1
EXHIBIT 10.37
OFFICE BUILDING SUBLEASE
THIS OFFICE BUILDING SUBLEASE (this "SUBLEASE") is dated effective as of
November 18, 1994, and is executed by ORYX ENERGY COMPANY, a Delaware
corporation ("SUBLESSOR"), and LACERTE SOFTWARE CORPORATION, a California
corporation ("SUBLESSEE").
1. RECITALS.
1.1. Three Galleria Tower Venture, a Texas general partnership ("MASTER
LESSOR"), as landlord, and Sublessor, as tenant, entered into a certain First
Amended and Restated Lease Agreement dated as of July 6, 1989 (the "MASTER
Lease").
1.2. The premises covered by the Master Lease are more fully identified
in the Master Lease and consist of certain space located in the office building
commonly known as Oryx Energy Center, 00000 Xxxx Xxxx, Xxxxxx, Xxxxx (the
"BUILDING"), which is located on the real property more particularly described
on EXHIBIT "A-1" attached to the Master Lease.
1.3. Sublessor desires to sublease to Sublessee, and Sublessee desires
to sublease from Sublessor, the premises identified in Paragraph 2.1, which
constitutes a portion of the "LEASED PREMISES" (as defined in the Master Lease)
covered by the Master Lease, all in accordance with the provisions of this
Sublease.
2. DEMISE; NET RENTABLE AREA; QUIET ENJOYMENT.
2.1. Demise. Sublessor subleases to Sublessee, and Sublessee subleases
from Sublessor, in accordance with the provisions of this Sublease, that portion
of the Leased Premises comprised of the entire 18th, 19th, 20th, 21st and 22nd
floors of the Building and being stipulated to be 110,161 square feet of "NET
RENTABLE AREA" (as defined in the Master Lease) (the "SUBLEASED PREMISES"),
which Subleased Premises are more particularly described on the floor plan
attached hereto as EXHIBIT "A". (The Net Rentable Area of square feet on each
floor of the Subleased Premises is stipulated to be as follows: 18th, 22,051;
19th, 22,230; 20th, 22,230; 21st, 21,918; and 22nd, 21,732.)
2.2. Net Rentable Area. Sublessor and Sublessee agree that the actual
number of square feet of Net Rentable Area in the Subleased Premises may be more
or less than the 110,161; however, for all purposes of this Sublease, 110,161
shall be conclusively deemed to be the Net Rentable Area of the Subleased
Premises.
2.3. Quiet Enjoyment. Sublessor covenants that Sublessee shall, and may
peacefully have, hold and enjoy the Subleased Premises against any person
whomsoever lawfully claiming the same or any part thereof by, through, or under
Sublessor, but not otherwise, subject to the other provisions hereof, provided
that Sublessee pays the Rent (as hereinafter defined) and other sums
2
herein recited to be paid by Sublessee and performs all of Sublessee's covenants
and agreements herein contained.
3. TERM.
3.1. Term. Sublessee will occupy the Subleased Premises in two phases.
The 18th and 19th floors of the Building (the "PHASE I PREMISES") will be
occupied by April 1, 1995; and the 20th, 21st and 22nd floors of the Building
("PHASE II PREMISES") will be occupied by July 1, 1995. Although Rent will
commence in phases, as described in Paragraph 3.3 below, the term of this
Sublease for the entire Subleased Premises shall begin on the Commencement Date
(as defined below), and end at midnight on October 31, 2001 (the "EXPIRATION
Date"). The "COMMENCEMENT DATE" shall be the earlier of the date upon which
Sublessee first occupies for business purposes any portion of the Phase I
Premises or April 1, 1995. Immediately after occupying each phase of the
Subleased Premises, Sublessee shall execute and deliver to Sublessor a statement
prepared by Sublessor confirming the Commencement Date, the Rent commencement
date with respect to such phase, and the Expiration Date.
3.2. Delivery of Phase I and Phase II Premises. Sublessee acknowledges
that Sublessor presently occupies the Subleased Premises. Sublessor will vacate
the Phase I Premises by or before February 1, 1995 (the "PHASE I DELIVERY
DATE"), and Sublessor will vacate the Phase II Premises by or before April 1,
1995 (the "PHASE II DELIVERY DATE"). Sublessee shall have the right to obtain
possession of the Phase I and Phase II Premises for purposes of designing and
constructing the Leasehold Improvements (as defined in EXHIBIT "C") as of the
Phase I and Phase II Delivery Dates, respectively.
3.3. Commencement of Rent Obligations. Rent for the Phase I Premises and
the Existing Furniture (as defined in Paragraph 22) located in the Phase I
Premises ("PHASE I FURNITURE") shall commence on the Commencement Date; and Rent
for the Phase II Premises and the Existing Furniture located in the Phase II
Premises ("PHASE II FURNITURE") shall commence on the earlier of the date upon
which Sublessee first occupies for business purposes any portion of the Phase II
Premises or July 1, 1995.
4. BASE RENT; SECURITY DEPOSIT.
4.1. Base Rent. During each year of the term of this Sublease, Sublessee
shall pay to Sublessor annual base rent equal to the product of the number of
square feet of Net Rentable Area in the Subleased Premises times $13.35 (the
"BASE RENT").
4.2. Payment of Base Rent. The annual Base Rent shall be payable in
equal monthly installments equal to 1/12th of the Base Rent. Each installment of
Base Rent shall be due on or before the first day of each month during the term
of this Sublease and shall
-2-
3
be paid to Sublessor at its address as set forth in Paragraph 24.4 (or as later
changed pursuant thereto) without notice, demand, abatement, deduction,
diminution, or offset. Monthly installments of Base Rent shall be prorated for
any period during the term hereof which is less than a full calendar month. The
initial installment of Base Rent shall be paid upon the Commencement Date.
4.3. Security Deposit. Upon the execution of this Sublease, Sublessee
shall deposit with Sublessor a security deposit in the amount of $367,662.00
(the "SECURITY DEPOSIT") as security for the performance of the terms and
provisions hereof by Sublessee. Sublessor will deposit the Security Deposit in
one or more federally insured interest bearing accounts established solely for
the purpose of holding the Security Deposit. The name of any such account shall
be the "Oryx/Lacerte Security Deposit Trust Account", or a name similar thereto,
and Sublessor will not commingle the Security Deposit with Sublessor's other
funds. The term of any such interest bearing account deposit shall be
approximately as long as the term of this Sublease. Provided Sublessee is not
then in default under this Sublease, interest from time to time paid to
Sublessor on account of the Security Deposit shall be disbursed to Sublessee
within 30 days after Sublessor's receipt of the same; provided, however,
Sublessor may reserve from such interest payments such amounts as may be
reasonably required to pay any early withdrawal penalty that might be required
during the term of this Sublease. The Security Deposit or any portion thereof
may be applied to the curing of any default by Sublessee under this Sublease,
without prejudice to any other remedy or remedies which Sublessor may have on
account thereof, and upon such application Sublessee shall pay Sublessor on
demand the amount so applied which shall be added to the Security Deposit.
Provided Sublessee is not then in default under this Sublease, any remaining
balance of the Security Deposit will be returned to Sublessee within 30 days
after the expiration of the term of this Sublease; provided, however, Sublessor
shall have the right to retain and expend all or any portion of the Security
Deposit for cleaning and repairing the Subleased Premises to the extent
Sublessee fails to deliver the Subleased Premises at the termination of this
Sublease in a neat and clean condition and in as good a condition as existed at
the date of possession of same by Sublessee, except for ordinary wear and tear.
If Sublessor assigns its interest in the Subleased Premises during the term
hereof, Sublessor may assign the Security Deposit to the assignee, and
thereafter Sublessor shall have no further liability for the return of the
Security Deposit, or any interest thereon, and Sublessee agrees to look solely
to the new sublessor for the return of the Security Deposit, and any interest
thereon.
5. ADDITIONAL RENT.
5.1. Certain Definitions. For purposes hereof: "BASE YEAR" means the
calendar year 1995; "SUBLESSEE'S PERCENTAGE SHARE" means the proportion which
the Net Rentable Area in the Subleased
-3-
4
Premises, from time to time, bears to the total Net Rentable Area in the Leased
Premises, from time to time; "TENANT'S PERCENTAGE SHARE OF OPERATING EXPENSES"
has the same meaning given to such term in the Master Lease; "SUBLESSEE'S
PERCENTAGE SHARE OF OPERATING EXPENSES" means an amount equal to Tenant's
Percentage Share of Operating Expenses attributable to the Subleased Premises
during any calendar year of the term of this Sublease; "SUBLESSEE'S PERCENTAGE
SHARE OF EXCESS 0PERATING EXPENSES" means the difference in any calendar year
after the Base Year between Sublessee's Percentage Share of Operating Expenses
in that year and Sublessee's Percentage Share of Operating Expenses in the Base
Year.
5.2. Additional Rent. In addition to Base Rent, Sublessee shall also pay
to Sublessor, during the term of this Sublease, at the same time as Base Rent is
due, an amount equal to Sublessee's Percentage Share of Excess Operating
Expenses. The parties acknowledge that the Master Lease requires Sublessor to
pay on a monthly basis certain estimated costs in order to reimburse Master
Lessor, over the course of each year of the term of the Master Lease, for
Sublessor's share of "OPERATING EXPENSES" (as defined in the Master Lease)
incurred by Master Lessor in owning and operating the "PROJECT" (as defined in
the Master Lease). Sublessee agrees to pay on a monthly basis those estimated
Operating Expenses attributable to Sublessee's Percentage Share of Excess
operating Expenses. Following the end of each calendar year, a reconciliation is
made against the actual Operating Costs incurred. Sublessee's obligation to pay
Sublessee's Percentage Share of Excess Operating Expenses, as set forth above in
this Paragraph 5.2, shall be governed by the estimated amounts and shall be
subject to any reconciliation against actual amounts, of such costs and
expenses. Sublessor shall promptly deliver to Sublessee copies of all statements
and notices Sublessor receives from Master Lessor regarding such Operating
Expenses. Items that are specially billed by Master Lessor to Sublessor or
Sublessee, rather than charged generally to office tenants by Master Lessor,
shall be paid by the party requesting the specially billed item in the manner
required by the Master Lease. (The Base Rent, the Furniture Rent [as defined in
Paragraph 22], and Sublessee's Percentage Share of Excess Operating Expenses are
hereinafter collectively referred to as "RENT").
6. SERVICES; REPAIRS.
6.1. Provisions of Services. Notwithstanding any other provisions of
this Sublease (including, without limitation, the quiet enjoyment covenant of
Paragraph 2.3), the only facilities, utilities or services (collectively
"SERVICES") to which Sublessee is entitled hereunder are those to which
Sublessor is entitled under the Master Lease. Sublessee shall look solely to
Master Lessor under the Master Lease for all such services, including, without
limitation, the services to be provided by Master Lessor under Section 3.1 of
the Master Lease. Notwithstanding the foregoing, Sublessor does hereby assign,
transfer and set over to
-4-
5
Sublessee any and all rights it has or might have against the Master Lessor
under the Master Lease for all such services, including, without limitation, the
services to be provided by Master Lessor under Section 3.1 of the Master Lease,
to the extent that such services involved are applicable to the Subleased
Premises. Sublessee shall pursue any such rights and remedies by virtue of such
assignment at its own cost and expense and shall indemnify and hold harmless
Sublessor from any loss, cost, claim, damages, expense, causes of action or
liability (including, without limitation, attorneys' fees and costs) asserted
against Sublessor by Master Lessor by reason of Sublessee's pursuit of such
rights and remedies. This assignment will terminate contemporaneously with the
termination of this Sublease.
6.2. No Abatement or Termination.
(a) If Master Lessor shall fail to perform its covenants or
furnish any of the services set forth in the Master Lease (including, without
limitation, the covenants and services set forth in Section 3.1 of the Master
Lease), then Sublessee shall immediately give written notice to Sublessor and to
Master Lessor, specifying in as much detail as possible such failure.
(b) Failure by Master Lessor to perform any covenant or furnish
any of the utilities or services set forth in the Master Lease (including,
without limitation, the failure to furnish any of the services specified in
Section 3.1 of the Master Lease) shall not render Sublessor liable in any
respect for damages to either person or property, nor be construed as an
eviction by Sublessor, nor entitle Sublessee to an abatement of Rent (except
that Sublessee may xxxxx Rent and receive reimbursement of out-of-pocket
expenses incurred in temporarily relocating from the Subleased Premises to the
extent that Sublessor would have been entitled under Section 3.1 of the Master
Lease to rental abatement and reimbursement of out-of-pocket relocation expenses
on account of a services interruption to the Subleased Premises had Sublessor
occupied the Subleased Premises at the time of the services interruption), nor
entitle Sublessee to terminate this Sublease in whole or in part (except that
Sublessee may terminate this Sublease if [i] Sublessor has the right to
terminate the Master Lease on account of the services interruption to the
Subleased Premises, but fails to do so, or [ii] a Basic Services Failure [as
defined in the Master Lease] which is not the result of an Unavoidable
Interruption [as defined in the Master Lease] continues for 180 consecutive days
or more, and such Basic Services Failure affects 25% or more of the Subleased
Premises and it becomes reasonably impracticable for Sublessee to operate in the
Subleased Premises such that Sublessee must relocate to other premises), nor
relieve Sublessee from fulfillment of any covenant or agreement hereunder, and
Sublessee shall have no claim of set-off or rebate of Rent (except as expressly
provided in this Paragraph 6.2) or damages on account of any interruption in
services occasioned thereby or resulting therefrom.
-5-
6
6.3. Repairs. Sublessee shall maintain the Subleased Premises in the
same or better condition than the condition in which the Subleased Premises
existed on the Commencement Date (reasonable wear and tear excluded).
Notwithstanding any other provisions of this Sublease (including, without
limitation, the quiet enjoyment covenant of Paragraph 2.3), the only repairs and
maintenance to which Sublessee is entitled hereunder are those to which
Sublessor is entitled under the Master Lease. Sublessee shall look solely to
Master Lessor under the Master Lease for all such repairs and maintenance,
including, without limitation, the repairs and maintenance to be provided by
Master Lessor under Section 5.4 of the Master Lease. Sublessor shall have no
obligation to perform or make any such repairs or maintenance with respect to
the Subleased Premises. Sublessee agrees, at its sole cost and expense, to
perform all repairs to and maintenance of the Subleased Premises required by
Sublessor as tenant under the Master Lease, including, without limitation, those
described in Section 5.5 of the Master Lease. Notwithstanding the foregoing,
Sublessor does hereby assign, transfer and set over to Sublessee any and all
rights it has or might have against the Master Lessor under the Master Lease for
all repairs and maintenance to be provided by Master Lessor under Section 5.4 of
the Master Lease, to the extent that such repairs involved are applicable to the
Subleased Premises. Sublessee shall pursue any such rights and remedies by
virtue of such assignment at its own cost and expense and shall indemnify and
hold harmless Sublessor from any loss, cost, claim, damages, expense, cause of
action or liability (including, without limitation, attorneys, fees and costs)
asserted against Sublessor by Master Lessor by reason of Sublessee's pursuit of
such rights and remedies. This assignment will terminate contemporaneously with
the termination of this Sublease.
7. USE OF SUBLEASED PREMISES.
The Subleased Premises shall be used by Sublessee solely as business
offices and the incidental uses of preparing and serving meals for Sublessee's
employees and invitees, subject, however, to Legal Requirements (as defined in
the Master Lease) and Sublessor's approval, which approval shall not be
unreasonably withheld, as to (A) the condition of any lunchroom equipment, (B)
the visibility of such equipment from outside the Subleased Premises, and (C)
the location, layout, design, visibility and venting of such equipment.
8. INCORPORATION OF MASTER LEASE.
8.1. Compliance with Master Lease. Except (i) to the extent that the
provisions of the Master Lease are in clear conflict with the terms and
provisions of this Sublease, and (ii) as expressly otherwise provided in this
Sublease (including, without limitation, Paragraph 17 hereof), Sublessee shall
comply with all of the provisions of the Master Lease that are to be observed or
performed during the term hereof by Sublessor as tenant thereunder with respect
to the Subleased Premises. Notwithstanding any other
-6-
7
provision of this Sublease, Sublessee shall not, by any act or omission, cause
Sublessor to be in violation of or in default under the Master Lease.
8.2. Incorporation of Master Lease.
(a) Insofar as the provisions of the Master Lease pertaining to
the Subleased Premises do not conflict with specific provisions hereof or are
not specifically excluded by Paragraph 17 hereof, such provisions are
incorporated by this reference into this Sublease as fully as if completely
restated herein. Subject to the preceding sentence, Sublessee shall be bound by
all the provisions of the Master Lease pertaining to the Subleased Premises and
shall perform all of the obligations and responsibilities that Sublessor is
obligated to perform pursuant to the Master Lease pertaining to the Subleased
Premises. Therefore, for the purposes of this Sublease, wherever in the Master
Lease the word "LANDLORD" is used, it shall mean Sublessor and wherever in the
Master Lease the word "TENANT" is used, it shall mean Sublessee and wherever in
the Master Lease the word "LEASED PREMISES" or similar words are used, they
shall mean the Subleased Premises; all terms not specifically defined herein
shall have the same meanings designated thereto in the Master Lease provided
that the same is not in conflict with the terms and provisions of this Sublease.
(b) Notwithstanding Paragraph 8.2(a), this Sublease shall not
and does not create any rights in Master Lessor or any third parties.
8.3. Subleased Premises. The parties acknowledge and agree that
Sublessee's rights and obligations hereunder relate to only those portions of
the Leased Premises covered by the Master Lease that are a part of, or are
related or appurtenant to, the Subleased Premises.
8.4. Subject to Master Lease. This Sublease is expressly subject to and
inferior to the Master Lease, and no provision of this Sublease shall be
construed in a manner that would violate the terms of the Master Lease.
Sublessor may from time to time hereafter amend the Master Lease, in which case
the term "MASTER LEASE", as used herein, shall include any and all amendments to
the First Amended and Restated Lease Agreement dated as of July 6, 1989;
provided, however, Sublessor agrees that no amendments, changes or modifications
shall be made to the Master Lease which affect Sublessee's Rent obligation under
this Sublease, the term of this Sublease, the amount of space in the Subleased
Premises or otherwise materially adversely affect Sublessee's rights or
obligations hereunder.
8.5. Approval of Master Lease. Sublessee represents that it has read, is
familiar with and approves all of the provisions of the Master Lease to the
extent that such provisions relate to the Subleased Premises.
-7-
8
8. 6. Notice of Default from Master Lessor. If during the term of this
Sublease Sublessor receives written notice from Master Lessor stating that an
Event of Default (as defined in the Master Lease) by Sublessor has occurred and
is continuing under the Master Lease, Sublessor will endeavor to promptly advise
Sublessee of the receipt of such notice and the nature of the Event of Default.
9. LIMITATION OF LIABILITY AND INDEMNITY.
9.1. Condition of Property. Notwithstanding any provision of this
Sublease or the Master Lease to the contrary, Sublessor shall not be liable to
Sublessee or any of its officers, directors, shareholders, agents, employees,
servants, or invitees for any death or injury to any person or persons or for
damage to property due to the conduct of Sublessee's business in the Subleased
Premises, the condition or design of or any defect in the Subleased Premises,
the Building, the Project, or any part or component thereof (including, without
limitation, any mechanical, electrical, plumbing, heating, air conditioning or
other systems or equipment), which may exist or subsequently occur, except to
the extent of Sublessor's own gross negligence or willful misconduct but such
exception shall be subject to the waiver of liability provisions and waiver of
subrogation provisions of Sections 6.6 and 6.7 of the Master Lease, which are
incorporated herein pursuant to Paragraph 8 hereof.
9.2. Acts of Sublessee. Without limiting Sublessee's other obligations
under this Sublease (including, without limitation, the indemnification
obligations set forth in Paragraphs 6.1, 6.3, 12.1, 20, 21, 23 and 24.15),
Sublessee agrees that it will indemnify, defend and hold Sublessor harmless from
and against any and all liability, loss, cost, damage or expense (including,
without limitation, attorneys' fees and costs and any liability Sublessor may
have to Master Lessor) arising out of or related to any act or omission of
Sublessee, or any of Sublessee's officers, shareholders, directors, agents,
employees, servants or invitees arising from Sublessee's use of the Subleased
Premises or from any activity, work or other thing done, permitted or suffered
by Sublessee or any of Sublessee's officers, shareholders, directors, agents,
employees, servants or invitees on or about the Complex (as defined in the
Master Lease), and Sublessee shall further indemnify and hold harmless Sublessor
from and against any and all claims arising from any breach or default in the
performance of any obligation on Sublessee's part to be performed under the
terms of this Sublease.
9.3. Default by Master Lessor. Sublessor shall not be responsible or
liable for any violation or default by Master Lessor under the Master Lease
(including, without limitation, the failure to provide services or repairs) or
for the acts or omissions of any tenant of the Building, the Project, or any
other third party.
10. CONDEMNATION; CASUALTY.
-8-
9
10.1. Condemnation. The provisions of Section 6.1 of the Master Lease
(regarding condemnation) are hereby modified only in that (i) Sublessor shall
have no obligation whatsoever to restore the Subleased Premises and no liability
in connection therewith, and (ii) Sublessor shall be entitled to all
condemnation proceeds except that Sublessee shall be entitled to receive any
condemnation proceeds to the extent expressly and directly awarded to Sublessee
by the condemning authority.
10.2. Casualty.
(a) In the event of a fire or other casualty in the Subleased
Premises, Sublessee shall immediately give written notice thereof to Sublessor
and to Master Lessor.
(b) If the Subleased Premises shall be partially destroyed by
fire or other casualty not caused by Sublessee or its agents, employees or
invitees so as to render the Subleased Premises untenantable, in whole or in
part, and if the Master Lease is not terminated as therein provided, then the
Rent shall xxxxx thereafter as to the portion of the Subleased Premises rendered
untenantable to the extent that the rent payable under the Master Lease is
abated as a result of such casualty, until such time as Master Lessor has
restored the Subleased Premises to permit Sublessee's re-occupancy of the
Subleased Premises. Sublessee shall pay all costs with respect to any such
restoration of the Subleased Premises that are required to be paid by Sublessor
to Master Lessor under the Master Lease.
(c) In the event of damage or destruction to the Subleased
Premises, the Leased Premises, the Building or the Project, or any portions
thereof, and the Master Lease is terminated as therein provided, then all
accrued and unpaid Rent for the period prior to such destruction shall be paid
by Sublessee and thenceforth this Sublease and the obligations of the parties
hereunder shall cease and come to an end, except for any continuing obligations
the parties may have to each other (including, without limitation, liability
under any indemnities provided for in this Sublease).
(d) The parties acknowledge and agree that Sublessor shall have
no obligation or liability in connection with any such damage or any
reconstruction of the Subleased Premises.
11. CURRENT LEASEHOLD IMPROVEMENTS; "AS-IS, WHERE-IS" CONDITION.
Subject to such items as are specified in any punch-list prepared
pursuant to the Construction Agreement set forth in EXHIBIt "C", Sublessee
accepts the Subleased Premises in their "AS-IS, WHERE-IS" condition. The taking
possession of the Subleased Premises by Sublessee shall be conclusive evidence
as against Sublessee that the Subleased Premises were in the condition agreed
upon between Sublessor and Sublessee. Sublessor and Sublessee
-9-
10
expressly agree that there are and shall be no implied or express warranties of
merchantability, habitability, suitability, fitness for a particular purpose or
any other kind arising out of this Sublease, and there are no warranties,
whether written, oral, express or implied, which extend beyond those expressly
set forth in this Sublease.
12. ALTERATIONS, ADDITIONS AND IMPROVEMENTS.
12.1. Consent. Sublessee shall not make any alterations, additions or
improvements to the Subleased Premises without first obtaining the written
consent of Sublessor (which consent shall not be unreasonably withheld) and the
consent of Master Lessor. Any alterations, additions and improvements will be of
a quality substantially equivalent to or better than the quality of improvements
within the Subleased Premises as of the Commencement Date; provided, however,
any alterations, additions and improvements to the 22nd floor may or may not be
of the same quality as the existing improvements in the 22nd floor, but they
will be of a quality substantially equivalent to or better than the quality of
improvements within the remainder of Subleased Premises as of the Commencement
Date. Sublessee shall procure any and all insurance required by Sublessor and
Master Lessor to be maintained during the construction of the alterations,
additions and improvements. Construction of any alterations, additions or
improvements shall be performed by a general construction contractor approved by
Master Lessor and Sublessor. Sublessee hereby assumes any and all liability for
any and all injuries to or death of, any and all persons (including, without
limitation, Sublessee's contractors and subcontractors and employees), and any
liability for any and all damage to property caused by, or resulting from, or
arising out of any act or omission of Sublessee, Sublessee's contractors and
their subcontractors or employees in the performance of the alterations,
additions and improvements. Sublessee further agrees to defend, indemnify and
save harmless Sublessor and Master Lessor from and against all damages, costs,
liability, losses and expenses (including legal fees and expenses) that
Sublessor or Master Lessor may incur, suffer or pay as a result of claims or
lawsuits due to, because of, or arising out of any and all such injuries, death
and/or damage.
12.2. Sublessor's Property. All such alterations, additions,
improvements shall be made at Sublessee's expense and shall become Sublessor's
property, and shall remain on and be surrendered with the Subleased Premises at
the termination of this Sublease without disturbance, molestation, or injury.
All such work shall comply with all legal requirements and with the terms and
provisions of the Master Lease. Nothing contained in this Sublease shall prevent
Sublessee from removing all furniture, furnishings and trade fixtures owned by
Sublessee and used in its business, provided they can be removed without damage
to the Subleased Premises. Sublessee shall repair any damage to the Subleased
Premises and the Building caused by such removal.
-10-
11
13. INSURANCE.
Sublessor shall not be obligated to obtain or maintain any insurance
with respect to the Subleased Premises. Sublessee shall obtain and maintain in
force all insurance required under the Master Lease pertaining to the Subleased
Premises including, but not limited to, broad form commercial or comprehensive
general liability insurance including a cross-liability provision with limits,
as of the date of this Sublease, of not less than $3,000,000.00 for bodily
injury or damage to or destruction of property for any one occurrence (it being
acknowledged that the insurance limits are subject to change in accordance with
Section 6.5 of the Master Lease) with an insurance company or companies
authorized to do business in the State of Texas and with and A.M. Best Company,
Inc. rating of B+ or better. If such insurance is written on a claims-made form,
it must provide for (i) a retroactive date prior to, or coincident with, the
date of this Sublease, and (ii) a minimum extended claims reporting period of
one year. In addition, Sublessee shall name Sublessor and Master Lessor as
additional insured under any such insurance policy. Sublessee shall cause all
insurance policies to contain waiver of subrogation provisions acceptable to
Sublessor and Master Lessor. Sublessee agrees that certificates of insurance or
certified copies of such insurance policies will be delivered to Sublessor and
Master Lessor within ten days following the execution of this Sublease. All
policies shall contain an endorsement requiring 30 days prior written notice
from any insurer to Sublessor and Master Lessor before any change, cancellation,
termination, or reduction in or of such policies. All policies shall acknowledge
that they provide primary coverage with respect to the additional insureds
thereunder and that such policies as are separately maintained by the additional
insureds shall be excess insurance.
14. NO ASSIGNMENT OR SUB-SUBLEASE WITHOUT CONSENT.
14.1. Sublessee may not sell, assign, transfer, convey, or encumber this
Sublease or any part thereof or any interest therein or relet the Subleased
Premises, in whole or in part (hereinafter referred to as a "TRANSFER"), without
first obtaining the written consent of Sublessor. Any attempted Transfer in
violation hereof shall be null and void. Any Transfer by Sublessee shall not
relieve Sublessee from any liability or obligation created by this Sublease.
14.2. If Sublessee desires to effect a Transfer, Sublessee shall give
Sublessor written notice thereof and furnish Sublessor the following information
with such notice: (a) name and address of proposed transferee; (b) terms and
conditions of the proposed transfer; (c) nature and character of proposed
transferee's business and proposed use of the Subleased Premises; (d) current
financial information on the proposed transferee; and (e) any other relevant
information as Sublessor may reasonably request with respect to the proposed
Transfer.
-11-
12
14.3. Sublessor shall deliver written notice of approval or disapproval
of such proposed Transfer within ten business days after receipt of Sublessee's
notice containing the information required by this Paragraph 14. If Sublessor
fails to deliver such written notice within such ten-business day period,
Sublessor shall be deemed to have refused to consent to such Transfer.
Sublessor's consent to the proposed Transfer shall not be unreasonably withheld
provided that: (a) the transferee proposes to use the Subleased Premises for a
use permitted by Paragraph 7 hereof and otherwise in keeping with the character
and nature of the other tenancies and subtenancies in the Building and without
violating any restrictive uses; (b) the transferee is a reputable party (as
determined in the sole discretion of Sublessor); (c) the transferee is not a
state or federal governmental agency; (d) the transferee is not a competitor of
another occupant of office space in the Building; (e) the transferee is not a
tenant or subtenant or a prospective tenant or subtenant of any office space in
the Complex (as defined in the Master Lease) at the time of the proposed
subletting; and (f) no Event of Default exists either at the time of Sublessee's
written notice to Sublessor or on the effective date of the proposed Transfer.
Notwithstanding any Transfer, Sublessee may not convey to any transferee the
right of first opportunity set forth in EXHIBIT "D". Sublessee shall deliver to
Sublessor a copy of any final sublease or assignment agreement promptly after
its execution.
14.4. If Sublessor elects to consent to a Transfer, and if the Rent due
and payable by a transferee under any such permitted Transfer (or a combination
of the Rent payable thereunder plus any bonus or other consideration therefor or
incident thereto) in respect of the interval in question exceeds the Rent due
under this Sublease allocable to the portion of the Subleased Premises covered
thereby for the same interval, such excess shall belong to Sublessor. Sublessee
shall hold all amounts it receives which are payable to Sublessor in trust and
shall deliver such amounts to Sublessor within ten days after Sublessee's
receipt thereof.
14.5. Notwithstanding anything contained in this Paragraph 14 to the
contrary, Sublessee may, without the consent of Sublessor, sublease up to one
floor of the Subleased Premises to, or permit the use or occupancy of up to one
floor of the Subleased Premises by, Lacerte Financial, Ltd. provided that and
for so long as the Lacerte Financial Ltd. continues to be substantially owned by
the shareholders of Sublessee. If, at any time during this Sublease, the
shareholders of Sublessee own less than 90% of the partnership interests in
Lacerte Financial, Ltd., then Lacerte Financial, Ltd. shall no longer be a
permitted subtenant pursuant to this Paragraph 14.5, and Sublessee shall
thereafter be required to obtain Sublessor's consent to such a sublease in the
manner provided above for all other Transfers.
15. DEFAULT.
-12-
13
15.1. Default by Sublessee. (i) If default shall be made in the payment
of any sum of Rent, or of any sum other than Rent, to be paid by Sublessee under
this Sublease (including, without limitation, any amounts owing by Sublessee
pursuant to the Construction Agreement attached hereto as EXHIBIT "C"); or (ii)
if default shall be made in the performance of any of the other covenants and
conditions which Sublessee is required to observe and perform under this
Sublease; or (iii) if the interest of Sublessee under this Sublease shall be
levied on under execution or other legal process; or (iv) if any petition shall
be filed by or against Sublessee to declare Sublessee a bankrupt or to delay,
reduce or modify Sublessee's debts or obligations; or (v) if Sublessee is
declared insolvent according to law or if any assignment of Sublessee's property
shall be made for the benefit of creditors or if a receiver or trustee is
appointed for Sublessee or its property; or (vi) if Sublessee shall vacate or
abandon the Subleased Premises during the term of this Sublease; or (vii) if
Sublessee shall default under any of the terms and provisions of the Master
Lease which, by the terms of this Sublease, are applicable hereto; then
Sublessor may treat the occurrence of any one or more of the foregoing events as
a breach of this Sublease and thereupon, at Sublessor's option, Sublessor shall
have any one or more of the following described remedies, in addition to all
other rights and remedies provided at law or in equity:
(a) Sublessor may terminate this Sublease and repossess the
Subleased Premises and be entitled to recover as damages a sum of money
equal to the total of (i) the cost of recovering the Subleased Premises,
(ii) the accrued and unpaid Rent at the time of termination, plus
interest thereon at the maximum lawful per annum rate under the laws of
the State of Texas from the due date, (iii) the present value
[discounted at the rate of eight percent per annum] of the balance of
all Rent for the remainder of the Sublease term less the present value
(discounted at the same rate) of the fair market rental value of the
Subleased Premises for the same period (but only to the extent the
remainder is a positive number) and (iv) any other sum of money and
damages including any attorney's fees and court costs owed by Sublessee
to Sublessor.
(b) Sublessor may terminate Sublessee's right of possession (but
not this Sublease) and may repossess the Subleased Premises by forcible
entry or detainer suit or otherwise, without demand or notice of any
kind to Sublessee and without terminating this Sublease, in which event
Sublessor may, but shall be under no obligation to do so, relet the
Subleased Premises for the account of Sublessee for such Rent and upon
such terms as shall be satisfactory to Sublessor. For the purpose of
such reletting, Sublessor is authorized to decorate and/or to make any
repairs, changes, alterations and/or additions in or to the Subleased
Premises that may be reasonably necessary to restore the Subleased
Premises to a "BUILDING STANDARD" (as defined in the Master
-13-
14
Lease) condition. In addition, (i) if Sublessor shall fail to relet the
Subleased Premises, then Sublessee shall pay to Sublessor as damages a
sum equal to the amount of all accrued and unpaid Rent and other accrued
and unpaid sums provided for in this Sublease; or (ii) if the Subleased
Premises are relet and a sufficient sum shall not be realized from such
reletting after paying the accrued and unpaid Rent and other accrued and
unpaid sums due hereunder at the time of reletting, the cost of
recovering possession and of collecting rent accruing under such
subletting, and all of the costs and expenses reasonably incurred in
making such decorations, repairs, changes, alterations and/or additions
necessary to relet the Subleased Premises (plus interest on all of the
same at the maximum lawful contract rate), then Sublessee shall satisfy
and pay any such deficiency upon demand therefor from time to time.
Sublessee agrees that Sublessor may file suit to recover any sums
falling due under the terms of this Paragraph 15.1(b) from time to time,
and that no delivery to or recovery by Sublessor of any sum due
Sublessor hereunder shall be any defense in any action to recover any
amount of money not theretofore reduced to judgment in favor of
Sublessor, nor shall such reletting be construed as an election on the
part of Sublessor to terminate this Sublease unless a written notice of
such intention is given to Sublessee by Sublessor. Notwithstanding any
such reletting without termination, Sublessor may at any time thereafter
elect to terminate this Sublease for such previous breach.
(c) Sublessor may enter the Subleased Premises and cure at
Sublessee's expense any default.
(d) Sublessor may, but shall not be required to, use, apply or
retain all or any part of the Security Deposit for the payment of any
Rent or any other sum in default, or for the payment of any other amount
which Sublessor may spend or become obligated to spend by reason of
Sublessee's default, or to compensate Sublessor for any other loss or
damage which Sublessor may suffer by reason of Sublessee's default,
including, without limitation, costs and attorneys' fees incurred by
Sublessor to recover possession of the Subleased Premises. If any
portion of the Security Deposit is so used or applied, Sublessee shall,
upon demand, deposit cash with Sublessor in an amount sufficient to
restore the Security Deposit to its original amount, and Sublessee's
failure to do so shall constitute a default hereunder by Sublessee.
15.2. No Duty to Mitigate. Sublessor shall have no duty whatsoever to
mitigate its damages following an Event of Default by Sublessee, and Sublessor
will not be liable in any way whatsoever for Sublessor's failure or refusal to
relet the Subleased Premises or any portion thereof, or if the Subleased
Premises or any portion thereof are relet, for Sublessor's failure to collect
rental under such reletting, and no such refusal or failure to relet or failure
-14-
15
to collect rental will release or affect Sublessee's liability under this
Sublease.
15.3. Default by Sublessor. Except where the provisions of this Sublease
grant Sublessee an express, exclusive remedy, or deny Sublessee a remedy, if
Sublessor should fail to perform or observe any covenant, term, provision or
condition of this Sublease and such default should continue beyond a period of
30 days (or such longer period as is reasonably necessary to remedy such
default, provided Sublessor shall continuously and diligently pursue such remedy
at all times until such default is cured) following notice thereof by Sublessee
to Sublessor, then Sublessee shall have as its sole and exclusive remedy the
right to commence such actions at law or in equity to which Sublessee may be
entitled, including without limitation any action for specific performance or
damages but expressly excluding an action to declare a termination of this
Sublease. The rights of Sublessee pursuant to this Paragraph 15.2 shall be
subject to any express provisions of this Sublease providing for remedies
different from, or in exclusion of, the remedies above-described. In no event
shall Sublessor be liable to Sublessee for consequential or special damages by
reason of a failure to perform (or default) by Sublessor or Master Lessor
hereunder or otherwise.
15.4. Non-Waiver. Failure of either party to declare any default
immediately upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default or right to take such action, but such
party shall have the right to declare any such default or take such action at
any time. Sublessor's acceptance of partial payment of any sum owing hereunder
shall not constitute a waiver of or be deemed to constitute a waiver or estoppel
by Sublessor of the right to collect the full amount of any sum owing hereunder.
15.5. Cumulative Remedies. All rights and remedies of Sublessor
enumerated in this Sublease (including, without limitation, indemnification
rights) shall be cumulative and shall not exclude any other right or remedy
allowed by law. These rights and remedies may be exercised or enforced
concurrently and as often as necessary.
16. EXCULPATION.
Sublessee shall maintain the Subleased Premises in the same or better
condition than the condition in which the Subleased Premises existed on the
Commencement Date (reasonable wear and tear excluded). Sublessee acknowledges
and agrees that Sublessor shall not be responsible for any maintenance,
services, or repairs to the Subleased Premises, to the Building, the Project, or
any part thereof, nor shall Sublessor be liable for any interruption in
utilities or services to the Subleased Premises, nor for loss or damage to any
person or any property of Sublessee or its employees or invitees by theft or
otherwise, nor shall Sublessor be liable
-15-
16
for any damage or disturbance caused by other tenants of the Building or the
Project. Any and all covenants, undertakings and agreements herein made on the
part of Sublessor are made and intended not as personal covenants,
understandings and agreements for the purpose of binding Sublessor personally or
the assets of Sublessor, except only Sublessor's interest in the leasehold under
the Master Lease; and Sublessee specifically agrees to look solely to
Sublessor's (or its successors') leasehold interest under the Master Lease for
the recovery of any judgment from Sublessor (or its successors) relating to this
Sublease, it being agreed that Sublessor and its successors (and their
directors, officers, employees and agents) shall never be personally liable for
any such judgment.
17. INAPPLICABILITY OF CERTAIN PROVISIONS OF MASTER LEASE.
The Master Lease contains certain provisions that are not applicable to
this Sublease. The parties agree that the following sections of the Master Lease
are not incorporated herein and do not form a part of this Sublease:
Any provisions that are superseded by or in direct conflict with the
provisions hereof; any provisions relating to Master Lessor's or
Sublessor's obligations regarding the initial construction of the
Building, the Project, or the Leased Premises by Master Lessor,
including any rights of Sublessor to approve matters in connection
therewith, the intent of this provision being to acknowledge that
construction of the Building, the Project and the Leased Premises
covered by the Master Lease are complete; Section 1.1 (Leased Premises);
Section 1.2 (Term); Section 1.3 (Base Building Design); section 1.4
(Use); Section 2.1 (Rental Payments) Section 2.2 (Base Rental); Section
2.5 (Cash Inducements); Section 2.6 (Refurbishment Allowance); Section
2.7 (Additional Inducements); Section 2.8 (Agreements Inducement); the
provisions of Section 3.1 (Services) that would otherwise require
Sublessor to provide services as stated therein (it being acknowledged
that Sublessee agrees to look solely to Master Lessor for any such
services in accordance with Paragraph 6 hereof); the provisions of
Section 3.2 (Keys and Locks) that would require Sublessor to pay for any
keys and/or access cards for Sublessee; Section 3.3 (Graphics and
Building Directory); Section 3.4 (Parking) (it being acknowledged that
the parking provision set forth in Paragraph 19 hereof shall govern this
Sublease); Section 3.5 (Building Identity and Signs); Section 3.6
(Communications Equipment); the provisions of Section 4.4 (Laws and
Regulations; Rules of Building) that would otherwise require Sublessor
to act on behalf of the Master Lessor; Section 5.1 (Base Building
Improvements); Section 5.2 (Leasehold Improvements); Section 5.3
(Holdover and Related Costs); the provisions of Section 5.4 (Repairs by
Landlord) that would otherwise require Sublessor to make any repairs or
perform any maintenance, repair, refurbishing or
-16-
17
replacement (it being acknowledged that Sublessee agrees to look solely
to Master Lessor for any such items in accordance with Paragraph 6
hereof); the provisions of Section 5.7 (Management) that would otherwise
give Sublessee the right to approve or select the Project manager; the
provisions of Sections 6.1, 6.3, 6.4, and 6.5 (Condemnation, Casualty
Clause, Casualty Insurance, and Liability Insurance) that would
otherwise require Sublessor to provide and maintain insurance on the
Subleased Premises or to repair or restore the Subleased Premises in the
event of a casualty or a condemnation (it being acknowledged that
Sublessee agrees to look solely to Master Lessor for such items in
accordance with Paragraph 10 hereof); Section 6.6 (Hold Harmless and
Indemnity) (it being acknowledged that the indemnity provisions set
forth in Paragraph 9 hereof shall govern this Sublease); Section 7.1
(Default and Remedies) (it being acknowledged that the default
provisions set forth in Paragraph 15 hereof shall govern this Sublease);
Section 7.3 (Negation of Lien for Rent); Section 7.7 (Holding Over); the
provisions of Section 7.8 (Subordination) that would otherwise require
Sublessor to act on behalf of the Master Lessor with respect to any
mortgage or deed of trust placed on the Project; Section 7.10 (Vacating
the Leased Premises); Section 7.11 (Tenant Net Worth); Section 8.1
(Sublease or Assignment by Tenant); Section 8.2 (Assignment by Landlord)
(it being acknowledged that Sublessor has unrestricted rights to assign
its interest in this Sublease); Section 8.5 (Memorandum of Lease);
Section 8.6 (Consents); Section 8.7 (Publicity); Article IX (Options);
Section 10.2 (Fair Market Rental); Section 11.1 (Notices) (it being
acknowledged that notices required under this Sublease shall be
delivered as set forth in Paragraph 24.4 hereof); Section 11.2
(Brokers); the defined terms in Section 11.4 (Other Definitions) to the
extent they do not relate to Master Lease provisions which are
incorporated herein by reference; Section 11.8 (Extension of Lease I);
the exhibits attached to the Master Lease to the extent they do not
relate to Master Lease provisions which are incorporated herein by
reference. Except as provided in the following sentence, Section 2.3 of
the Master Lease is incorporated herein by reference for all purposes
except for determining (i) the Base Year, and (ii) the fraction used for
calculating Sublessee's Percentage Share of operating Expenses, both of
which shall be governed by Paragraph 5 of this Sublease. For purposes of
determining Sublessee's Percentage Share of Operating Expenses,
Sublessor shall be entitled to rely upon any and all statements and
certifications furnished to Sublessor by Master Lessor and Master
Lessor's accountants and representatives, and Sublessor shall not be
liable to Sublessee for any errors or inconsistencies contained in any
such statements or certifications.
-17-
18
Sublessee's obligations under Paragraph 8 hereof and elsewhere to comply
with or conform to the provisions of the Master Lease do not extend to any
provisions of the Master Lease that are not incorporated herein and do not form
a part of this Sublease as stated in this Paragraph 17, but nevertheless
Sublessee shall not by any act or failure to act cause any default to exist
under the Master Lease.
18. ACCEPTANCE OF BUILDING AND SUBLEASED PREMISES.
Subject to such items as are specified in any punch-list prepared
pursuant to the Construction Agreement set forth in EXHIBIT "C", Sublessee, by
taking possession of the Subleased Premises, acknowledges and agrees that it:
(a) accepts the Subleased Premises as suitable for the purposes for which they
are leased; (b) accepts the Subleased Premises as being in a good and
satisfactory condition; (c) accepts the Subleased Premises subject to the Master
Lease and all applicable laws, agreements, covenants, restrictions and matters
of record; and (d) waives any defects in the Subleased Premises.
19. PARKING.
During the term of this Sublease, Sublessee shall have the right to use
330 parking spaces in the "PARKING FACILITY" (as defined in the Master Lease).
Sublessee's parking spaces shall be located in areas of the Parking Facility
designated by Sublessor, with 13 of the parking spaces being underground
reserved spaces; 117 of the parking spaces being general unreserved spaces; and
200 of the parking spaces being unreserved spaces located on the top two parking
levels of the Parking Facility. The parking spaces shall be provided to
Sublessee at no charge. Sublessor, at Sublessor's sole cost and expense, shall
obtain from Master Lessor access cards for the Parking Facility in an amount
reasonably requested by Sublessee for use by its then current employees
maintaining offices in the Subleased Premises, but in no event more than 330.
All such access cards shall remain the property of Master Lessor. Upon
termination of this Sublease, Sublessee shall surrender to Master Lessor all
such access cards. Sublessee's use of the spaces in the Parking Facility are
subject to all restrictions in the Master Lease. Sublessee shall have no parking
rights under this Sublease or the Master Lease, except as expressly set forth
herein.
20. HAZARDOUS MATERIALS.
Sublessee shall not cause or permit any Hazardous Materials (as such
term is defined in the Master Lease) to be used, stored, generated, released or
disposed of on or in the Subleased Premises, Building or Project by Sublessee,
Sublessee's agents, employees, contractors, or invitees except to the extent
consistent with customary and reasonable office business practices and provided
(a) such Hazardous Materials do not endanger the health of any person
-18-
19
on or about the Subleased Premises or the Project, and (b) Sublessee complies
with all Legal Requirements applicable to such Hazardous Materials. In the event
of a release of any Hazardous Material, Sublessee, in addition to complying with
all applicable law concerning such release, shall notify Sublessor immediately
upon becoming aware of the same and take such measures as required under all
applicable law and consistent with such law, including, for example, the removal
or causing the removal and appropriate disposition of such Hazardous Materials,
all at Sublessee's expense. If Sublessee breaches or violates any provision in
this Paragraph 20, or if the Subleased Premises, Building or Project becomes
contaminated in any manner by reason of the fault of Sublessee, its agents,
employees, contractors or invitees, Sublessee shall indemnify, defend and hold
Sublessor harmless from any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses arising as a result thereof.
21. AMERICANS WITH DISABILITIES ACT.
Sublessee, at its sole expense, will be responsible for causing the
design and construction of the Leasehold Improvements to be in compliance with
the Americans with Disabilities Act of 1990 (the "ADA") . Furthermore, Sublessee
covenants and agrees that the design and construction of all alterations to the
Subleased Premises will comply with the requirements of the ADA. Sublessee
agrees to indemnify and hold harmless Sublessor for the above described
obligations to cause compliance with the ADA.
22. LEASE OF EXISTING FURNITURE.
22.1. Terms of Furniture Lease. In addition to the Subleased Premises,
Sublessor also hereby leases to Sublessee, and Sublessee hereby leases from
Sublessor, all of the furniture presently situated in the Subleased Premises
(the "EXISTING FURNITURE"). The Existing Furniture is hereby leased on the same
terms and conditions as provided in this Sublease for the subleasing of the
Subleased Premises, except that: (a) the term of the lease for the Existing
Furniture shall begin on the Commencement Date and end at midnight on the
Furniture Lease Expiration Date (hereinafter defined), upon which date Sublessee
shall return the Existing Furniture to Sublessor in the same or better condition
than the condition in which the Existing Furniture existed on the Phase I and
Phase II Delivery Dates, respectively, normal wear and tear excepted; and (b)
the monthly rental for the Existing Furniture shall be 1/12th of the product of
the number of square feet of Net Rentable Area in the Subleased Premises times
$1.00 (i.e., $9,180.08) (the "FURNITURE RENT").
22.2. Furniture Lease Expiration Date. On or before September 1, 2000,
Sublessor will advise Sublessee of the Furniture Lease Expiration Date. The
"FURNITURE LEASE EXPIRATION DATE" shall be either (a) December 31, 2000, or (b)
if Sublessor obtains the right to possess the Existing Furniture beyond December
31, 2000,
-19-
20
the earlier of (i) the Expiration Date, or (ii) the date on which Sublessor's
right to possess the Existing Furniture expires.
22.3. Payment of Furniture Rent. Each installment of Furniture Rent
shall be due on or before the first day of each month during the term of the
lease of the Existing Furniture and shall be paid to Sublessor at its address as
set forth in Paragraph 24.4 (or as later changed pursuant thereto) without
notice, demand, abatement, deduction, diminution, or offset. Monthly
installments of Furniture Rent shall be prorated for any period during the term
hereof which is less than a full calendar month. The initial installment of
Furniture Rent shall be paid upon the Commencement Date.
22.4. Furniture Inventory. On or before the Phase I Delivery Date, with
respect to the Phase I Furniture, and on or before the Phase II Delivery Date,
with respect to the Phase II Furniture, Sublessor and Sublessee will prepare an
inventory confirming the type, amount and condition of the Existing Furniture.
Sublessee acknowledges that it will have thoroughly inspected the Phase I and
Phase II Furniture, respectively, as of the Phase I and Phase II Delivery Dates,
respectively, and that except as agreed by Sublessor and Sublessee in writing as
an attachment to the Existing Furniture inventory, the Existing Furniture will
be deemed to have been delivered in a first-class condition as of such dates.
23. SATELLITE DISHES.
Provided that Sublessee complies with the terms of this Xxxxxxxxx 00,
Xxxxxxxxx may, at its risk and expense, install two satellite dishes and related
wiring (collectively, the "SATELLITE DISHES") on a roof or roofs within the
Complex at a location or locations acceptable to Sublessor and Master Lessor.
Master Lessor currently charges Sublessor $150 per month for each Satellite
Dish located in the Complex. Sublessee agrees to pay to Sublessor monthly, along
with the payment of Rent, such amount (or additional amounts if such amount is
increased) and any additional charges incurred by Sublessor related to the
Satellite Dishes. Before installing the Satellite Dishes, Sublessee shall submit
to Sublessor and Master Lessor for their approval plans and specifications which
(i) specify in detail the design, location, size, and frequency of the Satellite
Dishes and (ii) are sufficiently detailed to allow for the installation of the
Satellite Dishes in a good and workmanlike manner and in accordance with all
laws. Sublessee shall install (in a good and workmanlike manner), maintain and
use the Satellite Dishes in accordance with all laws, rules and regulations and
shall obtain all permits required for the installation and operation thereof;
copies of all such permits must be submitted to Sublessor and Master Lessor
before Sublessee begins to install the Satellite Dishes. Sublessee thereafter
shall maintain all permits necessary for the maintenance and operation of the
Satellite Dishes while they are on a roof within the Complex, and shall operate
and maintain the Satellite
-20-
21
Dishes in such a manner so as not to unreasonably interfere with any other
satellite dish, antennae, or other transmission facility in the Complex.
Sublessee shall, at its risk and expense, remove the Satellite Dishes within
five days after the occurrence of any of the following events: (i) the
termination of Sublessee's right to possess the Subleased Premises; (ii) the
termination of this Sublease; (iii) the expiration of the term of this Sublease;
or (iv) Sublessee's vacating the Subleased Premises. If Sublessee fails to do
so, Sublessor may remove the Satellite Dishes and store or dispose of it in any
manner Sublessor deems appropriate without liability to Sublessee; Sublessee
shall reimburse Sublessor for all costs incurred by Sublessor in connection
therewith within ten days after Sublessor's request therefor. Sublessee shall
repair any damage to the Complex caused by or relating to the Satellite Dishes,
including that which is caused by its installation, maintenance, use, or
removal. All work relating to the Satellite Dishes shall be coordinated with
Master Lessor' s roofing contractor and building manager. Sublessee shall
indemnify, defend, and hold harmless Sublessor against all liabilities, losses,
damages, and costs arising from the installation, maintenance, use, or removal
of the Satellite Dishes, INCLUDING THAT CAUSED BY SUBLESSOR'S NEGLIGENCE (unless
the same was caused by Sublessor's gross negligence or wilful misconduct).
24. MISCELLANEOUS PROVISIONS.
24.1. Attorneys' Fees. If any action at law, in equity or in
arbitration, including an action for declaratory relief, is brought to enforce
or interpret the provisions of this Sublease, the prevailing party shall be
entitled to recover attorneys' fees and court (or arbitration) costs from the
other party.
24.2. Applicable Law. This Sublease shall be construed, enforced and
governed by the laws of the State of Texas. Venue for any action involving this
Sublease shall be in Dallas County, Texas.
24.3. Surrender of Premises and Keys. Sublessee shall, at the expiration
of this Sublease, quietly and peaceably surrender the Subleased Premises without
the requirement of notice to Sublessee, and Sublessee will deliver to Sublessor
all keys to the Subleased Premises. At the time of such surrender, the Subleased
Premises shall be in the same or better condition than the condition in which
the Subleased Premises existed on the Commencement Date (reasonable wear and
tear excluded).
24.4. Notices. Any notices, requests, instructions or other
communications to Sublessor or Sublessee required or permitted to be given under
this Sublease must be in writing and shall be deemed given if (a) personally
delivered to the address for Sublessor or Sublessee stated below, (b) sent by
United States Mail, prepaid, certified or registered, return receipt requested,
to such address, or (c) delivered by overnight express delivery service to such
-21-
22
address. Any notice which is delivered personally or sent by overnight express
in the manner provided herein shall be deemed to have been duly given to the
party to whom it is directed upon actual receipt by such party. Any notice
addressed and mailed in the manner herein provided shall be deemed to have been
given to the party to whom it is addressed at the close of business, local time,
of the recipient on the third regular business day following the date of deposit
of such item in a depository of the United States Postal Service.
The address for Sublessor shall be:
Oryx Energy Company
00000 Xxxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Manager, Real Estate
The address for Sublessee prior to the Commencement Date shall be:
Lacerte Software Corporation
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Chief Operating Officer
The address for Sublessee after the Commencement Date shall be:
Lacerte Software Corporation
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Chief operating officer
Either party shall have the right to change its address to which notices shall
be sent by giving the other notice thereof as required by this Paragraph 24.4.
24.5. Rules and Regulations. Sublessee shall comply with all rules and
regulations now or hereafter promulgated by Master Lessor and/or Sublessor
pertaining to the Subleased Premises, the Building, the Project or the Parking
Facility. Attached hereto as EXHIBIT "B" are the current Building rules and
regulations promulgated by Sublessor. As used in EXHIBIT "B", the term "Lessor"
shall mean and refer to Master Lessor and/or Sublessor, and the term "Tenant"
shall mean and refer to Sublessee.
24.6. Sublease Guaranty. In consideration for, and as an inducement to
Sublessor to enter into this Sublease, Sublessee has agreed to cause Xxxxxxxx
Xxxxxxx to execute and deliver to Sublessor the Guaranty in exactly the form
attached hereto as EXHIBIT "E".
-22-
23
24.7. Authority. Sublessee hereby represents to Sublessor that the
person signing on behalf of Sublessee has the power and authority to bind
Sublessee to this Sublease; and Sublessor hereby represents to Sublessee that
the person signing on behalf of Sublessor has the power and authority to bind
Sublessor to this Sublease.
24.8. Paragraph Headings, Gender, etc. The paragraph headings in this
Sublease are not intended to be used in construing the substance of this
Sublease. Unless the context of this Sublease otherwise requires (a) words of
any gender are deemed to include the other gender, (b) words using the singular
or plural number also include the plural or singular number, respectively, (c)
the terms "hereof", "herein", "hereby", "hereto", and derivative or similar
words refer to this entire Sublease, (d) the term "Section" or "Article" refers
to the specified section or article of the Master Lease, (e) the term
"Paragraph" refers to the specified Paragraph of this Sublease, and (f) all
references to "dollars" or "$" refer to currency of the United States of
America.
24.9. Late Charge. If any installment of Rent or any other sum which
becomes owing by Sublessee to Sublessor under the provisions hereof is not
received by Sublessor within five days after the due date therefor, Sublessee,
to the extent permitted by law, agrees to pay, in addition to such installment
of Rent or such other sum owed, interest on such installment of Rent or such
other sums owed at the rate of five percentage points over the Prime Rate (as
defined in the Master Lease) or the highest rate permitted by applicable law,
whichever is lower, until paid; provided, however, if Sublessee is late in
making any such payment once in any twelve (12) month period, then from and
after the first late payment any sums due hereunder which are not received by
Sublessor by the due date therefor shall, to the extent permitted by law, bear
interest at the rate of five percentage points over the Prime Rate or the
highest rate permitted by applicable law, whichever is lower, until paid. It is
understood that the late payment charge shall be for the purpose of reimbursing
Sublessor for the additional costs and expenses which Sublessor presently
expects to incur in connection with the handling and processing of late
installment payments of Rent and other sums owed. Any amounts paid by Sublessor
to cure any defaults of Sublessee hereunder, which Sublessor shall have the
right but not the obligation to so cure, shall, if not repaid by Sublessee
within five days of demand by Sublessor, thereafter bear interest at the rate of
five percentage points over the Prime Rate or the highest rate permitted by
applicable usury law, whichever is lower, until paid.
24.10. Consent of Master Lessor. If Sublessor determines that the
consent of Master Lessor is required for this Sublease, then this Sublease shall
not be effective unless and until such consent is obtained.
-23-
24
24.11. Obligations of Sublessor. It is understood and agreed that any
and all covenants or obligations of Sublessor contained in this Sublease shall
be binding upon Sublessor and its successors and assigns only with respect to
breaches occurring or accruing during its and their respective ownership of the
Sublessor's interest hereunder.
24.12. Rules of Construction. The terms and provisions of this Sublease
shall not be construed against or in favor of a party hereto merely because such
party is the "Sublessor" or the "Sublessee" hereunder or such party or its
counsel is the draftsman of this Sublease.
24.13. Confidentiality of Master Lease. Sublessee acknowledges and
agrees that the terms and provisions of the Master Lease are confidential, and
Sublessee agrees to not disclose the terms and provisions of the Master Lease to
any person other than Sublessee's affiliates, employees, partners, attorneys,
architects, or other consultants (and only to the foregoing persons on a "need
to know" basis).
24.14. Holding Over. If Sublessee should remain in possession of the
Subleased Premises after the expiration or termination of this Sublease, without
the execution by Sublessor and Sublessee of a new sublease, then Sublessee shall
be deemed to be occupying the Subleased Premises as a tenant-at-sufferance
subject to all the covenants and obligations of this Sublease, and Sublessee
shall pay as Rent per month for the entire holdover period twice the Rent
payable hereunder for the month preceding the commencement of such holding over,
calculated on a daily basis. No holding over by Sublessee after the term of this
Sublease, either with or without the consent and acquiescence of Sublessor,
shall operate to extend the Sublease for a longer period than one month, and any
holding over with the consent of Sublessor in writing shall thereafter
constitute this Sublease a sublease from month to month at a Rent rate as agreed
to in writing by Sublessor and Sublessee.
24.15. Brokers. Sublessor and Sublessee warrant and represent to each
other that no real estate broker or salesman has been involved by either party
in this Sublease other than Sublessor's agent, Xxxxxxx & Company, and
Sublessee's agents, Xxxxxxx & Xxxxxxxxx of Texas, Inc. and Xxx Xxxxxx. Sublessor
agrees to compensate Xxxxxxx & Company for its participation in this transaction
pursuant to a separate written agreement dated November 17, 1994, and Sublessee
agrees to compensate Xxx Xxxxxx for his participation in this transaction
pursuant to a separate written agreement dated November 8, 1994. Xxxxxxx &
Company has agreed to compensate Xxxxxxx & Wakefield of Texas, Inc. for its
participation in this transaction pursuant to a separate written agreement dated
November 18, 1994. Each party agrees to indemnify and hold the other party
harmless from and against any and all claims of any other real estate broker or
salesman due to acts of such party or such party's representatives.
-24-
25
24.16. Prior Agreements Superseded. This Sublease constitutes the sole
agreement of the parties and supersedes any prior understandings or written or
oral agreement between the parties respecting the subject matter hereof.
24.17. Time of Essence. Time is of the essence in this Sublease.
24.18. Binding on Successors. Sublessor shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and in
the Master Lease, and upon any such assignment, this Sublease shall be binding
upon and inure to the benefit of the successors and assigns of Sublessor, and
shall be binding upon and inure to the benefit of Sublessee, its successors,
and, to the extent assignment may be approved by Sublessor hereunder,
Sublessee's assigns.
24.19. Counterparts. This Sublease may be executed concurrently in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
24.20. Amendments. This Sublease may not be altered, changed or amended,
except by an instrument in writing executed by Sublessor and Sublessee.
24.21. Exhibits. The terms and provisions of any exhibits attached
hereto are hereby incorporated herein and made a part hereof for all purposes.
24.22. Invalid Provisions. If any term or provision of this Sublease, or
the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Sublease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Sublease shall be valid and shall be enforceable to the extent permitted by
law.
EXECUTED by Sublessor on the 21st day of November, 1994 to be effective
as of the day and year first above written.
SUBLESSOR:
ORYX ENERGY COMPANY,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
-25-
26
EXECUTED by Sublessee on the 19th day of November, 1994, to be effective
as of the day and year first above written.
SUBLESSEE:
LACERTE SOFTWARE CORPORATION,
a California Corporation
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President
-26-
27
EXHIBIT "A"
FLOOR PLAN OF SUBLEASED PREMISES
X-0
00
XXXXX XXXX
00
XXXXX XXXX
00
XXXXX PLAN
31
FLOOR PLAN
32
EXHIBIT "B"
SUBLESSOR RULES AND REGULATIONS
B-1
33
ORYX ENERGY CENTER
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for any
purpose other than ingress and egress to and from the leased premises
and for going from one part of the building to another part of the
building.
2. Plumbing fixtures and appliances shall be used only for the purpose for
which designated, and no sweeping, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any
fixtures or appliances from misuse by a tenant shall be at his expense,
and Lessor shall not in any case be responsible therefore.
3. No signs, advertisements, or notices shall be painted or affixed on or
to any windows or doors or other part of the building except of such
color, size, and style and in such places as shall be first approved in
writing by Lessor. No nails, hooks or screws shall be driven or
inserted in any part of the building except with the express consent of
Lessor.
4. Lessor will provide and maintain a directory for all tenants to be
located in the lobby of the building; no other directory shall be
permitted unless previously consented to by Lessor in writing. All
directory listings will be at Lessee's expense.
5. Lessor shall provide, at Lessee's expense, all locks for doors in each
tenant's leased area. No tenant shall place any additional lock or
locks on any door in its leased area without Lessor's written consent.
All requests for duplicate keys shall be made to the Property Manager
and will be furnished at Lessee's expense.
6. Proposed plans for alterations affecting floors, walls, woodwork, trim,
windows, ceilings, equipment, and/or any other physical portion of the
building must be approved in writing by Lessor. Tenants will refer all
contractors, contractor's representatives and installation technicians
tendering any service to them to Lessor for Lessor's supervision,
approval and control before the performance of any contractual
services. This provision shall apply to all work performed in the
building, including, but not limited to, installations of telephones,
telegraph equipment, electrical devices and attachments, and any and
all installations of every nature affecting floors, walls, woodwork,
trim, windows, ceilings, equipment and any other physical portion of
the building.
7. Movement in or out of the building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or
materials which requires use of elevators or stairways or movement
through the building entrances or lobby shall be restricted to such
hours as Lessor shall designate. All such movement shall be under the
supervision of Lessor and in the manner agreed between the tenant and
Lessor by prearrangement before performance. Such prearrangement
initiated by a tenant shall include determination by Lessor, and
subject to this decision and control as to the time, method, and
routing of movement and as to limitations for safety or other concern
which may prohibit any article, equipment, or any other item from being
brought into the building. The tenants are to assume all risks as to
the damage to articles moved and injury to persons or public engaged or
not engaged in such movement, including equipment, property, and
personnel of Lessor if damaged or injured as a result of an act in
connection with carrying out this service for a tenant from time of
entering property to completion of work; and Lessor shall not be liable
for acts of any persons engaged in or any damage or loss to any of said
property or persons resulting from any act in connection with such
service performed for a tenant.
8. Lessor reserves the right to prescribe the weight and position of safes
and other heavy equipment, which shall in all cases, to distribute
weight, stand on supporting devices approved by Lessor. All damages
done to the building by taking in or putting out any property of a
tenant, or done by a tenant's property while in the building, shall be
repaired at the expense of such tenant.
9. A tenant shall notify the Properly Manager when safes or other heavy
equipment are to be taken in or out of the building, and the moving
shall be done under the supervision of the Property Manager, after
receiving written permission from Lessor. Persons employed to move such
property must be acceptable to Lessor.
34
10. Should a tenant require graphic, telephonic, annunciator or other
communications service, Lessor will direct electricians where and how
wires are to be introduced and placed and none shall be introduced or
placed except as Lessor shall direct.
11. Corridor doors, when not in use, shall be kept closed. Stairwell doors
shall remain closed at all times.
i2. Each tenant shall cooperate with Lessor's employees in keeping its
leased area neat and clean. Unless tenant is responsible for cleaning
its own space pursuant to its own lease, tenant shall not employ any
person for the purposes of such cleaning other than the building
cleaning and maintenance personnel.
Lessor shall be in no way responsible to the tenants, their agents,
employees, or invitees for any loss of property from the leased
premises or public areas or for any damages to any property thereon
from any cause whatsoever.
13. Tenant shall not make or permit any improper noises in the building or
otherwise interfere in any way with other tenants or persons having
business with them.
14. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept
in, on or about the tenant's area (except for Seeing Eye dogs).
15. No vending machines of any type shall be allowed in tenant's space
without the prior written consent of Lessor.
16. No machinery of any kind shall be operated by an tenant on its leased
area without prior written consent of Lessor, nor shall any tenant use,
or keep, in the building any flammable or explosive fluid or substance.
17. No portion of any tenant's leased area shall at any time be used as
sleeping or lodging quarters.
18. Tenants are requested to lock all doors leading to corridors and to
turn out all lights at the close of their working day.
19. Lessor shall not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased area or public areas regardless
of whether such loss occurs when area is locked against entry or not.
20. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in the leased premises. Lessor shall make adjustments in
thermostats on call from tenant.
21. Tenant will comply with all requirements necessary for the security of
the premises, including the use of service passes issued by Lessor for
after hours removal of office furniture/packages, and use of security
control cards for after hours entry.
22. All window blinds are to remain down and tilted at a 45 degree angle
toward the street to help maintain comfortable room temperatures and to
conserve energy.
23. All routine deliveries to a tenant's leased premises from 8:00 am. to
5:00 p.m. weekdays shall be made through the freight elevator. Advanced
arrangements should be made through the Management Office for large
deliveries and moves. Large deliveries need to be scheduled for between
3:00 p.m. and 5:00 p.m. weekdays. Move-in and move-outs need to be
scheduled for after 6:00 p.m. weekdays, and all day Saturdays and
Sundays. Passenger elevators are to be used only for the movement of
persons, unless an exception is approved by the Building Management
Office.
24. All requests for overtime air conditioning and/or heating must be
submitted to the Management Office in writing by 4:30 p.m.
25. All requests for keys, locks or graphics must be submitted in writing
to the Management Office.
26. Solicitation of any kind is strictly forbidden unless approved in
advance by the Management Office.
35
27. It is strongly recommend by the Dallas Fire Dept. that an A, B, C
Multiple Purpose type fire extinguisher be kept in each tenant's area
in an accessible location.
28. Lessor reserves the right to rescind any of these rules and regulations
and to make sure other and further rules and regulations as in its
judgment shall, from time to time, be needed for the safety,
protection, care and cleanliness of the building, the operation
thereof, the preservation of good order therein and the protection and
comfort of the tenants and their guests, employees and invitees, which
rules and regulations, when made and written notice thereof is given to
a tenant, shall be binding upon it in like manner as if originally
herein prescribed.
29. A No Smoking Policy is in effect in Oryx Energy Center. Smoking is
prohibited in the common areas, restrooms, lobbies and elevators of the
buildings. It shall be the responsibility of each tenant to develop a
Smoking Policy within their Leased premises.
30. No firearms (hand guns, rifles, shot guns, etc.) or cases for carrying
firearms (regardless whether or not any such case actually contains a
firearm) shall be introduced to, or allowed in, the Subleased Premises,
the Building, the Project or the Parking Facility.
31. Parking regulations include a two hour visitor parking limitation with
temporary parking access cards available from security. All employees
must park in designated areas behind the gates.
32. City of Dallas recycling program must be followed by all tenants to
meet the City of Dallas regulations.
36
EXHIBIT "C"
CONSTRUCTION AGREEMENT
The Leasehold Improvements (hereinafter defined) will be constructed in
accordance with the terms of this Construction Agreement.
1. DEFINITIONS
All of the definitions set forth in the Sublease shall be deemed
applicable in this Construction Agreement as if reproduced herein in their
entirety. Other terms are defined in other Sections of this Construction
Agreement, and as used herein shall have the meanings assigned to them in that
Section. The following additional defined terms are also used in this
Construction Agreement and are applicable to the Sublease:
1.1 CHANGE ORDER: Any change, modification, or addition to Sublessee's
Final Plans after Sublessor has approved the same, or to the Leasehold
Improvements after commencement of construction.
1.2 LEASEHOLD IMPROVEMENTS: All improvements, constructions, and
installations performed by Sublessor to the "As Is" condition of the Subleased
Premises, and all demolition work performed by Sublessor to the Subleased
Premises, to cause the Subleased Premises to comply with the Final Plans and/or
the provisions of this Construction Agreement. The work is inclusive without
limitation of the following:
(a) The selection of Approved Contractors in accordance with
Section 3 hereof; and
(b) All construction work, labor, equipment and materials
necessary to construct the improvements to the Subleased
Premises depicted on the Final Plans.
1.3 COST OF THE LEASEHOLD IMPROVEMENTS: All costs and expenses incurred
by Sublessor to complete the construction of the Leasehold Improvements in
accordance with the Final Plans. The cost includes, without limitation, the
following:
(a) All costs incurred by Sublessor in performing the demolition
work necessary to prepare for the construction of the
Leasehold Improvements;
(b) All costs of labor and materials;
C-1
37
(c) All sums payable to Approved Contractors under the
Construction Contract;
(d) All permits and taxes; and
(e) All of Sublessor's construction management costs (not to
exceed 4% of the aggregate of the Cost of the Leasehold
Improvements less these construction management costs).
1.4 PRELIMINARY SPACE PLAN: A drawing of the Subleased Premises showing
the proposed alterations and improvements to the existing Subleased Premises,
the layout and relationship of all offices to be located in the Subleased
Premises, and depicting partitions, door locations, types of
electrical/data/telephone outlets, and delineation of furniture and equipment.
1.5 SUBLESSOR'S REPRESENTATIVE: Xxxxx Xxxxxx.
1.6 SUBLESSEE'S REPRESENTATIVE: Xxxx Xxxxxxx.
2. SUBLESSEE'S PLANS
2.1 Sublessee, at its sole cost and expense, shall prepare and submit
to Sublessor, for Sublessor's approval, within 45 days after the date of the
Sublease, the Preliminary Space Plan. Within ten days of receipt of the
Preliminary Space Plan, Sublessor will review the Preliminary Space Plan and
reply, either "approving," "approving with notations or changes" or
"disapproving" the Preliminary Space Plan. if the Preliminary Space Plan, or any
portion thereof, is rejected by Sublessor, Sublessor shall give Sublessee a list
of changes reasonably required by Sublessor in writing, accompanied by a
statement of the specific reasons for such required changes. The Preliminary
Space Plan must be corrected and resubmitted to Sublessor within ten days of
such rejection for approval. Once Sublessor has approved the Preliminary Space
Plan, Sublessee and Sublessor will date and initial the Preliminary Space Plan
evidencing their acceptance thereof.
2.2 Within 20 business days of Sublessor's approval of the Preliminary
Space Plan, Sublessee, at its sole cost and expense, shall cause to be prepared
and delivered to Sublessor for approval, complete and detailed plans,
specifications, working and construction drawings (including detailed
architectural, mechanical, and electrical drawings) ("INITIAL PLANS AND
SPECIFICATIONS") for the construction of the Leasehold Improvements based on the
Preliminary Space Plan. The Initial Plans and Specifications shall be sufficient
to allow and/or permit: (i) Sublessor to obtain all necessary permits for the
completion and construction of the all Leasehold Improvements; (ii) Sublessor to
make an informed evaluation of the intended form, construction and
C-2
38
specifications of the Leasehold Improvements; and (iii) Sublessor to properly
procure bids from the Qualified Contractors (hereinafter defined) for the
construction of the Leasehold Improvements in the manner set forth below. The
Initial Plans and Specifications shall specifically include without limitation
the following descriptive information:
(a) mechanical and electrical drawings, showing outlets, layout
and location of electrical and telephone outlets;
(b) location and dimensions of telephone equipment rooms;
(c) partitions, locations, size, and type;
(d) door locations, size, type and hardware;
(e) reflected ceiling plans and ceiling heights;
(f) HVAC, air conditioning, ventilation and heating equipment,
duct work and stacks;
(g) specific plumbing requirements; and
(h) installation of materials and equipment, including window
treatments, wall coverings; paint or other finishes; millwork;
cabinet work; lighting, fire protection, and security systems;
and carpeting or other floor finishings.
2.3 The Initial Plans and Specifications shall (i) be prepared by
licensed architects, engineers and/or space planners selected and engaged by
Sublessee (and approved by Sublessor); and (ii) comply with and conform to all
rules, regulations and other requirements of any governmental agency having
jurisdiction over the construction of the Leasehold Improvements, including
without limitation all applicable building code requirements for the City of
Dallas, Texas and the ADA. Any change required by any governmental agency
affecting construction of the Leasehold Improvements shall be complied with by
Sublessor in completing the Leasehold Improvements and shall not be deemed to be
a violation of the Final Plans or any other provision of this Construction
Agreement. Sublessor shall give Sublessee notice of such change required by such
governmental agency promptly upon receipt of notice from such governmental
agency that such change is required. All architects and engineers employed by
Sublessee shall be required by their contracts to carry liability insurance
covering errors and omissions in such form and amount as may be reasonably
required by Sublessor.
2.4 Within ten days after receipt of the Initial Plans and
Specifications, Sublessor will review the plans and reply either "approving",
"approving with notations or changes" or "disapproving" the Initial Plans and
Specifications. If the
C-3
39
Initial Plans and Specifications, or any portion thereof, is rejected by
Sublessor, Sublessor shall give Sublessee a list of changes reasonably required
by Sublessor in writing, accompanied by a statement of the specific reasons for
such required changes. The Initial Plans and Specifications must be corrected
and resubmitted to Sublessor within ten days of such rejection for approval.
Once the Initial Plans and Specifications have been approved by Sublessor,
Sublessor and Sublessee will initial and date the Initial Plans and
Specifications evidencing their acceptance thereof, at which time the Initial
Plans and Specifications shall become final. The Initial Plans and
Specifications, together with all revisions, shall be referred to herein as the
"FINAL PLANS".
2.5 Sublessor may engage such architects, designers, engineers, space
planners, and other experts, at its sole cost and expense and at its sole
discretion, as it deems necessary in order to examine and evaluate the
Preliminary Space Plan and/or the Initial Plans and Specifications.
3. CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
3.1 The Leasehold Improvements shall be constructed by Sublessor in two
phases in accordance with the Final Plans by a general contractor under one or
more Construction Contracts (hereinafter defined). Within five days after final
approval by Sublessor of the Initial Plans and Specifications, Sublessee and
Sublessor shall meet and agree upon four qualified general contractors
("QUALIFIED CONTRACTORS") acceptable to Sublessor, Sublessee and Master Lessor,
from whom Sublessor will procure bids for the construction of the Leasehold
Improvements. Provided, however, if Master Lessor has approved fewer than four
Qualified Contractors for leasehold improvement construction in the Building,
then Sublessee and Sublessor shall select from the number of such approved
contractors. Within ten days after Sublessor has approved the Final Plans,
Sublessee shall prepare and submit bid packages ("BID PACKAGES") to the
Qualified Contractors for construction of the Leasehold Improvements
("CONSTRUCTION BIDS"). All Bid Packages shall be in compliance with all
applicable laws and regulations applicable to the procurement of bids for
construction of the Leasehold Improvements. Sublessee will transmit copies of
all Bid Packages to Sublessor.
3.2 Within two days after receipt by Sublessor and Sublessee of all
responses to the Construction Bids, Sublessor and Sublessee shall select the
"Low Qualified Construction Bid" for the Construction Contract. The "LOW
QUALIFIED CONSTRUCTION BID" shall be the Construction Bid with the lowest total
cost of construction for the Leasehold Improvements, which is in compliance with
all of the requirements contained in the Bid Packages (herein referred to as the
"APPROVED BID"). Sublessor shall give Sublessee notice (including a copy
thereof) of the Approved Bid and the contractor submitting same (the "APPROVED
CONTRACTOR").
C-4
40
3.3 within five days after acceptance of the Low Qualified Construction
Bid by Sublessor, Sublessor shall meet with the Approved Contractor and
negotiate the terms of one or more Construction Contracts for the Leasehold
Improvements, pursuant to the Low Qualified Construction Bid, including without
limitation a data flow chart providing a schedule ("CONSTRUCTION SCHEDULE") of
anticipated completion dates for the various phases of construction of the
Leasehold Improvements reasonably acceptable to Sublessor and Sublessee (herein
referred to, whether one or more, as the "CONSTRUCTION CONTRACT"). The
Construction Contract shall provide for a stipulated sum as the basis of
payment; require insurance coverage in amounts and types reasonably acceptable
to Sublessor; and contain other terms and conditions reasonably acceptable to
Sublessor. Unless mutually agreed to by Sublessor and Sublessee, or unless
required by Master Lessor, there shall be no specified subcontractors. The
Construction Schedule shall be in sufficient detail to allow Sublessor and
Sublessee to monitor the construction process and identify the scheduled dates
of completion for each material phase of construction. Sublessor and Sublessee
shall sign and date the Construction Schedule evidencing their acceptance and
agreement to the same. The Approved Contractor shall obtain all permits and
approvals from all appropriate governmental agencies necessary to commence and
complete construction and occupancy of the Leasehold Improvements.
3.4 The Leasehold Improvements shall be constructed by Sublessor at
Sublessee's cost and expense. The Construction Contract may provide, at
Sublessor's option, that the amounts due thereunder are paid directly by
Sublessee to the Approved Contractor, in which event Sublessee agrees to timely
pay such amounts in the manner required by the Construction Contract. Otherwise,
Sublessee will pay Sublessor each draw request or other xxxx or invoice due in
connection with the Leasehold Improvements within two business days after
Sublessee's receipt of a draw request or other evidence that payment is due
3.5 Within three days after acceptance of the Low Qualified
Construction Bid by Sublessor, Sublessee shall deposit with Sublessor an amount
equal to 10% of Sublessor's estimate of the Cost of the Leasehold Improvements.
This amount shall be used, if necessary, to cover any Cost of the Leasehold
Improvements that Sublessee fails to timely pay as required by Paragraph 3.4
above, without prejudice to any other remedy or remedies which Sublessor may
have on account thereof (including, without limitation, use of all or any part
of the Security Deposit), and upon such application of funds Sublessee shall
pay Sublessor on demand the amount so applied. Upon final payment of all Costs
of the Leasehold Improvements, Sublessor will return any unused portion of such
deposit to Sublessee.
3.6 Sublessee shall be responsible for all architectural and
engineering fees incurred in developing and preparing the Preliminary Space Plan
and the Final Plans.
C-5
41
4. SUBLESSOR'S APPROVAL
Sublessor may withhold its approval of the Preliminary Space Plan,
Sublessee's Final Plans, or any Change Order that, in Sublessor's sole and
absolute discretion:
4.1 Exceeds the capacity of or adversely affects the structural
integrity, exterior design and efficiency of the Building, or any part
thereof, or of the HVAC, heating, ventilating, air conditioning,
plumbing, mechanical, electrical, elevator, or boiler systems of the
Building;
4.2 Violates any agreement which affects the Subleased Premises or
binds Sublessor (including, without limitation, the Master Lease); or
4.3 Does not conform to applicable legal requirements (including
without limitation the ADA) or utility authority with jurisdiction over
the Subleased Premises.
5. REPRESENTATIVES
Sublessor appoints Sublessor's Representative to act for Sublessor in
all matters associated with this Construction Agreement. Sublessee appoints
Sublessee's Representative to act for Sublessee in all matters associated with
this Construction Agreement. All inquiries, requests, instructions,
authorizations, and other communications with respect to the matters covered by
this Construction Agreement will be made to Sublessor's Representative or
Sublessee's Representative, as the case may be. Sublessee's Representative and
Sublessor's Representative will fully cooperate with one another in connection
with the construction of the Leasehold Improvements. Either party may change its
representative under this Construction Agreement at any time by providing three
days, prior written notice to the other party.
6. CHANGE ORDERS
Sublessee may authorize changes to the Leasehold Improvements during
construction provided that all such changes are (i) submitted on the form
approved by Sublessor, and (ii) subject to Sublessor's prior written approval,
and provided that Sublessee deposits with Sublessor an amount equal to 10% of
Sublessor's estimate of the increase in the Cost of the Leasehold Improvements
as a result of the change order.
7. CONDITION OF THE SUBLEASED PREMISES
During the 15-day period following notice of substantial completion of
the Leasehold Improvements given to Sublessee by Sublessor, Sublessee's
Representative will conduct a walk-through
C-6
42
inspection of the Subleased Premises with Sublessor's Representative and prepare
a punch-list of items needing additional work by Sublessor. Other than the items
specified in the punchlist and subject to latent defects discovered by Sublessee
and Sublessor within the first twelve (12) months after the Commencement Date,
by taking possession of the Subleased Premises Sublessee will be deemed to have
accepted the Subleased Premises in their "as is" condition on the date of
delivery of possession and to have acknowledged that Sublessor has installed the
Leasehold Improvements as required by this Construction Agreement in accordance
with the Final Plans, and that there are no items needing additional work or
repair. Provided, however, the punchlist will not include any damage to the
Subleased Premises caused by Sublessee's move-in or early access. Damage caused
by Sublessee will be repaired or corrected by Sublessor at Sublessee's expense.
Sublessee acknowledges that neither Sublessor nor its agents or employees have
made any representations or warranties as to the suitability or fitness of the
Subleased Premises for the conduct of Sublessee's contemplated use or for any
other purpose, nor has Sublessor or its agents or employees agreed to undertake
any alterations or construct any improvements to the Subleased Premises except
as expressly provided in the Sublease and this Construction Agreement. If
Sublessee fails to submit a punch-list to Sublessor within 30 days of the date
of the walk-through inspection, it will be deemed that there are no items
needing additional work or repair. Sublessor's contractor will complete all
reasonable punchlist items as soon as reasonably practicable after receiving
Sublessee's punch-list.
8. SUBLESSOR DELAYS
If Sublessor shall be delayed in substantially completing the Leasehold
Improvements as a result of:
8.1 Delays by Sublessor in approving the Preliminary Space Plan,
Initial Plans and Specifications or Final Plans, or
8.2 Delays attributable to the failure of Sublessor to allow the
Approved Contractor and/or subcontractors and/or materialmen access to the
Subleased Premises,
8.3 Delays attributable to the failure of Sublessor to vacate and
deliver the Phase I and Phase II Premises by the Phase I and Phase II
Delivery Dates, respectively,
then, Sublessee's obligation for payment of Rent under the Sublease shall
be delayed by the number of days of such delay.
9. MASTER LESSOR'S APPROVALS
Notwithstanding anything contained in this Construction Agreement to
the contrary, if Sublessor determines that the consent
C-7
43
or approval of Master Lessor is required for any matter pertaining to the
construction of the Leasehold Improvements (including, without limitation,
approval of the Preliminary Space Plan, Initial Plans and Specifications, Final
Plans, Qualified Contractors, or any subcontractors), then the procedure set
forth in this Construction Agreement for approving the design of the Leased
Premises and completing the construction of the Leasehold Improvements shall in
all events be subject and subordinate to obtaining the consent or approval of
Master Lessor.
C-8
44
EXHIBIT "D"
RIGHT OF FIRST OPPORTUNITY
1. DEFINITIONS. All of the definitions set forth in the Sublease shall
be deemed applicable in this Exhibit as if reproduced herein in their entirety.
Other terms are defined in other Sections of this Exhibit, and as used herein
shall have the meanings assigned to them in that Section.
2. GRANT OF RIGHT OF FIRST OPPORTUNITY. Sublessor hereby grants to
Sublessee a right of first opportunity ("ROFO") with respect to one full floor
in the Building ("ROFO FLOOR"). The ROFO Floor shall not, however, include: (a)
any space that Sublessor desires to use (or inventory) for its own purposes; (b)
any space that Sublessor hereafter subleases to the then occupant of such space
(regardless of whether or not such future sublease is entered into pursuant to a
right granted in an existing sublease); (c) any space that Sublessor hereafter
subleases to an existing subtenant in the Building pursuant to existing rights
of such subtenant (regardless of whether or not such subtenant presently
subleases the subject space); or (d) any space that Sublessee fails to sublease
in accordance with Paragraph 3 below. The ROFO shall not be applicable during
any time when there is an uncured event of default under the Sublease.
3. EXERCISE OF ROFO. If a ROFO Floor in the Building becomes available,
availability, for purposes hereof, to be at the sole determination of Sublessor,
Sublessor shall so notify Sublessee.
(a) Sublessee shall have five days from the receipt of such
notice to notify Sublessor in writing of the exercise by Sublessee of
Sublessee's ROFO with respect to all, but not less than all, of the
ROFO Floor, which shall be on the same terms and conditions as this
Sublease except that if the ROFO is exercised during the period
commencing on the day following the second anniversary of the
Commencement Date and continuing through October 31, 1999 the Base Rent
for the ROFO Floor shall be $15.35 per square foot of Net Rentable Area
in the ROFO Floor.
(b) If Sublessee fails to so notify Sublessor within such
five-day period referenced in subparagraph (a) above, Sublessee shall
be deemed to have irrevocably waived its ROFO with respect to the
subject ROFO Floor, and this Exhibit shall thereafter be of no further
force or effect with respect to such floor of the Building. If
Sublessee elects to exercise its ROFO with respect to any ROFO Floor
and does in fact exercise such ROFO in the manner and within the time
period specified herein, Sublessor and Sublessee shall, within 30 days
after Sublessee delivers to Sublessor notice of its
D-1
45
election, enter into a written amendment modifying and supplementing
the Sublease in the manner required by subparagraph (a) above. If
Sublessee fails to enter into said amendment within such 30-day period,
Sublessee shall be deemed to have irrevocably waived its ROFO with
respect to the subject ROFO Floor, and this Exhibit shall thereafter be
of no further force or effect with respect to such floor of the
Building. Except as may be specifically modified in such amendment the
terms and provisions of the Sublease shall, on the day of delivery of
the ROFO Floor to Sublessee, automatically apply and become applicable
to the ROFO Floor; and the ROFO Floor, as of the date of such delivery,
shall automatically and without the necessity of further documentation,
become and be deemed to be a part of the Subleased Premises. Effective
as of the date of delivery of the ROFO Floor to Sublessee, the Net
Rentable Area within the ROFO Floor shall be included within the
determination of Sublessee's Percentage Share of Excess Operating
Expenses.
4. DELIVERY OF ROFO FLOOR. Any ROFO Floor shall be delivered to
Sublessee vacant and unoccupied and "as is" without benefit of improvements.
Sublessor shall use reasonable diligence to deliver the ROFO Floor on the date
specified in Sublessor's notice of its availability, but in no event shall
Sublessor have any liability for the failure to deliver the ROFO Floor to
Sublessee on such date, nor shall any such failure impair the validity of the
Sublease, extend the Sublease term, or impair any obligations of Sublessee under
the Sublease, it being understood that the Rent applicable to the ROFO Floor
shall be abated until possession is delivered to Sublessee in full settlement of
all claims that Sublessee might otherwise have against Sublessor by reason of
the failure to deliver possession of the ROFO Floor to Sublessee.
5. TERMINATION OF ROFO. The ROFO shall automatically terminate upon (a)
the termination of the Sublease term, whether by Sublessor upon the occurrence
of an event of default or otherwise, (b) the failure of Sublessee to exercise
the ROFO as and within the time period specified in Paragraph 3 above, but only
with respect to the subject ROFO Floor, (c) Sublessee's election to lease the
ROFO Floor (it being understood that the ROFO applies only to one floor in the
Building and terminates upon Sublessee's subleasing of any such floor) , and (d)
upon the assignment, subletting, or other transfer by sublessee, whether or not
with the approval of Sublessor, other than any sublease to Lacerte Financial,
Ltd. pursuant to Paragraph 14.5 of the Sublease.
D-2
46
EXHIBIT "E"
GUARANTY
1. FOR VALUE RECEIVED, and in consideration for, and as an inducement
to ORYX ENERGY COMPANY, a Delaware corporation ("SUBLESSOR"), to enter into the
Sublease Agreement ("SUBLEASE") dated as of November 18, 1994, with LACERTE
SOFTWARE COMPANY, a California corporation ("SUBLEASES"), the undersigned,
XXXXXXXX XXXXXXX, an individual (GUARANTOR), hereby absolutely and
unconditionally guarantees the full performance and observance of all the
covenants, duties and obligations (including, without limitation, the obligation
to pay all rent and other sums) therein provided to be performed and observed by
Sublessee, Sublessee's heirs, executors, administrators, successors and assigns
(the phrase "HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS" not
altering any of the provisions of the Sublease relating to assignment or
subletting) (such covenants, duties and obligations are herein called the
"GUARANTEED OBLIGATIONS"), and Guarantor hereby makes himself fully liable for
the performance of the Guaranteed obligations; provided, however, Guarantor's
liability under this Guaranty shall in no event exceed $735,324.68 plus any
costs incurred by Sublessor (including, but not limited to, attorneys' fees) in
collecting the Guaranteed Obligations (collectively, the "GUARANTY AMOUNT").
2. Guarantor expressly agrees that the validity of this Guaranty and
its obligations hereunder shall not be terminated, affected or impaired by
reason of the assertion by Sublessor against Sublessee of any of the rights or
remedies reserved under the Sublease. Guarantor further covenants and agrees
that this Guaranty and the full liability of Guarantor hereunder shall remain
and continue in full force and effect notwithstanding the occurrence of any one
or more of the following types of transactions: (i) any renewal, extension,
modification or amendment of the Sublease; (ii) any assignment or transfer by
Sublessor; (iii) any assignment or transfer or subletting by Sublessee; (iv) any
dissolution of Sublessee; or (v) the fact that Sublessee may be a party to any
merger, consolidation or reorganization; provided however, if Sublessee is a
disappearing party in any such merger, consolidation or reorganization, then
Guarantor shall thereupon automatically become primarily liable for the
performance of all the covenants, duties and obligations (including, without
limitation, the obligation to pay all rent and other sums) of Sublessee under
the Sublease, not to exceed the Guaranty Amount. Sublessor shall not be
obligated to give notice to Guarantor of the occurrence of any of the foregoing
events.
3. Failure of Sublessor to insist upon strict performance or observance
of any of the terms, provisions or covenants of the Sublease or to exercise any
right therein contained shall not be construed as a waiver or relinquishment for
the future of any such term, provision, covenant or right, but the same shall
continue and
E-1
47
remain in full force and effect. Receipt by Sublessor of rent (or any other
monetary sum or acceptance of performance of any obligation of Sublessee under
the Sublease) with knowledge of the breach of any provision of the Sublease
shall not be deemed a waiver of such breach. Waiver by Sublessor of any right of
Sublessor against Sublessee under the Sublease shall not constitute a waiver as
against Guarantor or in any other way inure to the benefit of Guarantor (unless
Sublessor agrees in writing that the liability of Guarantor under this Guaranty
is thereby affected).
4. Guarantor further agrees that in any right of action which shall
accrue to Sublessor under the Sublease, Sublessor may, at its option, proceed
against Sublessee alone (without having made any prior demand upon Guarantor or
having commenced any action against Guarantor of having obtained or having
attempted to satisfy any judgment against Guarantor) or may proceed against
Guarantor and Sublessee, jointly or severally, or may proceed against Guarantor
alone (without having made any prior demand upon Sublessee or having commenced
any action against Sublessee or having obtained or having attempted to satisfy
any judgment against Sublessee) or, in the case of there being more than one
Guarantor, may proceed against one or more Guarantors (without having made any
prior demand upon any other Guarantor or having commenced any action against any
other Guarantor or having obtained or attempted to satisfy any judgment against
any other Guarantor).
5. Guarantor further covenants and agrees that if the Sublease
terminates and Sublessor has any rights it can enforce against Sublessee after
termination, Sublessor may enforce those rights against Guarantor without prior
notice to or demand upon Sublessee.
6. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA.
7. Guarantor specifically waives any notice of acceptance of this
Guaranty by Sublessor.
8. If any obligation of Sublessee under the Sublease is secured, in
whole or in part, by collateral of any type Sublessor may, from time to time, at
its discretion and with or without valuable consideration, allow substitution or
withdrawal of all or any part of such collateral or subordinate or waive any of
its lien rights with respect to all or any part of such collateral or release
all or any part of such collateral, without notice to or consent of Guarantor
and without in any way impairing, diminishing or releasing the liability of
Guarantor under this Guaranty. Under no circumstances shall Sublessor be
required to first resort to any collateral for any obligation of Sublessee as
any nature of prerequisite or precondition to invoking or enforcing the
liability of Guarantor under this Guaranty.
X-0
00
0. Xxxxxxxxx acknowledges and represents to Sublessor that Sublessee
executed the Sublease and Guarantor executed this Guaranty prior to the time
that Sublessor executed the Sublease. Guarantor acknowledges and agrees that the
execution and delivery of this Guaranty by Guarantor to Sublessor has served as
a material inducement to Sublessor to execute and deliver the Sublease.
Guarantor further acknowledges and agrees that but for the execution and
delivery of this Guaranty by Guarantor, Sublessor would not have executed and
delivered the Sublease.
10. Guarantor agrees that in the event that Sublessee shall become
insolvent or shall be adjudicated a bankrupt, or shall file petition for
reorganization, rearrangement or other relief under any present or future
provisions of the Federal Bankruptcy Code, or if such a petition be filed by
creditors of Sublessee, or if Sublessee shall seek a judicial readjustment of
the rights of its creditors under any present or future Federal or state law or
if a receiver of all or part of its property and assets is appointed by any
State or Federal court, no such proceeding or action taken therein shall modify,
diminish or in any way affect the liability of Guarantor under this Guaranty and
the liability of Guarantor with respect to the Sublease shall be of the same
scope as if Guarantor had executed the Sublease as the named subtenant
thereunder. No rejection or termination of the Sublease in any of the
proceedings referred to in this paragraph shall be effective to release or
terminate the continuing liability of Guarantor to Sublessor under this Guaranty
with respect to the Sublease for the remainder of the Sublease term stated
therein unaffected by any such rejection or termination in said proceedings.
11. All rights of Guarantor against Sublessee arising by way of
subrogation on account of Guarantor's having performed some covenant, duty or
obligation of Sublessee under the Sublease shall be subject and subordinate to
all of the rights of Sublessor against Sublessee with respect to the Sublease.
Guarantor shall not exercise any such right of Guarantor against Sublessee until
all of the covenants, duties and obligations of Sublessee under the Sublease
shall have been fully performed.
12. The stated rights of Sublessor under this Guaranty shall be
understood as not excluding any other legal or equitable rights of Sublessor
against Guarantor not expressly set forth herein, but shall be understood as
being cumulative to all such other legal and equitable rights of Sublessor not
expressly stated herein.
13. Whenever this Guaranty is executed by more than one party as
Guarantor, all references herein to Guarantor shall refer to each and all of the
undersigned parties signing this Guaranty as Guarantor, and the liability of
said parties for the performance of the covenants, duties and obligations of
Guarantor hereunder shall be joint and several.
X-0
00
00. Should any portion of this Guaranty ever be held legally invalid or
unenforceable, the balance of this Guaranty shall not thereby be affected, but
shall remain in full force and effect in accordance with its terms and
provisions.
15. All terms and provisions hereof shall inure to the benefit of the
assigns and successors of Sublessor and shall be binding upon the heirs,
executors, administrators, successors and assigns of Guarantor.
16. In any action between the parties seeking enforcement or
interpretation of this Guaranty or the Sublease, the prevailing party in such
action shall be awarded, in addition to damages, injunctive or other relief, its
reasonable cost and expenses, and a reasonable attorneys' fee as may be fixed by
the court having jurisdiction over the matter.
17. This Guaranty was reviewed by Guarantor, and Guarantor acknowledges
and agrees that Guarantor (a) understands fully all of the terms of this
Guaranty and the consequences and implications of Guarantor's execution of this
Guaranty, and (b) has been afforded an opportunity to have this Guaranty
reviewed by, and to discuss the terms, consequences and implications of this
Guaranty with, an attorney or such other persons as Guarantor may have desired.
18. The address for Guarantor prior to the Commencement Date of the
Sublease shall be: Xxxxxxxx Xxxxxxx, Lacerte Software Corporation, 0000 XXX
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000; and the address of Guarantor
after the Commencement Date of the Sublease shall be: Xxxxxxxx Xxxxxxx, Xxxxxxx
Software Corporation, 00000 Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
EXECUTED in multiple counterparts, each of which shall have the force
and effect of an original, on this the _____ day of November, 1994.
GUARANTOR:
---------------------------------------
XXXXXXXX XXXXXXX
E-4
50
FIRST AMENDMENT TO OFFICE BUILDING SUBLEASE
THIS FIRST AMENDMENT TO OFFICE BUILDING SUBLEASE ("FIRST AMENDMENT") is
made and entered into effective as of the 24th day of February, 1995 by and
among ORYX ENERGY COMPANY, a Delaware corporation ("SUBLESSOR"), LACERTE
SOFTWARE CORPORATION, a California corporation ("SUBLESSEE"), and XXXXXXXX
XXXXXXX ("GUARANTOR")
Recitals
A. Sublessor and Sublessee entered into an Office Building Sublease
dated as of November 18, 1994 (the "SUBLEASE"), whereby Sublessee subleased
from Sublessor approximately 110,161 square feet of Net Rentable Area in the
office building known as the Oryx Energy Center, located at 00000 Xxxx Xxxx,
Xxxxxx, Xxxxx (the "BUILDING"). Unless otherwise defined herein, all capitalized
Terms used in this First Amendment shall have the same meanings ascribed to them
in the Sublease.
B. All of Sublessee's obligations under the Sublease are guaranteed by
Guarantor pursuant to a Guaranty (herein so called) executed and delivered by
Guarantor along with the Sublease.
C. Sublessor and Sublessee now desire to amend the Sublease in
accordance with the terms of this First Amendment, and Guarantor is joining
herein to evidence its consent and agreement to this First Amendment.
Agreements
NOW, THEREFORE, for and in consideration of the sum of $10.00 and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Sublessor and Sublessee hereby agree as follows:
1. TERM. Paragraph 3 of the Sublease is deleted in its entirety and replaced
with the following:
"3. TERM.
3.1 Term. The term of this Sublease shall begin on the Commencement
Date (as defined below), and end at midnight on October 31, 2001 (the
"EXPIRATION Date"). The "COMMENCEMENT DATE" shall be the earlier of the date
upon which Sublessee first occupies for business purposes any portion of the
Subleased Premises or August 1, 1995. Immediately after occupying the Subleased
Premises, Sublessee shall execute and deliver to Sublessor a statement prepared
by Sublessor confirming the Commencement Date and the Expiration Date.
3.2 Delivery of Subleased Premises. Sublessee acknowledges that
Sublessor presently occupies the Subleased Premises. Sublessor will vacate the
Subleased Premises and
51
deliver the same to Sublessee by or before May 1, 1995 (the "DELIVERY DATE");
provided, however, Sublessor shall have the right to delay the Delivery Date
until May 31, 1995, but each day of such delay shall constitute a "SUBLESSOR
DELAY" (as such term is defined in Exhibit "C" [Construction Agreement]
attached to this Sublease). If Sublessor has not vacated the Subleased Premises
and delivered the same to Sublessee by May 31, 1995, Sublessee, as its sole and
exclusive remedy, shall have the right to terminate this Sublease at any time
prior to the vacation and delivery of the Subleased Premises by Sublessor.
3.3 Commencement of Rent obligations. Rent for the Subleased Premises
and the Existing Furniture (as defined in Paragraph 22) shall commence on the
Commencement Date."
2. SUBLESSOR DELAYS. Paragraph 8.3 of Exhibit "C" (Construction Agreement) to
the Sublease is deleted in its entirety and replaced with the following:
"8.3 Delays attributable to the failure of Sublessor to vacate and
deliver the Subleased Premises by the Delivery Date".
3. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. The first sentence of Paragraph 12.1
of the Sublease is deleted in its entirety and replaced with the following:
"Sublessee shall not make any alterations, additions or improvements to
the Subleased Premises without first obtaining the written consent of
Sublessor (which consent shall not be unreasonably withheld) and the
written consent of Master Lessor (to the extent Sublessor determines
that the consent of Master Lessor is required under the Master Lease)."
4. EXCULPATION. The last sentence of Paragraph 16 is deleted in its entirety.
5. PARKING. Paragraph 19 of the Sublease is deleted in its entirety and replaced
with the following:
"19. PARKING.
During the term of this Sublease, Sublessee shall have the
right to use 330 parking spaces in the "PARKING FACILITY" (as defined
in the Master Lease). Sublessee's parking spaces shall be located in
the Parking Facility, with 13 of the parking spaces being underground
reserved spaces in locations designated by Sublessor, and 317 of the
parking spaces being general unreserved spaces. The parking spaces
shall be provided to Sublessee at no charge. Sublessor, at Sublessor's
sole cost and expense, shall obtain from Master Lessor access cards for
the Parking Facility in an amount reasonably requested by Sublessee for
use by its then current employees maintaining offices in the Subleased
Premises, but in no event
-2-
52
more than 330. Sublessor will cause the access cards to be issued to
Sublessee promptly following Sublessee's periodic requests therefor.
All such access cards shall remain the property of Master Lessor. Upon
termination of this Sublease, Sublessee, shall surrender to Master
Lessor all such access cards. Sublessee's use of the spaces in the
Parking Facility are subject to all restrictions in the Master Lease.
Sublessor will not issue more access cards to its employees and
subtenants than the number to which it is entitled under the Master
Lease. Sublessee shall have no parking rights under this Sublease or
the Master Lease, except as expressly set forth herein."
6. LEASE OF EXISTING FURNITURE. Paragraph 22 of the Sublease is deleted in its
entirety and replaced with the following:
"22. LEASE OF EXISTING FURNITURE.
(a) Terms of Furniture Lease. In addition to the Subleased
Premises, Sublessor also hereby leases to Sublessee, and Sublessee
hereby leases from Sublessor, all of the furniture presently situated
in the Subleased Premises (the "EXISTING Furniture"). The Existing
Furniture is hereby leased on the same terms and conditions as provided
in this Sublease for the subleasing of the Subleased Premises, except
that: (a) the term of the lease for the Existing Furniture shall begin
on the Commencement Date and end at midnight on the Furniture Lease
Expiration Date (hereinafter defined), upon which date Sublessee shall
return the Existing Furniture to Sublessor in the same or better
condition than the condition in which the Existing Furniture existed on
the date on which this Sublease was executed, normal wear and tear
excepted; and (b) the monthly rental for the Existing Furniture shall
be 1/12th of the product of the number of square feet of Net Rentable
Area in the Subleased Premises times $1.00 (ie $9,180.08) (the
"FURNITURE Rent").
(b) Furniture Lease Expiration Date. On or before September 1,
2000, Sublessor will advise Sublessee of the Furniture Lease Expiration
Date. Sublessor's right to possess the Existing Furniture currently
expires December 31, 2000. Accordingly, the "FURNITURE LEASE EXPIRATION
DATE" shall be either (a) December 31, 2000, or (b) if Sublessor
obtains the right to possess the Existing Furniture beyond December 31,
2000 (by reason of Sublessor purchasing the Existing Furniture or
extending its lease of the Existing Furniture), the earlier of the
Expiration Date, or (ii) the date on which Sublessor's right to possess
the Existing Furniture expires. If Sublessor is given the opportunity
to purchase the Existing Furniture but elects not to do so, Sublessor
will use reasonable efforts to give Sublessee the same purchase
opportunity given to Sublessor; provided, however, Sublessor will not
be required to incur any costs or liabilities in connection therewith.
-3-
53
(c) Payment of Furniture Rent. Each installment of Furniture
Rent shall be due on or before the first day of each month during the
term of the lease of the Existing Furniture and shall be paid to
Sublessor at its address as set forth in Paragraph 24.4 (or as later
changed pursuant thereto) without notice, demand, abatement, deduction,
diminution, or offset. Monthly installments of Furniture Rent shall be
prorated for any period during the term hereof which is less than a
full calendar month. The initial installment of Furniture Rent shall be
paid upon the Commencement Date.
(d) Furniture Inventory. On or before the Delivery Date,
Sublessor and Sublessee will prepare an inventory confirming the type,
amount and condition of the Existing Furniture. Sublessee acknowledges
that it will have thoroughly inspected the Existing Furniture as of the
Delivery Date, and that except as agreed by Sublessor and Sublessee in
writing as an attachment to the Existing Furniture inventory, the
Existing Furniture will be deemed to have been delivered to Sublessee
in a first-class condition as of such date."
7. COMMUNICATIONS EQUIPMENT. Paragraph 23 of the Sublease is deleted in its
entirety and replaced with the following:
"23. Communications Equipment.
Sublessee shall have the right to contract with a cable
company to have cable television services brought into the Building and
Subleased Premises, and Sublessor will permit such cable services to be
brought into the Building and Subleased Premises provided that
Sublessee pays all costs associated therewith, including, without
limitation (a) any costs associated with installing the cabling, (b)
any costs associated with removing the cabling upon the termination of
this Sublease, and (c) any costs associated with maintaining such cable
service. if Sublessor or any other occupant of the Building should
contract with Sublessee's cable provider to have cable services brought
to other portions of the Building, and if such contracting party is
serviced by the same cabling equipment paid for by Sublessee, then such
party shall pay Sublessee $2,500 as a partial reimbursement of the
original costs paid by Sublessee to the cable company for installation
costs; provided, however, the aggregate amount of such reimbursements
shall not exceed the actual amounts paid by Sublessee to the cable
company for the initial cable installation.
8. RIGHT OF FIRST OPPORTUNITY. Clause (b) of Paragraph 2 of Exhibit "D" to the
Sublease is deleted in its entirety and replaced with the following:
"(b) any space that Sublessor hereafter re-subleases to an
existing subtenant of such space (regardless of whether or not such
future sublease is entered into pursuant to a right granted in an
existing sublease);".
-4-
54
9. SUBLEASE REFERENCES. All references or matters in the Sublease inconsistent
with the terms of this First Amendment are hereby revised so as to be consistent
with this First Amendment.
10. NO ADDITIONAL MODIFICATIONS. Except as amended hereby, the Sublease remains
unchanged and in full force and effect.
EXECUTED as of the day and year first above written.
SUBLESSOR:
----------
ORYX ENERGY COMPANY,
a Delaware corporation
BY: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: CEO
-----------------------------
SUBLESSEE:
----------
LACERTE SOFTWARE CORPORATION,
a California corporation
By: /s/ XXXXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
-----------------------------
Title: President - CEO
-----------------------------
55
CONSENT AND AGREEMENT OF GUARANTOR
For good, valuable, sufficient, and received consideration, and as a
material inducement to Sublessor to execute and deliver this First Amendment,
Guarantor hereby acknowledges and consents to each and every of the terms and
conditions of this First Amendment and, as a further material inducement to
Sublessor to execute and deliver this First Amendment, [Guarantor] hereby agrees
that each and every one of the terms and conditions of the Guaranty is in full
force and effect and unaffected by the terms of this First Amendment. Guarantor
hereby covenants and agrees that from and after the date hereof, all of the
terms, covenants, provisions, representations and warranties contained in the
Guaranty shall extend and apply to all of the obligations of Sublessee under
the Sublease, as amended by this First Amendment. Guarantor acknowledges that
there are no claims or offsets against, or defenses or counterclaims to, the
Guaranty.
GUARANTOR:
/s/ XXXXXXXX XXXXXXX
------------------------------------
XXXXXXXX XXXXXXX
-6-
56
SECOND AMENDMENT TO OFFICE BUILDING SUBLEASE
THIS SECOND AMENDMENT TO OFFICE BUILDING SUBLEASE ("SECOND AMENDMENT")
is made and entered into effective as of the 30th day of March, 1999, by and
between XXXX-XXXXX CORPORATION, a Delaware corporation ("SUBLESSOR"), LACERTE
SOFTWARE CORPORATION, a California corporation ("SUBLESSEE").
Recitals
A. Sublessor and Sublessee entered into an Office Building Sublease
dated as of November 18, 1994 (the "ORIGINAL Sublease"), whereby Sublessee
subleased from Sublessor approximately 110,161 square feet of Net Rentable
Area located on floors 18, 19, 20, 21 and 22 of the office building known as the
Oryx Energy Center, located at 00000 Xxxx Xxxx, Xxxxxx, Xxxxx (the "BUILDING").
B. The Original Sublease was amended pursuant to a certain First
Amendment to Office Building Sublease ("FIRST AMENDMENT") dated to be effective
as of February 24, 1995. The Original Sublease, together with the First
Amendment, are hereinafter referred to collectively as the "SUBLEASE", and
unless otherwise defined herein, all capitalized terms used in this Second
Amendment shall have the same meanings as ascribed to them in the Sublease. All
of Sublessee's obligations under the Original Sublease are guaranteed by
Guarantor pursuant to a Guaranty (herein so called) executed and delivered by
the Guarantor along with the Original Sublease.
C. Sublessee now desires to sublease additional rentable area on the
second (2nd) floor of the Building and Sublessor is willing to sublease such
additional space to Sublessee upon the terms and conditions contained in this
Second Amendment.
Agreements
NOW, THEREFORE, for and in consideration of the sum of $10.00 and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Sublessor and Sublessee hereby agree as follows:
1 INCREASE IN NET RENTABLE Area. The number of square feet of Net
Rentable Area contained in the Subleased Premises is hereby amended and
increased by 21,030 square feet of Net Rentable Area (the "ADDITIONAL
SPACE"). Accordingly, the Net Rentable Area in the Subleased Premises
is increased from 110,161 square feet to 131,191 square feet. The
Additional Space constitutes all of the Net Rentable Area on the 2nd
floor of the Building, and by the terms of this Second Amendment,
becomes a part of the Subleased Premises. Except as expressly provided
in this Second Amendment, the Additional Space shall be subject to all
the terms and conditions of the Sublease.
2. ADDITIONAL SPACE COMMENCEMENT DATE AND TERM. The Additional Space
Commencement Date (herein so called) shall be the later of June 1, 1999
or 21 days following delivery of the Additional Space. The Expiration
Date of the Term of the Sublease, as it relates to the Additional
Space, shall be October 31, 2001.
57
3. DELIVERY OF ADDITIONAL SPACE. The Additional Space shall be delivered
to Sublessee after April 5, 1999 and not later than May 10, 1999. If
the Additional Space has not been delivered by May 10, 1999, Sublessee
shall have the right to terminate this Second Amendment by providing
written notice to Sublessor. The Additional Space shall be delivered to
Sublessee in its "as-is" condition, and Sublessor shall have no
obligation whatsoever to provide any allowance or perform any work on
the Additional Space prior to delivery thereof to Sublessee, and
Sublessee, by its execution of this Second Amendment, accepts the
Additional Space in such condition and on such terms.
4. RENT ADJUSTMENT. From and after the Additional Space Commencement Date,
the Base Rent reflected in Paragraph 4.1 of the Sublease is amended and
increased to reflect the Base Rent attributable to the Additional Space
(i.e., by $43,812.50 per month).
5. OPERATING EXPENSES ADJUSTMENT. From and after the Additional Space
Commencement Date, Sublessee's Percentage Share of Excess Operating
Expenses reflected in Paragraph 5 of the Sublease is amended and
increased to reflect the increase in Net Rentable Area as a result of
the inclusion of the Additional Space; provided, however, in
determining Sublessee's Percentage Share of Excess Operating Expenses
as it relates to the Additional Space, the Base Year shall be defined
to mean the calendar year 1999.
6. PARKING. In addition to the 330 parking spaces currently assigned to
Sublessee which shall not be disturbed or recinded, Paragraph 19 of the
Sublease is hereby amended to provide that Sublessee shall have the
right to use up to an additional sixty-three (63) parking spaces at no
charge in the Parking Facility. Additionally, Sublessee shall have the
right to use up to fifty (50) parking spaces in the Parking Facility on
a month-to-month, as-available basis, as determined by Sublessor, at
$40.00 per space per month. The parking spaces provided to Sublessee in
the Parking Facility shall be general unreserved spaces. Sublessee's
use of the additional parking spaces in the Parking Facility is subject
to all restrictions in the Master Lease. Sublessee shall have no
parking rights under the Sublease or the Master Lease except as
expressly set forth herein and in the Sublease.
7. LEASE OF EXISTING FURNITURE. Paragraph 22 of the Sublease is hereby
amended to (a) include the Existing Furniture in the Additional Space
to the terms and provisions thereof, and (b) increase the monthly
Furniture Rent by $1,752.50 (i.e., one-twelfth [1/12th] of the product
of the number of square feet of Net Rentable Area in the Additional
Space times $1.00) so that the total Furniture Rent pursuant to the
terms of Paragraph 22 shall be $10,932.58.
8. SUBLEASE REFERENCES. All references or matters in the Sublease
inconsistent with the terms of this Second Amendment are hereby revised
so as to be consistent with this Second Amendment.
9. NO ADDITIONAL MODIFICATIONS. Except as amended hereby, the Sublease
remains unchanged and in full force and effect, and by their execution
hereof, Sublessor and Sublessee ratify and confirm all of terms and
provisions thereof.
SECOND AMENDMENT TO OFFICE BUILDING SUBLEASE - Page 2
58
EXECUTED as of the day and year first above written.
SUBLESSOR:
XXXX-XXXXX CORPORATION,
a Delaware corporation
By:
/s/ XXXX X. XXXXXXX
-----------------------------------------
Printed Name: Xxxx X. Xxxxxxx
---------------------------
Title: Vice President Administration
----------------------------------
SUBLESSEE:
LACERTE SOFTWARE CORPORATION,
a California operation
By:
/s/ XXXXXXX X. XXXXXX
-----------------------------------------
Printed Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: President
----------------------------------
SECOND AMENDMENT TO OFFICE BUILDING SUBLEASE - PAGE 3
