EXHIBIT 10.1
FIFTH AMENDMENT TO LEASE CONTRACT
THIS FIFTH AMENDMENT TO LEASE CONTRACT (this "AMENDMENT") is entered
into between CRESCENT REAL ESTATE FUNDING III, L.P., a Delaware limited
partnership ("LANDLORD"), and BISYS, INC., a Delaware corporation, ("TENANT"),
with reference to the following:
A. Nine Greenway Venture (predecessor-in-interest to Landlord) and Automatic
Data Processing, Inc. (predecessor-in-interest to Tenant) entered into that
certain Lease Contract dated June 30, 1986 and First Amendment of Lease Contract
dated April 30, 1987; and Nine Greenway, Ltd. and Tenant entered into a Second
Amendment of Lease Contract dated November 2, 1990, a Third Amendment of Lease
Contract dated April 18, 1991, and a Lease Extension and Fourth Amendment of
Lease Contract dated October 1, 1993 (as amended, the "LEASE") currently
covering approximately 58,568 square feet of Rentable Area on the second (2nd),
third (3rd) and fourth (4th) floors (the "LEASED PREMISES") of Eleven Greenway
Plaza, Houston, Texas (the "BUILDING").
B. Tenant desires to surrender a portion of the Leased Premises to Landlord
consisting of approximately 11,770 square feet of Rentable Area as shown on
EXHIBIT "A-1", attached hereto and incorporate herein (the "REDUCTION SPACE"),
thereby leaving the balance of the Leased Premises consisting of approximately
46,798 square feet of Rentable Area as shown on EXHIBIT "A-2" (the "LEASED
PREMISES"). Landlord is willing to accept the surrender of the Reduction Space
on the terms and conditions set forth below.
C. Landlord and Tenant also desire to further amend the Lease as set forth
below. Unless otherwise expressly provided in this Amendment, capitalized terms
used in this Amendment shall have the same meanings as in the Lease.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. SECOND EXTENSION PERIOD. The term of the Lease is extended for the period
(the "SECOND EXTENSION PERIOD") commencing on November 1, 2001, and expiring on
October 31, 2008.
2. SPACE REDUCTION. The Lease is amended to provide that, effective as of 11:59
p.m. on October 31, 2001 (the "EFFECTIVE Date"), (a) the Reduction Space shall
be subtracted from the Leased Premises, (b) the floor plan drawings attached to
the Lease as EXHIBIT "A" shall be deleted and replaced with EXHIBIT "A-2"
attached to this Amendment, and (c) the term, "LEASED PREMISES," as used in the
Lease shall mean and include approximately 46,798 square feet of Rentable Area
being the entirety of the third (3rd) and fourth (4th) floors of the Building,
being the Rentable Area of the Leased Premises. As of the Effective Date, (i)
Tenant shall no longer have any right to occupy and/or use the Reduction Space,
(ii) the Lease shall be deemed terminated with respect to the Reduction Space,
and (iii) neither Tenant nor Landlord shall have any further liability or
obligation to the other with respect to the Reduction Space, except for those
items that survive the termination of the Lease pursuant to its terms and except
as specifically set forth in this Amendment.
3. TENANT'S OBLIGATIONS. By the Effective Date, Tenant shall have (a) peaceably
vacated and surrendered the Reduction Space to Landlord broom-clean, subject
only to (i) ordinary and customary wear and tear, and (ii) damage resulting from
a fire or other casualty, and otherwise in accordance with the applicable
provisions of the Lease; (b) paid to Landlord any and all rent and other known
amounts owed to Landlord through and including the Effective Date pursuant to
the terms of the Lease (including any additional rental), but Landlord and
Tenant shall reconcile any overpayment or underpayment of additional rental for
the current calendar year (and if not yet reconciled, for the prior calendar
year), and other amounts owed by Tenant under the Lease, when the actual
amount(s) is/are known; (c) removed from the Reduction Space all persons
occupying and using the Reduction Space and removed from the Reduction Space all
personal property (other than fixtures) owned by Tenant, except for those items
otherwise conveyed to Landlord pursuant to the Lease or any other written
agreement between the parties; and (d) returned to Landlord all suite keys,
restroom keys, access cards to the parking facilities, and security cards issued
to Tenant used solely in connection with the Reduction Space.
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4. ACCESS. Landlord may prohibit access by Tenant to the Reduction Space after
the Effective Date by changing the locks to the Reduction Space or by any other
means permitted by the Lease, at law or in equity.
5. REMOVAL OF PROPERTY.
(a) Notwithstanding anything in the Lease to the contrary, all
permanent or built-in fixtures or improvements and all mechanical, electrical
and plumbing equipment in the Reduction Space shall be and remain the property
of Landlord as of the Effective Date. All furnishings, equipment, furniture,
trade fixtures and other removable equipment installed in the Reduction Space by
Tenant and paid for by Tenant shall remain the property of Tenant and shall be
removed by Tenant on or before the Effective Date (unless otherwise agreed by
Landlord and Tenant in writing). Tenant shall promptly reimburse Landlord for
the actual cost to repair any damage caused by such removal, and shall pay
Landlord the actual cost of such repair for which Tenant may be billed after the
Effective Date.
(b) If any furnishings, equipment, furniture, trade fixtures or other
removable equipment are not removed on or before the Effective Date, Tenant
grants to Landlord the option, exercisable at any time thereafter without the
requirement of any notice to Tenant, (i) to treat such property, or any part of
such property, as being abandoned by Tenant to Landlord, in which event Landlord
shall be deemed to have full rights of ownership in such abandoned property;
provided however, that Landlord shall not assume title to, or an ownership
interest in, any "solid waste," "hazardous waste," or other material regulated
by or subject to any applicable environmental, health or safety laws, and any
such material may be disposed of in accordance with such laws at Tenant's sole
cost and expense, with reimbursement therefor to be made by Tenant to Landlord
upon demand; (ii) to elect to remove and store such property, or any part of
such property, on Tenant's behalf (but without assuming any liability to any
person) and at Tenant's sole cost and expense, with reimbursement therefor to be
made by Tenant to Landlord upon demand; and/or (iii) to sell, give away, donate
or dispose of as trash or refuse any or all of such property without any
responsibility to deliver to Tenant any proceeds from such disposition. Landlord
shall have no liability of any kind whatsoever to Tenant in respect of the
exercise or failure to exercise the options set forth in this PARAGRAPH 5.
Specifically, Tenant shall not have the right to assert against Landlord a claim
either for the value, or the use, of any such property, either as an offset
against any amount of money owing to Landlord or otherwise. The provisions of
this PARAGRAPH 5 shall supersede the applicable provisions of the Texas Property
Code, specifically including without limitation Section 93.002(d) and (e)
thereof, as amended from time to time, and any other law purporting to restrict
the options granted to Landlord in this PARAGRAPH 5.
6. BASE RENTAL. Commencing on November 1, 2001 and continuing through the Second
Extension Period, Tenant shall, at the time and place and in the manner provided
in the Lease, pay to Landlord as Base Rental for the Leased Premises the amounts
set forth in the following rent schedule, plus any applicable tax thereon:
LEASED PREMISES
MONTHLY
FROM THROUGH RATE BASE RENTAL
----- ------- ----
November 1, 2001 October 31, 2003 $20.00 $77,996.67
November 1, 2003 October 31, 2004 $21.00 $81,896.50
November 1, 2004 October 31, 2005 $22.00 $85,796.33
November 1, 2005 October 31, 2008 $23.00 $89,696.17
7. BUILDING OPERATING COST. Tenant's pro rata share of increases in Building
Operating Costs payable under PARAGRAPH 13 of the Lease shall be decreased to
take the Reduction Space into consideration. Tenant's current proportionate
share of Building Operating Costs based upon 46,798 rentable square feet is
6.40%. The Base Year for determining Tenant's pro rata share of increases in
Building Operating Costs for the Leased Premises shall be calendar year 2002.
Building Operating Costs are computed on an accrual basis in accordance with
sound accounting principles consistently applied. Notwithstanding anything
contained in the Lease, the cost of bringing the 3rd and 4th floor restrooms
into compliance with the Americans with Disabilities Act shall not be passed
through as a Building Operating Cost (as defined below) which shall be at
Landlord's sole cost and expense as outlined in Paragraph 4(e) of the
Construction Agreement.
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8. UTILITY DEREGULATION. Landlord reserves the right to select the provider of
electrical services to the Building. To the fullest extent permitted by Law,
Landlord shall have the continuing right, upon 30 days written notice, to change
such utility provider and install a submeter for the Leased Premises at Tenant's
sole cost and expense. To the extent of savings recognized, all charges and
expenses incurred by Landlord due to any such changes in electrical services,
including maintenance, repairs, installation and related costs, shall be
included in the Operating Costs, unless paid directly by Tenant. If submetering
is installed for the Leased Premises, Landlord may charge for Tenant's actual
electrical consumption monthly in arrears at commercially reasonable rates
determined by Landlord (plus, to the fullest extent permitted by applicable
Laws, Landlord's then quoted administrative fee for such submetering), except as
to electricity directly purchased by Tenant from third party providers after
obtaining Landlord's consent to the same. Even if the Leased Premises are
submetered, Tenant shall remain obligated to pay Tenant's proportionate share of
the cost of electrical services, except that Tenant shall be entitled to a
credit against electrical services costs equal to that portion of the amounts
actually paid by Tenant separately and directly to Landlord which are
attributable to building standard electrical services submetered to the Leased
Premises.
9. CONDITION OF LEASED PREMISES.
(a) Tenant accepts the Leased Premises in its "as-is" condition.
However, any necessary construction of leasehold improvements shall be
accomplished and the cost of such construction shall be paid in accordance with
the "CONSTRUCTION AGREEMENT" between Landlord and Tenant attached to this
Amendment as EXHIBIT "C". Except as expressly provided in the Construction
Agreement, Tenant acknowledges that Landlord has not undertaken to perform any
modification, alteration or improvement to the Leased Premises. BY TAKING
POSSESSION OF THE LEASED PREMISES, TENANT WAIVES (i) ANY CLAIMS DUE TO DEFECTS
IN THE LEASED PREMISES EXCEPT (A) MINOR FINISH ADJUSTMENTS IN WORK PERFORMED BY
LANDLORD ("Punchlist Items") SPECIFIED IN REASONABLE DETAIL BY TENANT
CONTEMPORANEOUSLY WITH TAKING POSSESSION, AND (B) LATENT DEFECTS IN LANDLORD'S
WORK (AS DEFINED IN THE CONSTRUCTION AGREEMENT) OF WHICH TENANT NOTIFIES
LANDLORD WITHIN ONE YEAR AFTER TAKING POSSESSION; AND (ii) ALL EXPRESS AND
IMPLIED WARRANTIES OF SUITABILITY, HABITABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE. Except to the extent otherwise expressly provided in this Amendment,
Tenant waives the right to terminate the Lease due to Punchlist Items or the
condition of the Leased Premises.
(b) Landlord shall use commercially reasonable efforts to commence
construction upon lease execution and complete construction in accordance with a
construction schedule mutually agreed to by Landlord and Tenant.
10. ASBESTOS. Landlord advises Tenant that, based on asbestos survey reports for
the Building prepared by Law Engineering dated September 4, 1985 and by
XxXxxxxxxx Management Services dated June 25, 1990 and June 15, 1991, nonfriable
asbestos-containing materials are present in Eleven Greenway Plaza in (i)
12"x12" floor tile and mastic at various Tenant suites and service elevator
lobbies; and (ii) the thermal insulation on miscellaneous pipe fittings and the
"white" mastic on the thermal pipe insulation seams in the mechanical rooms of
the Building. Landlord shall be responsible for any costs associated with any
required asbestos removal.
11. PARKING. The provisions in the Lease pertaining to parking do not apply to
the Leased Premises. However, commencing on November 1, 2001, Landlord shall
provide parking permits in connection with the Leased Premises on the following
terms and conditions:
A. Unreserved Parking: Landlord shall, at Tenant's option,
provide Tenant up to three and one-half (3.5) unreserved
permits per 1,000 square feet of Rentable Area leased and
occupied by Tenant in the Leased Premises allowing access to
the Houston City Club Garage (the "HCCG"), the North Richmond
Garage, and the Edloe Street Garage, (collectively, the
"GARAGES"), except as otherwise expressly provided below.
Landlord shall have the right, at any time and from time to
time, to change the designation of such parking garages and/or
parking areas. At such time, Landlord shall have the option to
reissue all or a portion of Tenant's permits to reflect the
changes in parking locations. Landlord shall use commercially
reasonable efforts to maintain Tenant's parking in its current
parking garage locations; however, in no event shall less than
47% of the parking permits utilized by Tenant be located in
the HCCG. During the first twenty-four (24) months of the
Second Extension Period, Tenant shall pay the rates set forth
below for such unreserved permits in the Garages:
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Xxxxx Xxxxxxxx Garage: $40.00
Houston City Club Garage: $60.00 - $70.00*
Edloe Street Garage $40.00
* depending on location
Thereafter, said rates will be subject to increases
of 10% per annum (with annual compounding). In no event shall
Tenant's rate be more than the Landlord's then quoted monthly
parking rates.
B. Reserved Parking: Tenant shall have the right to convert up to
twelve (12) of its unreserved permits to reserved permits
providing access to the HCCG in locations determined by
Landlord, in its sole discretion. Landlord shall use
commercially reasonable efforts to maintain Tenant's reserved
parking in its current locations, but may relocate said spaces
to other areas of the HCCG, so long as such location is
approximately the same distance to entry points and stairwells
as the original locations. Tenant shall pay Landlord its
quoted monthly contract rate (as set from time to time) for
such reserved permits, which rate is currently quoted as
Eighty and No/100 Dollars ($80.00) per month for each such
reserved permit.
C. Renewals and Extensions: During any renewal or extension of
the term of the Lease, Tenant will pay Landlord its full
monthly contract parking rate(s) (as set from time to time)
for all monthly parking permits.
D. Taxes: All parking permit charges are subject to state and
local taxes.
E. Tenant's Use and Obligations: Tenant and its employees shall
use such parking garage only in accordance with Landlord's
Rules and Regulations. However, the driver of each car shall
have so-called "in-and-out" privileges. Tenant acknowledges
that Landlord provides parking to Arena Operating Company for
Compaq Center events. Neither Tenant nor its employees shall
use any parking spaces designated for visitors, other
occupants of the Building or otherwise without Landlord's
prior written consent. Tenant shall, within ten (10) days of
Landlord's written request, furnish to Landlord a complete
list of the license plate numbers of all vehicles operated by
Tenant and Tenant's employees and agents.
F. Landlord's Liability: Landlord shall direct its third party
parking contractor to cooperate with Tenant as reasonably
necessary under the circumstances to rectify any problems
concerning unauthorized parking in any reserved or assigned
parking spaces of Tenant. Landlord shall not be liable for any
damage of any nature whatsoever to, or any theft of, vehicles,
or contents therein, or injury (fatal or nonfatal) to persons,
in or about such parking garage, except to the extent caused
by Landlord's negligence or willful misconduct. Tenant's sole
remedy for any period during which its use of any parking
permit is precluded for any reason shall be an abatement of
the parking charges for each such precluded permit.
12. OPTION TO EXTEND. Commencing November 1, 2001, Paragraph 25 of the Lease is
deleted in its entirety and replaced by the following:
OPTION TO EXTEND
25.
A. Tenant may, at its option, extend the Term for one renewal period of
five years (the "RENEWAL PERIOD") by written notice to Landlord (the
"RENEWAL NOTICE") given no earlier than 14 nor later than 12 months
prior to the expiration of the Second Extension Period, provided that
at the time of such notice and at the commencement of such Renewal
Period, (i) Tenant remains in occupancy of the Leased Premises, and
(ii) no uncured event of default exists under the Lease (and no
condition exists which, with the passage of time and/or giving of
notice, would be an event of default). Such Renewal Period shall
commence upon the expiration date of the Second Extension Period. The
Base Rental payable during the Renewal Period shall be the Market
Rental Rate (defined
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in Paragraph 39 to the Lease), including any projected rate increases
over the applicable Renewal Period. Except as provided herein, all
terms and conditions of the Lease shall continue to apply during the
Renewal Period(s).
B. Within 30 days of the Renewal Notice, Landlord shall notify Tenant
of the Base Rental (which shall be Landlord's estimate of the Market
Rental Rate) for such Renewal Period (the "RENTAL NOTICE"). Tenant may
accept the terms set forth in the Rental Notice by written notice (the
"ACCEPTANCE NOTICE"), or reject the terms set forth in the Renewal
Notice by written notice (the "REJECTION NOTICE"), to Landlord given
within 45 days after receipt of the Rental Notice (the "NEGOTIATION
DEADLINE"). If Tenant timely delivers its Acceptance Notice, Tenant and
Landlord shall, within 45 days after receipt, execute a lease amendment
confirming the Base Rental and other terms applicable during the
Renewal Period. If Landlord and Tenant do not agree on the Base Rental
for the Renewal Period, the parties will negotiate in good faith and
attempt to reach an agreement. If Landlord and Tenant cannot agree to
the Base Rental for the Renewal Period on or before the Negotiation
Deadline, then Landlord and Tenant shall have an additional 15 days
from the Negotiation Deadline within which Landlord and Tenant shall
each have the option to elect to have such dispute resolved by
arbitration pursuant to this subsection by giving the other party
written notice (each an "ARBITRATION NOTICE") of its election within
such 15-day period. If Tenant fails to timely deliver its Acceptance
Notice or Rejection Notice or if Landlord and Tenant are unable to
resolve such dispute on or before the Negotiation Deadline, and neither
Landlord nor Tenant has so exercised its option to have such dispute
resolved by arbitration, then the election shall be deemed cancelled
and of no further force or effect.
C. If Landlord or Tenant timely gives the other an Arbitration Notice,
then the Market Rental Rate for the applicable Renewal Term shall be
settled by arbitration in accordance with the following provisions, and
any determination as a result thereof shall be binding upon the
parties:
(i) Landlord and Tenant shall use reasonable efforts to agree,
within five business days following receipt of an Arbitration
Notice, upon the appointment of one arbitrator to resolve the
matter. If an agreement on a single arbitrator cannot be reached
within such 5 business-day period, Landlord and Tenant shall each
appoint their respective arbitrator within ten business days
following the lapse of the five business-day period and shall
specify the name and address of their respective arbitrator to the
other party prior to the expiration of such ten business-day
period; provided, that if one party fails to specify the name and
address of its selected arbitrator within such ten business-day
period the other party shall give such failing party written
notice, and if within five days after such written notice the
failing party still has not specified an arbitrator, the
arbitrator selected by the other party shall act as the single
arbitrator as if both parties had agreed to the appointment of
such arbitrator as provided above. The selected arbitrators shall
then appoint a third arbitrator within ten business days following
their appointment. If the two arbitrators are unable to agree upon
a third arbitrator within such ten business-day period, the third
arbitrator shall be appointed as soon as reasonably possible
thereafter by the American Arbitration Association (or any
successor organization, or if no successor organization shall then
exist, by a court of competent jurisdiction residing in
HarrisCounty, Texas), subject to the qualification requirements
set forth below. In the event of the failure, refusal or inability
of any arbitrator to act, a new arbitrator shall be appointed in
his stead, which appointment shall be made in the same manner as
set forth above for the appointment of such resigning arbitrator.
Immediately following the selection of the final arbitrator, the
arbitrator(s) shall meet and, within 15 days following the
complete selection of the arbitrator(s), endeavor to resolve the
matter.
(ii) Within three business days following the selection of all
arbitrators, each party shall submit to the arbitrators such
party's proposed Market Rental Rate, together with reasonable
evidence supporting such proposed rate. The arbitrator(s) shall
select either the proposed Market Rental Rate submitted by
Landlord or the proposed Market Rental Rate submitted by Tenant,
whichever proposal the arbitrator(s) deem to be the most nearly
correct according to the definitions, terms and requirements set
forth in this Lease, with no compromise. The power of the
arbitrators shall be exercised by the concurrence of at least two
arbitrators, except that if only one arbitrator is required, the
decision of such arbitrator shall govern. The arbitrator(s) shall
have the authority to request additional facts or evidence from
each of the parties and, if such arbitrators so require, a hearing
to present the same. In the event of such a hearing, rules of
evidence applicable to state court judicial proceedings in
Houston, Texas civil district courts shall govern; however,
evidence will be admitted or excluded in the sole discretion of
the arbitrator(s). The arbitrator(s) shall resolve the controversy
and shall execute and acknowledge their decision, together with a
brief statement
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describing the rationale for such decision, in writing and deliver
a copy thereof to each of the parties personally or by registered
or certified mail, return receipt requested. If the arbitrators
fail to reach an agreement during such 15-day period (as extended
pursuant to the next sentence), they shall be discharged, and new
arbitration proceedings shall commence, which appointments shall
be made in the same manner as set forth above. By agreement in
writing, Landlord and Tenant may extend the time to reach
agreement either before or after the expiration thereof up to a
maximum of 30 additional days.
(iii) Each party shall bear their own costs and the costs of the
arbitrator it appoints. The cost of the third arbitrator (or the
single arbitrator if only one arbitrator is required) shall be
split equally.
(iv) Each arbitrator shall be a real estate broker licensed under
the laws of the State of Texas, and shall have been actively and
continuously engaged in leasing transactions involving in the
aggregate more than 2,000,000 square feet of rentable area of
office space in Houston, Texas for the immediately preceding
15-year period. The arbitrator(s) selected by Landlord and Tenant
may not be the real estate brokers or agents that represented
Landlord and Tenant in negotiations regarding the Market Rental
Rate prior to the submission of the proposed Market Rental Rates
to arbitration.
(v) The decision of the arbitrator(s) shall be final and
non-appealable, shall be binding on both Landlord and Tenant, and
may be enforced in any court of competent jurisdiction.
13. PREFERENTIAL RIGHT TO LEASE. Commencing November 1, 2001, Paragraphs 27 and
28 of the Lease are deleted in their entirety and replaced by the following:
PREFERENTIAL RIGHT TO LEASE
27.
A. So long as twenty-four months remain in the Second Extension Period,
Tenant shall have a continuing Preferential Right to Lease space
located on the fourth (4th) and fifth (5th) floors (the "PREFERENTIAL
SPACE"), at such time as such space becomes Available (as defined
below) and is subject to a bona fide offer from a third party; provided
no uncured Event of Default exists under the Lease (and no condition
exists which, with the passage of time and/or giving of notice, would
be an Event of Default) and Tenant remains in occupancy of the entire
Leased Premises. The Preferential Space shall be deemed "AVAILABLE" at
such time as Landlord decides to offer the Preferential Space for lease
and such space is no longer any of the following: (i) leased or
occupied; (ii) assigned or subleased by the then-current tenant of the
space; (iii) re-leased by the then-current tenant of the space by
renewal, extension or renegotiation (whether agreed to prior to or
after the Date of Lease); or (iv) subject to an expansion option, right
of first refusal, preferential right or similar obligation existing
under any other tenant leases for the Project as of the Date of Lease.
This Preferential Right to Lease shall terminate upon relocation of the
Leased Premises to another building or upon any Transfer as defined in
the Lease. The Preferential Space shall be reduced to the extent Tenant
leases any portion thereof, whether or not pursuant to a formal option
provision in the Lease. The preferential right granted hereunder is
subject to and subordinate to any current or future expansion option,
right of first refusal, preferential right or similar obligation to AIM
Management Group Inc.
B. Prior to leasing the Preferential Space pursuant to a bona fide
offer from a third party, Landlord shall first offer such space in
writing to Tenant specifying the amount and location of such space, the
anticipated date of tender of possession, the rental rate based on the
Market Rental Rate (as defined in the Lease), including any projected
rate increases over the applicable term, and other applicable terms
(the "PREFERENTIAL RENTAL NOTICE"). Tenant shall have 7 business days
within which to accept or reject such offer. If Tenant accepts
Landlord's offer, Tenant and Landlord shall, within 15 business days
after Landlord's written request, execute and return a lease amendment
adding the Preferential Space to the Leased Premises for all purposes
under the Lease (including any extensions or renewals) and confirming
the Base Rental and other applicable terms specified in the
Preferential Rental Notice. Such lease amendment may, if applicable,
contain a construction agreement using Landlord's then-current form
setting forth the schedule and other terms and obligations of the
parties regarding the construction of any leasehold improvements in the
Preferential Space. If Tenant rejects such offer or fails timely to (i)
accept such offer or (ii) execute and return the required lease
amendment, then this Preferential Right to
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Lease shall lapse and be of no further force and effect with regard to
the space that is identified in the Preferential Rental Notice.
C. The Preferential Space shall be leased for the period commencing
upon Landlord's tender of possession of the Preferential Space in
accordance with Landlord's offer and this provision (the "PREFERENTIAL
SPACE COMMENCEMENT DATE") and continuing through the expiration or
earlier termination of the Term, as it may be extended or renewed.
Landlord shall not be liable for any delay or failure to tender
possession of the Preferential Space by the anticipated tender date for
any reason, including by reason of any holdover tenant or occupant, nor
shall such failure invalidate the Lease or extend the Term.
D. The Preferential Space shall be tendered in an "as-is" condition.
However, all leasehold improvements shall be constructed in the
Preferential Space in accordance with the construction agreement (if
any) attached to the applicable lease amendment.
14. THIRD PARTY SERVICES. The Lease is amended to provide that a new PARAGRAPH
35 shall be added as follows:
THIRD PARTY SERVICES
35. If Tenant desires any services which Landlord has not specifically
agreed to provide in the Lease, such as private security systems or
telecommunications services serving the Leased Premises, Tenant shall
procure such services directly from a reputable third party service
provider ("PROVIDER") for its own account. Tenant shall require each
Provider to comply with the Rules and Regulations, Applicable Law and
Landlord's reasonable policies and practices for the Building. Tenant
acknowledges Landlord's current policy that requires all Providers
utilizing any area of the Building outside the Leased Premises to be
approved by Landlord and to enter into a written agreement acceptable
to Landlord prior to gaining access to, or making any installations in
or through, such area. Accordingly, Tenant shall give Landlord advance
written notice sufficient for such purposes. Tenant waives as to the
Landlord Parties (as defined below) and shall indemnify, defend, and
hold harmless the Landlord Parties from and against all Claims (as
defined below) arising out of the unavailability or interruption of or
defect in any services provided by any Providers, EVEN IF THE CLAIM IS
CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT) OF A LANDLORD PARTY, except for the loss of
Tenant's telecommunication facilities caused by the negligence or
willful act of Landlord or its employees. The term "CLAIMS" means all
damages, losses, injuries, penalties, disbursements, costs, charges,
assessments, expenses (including attorneys' fees, experts' fees and
expenses incurred in investigating, defending or prosecuting any
allegation, litigation or proceeding), demands, litigation, causes of
action (whether in tort or contract, in law, at equity or otherwise)
and judgments. The term "LANDLORD PARTIES" (and all grammatical
variations thereof) means the Landlord, the manager of the Building,
Landlord's mortgagee(s) and all affiliates or subsidiaries of the
foregoing, and all of their respective officers, directors, employees,
shareholders, members, partners, agents and contractors.
15. TAX APPRAISALS. The Lease is amended to provide that a new PARAGRAPH 36
shall be added as follows:
TAX APPRAISALS
36. Tenant waives all rights under Applicable Law to protest appraised
values or receive notice of reappraisal regarding the Project
(including Landlord's personalty), irrespective of whether Landlord
contests same. To the extent such waiver is prohibited, Tenant shall,
at Landlord's election, be deemed to have appointed Landlord as
Tenant's attorney-in-fact, coupled with an interest, to appear and take
all actions which Tenant would otherwise be entitled to take under
applicable law with respect to the Project and Landlord's personal
property. Notwithstanding anything to the contrary contained in this
XXXXXXXXX 00, Xxxxxx may protest any appraised values of Tenant's
personal property and, if separately assessed, Tenant's above Building
standard leasehold improvements.
16. SECURITY SYSTEM. Effective November 1, 2001, the Lease is amended to provide
that a new PARAGRAPH 37 shall be added as follows:
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SECURITY SYSTEM
37. Tenant may, at its sole cost and expense, install a security system
in the Leased Premises (the "SECURITY SYSTEM"), provided that (i)
Tenant shall maintain the Security System and keep the same in good
working order, (ii) Tenant cooperates with Landlord and other tenants
in the Project on security matters, and (iii) Tenant provides Landlord
all items necessary to gain access to the Leased Premises including,
without limitation, access cards and access codes. Tenant acknowledges
that Landlord is not a guarantor of the security or safety of the
Tenant, its employees, agents or affiliates or their property, and that
such matters are the responsibility of Tenant and the local law
enforcement authorities.
17. SIGNAGE/IDENTITY. Effective November 1, 2001, the Lease is amended to
provide that a new PARAGRAPH 38 shall be added as follows:
SIGNAGE
38. So long as Tenant occupies at least 46,798 square feet of leasable
office space located in the Building and no Event of Default exists
under this Lease, then during the Term and any renewals or extensions
thereof, Tenant shall have the right, at its sole cost and expense, to
display its corporate name on the multi-tenant sign located on the
north side of the Building fronting Richmond Avenue (the "MONUMENT
SIGNAGE") subject to (i) any approval, if required, by Law, deed
restrictions, or the rules and regulations of the Greenway Plaza Scenic
District and (ii) Landlord's approval of the appearance of the Monument
Signage, not to be unreasonably withheld, conditioned or delayed. The
positioning of names on the Monument signage is based upon the
alphabetical order of the tenant names. The initial installation and
any future modifications approved by Landlord shall be performed by
Landlord but shall be at Tenant's sole cost and expense. Landlord, at
Tenant's sole cost and expense, shall maintain and repair Tenant's
portion of the Monument Signage. Further, at the expiration or earlier
termination of this Lease including any extension of the same, Landlord
shall have the option to remove Tenant's name from the Monument Signage
and repair any damage to the Monument Signage caused by the removal of
Tenant's name, all at Tenant's sole cost and expense.
18. MARKET RENTAL RATE. The Lease is amended to provide that a new PARAGRAPH 39
shall be added as follows:
MARKET RENTAL RATE
39. The "MARKET RENTAL RATE" is the rate (or rates) a willing tenant
would pay and a willing landlord would accept for a comparable
transaction (e.g., renewal, expansion, relocation, etc., as applicable,
in comparable space and in a comparable building) as of the
commencement date of the applicable term, neither being under any
compulsion to lease and both having reasonable knowledge of the
relevant facts, considering the highest and most profitable use if
offered for lease in the open market with a reasonable period of time
in which to consummate a transaction. In calculating the Market Rental
Rate, all relevant factors will be taken into account, including the
location and quality of the Building, lease term, amenities of the
Property, condition of the space and any concessions and allowances
commonly being offered by Landlord for comparable transactions in Three
Greenway Plaza, Five Greenway Plaza, Nine Greenway Plaza, Eleven
Greenway Plaza, Twenty-Four Greenway Plaza and Phoenix Tower (the
"MARKET COMPARABLES"). The parties agree that the best evidence of the
Market Rental Rate will be the rate then charged for comparable
transactions in the Market Comparables.
19. CONSENT. This Amendment is subject to, and conditioned upon, any required
consent or approval being unconditionally granted by Landlord's mortgagee(s). If
any such consent shall be denied, or granted subject to an unacceptable
condition, this Amendment shall be null and void and the Lease shall remain
unchanged and in full force and effect.
20. BROKER. Tenant represents and warrants that it has not been represented by
any broker or agent in connection with the execution of this Amendment, except
CB Xxxxxxx Xxxxx, Inc. Tenant shall indemnify and hold harmless Landlord Parties
from and against all claims (including costs of defense and investigation) of
any other broker or agent or similar party claiming by, through or under Tenant
in connection with this Amendment.
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21. TIME OF THE ESSENCE. Time is of the essence with respect to Tenant's
execution and delivery to Landlord of this Amendment. If Tenant fails to execute
and deliver a signed copy of this Amendment to Landlord by 5:00 p.m. (in the
city in which the Leased Premises is located) on September 3, 2001, this
Amendment shall be deemed null and void and shall have no force or effect,
unless otherwise agreed in writing by Landlord. Landlord's acceptance, execution
and return of this Amendment shall constitute Landlord's agreement to waive
Tenant's failure to meet such deadline.
22. MISCELLANEOUS. This Amendment shall become effective only upon full
execution and delivery of this Amendment by Landlord and Tenant. This Amendment
contains the parties' entire agreement regarding the subject matter covered by
this Amendment, and supersedes all prior correspondence, negotiations, and
agreements, if any, whether oral or written, between the parties concerning such
subject matter. There are no contemporaneous oral agreements, and there are no
representations or warranties between the parties not contained in this
Amendment. Except as modified by this Amendment, the terms and provisions of the
Lease shall remain in full force and effect, and the Lease, as modified by this
Amendment, shall be binding upon and shall inure to the benefit of the parties
hereto, their successors and permitted assigns.
LANDLORD AND TENANT enter into this Amendment on September 12, 2001.
LANDLORD: CRESCENT REAL ESTATE FUNDING III, L.P.,
a Delaware limited partnership
By: CRE Management III Corp.
a Delaware corporation, its General Partner
By:
------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
Vice President
Leasing & Marketing
TENANT: BISYS, INC.,
a Delaware corporation
By:
------------------------------------------
Name:
------------------------------------
Title:
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