 2,686.27 10,695.64 311,656.83
6/15/99 311,656.83 26 13,381.91 2,597.14 10,784.77 300,872.06
7/15/99 300,872.06 25 13,381.91 2,507.27 10,874.64 289,997.42
8/15/99 289,997.42 24 13,381.91 2,416.65 10,965.26 279,032.15
9/15/99 279,032.15 23 13,381.91 2,325.27 11,056.64 267,975.51
10/15/99 267,975.51 22 13,381.91 2,233.13 11,148.78 256,826.73
11/15/99 256,826.73 21 13,381.91 2,140.22 11,241.69 245,585.05
12/15/99 245,585.05 20 13,381.91 2,046.54 11,335.37 234,249.68
1/15/00 234,249.68 19 13,381.91 1,952.08 11,429.83 222,819.85
2/15/00 222,819.85 18 13,381.91 1,856.83 11,525.08 211,294.77
3/15/00 211,294.77 17 13,381.91 1,760.79 11,621.12 199,673.65
4/15/00 199,673.65 16 13,381.91 1,663.95 11,717.96 187,955.69
5/15/00 187,955.69 15 13.381,91 1,566.30 11,815.61 176.140.08
6/15/00 176,140.08 14 13,381.91 1,467.83 11,914.08 164,226.00
7/15/00 164,226.00 13 13,381.91 1,368.55 12,013.36 152,212.64
8/15/00 152,212.64 12 13,381.91 1,268.44 12,113.47 140,099.17
9/15/00 140,099.17 11 13,381.91 1,167.49 12,214.42 127,884.76
10/15/00 127,884.76 10 13,381.91 1,065.71 12,316.20 115,568.55
75
11/15/00 115,568.55 9 13,381.91 963.07 12,418.84 103,149.71
12/15/00 103,149.71 8 13,381.91 859.58 12,522.33 90.627,39
1/15/01 90,627.39 7 13,381.91 755.23 12,626.68 78,000.70
2/15/01 78,000.70 6 13,381.91 650.01 12,731,90 65,268.80
3/15/01 65,268.80 5 13,381.91 543.91 12,838.00 52,430.80
4/15/01 52,430.80 4 13,381.91 436.92 12,944.99 39,485.81
5/15/01 39,485.81 3 13,381.91 329.05 13,052.86 26,432.95
6/15/01 26,432.95 2 13,381.91 220.27 13,161.63 13,271.32
7/15/01 13,271.32 1 13,381.91 110.59 13,271.22 (0.00)
(1) Additional Pprincipal of $610,264.00 added to the principal as a result of
the Second Expansion Space of 36,625 square feet of Agreed Rentable Area.
(effective 12/15/96)
(2) Cancellation Payment for Termination Date effective at the end of the 24th
month. (i.e. 8/14/97)
(3) Cancellation Payment for Termination Date effective at the end of the 36th
month. (i.e. 8/14/98)
