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EXHIBIT 10.22
SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE (this "Second Amendment") is
entered into as of the 24th day of April, 2000, by and between CRESCENT REAL
ESTATE FUNDING I, L.P., a Delaware limited partnership ("Landlord"), and
eVENTURES GROUP, INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord and Marcus & Partners, L.P., predecessor-in-interest to
Tenant, executed that certain Office Lease dated May 20, 1999 (the "Original
Lease"), covering certain space therein designated as Suite 800, containing
approximately 7,922 RSF (the "Original Premises"), located on the 8th floor of
an office building commonly known as The Crescent(R), and located at 100, 200
and 000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 (the "Building").
B. The Original Lease has been amended by that certain First Amendment
to Office Lease dated March 28, 2000 (the "First Amendment"), pursuant to which
the Original Premises were expanded to include an additional 1,455 RSF (the
"First Expansion Space").
C. The Original Lease, as modified by the First Amendment is
hereinafter referred to as the "Lease". The Original Premises, together with the
First Expansion Space, collectively consisting of 9,377 RSF, are hereinafter
referred to as the "Existing Premises". Unless otherwise expressly provided
herein, capitalized terms used herein shall have the same meanings as designated
in the Lease.
D. Landlord and Tenant desire to amend and modify the Lease in
certain respects as provided herein.
AGREEMENT:
In consideration of the sum of Ten Dollars ($10.00), the mutual
covenants and agreements contained herein and in the Lease, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby amend and modify the Lease as follows:
1. Premises. The Lease is hereby modified and amended, effective as of
the Second Expansion Space Commencement Date (hereinafter defined), to include
an additional 4,257 RSF designated as Suite 825 and located on the 8th floor of
200 Crescent Court (the "Second Expansion Space") as shown on Exhibit A-1
attached hereto. The term "Second Expansion Space Commencement Date" shall mean
the later of (i) July 1, 2000, or (ii) upon Substantial Completion of the Second
Expansion Space Work (as such terms are defined in the Work Letter attached
hereto
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as Exhibit B), but if Tenant takes possession of the Second Expansion Space
before either such date, then the Second Expansion Space Commencement Date shall
be the date Tenant in fact occupies the Second Expansion Space for the conduct
of business. From and after the Second Expansion Space Commencement Date, the
term "Premises" wherever used in the Lease or in this Second Amendment shall
mean the Existing Premises, together with the Second Expansion Space,
collectively consisting of 13,634 RSF. Tenant hereby acknowledges that the
Second Expansion Space is leased by Tenant subject to all terms and conditions
of the Lease, as modified by this Second Amendment.
2. Base Rent. The Lease is hereby modified and amended to provide that
effective as of Second Expansion Space Commencement Date, and continuing through
and including July 31, 2004, (i) Tenant's Share shall be increased to include
the RSF of the Second Expansion Space, and (ii) the Base Rent due and payable
for the Second Expansion Space shall be as follows:
Rental Period Annual Base Rental Rate/RSF Monthly Base Rent
------------- --------------------------- -----------------
SESCD to 7/31/00 $31.00 $10,997.25
8/1/00 to 7/31/01 $32.00 $11,352.00
8/1/01 to 7/31/02 $33.00 $11,706.75
8/1/02 to 7/31/03 $34.00 $12,061.50
8/1/03 to 7/31/04 $35.00 $12,416.25
*SESCD = Second Expansion Space Commencement Date
Base Rent for any partial month shall be pro-rated on a daily basis. The Base
Rent for the Second Expansion Space shall be paid in addition to the Base Rent
for the Existing Premises, and all rental shall be payable in accordance with
the terms and provisions of the Lease.
3. Parking. In addition to any existing parking rights and obligations
of Tenant under the Lease, Tenant shall take and pay for seven (7) additional
unreserved parking permits in the parking structure associated with the Project
at Landlord's quoted monthly contract rate (as set from time to time), plus any
taxes thereon in accordance with the terms and provisions of the Lease. Tenant
shall have the right to convert up to three (3) unreserved permits to reserved
permits providing access to the parking structure associated with the Project in
locations determined by Landlord, in its sole discretion. During the initial
Term (and, if applicable, during any renewal or extension term of the Lease),
Tenant shall pay Landlord its quoted monthly contract rate (as set from time to
time) for such reserved permits in the designated garage, plus any taxes
thereon.
4. Leasehold Improvements. Provided no event of default has occurred,
Landlord agrees to (i) construct leasehold improvements in and upon the Second
Expansion Space, (ii) contribute a sum not to exceed $102,168.00 (calculated on
the basis of $24.00 per RSF in the Second Expansion Space) towards the cost
of constructing such leasehold improvements, in accordance with the Construction
Agreement attached hereto as Exhibit B.
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5. Club Memberships. Paragraph 26(a) of the Lease is hereby
modified and amended to provide that effective as of the Second Expansion Space
Commencement Date, at Tenant's written request ("Tenant's Notice") to Landlord
at any time during the initial Term, Landlord agrees to pay, out of the Base
Rent payable for the next month of the Term in which Base Rent is due after
Tenant's written notice to Landlord, directly to The Crescent Club (the
"Crescent Club") and/or The Spa at the Crescent (the "Spa") (collectively, the
"Club") on behalf of Tenant, the initiation fees in connection with up to 2
additional memberships to the Crescent Club and/or the Spa. Tenant may elect all
such memberships to be at The Crescent Club or at The Spa at the Crescent or any
combination thereof, provided that the combined total number of initiation fees
which Landlord shall pay on Tenant's behalf at The Crescent Club and The Spa at
the Crescent shall not exceed 2, and such election shall be specified in
Tenant's Notice. Such memberships shall be activated on the first day of the
month after Tenant's Notice (or as soon thereafter as practicable), subject to
the prior approval of the Crescent Club and the Spa, as applicable. Other than
the initiation fees, all monthly dues and charges (including applicable state
and local taxes) incurred by Tenant or any other person in connection with the
use of such memberships shall be solely the responsibility of Tenant. Use of the
foregoing memberships shall be subject to the Club rules and regulations and the
continued existence of the Club.
6. Expansion Option. Notwithstanding anything to the contrary contained
in Paragraph 12 of the Lease or Rider No. 1 to the Lease, Landlord hereby agrees
that Tenant shall have the option to extend the Lease pursuant to the terms and
provisions of Rider No. 1 to the Lease.
7. Preferential Right to Lease. Rider No. 3 to the Lease is hereby
deleted in its entirety and replaced with Rider No. 3 attached hereto and made a
part hereof.
8. Broker. Tenant represents and warrants that it has had no dealings
with any real estate broker or agent in connection with this Second Amendment.
Tenant and Landlord shall each indemnify the other against all costs, expenses,
attorneys' fees, liens and other liability for commissions or other compensation
claimed by any broker or agent claiming the same by, through or under the
indemnifying party.
9. Time of the Essence. Time is of the essence with respect to Tenant's
execution and delivery of this Second Amendment to Landlord. If Tenant fails to
execute and deliver a signed copy of this Second Amendment to Landlord by
5:00 p.m. (Dallas, Texas time), on April 28, 2000, it shall be deemed null and
void and shall have no force or effect, unless otherwise agreed in writing by
Landlord. Landlord's acceptance, execution and return of this document shall
constitute Landlord's agreement to waive Tenant's failure to meet the foregoing
deadline.
10. Miscellaneous. This Second Amendment shall become effective only
upon full execution and delivery of this Second Amendment by Landlord and
Tenant. This Second Amendment contains the parties' entire agreement regarding
the subject matter covered by this Second Amendment, and supersedes all prior
correspondence, negotiations, and agreements, if any,
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whether oral or written, between the parties concerning such subject matter.
There are no contemporaneous oral agreements, and there are no representations
or warranties between the parties not contained in this Second Amendment. Except
as modified by this Second Amendment, the terms and provisions of the Lease
shall remain in full force and effect, and the Lease, as modified by this Second
Amendment, shall be binding upon and shall inure to the benefit of the parties
hereto, their successors and permitted assigns.
11. Ratification. Tenant hereby ratifies and confirms its obligations
under the Lease and represents and warrants to Landlord that it has no defenses
thereto. Additionally, Tenant further confirms and ratifies that, as of the date
hereof, (a) the Lease is and remains in good standing and full force and effect,
and (b) Tenant has no claims, counterclaims, set-offs or defenses against
Landlord arising out of the Lease or in any way relating thereto or arising out
of any other transaction between Landlord and Tenant.
EXECUTED as of the day and year first above written.
LANDLORD: TENANT:
CRESCENT REAL ESTATE FUNDING I, EVENTURES GROUP, INC.,
L.P, a Delaware limited partnership a Delaware corporation
By: CRE Management I Corp.,
a Delaware corporation,
its general partner By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: CEO
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By: /s/ XXXX X. XXXX, XX.
--------------------------
Xxxx X. Xxxx, Xx.
Vice President--Leasing and
Marketing
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EXHIBIT A-1
DIAGRAM OF SECOND EXPANSION SPACE
THE CRESCENT
FLOORS 4 - 10
[FLOORPLAN]
EXHIBIT X-0
XXXXX XXXX XX XXX XXXXXXXX
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XXXXXXX A-2
DIAGRAM OF PREFERENTIAL SPACE
THE CRESCENT
FLOORS 4 - 10
[FLOORPLAN]
EXHIBIT X-0
XXXXX XXXX XX XXX XXXXXXXX
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XXXXXXX X
CONSTRUCTION AGREEMENT
This Construction Agreement is attached as an Exhibit to that certain
Second Amendment to Office Lease (the "SECOND AMENDMENT") between CRESCENT REAL
ESTATE FUNDING I, L.P., as Landlord, and EVENTURES GROUP, INC., as Tenant, for
approximately 4,257 RSF of Second Expansion Space on the 8th floor of The
Crescent(R). Unless otherwise specified, all capitalized terms used in this
Construction Agreement shall have the same meanings as in the Second Amendment.
1. APPROVED CONSTRUCTION DOCUMENTS.
(a) Tenant's Information. No later than 3 weeks following Landlord's
execution of the Second Amendment, Tenant shall submit to Landlord all
information necessary for the preparation of complete, detailed architectural,
mechanical, electrical and plumbing drawings and specifications for construction
of the Work (as defined below) in the Second Expansion Space, including Tenant's
partition and furniture layout, reflected ceiling, telephone and electrical
outlets and equipment rooms, initial provider(s) of Telecommunications Services,
doors (including hardware and keying schedule), glass partitions, windows,
critical dimensions, structural loads, millwork, finish schedules, and HVAC and
electrical requirements, together with all supporting information and delivery
schedules ("TENANT'S INFORMATION").
(b) Construction Documents. Following Landlord's execution of the
Second Amendment and receipt of Tenant's Information, Landlord's designated
architectural/engineering firm shall prepare and submit to Tenant all finished
and detailed architectural drawings and specifications, including mechanical,
electrical and plumbing drawings (the "CONSTRUCTION DOCUMENTS"). In addition,
Landlord shall advise Tenant of the number of days of Tenant Delay (as defined
below) attributable to extraordinary requirements (if any) contained in Tenant's
Information.
(c) Approved Construction Documents. Within 5 days after receipt,
Tenant shall (i) approve and return the Construction Documents to Landlord, or
(ii) provide Landlord Tenant's written requested changes to the Construction
Documents, in which event Landlord shall have the Construction Documents revised
(as Landlord deems appropriate) and resubmitted to Tenant for approval within 5
days after receipt. If Tenant fails to provide Landlord Tenant's written
requested changes within the applicable 5 day period, Tenant shall be deemed to
have approved the Construction Documents. Upon Tenant's approval, the
Construction Documents shall become the "APPROVED CONSTRUCTION DOCUMENTS".
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2. PRICING AND BIDS.
(a) Estimates. Following receipt of the Approved Construction
Documents, Landlord will promptly price the construction of the Work (defined
below) in accordance therewith and furnish written price estimates to Tenant.
(b) Approved Pricing. Upon receipt, Tenant shall promptly review such
estimates and complete negotiations with Landlord for any changes or adjustments
thereto. Within 5 business days after such receipt, Tenant shall return the
estimates with written approval or disapproval to Landlord.
(c) Competitive Bids. Landlord shall seek 3 competitive bids from
general contractors from Landlord's approved bidding list. Landlord hereby
approves of Xxxxx X. Xxxxxxxx Construction. Only subcontractors from Landlord's
approved subcontractor list shall be allowed to work on the mechanical,
electrical and plumbing components of the Building. Tenant shall be invited to
the bid opening and allowed to participate in the selection of the successful
bidder; provided Landlord shall make the final selection of the general
contractor.
3. LANDLORD'S CONTRIBUTIONS.
(a) Construction Allowance. Landlord will contribute a sum not to
exceed $24.00 per RSF in the Second Expansion Space (the "CONSTRUCTION
ALLOWANCE"), towards the cost of constructing the Work (as defined below) in
accordance with this Construction Agreement. Payments shall be made directly to
Landlord's contractor performing the Work. The cost of all space planning,
design, consulting or review services and construction drawings shall be
included in the cost of the Work and may be paid out of the Construction
Allowance, to the extent sufficient funds are available for such purpose.
(b) Unused Allowance. Any allowance made available to Tenant under this
Construction Agreement must be utilized for its intended purpose during the
initial Term or be forfeited with no further obligation on the part of Landlord.
4. CONSTRUCTION.
(a) The Work. Subject to the terms of this Construction Agreement,
Landlord agrees to cause permanent leasehold improvements to be constructed in
the Second Expansion Space (the "WORK") in a good and workmanlike manner in
accordance with the Approved Construction Documents.
(b) General Terms. Tenant acknowledges that Landlord is not an
architect or engineer, and that the Work will be designed and performed by
independent architects, engineers and contractors. Accordingly, Landlord does
not guarantee or warrant that the Approved Construction Documents will comply
with Applicable Law or be free from errors or omissions, nor that the Work
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will be free from defects, and Landlord will have no liability therefor.
Landlord agrees to include a provision in the Construction Contract with the
contractor that contractor shall comply with all Applicable Laws. In the event
of such errors, omissions or defects, and upon Tenant's written request,
Landlord will use commercially reasonable efforts to cooperate with Tenant in
enforcing any applicable warranties. In addition, unless expressly agreed to in
writing by Landlord prior to commencement of the Work, Landlord's approval of
the Construction Documents or the Work shall not be interpreted to Waive or
otherwise modify the terms and provisions of the Lease.
(c) Electrical Design Capacity. The following parameters constitute
Building Standard electrical design capacity: (i) all general purpose lighting
shall be 120 volts and all emergency lighting and night lighting shall be 277
volts; (ii) the connected electrical load of all electrical equipment serving
the Premises shall not exceed an average of 4.0 xxxxx per RSF; (iii) no single
item or component of electrical equipment shall have a rated electrical load
greater than 0.5 kilowatt or require voltage other than 120 volts, single phase
(or 110 volts, depending on available service in the Building); and (iv) no
electrical equipment shall exceed the safe and lawful capacity of the existing
electrical circuit(s) and facilities serving the Premises. Any requirements,
services or equipment in excess or contravention of any of the foregoing
parameters (or any combination thereof) shall constitute ABS electrical services
subject to Landlord's approval and Tenant's compliance with the other applicable
provisions of the Lease, specifically including PARAGRAPH 8(d) thereof. However,
the cost of purchasing and installing any ABS electrical equipment approved by
Landlord (including submeters) shall be paid at Tenant's expense, but may be
paid from the Construction Allowance (if any) as part of the Work.
(d) ADA Compliance. Landlord shall, as an Operating Expense, be
responsible for ADA compliance for the base Building, core areas (including
elevators, Common Areas, Service Areas and the Project's parking facilities) and
all points of access into the Project. Tenant shall, at its expense (which may
be paid from the unused portion of the Construction Allowance, if any), be
responsible for ADA compliance in the Premises, including restrooms on any floor
now or hereafter leased or occupied in its entirety by Tenant, its affiliates or
Transferees. Landlord shall not be responsible for determining whether Tenant is
a public accommodation under ADA or whether the Approved Construction Documents
comply with ADA requirements. Such determinations, if desired by Tenant, shall
be the sole responsibility of Tenant.
(e) Substantial Completion.
(i) Definition. Subject to adjustment under PARAGRAPHS 4(e)(iii)
and 4(e)(iv), "SUBSTANTIAL COMPLETION" shall occur, with respect to the Second
Expansion Space, when (A) all of the Work has been completed in accordance with
this Construction Agreement and the Approved Construction Documents, to the
extent that Tenant would have access to the Second Expansion Space and would be
able to conduct its business in a reasonable manner, and (B) Landlord has
obtained final inspection approval from all appropriate regulatory authorities
(if required) for the
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Second Expansion Space, even though adjustments or corrections may be necessary
and Punchlist Items remain to be completed.
(ii) Time of the Essence. Time is of the essence in connection
with the obligations of Landlord and Tenant under this Construction Agreement.
(iii) Tenant Delay. If Landlord is delayed in achieving
Substantial Completion due to a delay caused by a Tenant Party or for any other
cause arising from an act or omission of any Tenant Party, including (A)
Tenant's request for change orders to the Work, (B) Tenant's failure to timely
deliver or approve any required documentation, such as Tenant's Information, if
applicable, Construction Documents, pricing estimates, and the like, (C)
Tenant's failure to pay any Cost Overruns (as defined below), or (D) Tenant's
failure to otherwise respond to any other reasonable Landlord request
(collectively, "TENANT DELAY"), Substantial Completion shall be deemed to have
occurred on the date Substantial Completion would have been achieved but for
such Tenant Delay.
(iv) Other Delay. If Substantial Completion is delayed for any
reason other than Tenant Delay, Substantial Completion shall occur on the date
when actually achieved (subject to adjustment for Tenant Delay).
(v) Landlord Liability. Landlord shall not be liable or
responsible for any Claims incurred (or alleged) by Tenant due to any delay in
achieving Substantial Completion for any reason. However, Tenant's sole and
exclusive remedy for any delay in achieving Substantial Completion for any
reason other than Tenant Delay shall be the resulting postponement (if any) of
the commencement of rental payments under the Lease.
5. COSTS.
(a) Change Orders and Cost Overruns. All change orders must be approved
(which approval shall not be unreasonably withheld or delayed) in advance in
writing by Landlord. Change orders requested by Tenant and approved by Landlord
which delay or increase the cost of the Work shall be paid by Tenant within 15
days of receipt of Landlord's invoice therefor (which payment may be required by
Landlord prior to commencing construction). Except as otherwise expressly
provided in this Construction Agreement, all costs of the Work in excess of the
Construction Allowance (collectively, "COST OVERRUNS") shall be paid by Tenant
to Landlord within 10 days of Landlord's invoice. Landlord may stop or decline
to commence all or any portion of the Work until such payment is received. On or
before the Second Expansion Space Commencement Date, and as a condition to
Tenant's right to take possession of the Second Expansion Space, Tenant shall
pay Landlord the entire amount of all Cost Overruns, less any prepaid amounts.
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RIDER NO. 3
PREFERENTIAL RIGHT TO LEASE
A. PREFERENTIAL RIGHT TO LEASE. So long as twenty-four months remain in the
initial Term, Tenant shall have A Preferential Right to Lease up to
approximately 11,400 RSF (+1-20%, in Landlord's discretion) on the 8th floor of
the Building, as shown on EXHIBIT A-2 to the Second Amendment (the "PREFERENTIAL
SPACE"), at such time as such space becomes Available (as defined below) for
direct lease to a new or existing tenant (whether or not a bona fide offer has
been made); provided no uncured Event of Default exists under the Lease (and no
condition exists which, with the passage of time and/or giving of notice, would
be an Event of Default) and Tenant remains in occupancy of the entire Premises.
The Preferential Space shall be deemed "AVAILABLE" at such time as Landlord
decides to offer the Preferential Space for lease and such space is no longer
any of the following: (i) leased or occupied; (ii) assigned or subleased by the
then-current tenant of the space; (iii) re-leased by the then-current tenant of
the space by renewal, extension or renegotiation (whether agreed to prior to or
after the Date of Lease); or (iv) subject to an expansion option, right of first
refusal, preferential right or similar obligation existing under any other
tenant leases for the Project as of the Date of Lease. This Preferential Right
to Lease shall terminate upon relocation of the Premises to another building or
upon any Transfer as defined in the Lease. The Preferential Space shall be
reduced to the extent Tenant leases any portion thereof, whether or not pursuant
to a formal option provision in the Lease.
B. ACCEPTANCE. Prior to leasing the Preferential Space to a new tenant, Landlord
shall first offer such space in writing to Tenant specifying the amount and
location of such space, the anticipated date of tender of possession, the rental
rate based on the then-quoted rental rates for comparable space in the Project
as of the anticipated Preferential Space Commencement Date (as defined below),
including any projected rate increases over the applicable term, and other
applicable terms (the "PREFERENTIAL RENTAL NOTICE"). Tenant shall have 5 days
within which to accept or reject such offer. If Tenant accepts Landlord's offer,
Tenant shall, within 15 days after Landlord's written request, execute and
return a lease amendment adding the Preferential Space to the Premises for all
purposes under the Lease (including any extensions or renewals) and confirming
the Base Rent and other applicable terms specified in the Preferential Rental
Notice. Such lease amendment may, if applicable, contain a construction
agreement using Landlord's then-current form setting forth the schedule and
other terms and obligations of the parties regarding the construction of any
leasehold improvements in the Preferential Space. If Tenant rejects such offer
or fails timely to (i) accept such offer or (ii) execute and return the required
lease amendment, then Landlord shall have the right to lease the Preferential
Space to a new or existing tenant without further notice or obligation to
Tenant. However, in the event Landlord has not executed a new lease for the
Preferential Space within 180 days after the date of the Preferential Rental
Notice or if the Preferential Space is offered to a new or existing tenant under
economic terms which are greater than 5% more favorable than the terms that were
offered to Tenant under the Preferential Notice, Landlord shall not lease the
Preferential Space to any party without again complying with the provisions of
this Rider No. 3.
C. TENDER OF POSSESSION. The Preferential Space shall be leased for the period
commencing upon Landlord's tender of possession of the Preferential Space in
accordance with Landlord's offer and this Rider (the "PREFERENTIAL SPACE
COMMENCEMENT DATE") and continuing through the expiration or earlier
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termination of the Term, as it may be extended or renewed. Landlord shall not be
liable for any delay or failure to tender possession of the Preferential Space
by the anticipated tender date for any reason, including by reason of any
holdover tenant or occupant, nor shall such failure invalidate the Lease or
extend the Term.
D. CONDITION OF PREMISES. The Preferential Space shall be tendered in an "as-is"
condition. However, all leasehold improvements shall be constructed in the
Expansion Space in accordance with the construction agreement (if any) attached
to the applicable lease amendment. Any allowances shall be prorated for any
delays in the Preferential Space Commencement Date, taking into account the
economic assumptions underlying the terms in the Preferential Rental Notice.
E. PARKING. For the Preferential Space, Tenant shall take and pay for
additional permits allowing access to unreserved spaces in parking facilities
which Landlord provides for the use of tenants and occupants of the Project at a
ratio of 1 space per 500 RSF ("PREFERENTIAL SPACE PERMITS"). Tenant may elect
to convert a portion of the unreserved spaces to reserved spaces on an "as
available" basis. During the initial Term (and, if applicable, during any
renewal or extension term of this Lease), Tenant shall pay Landlord's quoted
monthly contract rate (as set from time to time) for each such unreserved
permit, plus any taxes thereon. Notwithstanding anything to the contrary
contained herein, Tenant may elect not to purchase up to 50% of the Preferential
Space Permits; provided however, that in the event Tenant does not purchase all
of the Preferential Space Permits, then Tenant relinquishes its right to such
unpurchased permits (the "RELINQUISHED PREFERENTIAL SPACE PERMITS"). In the
event that Tenant subsequently desires to use all or a portion of the
Relinquished Preferential Space Permits, Tenant shall provide 30 days prior
written notice to Landlord which specifies the number of Relinquished
Preferential Space Permits that Tenant desires to purchase ("TENANT'S PERMIT
NOTICE"). Landlord shall allow Tenant to purchase such unreserved and/or
reserved parking permits within 30 days after Tenant's Permit Notice, at
Landlord's then-quoted monthly contract rate.
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