OFFICE BUILDING LEASE AGREEMENT
BASIC LEASE INFORMATION
Lease Date: July 1, 2002
----------
Tenant: IDX Information Systems Corporation
------
Tenant's Address: 0000 XXX Xxxxx
----------------
X.X. Xxx 0000 Xxxxx Xxxxxxxxxx, XX 00000
Contact: Xxxxx Xxxxxxxxx, Director Facilities
-------
Landlord: 4901 LBJ Limited Partnership
--------
Landlord's Address: 0000 XXX Xxxxx
------------------
X.X. Xxx 0000
Xxxxx Xxxxxxxxxx, XX 00000
Contact: Xxxx X. Xxxx, Partner
-------
Premises: Suite No. 200, being the second, third and
-------- fourth floors in the office building known
as 0000 XXX Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx
Xxxxxx, Xxxxx (the "Building", located at
0000 XXX Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx (the
"Land"). The Premises are outlined on the
plan attached to the Lease as Exhibit "A",
and shall be deemed to contain approximately
32,432 square feet of Rentable Area (as
hereinafter defined).
Term: Sixty (60) months, commencing July 1, 2002
---- and ending June 30, 2007 (60) months
thereafter, subject to adjustment and
earlier termination as provided in the
Lease.
Basic Rental: Basic Rental at a rate per square foot of
------------ Rental Area (RSF) per year, payable in
monthly installments, and subject to
escalations (if any), as follows:
Months Annual Basic Monthly
Rental Rate Installment
60 $17.00 (RSF) $45,945
Expense Stop: Base Year for the determination of the
----------- Expense Stop (used to calculate Excess
Operating Expense) shall be Calendar Year
2002. See Section 4 of Office Building
Lease Agreement (the "Lease") signed by
Tenant.
Excess Operating
Expenses: Defined in Section 4 of the Office Building
-------- Lease Agreement signed by Tenant.
Security Deposit: [Waived]
----------------
Permitted use: Office Use and Uses Ancilliary to its Office
------------- Occupancy
Tenant's Proportionate
Share: 77.33%, which is the percentage obtained by
----- dividing (i) the 32,432 square feet of
Agreed Rentable Area in the Premises by
(ii) the total 41,941 square feet of the
Agreed Rentable Area in the Building.
Appurtenant
Facilities: The parking areas, driveways, landscaping,
---------- sidewalks, and other facilities now or
hereafter located on the Land (other than
the Building) which are used in connection
with operation of the Building.
Broker: None
------
Guarantor: None
---------
Tenant Improvement
Allowance: $5 per Agreed Rentable Area in the Premises,
--------- as set forth in Section D of Exhibit "C" of
the Lease.
Restroom Upgrade: As set forth in Section 7(e) of the Lease.
----------------
Antenna License: As set forth in Section 2 of the Lease.
---------------
Exterior Signage: As set forth in Section 24(u) of the Lease.
----------------
Right of First Offer: On first floor space, as set forth in
-------------------- Exhibit "F" of the Lease.
Expansion Option: On first floor space, as set forth in .
---------------- Exhibit "F" of the Lease
THE FOREGOING BASIC LEASE INFORMATION IS INCORPORATED INTO AND MADE A PART OF
THE LEASE, BUT DOES NOT CONSTITUTE THE ENTIRE LEASE. TENANT ACKNOWLEDGES THAT IT
HAS READ ALL OF THE PROVISIONS CONTAINED IN THE ENTIRE LEASE AND ALL EXHIBITS
WHICH ARE A PART THEREOF AND AGREES THAT THIS LEASE, INCLUDING THE BASIC LEASE
INFORMATION AND ALL EXHIBITS, REFLECTS THE ENTIRE UNDERSTANDING AND REASONABLE
EXPECTATIONS OF LANDLORD AND TENANT REGARDING THE PREMISES. TENANT ALSO
ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO REVIEW THIS LEASE PRIOR TO
EXECUTING WITH LEGAL COUNSEL AND SUCH OTHER ADVISORS AS TENANT DEEMS
APPROPRIATE. IN THE EVENT ANY CONFLICT EXISTS BETWEEN ANY BASIC LEASE
INFORMATION AND THE LEASE, THEN THE LEASE SHALL CONTROL.
LANDLORD: TENANT:
4901 LBJ Limited Partnership IDX Information Systems Corporation
By: /S/ XXXX X. XXXX By: /S/ XXXX X. XXXX
--------------------------------- ---------------------------------
Printed Name: Xxxx X. Xxxx Printed Name: Xxxx X. Xxxx
----------------------- -----------------------
Title: Treasurer & V.P. Title: Sr. V.P. & Treasurer
----------------------------- ------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND BASIC PROVISIONS:.......................................1
a. Basic Lease Information..............................................1
b. Agreed Rentable Area.................................................1
2. LEASE GRANT.............................................................1
3. TERM....................................................................1
4. RENT....................................................................2
a. Payment..............................................................2
b. Operating Expense Escalator..........................................2
c. Operating Expenses...................................................2
d. Adjustment...........................................................4
x. Xxxxx-Up.............................................................4
f. Direct Taxes.........................................................4
g. Tenant Audit.........................................................4
h. Survivability of Obligations.........................................5
5. DELINQUENT PAYMENT; LATE CHARGES........................................5
6. SECURITY DEPOSIT........................................................5
7. LANDLORD'S OBLIGATIONS..................................................5
a. Service..............................................................5
b. Excess Utility Use...................................................6
c. Discontinuance.......................................................6
d. Restoration of Services; Abatement...................................6
e. Restroom Upgrade.....................................................6
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.........................7
a. Improvements, Alterations............................................7
b. Repairs; Maintenance.................................................7
c. Performance of Work..................................................7
d. Mechanic's Liens.....................................................8
9. USE.....................................................................8
a. Permitted Use/Compliance with Laws...................................8
b. Hazardous Materials..................................................8
10. ASSIGNMENT AND SUBLETTING...............................................9
a. Assignment or Sublease...............................................9
b. Consent..............................................................9
c. Additional Compensation..............................................10
d. Continued Liability..................................................10
e. Transfer of Controlling Interest.....................................10
11. INSURANCE; WAIVERS, SUBROGATION; INDEMNITY..............................10
a. Insurance............................................................10
b. Waiver; No Subrogation...............................................10
c. Indemnity............................................................11
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE...............11
a. Subordination and Attornment.........................................11
c. Notice to Landlord's Mortgagee.......................................11
d. Certificates Requested by Landlord's Mortgagee.......................12
13. RULES AND REGULATIONS...................................................12
14. CONDEMNATION............................................................12
15. FIRE OR OTHER CASUALTY..................................................12
a. Repair Estimate......................................................12
b. Landlord's and Tenant's Rights.......................................12
c. Landlord's Rights....................................................13
d. Repair Obligation....................................................13
16. TAXES...................................................................13
17. EVENTS OF DEFAULT.......................................................13
18. REMEDIES................................................................14
19. PAYMENT BY TENANT; NON-WAIVER...........................................15
a. Payment by Tenant....................................................15
b. No Waiver............................................................15
20. LANDLORD'S LIEN.........................................................15
21. SURRENDER OF PREMISES...................................................16
22. HOLDOVER................................................................16
23. CERTAIN RIGHTS RESERVED BY LANDLORD.....................................16
24. MISCELLANEOUS...........................................................17
a. Landlord Transfer....................................................17
b. Landlord's Default and Liability.....................................17
c. Force Majeure........................................................17
d. Criminal Acts of Third Parties.......................................17
e. Relocation...........................................................18
f. Brokerage............................................................18
g. Estoppel Certificates................................................18
h. Notices..............................................................18
i. Severability.........................................................18
j. Amendments and Binding Effect........................................18
k. Quiet Enjoyment......................................................19
l. Joint and Several Liability..........................................19
m. Captions.............................................................19
n. No Merger............................................................19
o. No Offer.............................................................19
p. No Rights to Use of Building Name....................................19
q. Time of Essence......................................................19
r. Authority of Parties.................................................19
s. Governing Law........................................................19
t. Exhibits.............................................................19
u. Signage..............................................................20
25. SPECIAL PROVISIONS......................................................20
26. DISCLAIMER OF IMPLIED WARRANTY..........................................20
27. REPRESENTATION AND WARRANTIES...........................................20
a. Of Landlord..........................................................20
b. Of Tenant............................................................21
EXHIBITS:
EXHIBIT "A": OUTLINE OF PREMISES & LEGAL DESCRIPTION OF THE LAND
EXHIBIT "B": BUILDING RULES AND REGULATIONS
EXHIBIT "C": TENANT FINISH-WORK PLANS
EXHIBIT "D": PARKING
EXHIBIT "E": RENEWAL OPTIONS
EXHIBIT "F": RIGHT OF FIRST OFFER AND EXPANSION OPTION
EXHIBIT "G": JANITORIAL SPECIFICATIONS
EXHIBIT "H": FORM OF SECRETARY'S CERTIFICATE
EXHIBIT "I": EXAMPLE OF ACCEPTABLE EXTERIOR SIGNAGE
OFFICE BUILDING LEASE AGREEMENT
THIS OFFICE BUILDING LEASE AGREEMENT (the "Lease") is executed on the
date(s) set forth in the signature lines below, to be effective as of the 1st
day of July, 2002, between 4901 LBJ Limited Partnership as "Landlord," and IDX
Information Systems Corporation, as "Tenant."
1. DEFINITIONS AND BASIC PROVISIONS:
a. BASIC LEASE INFORMATION. The definitions and basic
provisions set forth in the Basic Lease Information (the "Basic Lease
Information") executed by Landlord and Tenant contemporaneously herewith are
incorporated herein by reference for all purposes.
b. AGREED RENTABLE AREA. The Agreed Rentable Area of the Premises is
hereby stipulated to be the "Agreed Rentable Area of the Premises" set forth in
the Basic Lease Information, irrespective of whether the same should be more or
less as a result of minor variations from the construction of Tenant's
improvements. The Agreed Rentable Area of the Building is hereby stipulated to
be the "Agreed Rentable Area of the Building" set forth in the Basic Lease
Information, irrespective of whether the same should be more or less as a result
of minor variations resulting from actual construction or repair of the
Building. In the event that additional rentable area is added to the Premises,
the measurement thereof shall be performed in accordance with the Standard
Method for Measuring Floor Area in Office Buildings, as promulgated by the
Building Owners and Managers Association.
2. LEASE GRANT:
Subject to the terms of this Lease, Landlord leases to Tenant, and
Tenant leases from Landlord, the Premises. In addition, Tenant shall have the
non-exclusive right, along with Landlord and all other tenants in the Building,
and their invitees, to use areas designated by Landlord to be the common areas
in the Building and the Appurtenant Facilities, except any portions thereof
designated for the use of specific tenants. Landlord also grants to Tenant a
license to place one antenna on the roof of the Building, for uses ancillary to
its business. The placement of the antenna shall be subject to prior
coordination with Landlord and is subject to reasonable rules and regulations
established by Landlord.
3. TERM:
If the Commencement Date is not the first day of a calendar month, then
the Term shall be extended by the time between the Commencement Date and the
first day of the next month. In the event Tenant occupies the Premises prior to
the scheduled Commencement Date, the Commencement Date shall be defined as the
date such occupancy commences. Tenant's obligation to pay Rent hereunder shall
commence as of the Commencement Date as herein defined. By occupying the
Premises, Tenant shall be deemed to have accepted the Premises in their
condition as of the date of such occupancy. Landlord shall have the right, but
not the obligation, to deliver to Tenant a letter (the "Confirmation Letter")
confirming (i) the Commencement Date, (ii) that Tenant has accepted the
Premises, and (iii) that Landlord has performed all of its obligations, if any,
with respect to the condition of the Premises (except for punch-list items
specified in such Confirmation Letter). All information set forth in the
Confirmation Letter shall be deemed correct and binding on both Landlord and
Tenant, unless Tenant objects to any such information in writing to Landlord
within ten (10) days of Tenant's receipt of the Confirmation Letter. If
requested by Landlord, Tenant shall execute and deliver to Landlord, within ten
(10) days after Landlord has requested same, a copy of the Confirmation Letter,
although Tenant's failure to execute or deliver the same shall not limit the
binding nature thereof if Tenant fails to object in writing to any information
set forth therein within the time period provided in this Section 3.
4. RENT:
a. PAYMENT. Tenant shall timely pay to Landlord the Basic Rental and
all additional sums to be paid by Tenant to Landlord under this Lease, including
the amounts set forth in Section 4b., without notice, demand, counterclaim,
set-off or abatement, at Landlord's Address (or such other address as Landlord
may from time to time designate in writing to Tenant). Basic Rental adjustment
as herein provided, shall be payable monthly in advance. The first monthly
installment of Basic Rental shall be payable contemporaneously with the
execution of this Lease, and a like monthly installment of Basic Rental shall be
due on the first day of the second full calendar month during the Term. Basic
Rental for any fractional month at the beginning of the Term shall be prorated
and shall be due on the Commencement Date.
b. OPERATING EXPENSE ESCALATOR. Tenant shall pay an amount equal to
the excess ("Excess Operating Expense") of Tenant's Proportionate Share of the
actual Operating Expenses for each calendar year or part thereof during the
Term, over the Base Year Expense Stop. Base Year for the determination of the
Expense Stop is calculated by determining the actual Operating Expenses for the
period between January 1 and December 31 of the year 2002. Landlord may make a
good faith estimate of the Excess Operating Expense to be due by Tenant
beginning on the first day of the first Calendar Year, and, unless Landlord
delivers to Tenant a revision of the estimated Excess Operating Expense, Tenant
shall pay to Landlord, on the first day of each calendar month, beginning
January 1st of the first year of the lease term, an amount equal to the
estimated Excess Operating Expense for such upcoming month during the Term.
Landlord may collect such amount in a lump sum, to be due within 30 days after
Landlord furnishes to Tenant the annual statement of actual Operating Expenses.
From time to time during any Lease Year occurring after the First Lease Year,
Landlord may estimate and re-estimate the Excess Operating Expense to be due by
Tenant for that Lease Year and deliver a copy of the estimate or re-estimate to
Tenant. Thereafter, the monthly installments of Excess Operating Expense payable
by Tenant shall be appropriately adjusted in accordance with the estimations so
that, by the end of the Lease Year in question, Tenant shall have paid all of
the Excess Operating Expense as estimated by Landlord. Any amounts paid based on
such an estimate shall be subject to adjustment pursuant to Section 4d. when
actual Operating Expenses are available for such Lease Year.
c. OPERATING EXPENSES. For the purposes of this Section 4, the term
"Operating Expenses" shall mean all expenses and disbursements of every kind
(subject to the limitations set forth below) which Landlord incurs, pays or
becomes obligated to pay in connection with the ownership, operation, and
maintenance of the Building and Appurtenant Facilities, determined in accordance
with generally accepted federal income tax basis accounting principles
consistently applied, including, but not limited to, the following:
i. Reasonable wages and salaries (including management
fees) of all employees engaged in the operation, repair, maintenance, and
security of the Building and Appurtenant Facilities, including taxes, insurance
and benefits relating thereto:
ii. All tools, equipment, supplies and materials used
solely in the operation, maintenance, repair, replacement, and security of
the Building and Appurtenant Facilities;
2
iii. Annual cost of all capital improvements and
replacements made to the Building and Appurtenant Facilities which although
capital in nature can reasonably be expected to reduce the normal operating
costs of the Building and Appurtenant Facilities, as well as all capital
improvements made in order to comply with any law hereafter promulgated by any
governmental authority relating to energy, conservation, public safety or
security, as amortized over the greater of the useful economic life of such
improvements as determined by Landlord in its reasonable discretion (without
regard to the period over which the improvements may be depreciated or amortized
for federal income tax purposes);
iv. Costs of all standard utilities for the Building and
Appurtenant Facilities, including costs of water, sewer and power for heating,
lighting, air condition and ventilating (excluding those costs billed to
specific tenants);
v. Costs of any insurance applicable to the Building and
Appurtenant Facilities and Landlord's personal property used in connection
therewith;
vi. All taxes and assessments and governmental charges
whether federal, state, county or municipal, and whether they be by taxing
districts or authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments attributable to the Building, the
Land and the Appurtenant Facilities (or the operation or leasing thereof),
including without limitation, any gross revenue tax, sales tax, excise tax,
value-added tax, or similar tax; excluding however, Direct Taxes (as defined in
Xxxxxxxxx 0x. hereof), federal and state taxes on income (collectively,
"Taxes"); if the present method of taxation changes so that in lieu of the whole
or any part of any Taxes levied on the Land, Building or Appurtenant Facilities,
there is levied on Landlord a capital tax directly on the rents received
therefrom or a franchise tax, assessment, or charges based, in whole or in part,
upon such rents for the Building or Appurtenant Facilities, then all such taxes,
assessments, or charges, or the part thereof so based, shall be deemed to be
included with the term "Taxes" for the purposes hereof;
vii. Costs of repairs and general maintenance of the
Building and Appurtenant Facilities;
viii. Costs of service or maintenance contracts with
independent contractors for the operation, maintenance, repair, or security of
the Building and Appurtenant Facilities (including, without limitation, alarm
service, window cleaning, and elevator maintenance;
ix. Costs of consulting, accounting and legal services.
There are specifically excluded from the definition of the term
"Operating Expenses" costs (1) for capital improvements made to the Building,
other than capital improvements described in subparagraph (iii) above and except
for items which though capital for accounting purposes, are properly considered
maintenance and repair items such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (2) for repair, replacements and
general maintenance paid by the proceeds of insurance or by the Tenant or other
third parties, and alterations attributed solely to tenants of the Building
other than Tenant; (3) for interest, amortization or other payments on loans to
Landlord; (4) for depreciation and amortization of the Building; (5) for leasing
commissions; (6) for renovating or otherwise improving space for occupants of
the Building or vacant space in the Building; (7) for correcting defects in the
construction of the Building and Appurtenant Facilities; and (8) for federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Building. Tenant, at Tenant's sole cost and expense, shall have the right
to audit Landlord's books and records relating to Operating Expenses and
Landlord agrees to make available to Tenant upon at least ten (10) days prior
3
written notice from Tenant to Landlord, its books and records relevant to such
an audit.
d. ADJUSTMENT. The annual cost statement shall include a statement
of Landlord's actual Operating Expenses for the previous year adjusted as
provided in Section 4e. If the annual cost statement reveals that Tenant paid
more for Operating Expenses than the actual Excess Operating Expense in the year
for which such statement was prepared, then Landlord, at its option, shall
credit against Excess Operating Expenses next month or reimburse Tenant for such
excess if Lease is terminated; likewise, if Tenant paid less than the actual
Excess Operating Expense, then Tenant shall pay Landlord such deficiency within
thirty (30) days after delivery of such annual cost statement.
x. XXXXX-UP. With respect to any calendar year or partial calendar
year in which 95% of the Rentable Area of the Building is not occupied, the
Operating Expenses for such period that vary with occupancy may, at Landlord's
option in its sole discretion, for the purposes hereof, be increased to the
amount which would have been incurred had 95% of the entire Rentable Area of the
Building been occupied, based on good faith estimates made by Landlord and the
management company managing the Building.
f. DIRECT TAXES. At the same time and in the same manner as the
payment of Basic Rental hereunder, Tenant shall pay any gross revenue tax, sales
tax, excise tax, value-added tax, privilege tax, or similar tax imposed by any
government or governmental agency upon Tenant or Landlord on account of the
Lease or the payment of Rent hereunder ("Direct Taxes").
g. TENANT AUDIT. Tenant shall have the right to perform, no more
than once in any calendar year, an annual audit on Landlord's books and records
which reflect Operating Expenses to verify Landlord's calculation of actual
Operating Expenses for the prior calendar year, provided that (i) such audit
shall be commenced, if at all, on or before one hundred eighty (180) days after
the receipt of the annual statement of actual Operating Expenses from Landlord,
(ii) such audit shall be performed during Landlord's normal business hours, at
the place where Landlord maintains its records (or such other place as Landlord
shall deliver the appropriate records) and only after Landlord has received
thirty (30) days prior written notice, (iii) such audit shall be conducted by a
certified public accountant reasonably acceptable to Landlord, and such audit
services shall not be provided on a contingency fee basis, (iv) the auditor's
report reflecting the results of such audit shall be promptly delivered to
Landlord, (v) such audit and/or inspection shall commence within thirty (30)
days after Landlord makes such books and records available to Tenant's auditor
and thereafter proceed reasonably to conclusion, (vi) such audit and/or
inspection shall not unreasonably interfere with the conduct of Landlord's
business, and (vii) both Tenant and the accounting firm conducting the audit
and/or inspection shall execute a confidentiality agreement for the benefit of
Landlord, in the form reasonably requested by Landlord, prior to the
commencement of the audit or inspection. This paragraph shall not be construed
to limit or xxxxx Tenant's obligation to pay the Operating Expenses when due as
set forth in this Lease. If such audit conducted by Tenant discloses that Tenant
has overpaid Operating Expenses, then, after verification of such audit by
Landlord or by accountants selected by Landlord, any overpayment shall be
refunded to Tenant (so long as Tenant is not then in default of any of the terms
of this Lease, in which event such overpayment shall be applied against any
amount Tenant owes as a result of such default) within thirty (30) days after
the verification of the audit. Failure by Tenant to contest or dispute the
allocation of Operating Expenses within the time period set forth above for
performance of an audit (a) shall be deemed a waiver of the applicable audit or
dispute right and any right to contest the Operating Expenses for the applicable
calendar year; and (b) shall be deemed acceptance of the Operating Expenses
4
charges as submitted to and reviewed by Tenant. In the event the audit reveals
that Landlord has overstated Operating Expenses by in excess of four percent
(4%), Landlord shall reimburse Tenant for the cost of the audit. The foregoing
provisions shall survive termination or expiration of the Lease.
h. Survivability of Obligations. All obligations of Tenant to pay
Rent accrued prior to termination of the Lease shall survive such termination.
5. DELINQUENT PAYMENT; LATE CHARGES:
All Rent to be paid by Tenant to Landlord shall be in lawful money of
the United States of America and shall be paid without deduction or offset,
prior notice or demand, at the address set forth in the Basic Lease Information,
or at such other places as may be designated from time to time by Landlord. In
the event a check is submitted by Tenant for payment, and is returned for
insufficient funds, a $25.00 handling fee will be assessed by Landlord. If
thereafter a second check is returned for insufficient funds, another handling
fee in the amount of $50.00 will be assessed, and all future payments thereafter
must be made in cash or cashier's or certified check. In the event any Rent is
not received within 10 days after it is due for any reason whatsoever, then in
addition to the past due amount Tenant shall pay to Landlord interest on the
Rent then past due at a rate equal to the lesser of (i) 18% per annum, or (ii)
the maximum contractual rate which could legally be charged in the event of a
loan of such Rent to Tenant, such interest to accrue continuously on any unpaid
balance due to Landlord by Tenant during the period commencing with the Rent due
and terminating with the date on which Tenant makes full payment of all amounts
owing to Landlord at the time of said payment. Any such interest payment shall
be payable as additional Rent under this Lease and shall be payable immediately
on demand. In no event, however, shall the charges permitted under this Section
5 or elsewhere in this Lease, to the extent the same are considered to be
interest under applicable law, exceed the maximum lawful contract rate of
interest.
6. SECURITY DEPOSIT: [Intentionally omitted.]
7. LANDLORD'S OBLIGATIONS:
a. SERVICE. Provided no Event of Default exists by Tenant, Landlord
shall use reasonable efforts to furnish to Tenant (1) water (hot and cold) at
those points of supply provided for general use of tenants of the Building; (ii)
heated and refrigerated air conditioning as appropriate, at such times as
Landlord normally furnishes these services to all tenants of the Building, and
at such temperatures and in such amounts as are reasonably considered by
Landlord to be standard; and on such other days or after business hours periods
as Tenant requires provided Tenant shall be charged for heating and air
conditioning on such other days or after business hours periods at an initial
rate of $50.00 per hour of use, to be increased from time to time by the
amounts, if any, that Landlord's costs of providing such services are increased
by the respective utility companies; (iii) janitorial service to the Premises on
weekdays other than holidays for Building-standard installations pursuant to the
Janitorial Specifications set forth in Exhibit "G" attached hereto (Landlord
reserves the right to xxxx Tenant separately for janitorial services which are
not described on said Janitorial Specifications) and such window washing as may
from time to time in Landlord's judgment be reasonably required; (iv) elevators
for ingress and egress to the floor on which the Premises are located, in common
with other tenants, provided that Landlord may reasonably limit the number of
elevators to be in operation at times other than during normal business hours
and on holidays; (v) replacement of Building-standard light bulbs and florescent
tubes; and (vi) electrical current during normal business hours other than for
computers, electronic data processing equipment, special lighting, and equipment
5
that requires more than 120 volts single phase, or other equipment whose
electrical consumption exceeds normal office usage. Landlord shall maintain the
common areas of the Building in reasonably good order and condition, except for
damage occasioned by Tenant, or its employees, agents or invitees. If Tenant
desires any of the services specified in this Section 7a. at any time other than
times herein designated (or as specified as normal business hours in the rules
and regulations attached hereto), Landlord shall supply such services to Tenant
upon the written request of Tenant delivered to Landlord before 1:00 p.m. on the
business day preceding such extra usage, and Tenant shall pay to Landlord the
cost of such services within ten days after Landlord has delivered to Tenant an
invoice therefor.
b. EXCESS UTILITY USE. If Tenant's requirements for or consumption
of electricity exceed the electricity to be provided by Landlord as described in
Section 7a., Landlord shall, at Tenant's expense, make reasonable efforts to
supply such service through the then-existing feeders and risers serving the
Building and the Premises, and Tenant shall pay to Landlord the cost of such
service within ten days after Landlord has delivered to Tenant an invoice
therefor. Tenant shall not install any electrical equipment requiring special
wiring or requiring voltage in excess of 110 volts or otherwise exceeding
Building capacity unless approved in advance by Landlord. The use of electricity
in the Premises shall not exceed the capacity of existing feeders and risers to
or wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's sole and absolute judgment, the
same are necessary and shall not cause permanent damage or injury to the
Building or the Premises, cause or create a dangerous or hazardous condition,
entail excessive or unreasonable alterations, repairs, or expenses, or interfere
with or disturb other tenants of the Building. If Tenant uses machines or
equipment (other than general office machines, excluding computers and
electronic data processing equipment) in the Premises which require additional
air conditioning capacity above that provided by the Building standard system,
Tenant shall pay the costs of additional air conditioning installation and
operating costs; provided that the installation of any additional air
conditioning shall be subject to Section 8a.
c. DISCONTINUANCE. Landlord's obligation to furnish utility services
under Section 7a. shall be subject to the rules and regulations of the supplier
of such services and governmental rules and regulations. Landlord may, upon not
less than thirty (30) days prior written notice to Tenant, discontinue any such
services to the premises, provided Landlord first arranges for a direct
connection thereof through the supplier of such service. Tenant shall, however,
be responsible for contracting with the supplier of such services and for paying
all deposits for and costs relating to such services.
d. RESTORATION OF SERVICES; ABATEMENT. Landlord shall use
commercially reasonable efforts to restore any service that becomes interrupted;
however, such interruption shall not render Landlord liable for any damages
caused thereby, be a constructive eviction of Tenant, constitute a breach of any
implied warranty, or entitle Tenant to any abatement of Tenant's obligation
hereunder, including but not limited to Tenant's obligation to pay rent.
e. RESTROOM UPGRADE. Between the first and third anniversary of the
commencement of this Lease, Landlord will remodel the restrooms on Floors 2, 3
and 4 of the Building in a good faith effort to comply with the current
standards of accessibility set forth in the Americans with Disabilities Act.
6
8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
a. IMPROVEMENTS, ALTERATIONS. Except as otherwise specified in the
Lease or in any Exhibit hereto, improvements to the Premises shall be installed
at the expense of Tenant only in accordance with plans and specifications which
have been previously submitted to and approved in writing by Landlord. After the
initial Tenant improvements are made (if any), no alterations or physical
additions in or to the Premises may be made without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed; provided,
however, that so long as Tenant gives Landlord prior written notice thereof,
Landlord's consent and approval shall not be required for any improvements or
alterations which are non-structural and cosmetic in nature and that cost less
than $5,000.00 per full floor of the Premises in the aggregate in any calendar
year. Tenant shall not paint or install lighting or decorations, signs, window
or door lettering, or advertising media of any type on or about the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. All alterations, additions, or improvements,
(whether temporary or permanent in character, and including without limitation
all air-conditioning equipment and all other equipment that is in any manner
connected to the Building's plumbing system) made in or upon the Premises,
either by Landlord or Tenant, shall be Landlord's property at the end of the
Term and shall remain on the Premises without compensation to Tenant; provided,
however that if Tenant is not then in default hereunder and Tenant repairs any
damage caused by such removal, Tenant may remove its trade fixtures at the end
of the Term. Upon approving any improvement or alteration, Landlord shall also
advise Tenant as to whether it will require Tenant to remove such alteration or
improvement at the termination or expiration of this Lease. Approval by Landlord
of any of Tenant's drawings and plans and specifications prepared in connection
with any improvements in the Premises shall not constitute a representation or
warranty of Landlord as to the adequacy or sufficiency of such drawings, plans
and specifications, or the improvements to which they relate, for any use,
purpose, or condition, but such approval shall merely be the consent of Landlord
as required hereunder.
b. REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in a
clean, safe, operable, attractive condition, and shall not permit or allow to
remain any waste or damage to any portion of the Premises. Landlord shall, at
its own expense (but subject to Landlord's right of reimbursement, in accordance
with Section 4 of this Lease, for maintenance expenses constituting Operating
Expenses), maintain the exterior walls and the structure, electrical, plumbing
and mechanical systems of the Building provided that Tenant shall repair or
replace, subject to Landlord's direction and supervision, any damage to the
Building or any of its systems caused solely by Tenant or Tenant's agents,
contractors, or invitees. If Tenant fails to make such repairs or replacement
within 15 days after the occurrence of such damage, then Landlord may make the
same at Tenant's cost, and shall be payable to Landlord within ten days after
Landlord has delivered to Tenant an invoice therefore.
c. PERFORMANCE OF WORK. All work described in this Section 8 shall
be performed only by contractors and subcontractors approved in writing by
Landlord which consent shall not be unreasonably withheld or delayed. Tenant
shall cause all contractors and subcontractors to procure and maintain insurance
coverage against such risks, in such amounts, and with such companies as
Landlord may reasonably acquire, and to procure payment and performance bonds
reasonably satisfactory to Landlord covering the cost of the work. All such work
shall be performed in accordance with all legal requirements and in a good and
workmanlike manner so as not to damage the Premises, the primary structure or
structural qualities of the Building, or plumbing, electrical lines, or other
utility transmission facility.
7
d. MECHANIC'S LIENS. Tenant shall not permit any mechanic's liens to
be filed against the Premises or the Building for any work performed, materials
furnished, or obligation incurred by or at the request of Tenant. If such a lien
is filed, then Tenant shall, within ten days after Landlord has delivered notice
of the filing to Tenant, either pay the amount of the lien or diligently contest
such lien and deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant elects to contest such lien and if a
statutory proceeding exists for the release of the lien by the posting of a
bond, Tenant shall immediately proceed to obtain a release of said lien in
accordance with such statute. If Tenant fails either to timely pay the lien
amount or diligently contest such lien and deliver the required bond or
security, then Landlord may pay the lien claim without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be paid by Tenant to Landlord within ten days after Landlord has delivered
to Tenant an invoice therefore. Nothing contained in this Lease will be deemed
the contest or agreement of Landlord, nor shall Tenant be deemed to have any
authority, to subject Landlord's interest in the Premises or the Building to the
imposition of any lien, or otherwise to liability, under any mechanics' or other
lien law.
9. USE:
a. PERMITTED USE/COMPLIANCE WITH LAWS. Tenant shall continuously
occupy and use the Premises only for the Permitted Use and shall comply with all
laws, orders, rules and regulations relating to the use, condition, and
occupancy of the Premises. Tenant shall comply with any direction of any
governmental authority having jurisdiction over the Premises, which shall by
reason of the nature of Tenant's use or occupancy of the Premises, impose any
duty upon Tenant or Landlord with respect to the Premises or the occupancy
thereof. Tenant shall not do or permit anything to be done which would
invalidate or increase the cost of any fire, extended coverage, or any other
insurance policy covering the Building. Notwithstanding the foregoing and
without limiting the remedies of Landlord for a violation of the provision of
this Section 9a. Tenant shall promptly, upon demand reimburse Landlord for the
full amount of any additional premium charged for such policy by reason of
Tenant's failure to comply with the provision of this Section 9a. Tenant shall
not in any way obstruct or interfere with the rights of other tenants or
occupants of the Building, or use or allow the Premises to be used for any
illegal purpose nor shall Tenant cause, maintain or permit any nuisance in, on
or about the Premises.
b. HAZARDOUS MATERIALS. The Premises shall not be used for any use
which creates extraordinary fire hazards or results in an increased rate of
insurance on the Building or its contents or the storage of any Hazardous
Material (as defined below). Without limiting the foregoing, Tenant shall not
cause or permit any Hazardous Material to be brought upon, kept or used in or
about the Premises or Building or Appurtenant Facilities or the Land by Tenant,
its employees, agents, contractors or invitees which would have a material
adverse effect on the Building. As used herein, the term "Hazardous Material"
shall mean any hazardous or toxic substance, material or waste, including but
not limited to, those substances, materials and wastes now or hereafter listed
in the United States Department of Transportation Hazardous Materials Table or
by the Environmental Protection Agency as hazardous substances, or such
substances, materials and wastes that are or become regulated under any
applicable federal, state or local law, other than such substances, materials
and waste that are used, treated, stored or disposed of in normal quantities
that are consistent with the uses of the Premises for office and related uses,
provided all such actions are in accordance with all federal, state and local
statutes, rules, regulations and laws. Tenant expressly covenants that Tenant
will advise Landlord immediately upon learning that a Hazardous Material has
been brought upon the Premises or Building or Appurtenant Facilities or the
8
Land, whether or not caused or permitted by Tenant and regardless of who shall
have brought such Hazardous Materials thereon. If Tenant permits any Hazardous
Materials to be brought upon, kept or used in or about the Premises or Building
or Appurtenant Facilities or the Land, then Tenant shall take all steps
reasonably necessary to safeguard against their discharge and Tenant shall
indemnify, defend and hold Landlord harmless for any and all material claims,
judgments, damages, penalties, fines, costs, liabilities or losses, including
but not limited to, diminution in value of the Premises, or Building or
Appurtenant Facilities or the Land, damages for loss or restriction on use of
rentable or usable space or of any amenity in the Premises or Building or
Appurtenant Facilities or the Land, damages arising from adverse impact on
marketing the Premises or Building or Appurtenant Facilities or the Land, and
sums paid in settlement of claims, attorneys' fees, consulting fees and expert
fees, which solely arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes but is not
limited to costs incurred in connection with any investigation of sight
conditions or clean-up, remedial removal or restoration work required by any
federal, state or local government agency or political subdivision because of
Hazardous Material present in the Premises or Building or Appurtenant Facilities
or the Land, or the soil, or ground water on which the Building is located.
Without limiting the foregoing, if the presence of any Hazardous Material on the
Premises or Building or Appurtenant Facilities or the Land caused or permitted
by Tenant result in any contamination of the Premises or Building or Appurtenant
Facilities or the Land, Tenant shall, upon request by Landlord, promptly take
all actions at its sole expense that are necessary to return the Premises or
Building or Appurtenant Facilities or the Land to the condition existing prior
the introduction or exposure of any Hazardous Materials in the Premises or
Building or Appurtenant Facilities or the Land. The indemnity provision set
forth in this Section 9b. shall survive termination or expiration of this Lease.
10. ASSIGNMENT AND SUBLETTING:
a. ASSIGNMENT OR SUBLEASE. Tenant shall not assign the Lease or
sublet the Premises or any part thereof without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Any attempted
assignment or sublease by Tenant in violation of the terms and conditions of
this paragraph shall be void and of no effect. If Tenant desires to assign this
Lease or sublet the Premises or any part thereof, Tenant shall deliver to
Landlord written notice thereof (together with all the terms of the proposed
assignment or sublease, the identity of the proposed transferee and sufficient
financial information regarding the proposed transferee to permit Landlord to
evaluate the creditworthiness thereof) at least 30 days in advance of the date
on which Tenant desires to make such assignment or sublease. Landlord shall have
7 days following receipt of such notice and information within which to notify
Tenant in writing that Landlord elects to (i) permit Tenant to assign this Lease
or sublet such space; (ii) refuse to consent to such assignment or sublease and
to continue this Lease in full force and effect as to the entire Premises, or
(iii) terminate this Lease, if Tenant desires to sublet all of the Premises or
terminate this Lease only as to the proposed subleased space, if the proposed
subleased space is less than the entire Premises. If Landlord fails to notify
Tenant of its election within such 7 day period, Landlord shall be deemed to
have elected option (ii) above.
b. CONSENT. The consent by Landlord to a particular assignment or
sublease shall not be deemed a consent to any other assignment or sublease. If
Landlord consents to a proposed assignment or sublease, then the proposed
transferee shall deliver to Landlord a written agreement whereby it expressly
assumes the Tenant's obligations hereunder; however, any transferee of less than
all of the space in the Premises shall be liable only for obligation under this
Lease that are properly allocable to the space subject to the assignment or
sublease, and only to the extent of the rent it has agreed to pay Tenant
therefor.
9
c. ADDITIONAL COMPENSATION. Tenant shall pay Landlord, immediately
upon receipt thereof, fifty percent (50%) all compensation received by Tenant
(net of reasonable out of pocket expenses including commissions and tenant
improvements) for an assignment or sublease that exceeds the Rent allocable to
the portion of the Premises covered thereby.
d. CONTINUED LIABILITY. Tenant shall, despite any permitted
assignment or sublease, remain directly and primarily liable for the performance
of all the covenants, duties, and obligations of Tenant hereunder, and Landlord
shall be permitted to enforce the provisions of this Lease against Tenant or any
assignee or sublessee without demand upon or proceeding in any way against any
other person.
e. TRANSFER OF CONTROLLING INTEREST. If Tenant is not a public
company that is registered on a national stock exchange or that is required to
register its stock with the Securities and Exchange Commission under Section
12(g) of the Securities and Exchange Act of 1934, then any change in a majority
of the voting rights or other controlling rights or interests of Tenant shall be
deemed an assignment for the purposes hereof.
11. INSURANCE; WAIVERS, SUBROGATION; INDEMNITY:
a. INSURANCE. Tenant shall at its expense procure and maintain
throughout the Term the following insurance policies: (i) comprehensive general
liability insurance in amounts of not less than a combined single limit of
$1,000,000.00, insuring Tenant, Landlord, and Landlord's agents against all
liability for injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises, Building, Appurtenant
Facilities or Land, (ii) contractual liability insurance coverage sufficient to
cover Tenant's indemnity obligations hereunder, (iii) if Tenant operates owned,
leased, hired or non-owned vehicles on the Premises, comprehensive automobile
liability insurance at a limit of liability not less than $1,000,000.00 combined
bodily injury and property damages, (iv) insurance covering the full value of
Tenant's property and improvements, and other property (including property of
others), in the Premises and, (v) Business Interruption Insurance. Tenant's
insurance shall provide primary coverage to Landlord when any policy issued to
Landlord provides duplicate or similar coverage, and in such circumstance
Landlord's policy will be excess over Tenant's policy. Tenant shall furnish
certificates of such insurance and such other evidence satisfactory to Landlord
of the maintenance of all insurance coverage required hereunder, and Tenant
shall obtain a written obligation on the part of each insurance company to
notify Landlord at least 30 days before cancellation or a material change of any
such insurance. All such insurance policies shall be in form, and issued by
companies, reasonably satisfactory to Landlord. Tenant may carry such insurance
under a blanket policy, provided such insurance has a landlord's protective
liability endorsement attached thereto. If Tenant fails to procure and maintain
said insurance, Landlord may, but shall not be required to procure and maintain
same, but at the expense of Tenant. No policy shall be cancelable or subject to
reduction of coverage except after thirty (30) days prior written notice to
Landlord.
b. WAIVER; NO SUBROGATION. Landlord shall not be liable to Tenant or
those claiming by, through, or under Tenant for any injury to or death of any
person or persons or the damage to or theft, destruction, loss, or loss of use
of any property (a "Loss") caused by casualty, theft, fire, or third parties, or
by any other matter beyond the reasonable control of Landlord, or for any injury
or damage or inconvenience which may arise through repair or alteration of any
part of the Building, or failure to make repairs, or from any other cause,
except if such Loss is caused by Landlord's gross negligence or willful
misconduct. Tenant waives any claim it might have against Landlord for any
damage to or theft, destruction, loss, or loss of use of any property, to the
10
extent the same is insured against under any insurance policy that covers the
Building, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, or is required to be insured against under
the terms hereof, regardless of whether the negligence or fault of the other
party caused such loss. Tenant shall cause its property insurance carrier to
endorse all applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the Landlord.
c. INDEMNITY. Subject to Section 11b., Tenant shall defend,
indemnify, and hold harmless Landlord and its partners, officers, employees and
agents from and against all claims, demands, liabilities, causes of action,
suits, judgments, and expenses (including reasonable attorneys' fees) for any
Loss arising from Tenant's failure to perform its obligations under this Lease
(other than a Loss arising from the sole or gross negligence of Landlord or its
agents), even though caused or alleged to be caused by the joint, comparative,
or concurrent negligence or fault of Landlord or its agents, and even though any
such claim, cause of action, or suit is based upon or alleged to be based upon
the strict liability of Landlord or its agents. Subject to Section 11b.,
Landlord shall defend, indemnify and hold harmless Tenant and its officers and
agents from and against all claims, demands, liabilities, causes of action,
suits, judgments, and expenses (including reasonable attorneys' fees) for any
Loss from Landlord's failure to perform its obligations under this Lease (other
than a Loss arising from the sole or gross negligence of Tenant or its agents),
even though caused or alleged to be caused by the joint, comparative, or
concurrent negligence or fault of Tenant or its agents, and even though any such
claim, cause of action, or suit is based upon or alleged to be based upon the
strict liability of Tenant or its agents. This indemnity provision shall survive
termination or expiration of this Lease.
12. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE:
a. SUBORDINATION AND ATTORNMENT. This Lease shall be subordinate to
any deed of trust, mortgage, or other security instrument (a "Mortgage"), that
now or hereafter covers all or any part of the Premises (the mortgagee under any
Mortgage is referred to herein as "Landlord's Mortgagee"), provided that
Landlord's Mortgagee agrees not to disturb Tenant's rights under this lease
while Tenant is not of default of its obligations hereunder. Subject to the
foregoing; Tenant shall attorn to any party succeeding to Landlord's interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, or otherwise, upon such party's request, and shall execute such
agreements confirming such attornment as such party may reasonably request
provided that in such agreement the succeeding party agrees not to disturb
Tenant's right to possession of the Premises so long as Tenant is not in default
hereunder. In the event of such request and upon Tenant's attornment as
aforesaid, Tenant will automatically become the tenant of the successor to
Landlord's interest without change in the terms of provisions of this Lease;
provided, however, that such successor to Landlord's interest shall not be bound
by (a) any payment of Rent for more than one month in advance (except
prepayments for security deposits, if any), (b) any amendments or modifications
of this Lease made without the prior written consent of Landlord's Mortgagee if
Tenant was advised on the interest of same, or (c) any credits, offsets,
defenses or claims which Tenant may have against Landlord.
c. NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce
any remedy it may have for any default on the part of the Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
11
d. CERTIFICATES REQUESTED BY LANDLORD'S MORTGAGEE. From time to
time, Tenant shall furnish to any Landlord's Mortgagee within 10 days after a
request therefor, such reasonable estoppel certificates, non-disturbance and
attornment agreements, or other certificates as Landlord's Mortgagee may
reasonably request.
13. RULES AND REGULATIONS:
Tenant shall comply with the rules and regulations of the Building
which are attached hereto as Exhibit B. Landlord may, from time to time, change
such rules and regulations for the safety, care or cleanliness of the Building
and related facilities, provided that such changes are generally applicable to
all tenants of the Building and will not unreasonably interfere with Tenant's
use of the Premises. Tenant shall be responsible for the compliance with such
rules and regulations by its employees, agents, and invitees. Landlord shall not
be responsible to Tenant for the failure or refusal by any tenant or other
person in the Building to comply with the rules and regulations established by
Landlord.
14. CONDEMNATION:
If all of the Premises are taken by exercise of the power of eminent
domain (or conveyed by Landlord in lieu of such exercise) this Lease will
terminate on a date (the "termination date") which is the earlier of the date
upon which the condemning authority takes possession of the premises or the date
on which title to the premises is vested in the condemning authority. If more
than 25% of the rentable area of the Premises is so taken, Tenant will have the
right to cancel this Lease by written notice to Landlord given within 20 days
after the termination date. If less than 25% of the rentable area of the
premises is so taken, or if the Tenant does not cancel this Lease according to
the preceding sentence, the monthly rent will be abated in the proportion of the
rentable area of the premises so taken to the rentable area of the premises
immediately and before such taking and Tenant's share will be appropriately
recalculated. If 25% or more of the Building or the Land is so taken, Landlord
may cancel this lease by written notice to Tenant given within 30 days after the
termination date. In the event of any such taking, the entire award will be paid
to Landlord and Tenant will have no right or claim to any part of such award;
however, Tenant will have the right to assert a claim against the condemning
authority in a separate action, so long as Landlord's award is not otherwise
reduced, for Tenant's moving expenses and leasehold improvements owned by
Tenant. Landlord shall provide notice to Tenant promptly upon receipt of notice
of proposed condemnation from any condemning authority.
15. FIRE OR OTHER CASUALTY:
a. REPAIR ESTIMATE. If the Premises or the Building are damaged by
fire or other casualty (a "Casualty"), Landlord shall, within sixty (60) days
after such Casualty, deliver to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by such Casualty.
b. LANDLORD'S AND TENANT'S RIGHTS. If, prior to the final year of
the original term or the final year of any renewal term which is then in effect,
a material portion of the Premises or the Building is damaged by Casualty such
that Tenant is prevented from conducting its business in the Premises in a
manner reasonably comparable to that conducted immediately before such Casualty
and Landlord estimates that the damage caused thereby cannot be repaired within
120 days after the date of the commencement of repairs, the Tenant may terminate
this Lease by delivering written notice to Landlord of its election to terminate
within 30 days after Damage Notice has been delivered to Tenant. If Tenant does
12
not terminate this Lease, then (subject to Landlord's rights under Section 15c.)
Landlord shall repair the Building or the Premises, as the case may be, as
provided below, and Basic Rental and Excess Operating Expense for the portion of
the Premises rendered untenantable by the damage shall be abated on a reasonable
basis from the date of Casualty until the completion of the repairs, unless
Tenant caused such damage, in which case, Tenant shall continue to pay rent
without abatement.
c. LANDLORD'S RIGHTS. If a Casualty damages a material portion of
the Building during the final year of the original term, or during the final
year of the renewal term under this Lease, and Landlord makes a good faith
determination that restoring the Premises would be uneconomical, of if Landlord
is required to pay any insurance proceeds arising out of the Casualty to
Landlord's Mortgagee, then Landlord may terminate this Lease by giving written
notice of its election to terminate within 30 days after the Damage Notice has
been delivered to Tenant, and Basic Rental and Excess Operating Expense
hereunder shall be abated as of the date of the Casualty. If the Casualty occurs
within the last 120 days of the lease term (or of any renewal term), Tenant may
terminate this Lease upon written notice to Landlord.
d. REPAIR OBLIGATION. If neither party elects to terminate this
Lease, in an instance where such party is permitted to so elect, following a
Casualty, then Landlord shall, within a reasonable time after such Casualty,
commence to repair the Building and the Premises and shall proceed with
reasonable diligence to restore the Building and Premises and the Premises and
shall proceed with reasonable diligence to restore the Building and Premises to
substantially the same condition as they existed immediately before such
Casualty; however, Landlord shall not be required to repair or replace any part
of the furniture, equipment or fixtures which may have been placed by, or at the
request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent or the insurance proceeds actually received by Landlord
for the Casualty in question.
16. TAXES:
Tenant shall be liable for all taxes levied or assessed against
personal property, furniture, or fixtures placed by Tenant, or above building
standard tenant improvements, in the Premises and all taxes relating to the
operation of Tenant's business in the Premises including, without limitation,
all withholding taxes and sales and use taxes. If any taxes for which Tenant is
liable are levied or assessed against Landlord or Landlord's property and
Landlord elects to pay the same, or if the assessed value of Landlord's property
is increased by inclusion of such personal property, furniture or fixtures, and
above building standard improvements, and Landlord elects to pay the taxes based
on such increase, then Tenant shall pay to Landlord, upon demand, that part of
such taxes for which Tenant is primarily liable hereunder.
17. EVENTS OF DEFAULT:
Each of the following occurrences shall constitute an "Event of
Default":
a. Tenant's failure to pay Rent from Tenant to Landlord under the
Lease when due; provided that Landlord shall not exercise any remedies with
respect to such Event of Default unless the same remains uncured for a period of
five (5) days after Landlord has delivered written notice thereof; provided
further, however, that Landlord may exercise any such remedies without any
obligation of Landlord to give any notice if Landlord has given Tenant written
notice under this Section 17a. on more than two (2) occasions during the
12-month interval preceding such failure by Tenant;
b. Tenant's failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease; provided that Landlord shall
not exercise any remedies with respect to such Event of Default unless the same
13
remains uncured for a period of 30 days after Landlord delivers to Tenant
written notice thereof;
c. The filing of a petition by or against Tenant (the term "Tenant"
shall include, for the purpose of this Section 17c., any guarantor of the
Tenant's obligations hereunder) (i) in any bankruptcy or other insolvency
proceeding; (ii) seeking any relief under any state or federal debtor relief
law; (iii) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in the Lease; or
(iv) for the reorganization or modification of Tenant's capital structure;
provided, however, if such petition is filed against Tenant, then such filing
shall not be an Event of Default unless Tenant fails to have proceedings
initiated by such petition dismissed within 60 days after the filing thereof;
and provided further, however, that an event described in this Section 17c.
shall not constitute an Event of Default if applicable law provides that such
event cannot be the basis of a default hereunder;
d. Tenant shall vacate or abandon any portion of the Premises unless
Tenant continues to pay its rent and perform its other obligations under this
Lease in a timely manner.
e. The admission by Tenant that it cannot meet its obligations
as they become due or the making by Tenant of an assignment for the benefit
of its creditor; or
f. Any representation or warranty made by Tenant, or made by any
guarantor of Tenant's obligations hereunder, was materially false or
inaccurate when made.
18. REMEDIES:
Upon any Event of Default, Landlord may in addition to all other rights
and remedies afforded Landlord hereunder or by law or equity, take any of the
following actions:
a. Terminate this Lease by giving Tenant written notice thereof, in
which event, Tenant shall pay to Landlord the sum of (i) all Rent accrued
hereunder through the date of termination, (ii) all amounts due under Section
19a., and (iii) an amount equal to (A) the total Rent that Tenant would have
been required to pay for the remainder of the Term discounted to present value
at a par annum rate equal to the "Prime Rate" as published on the date this
Lease is terminated by the Wall Street Journal in its listing of "Prime Rate" as
published on the date this Lease is terminated by the Wall Street Journal in its
listing of "Money Rates", minus (b) the then present fair rental value of the
Premises for such period, similarly discounted; or
b. Terminate Tenant's right to possession of the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (i) all Rent and other amounts accrued
hereunder to the date of termination of possession, (ii) all amounts due from
time to time under Section 19a., and (iii) all Rent and other sums required
hereunder to be paid by Tenant during the remainder of Term, diminished by any
net sums thereafter received by Landlord through reletting the Premises during
such period; provided, however, that Landlord shall have no obligation to relet
the Premises and Landlord shall have no obligation to relet the Premises before
leasing other portions of the Building. Landlord shall not be liable for, nor
shall Tenant's obligations hereunder be diminished because of, Landlord's
failure to relet the Premises or to collect rent due for such reletting.
Notwithstanding the foregoing, Landlord shall have the obligation to make good
faith efforts to mitigate damages. Tenant shall not be entitled to the excess of
any consideration obtained by reletting over the Rent due hereunder. Reentry by
Landlord in the Premises shall not affect Tenant's obligations hereunder for the
unexpired Term; rather, Landlord may from time to time, bring action against
Tenant to collect amounts due by Tenant, without the necessity of Landlord's
waiting until the expiration of the Term. Unless Landlord delivers written
notice to Tenant expressly stating that it has elected to terminate this Lease,
14
all actions taken by Landlord to exclude or dispossess Tenant of the Premises
shall be deemed to be taken under this Section 18b. If Landlord elects to
proceed under this Section 18b, it may at any time elect to terminate this Lease
under Section 18a.
c. Additionally, unless otherwise required by applicable law,
Landlord may withhold notice, enter upon the Premises and alter locks or other
security devices at the Premises to deprive Tenant, its officers, employees,
agents, invitees, licensees and all other occupants, of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant.
19. PAYMENT BY TENANT; NON-WAIVER:
a. PAYMENT BY TENANT. Upon any Event of Default, Tenant shall pay to
Landlord all reasonable and necessary costs incurred by Landlord (including
court costs at all trial and appellate levels and reasonable attorneys' fees and
expenses, regardless of whether suit is filed) in (i) obtaining possession of
the Premises, (ii) removing and storing Tenant's or any other occupant's
property, (iii) repairing, restoring, altering, remodeling, or otherwise putting
the Premises into condition acceptable to a new tenant, (iv) if Tenant is
dispossessed of the Premises and this Lease is not terminated, reletting all or
any part of the Premises (including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting), (v) performing Tenant's
obligations which Tenant failed to perform, and (vi) enforcing, or obtaining
advice of its rights, remedies, and recourse arising out of the Event of
Default.
b. NO WAIVER. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by either party of any violation or breach of any of the terms contained
herein shall waive either party's rights regarding any future violation of such
term or violation of any other term.
20. LANDLORD'S LIEN:
In addition to the statutory landlord's lien, Tenant grants to
Landlord, to secure performance of Tenant's obligations hereunder, a security
interest in all equipment, fixtures, furniture, improvements and other personal
property of Tenant situated on the Premises from time to time, and all proceeds
therefrom (the "Collateral") which security interest may be enforced by Landlord
in any manner provided by law, including, without limitation, under and in
accordance with the Uniform Commercial Code in effect in the state in which the
Building is located (the "UCC"). The Collateral shall not be removed from the
Premises without the consent of Landlord until all obligations of Tenant have
been fully performed. Tenant grants to Landlord a power of attorney to execute
and file any financing statement necessary to perfect Landlord's security
interest under this Section 20, which power is coupled with an interest and
shall be irrevocable during the Term. Landlord may also file a copy of this
Lease as a financing statement to perfect its security interest in the
Collateral. Without excluding any other manner of giving Tenant any required
notice, any requirement of reasonable notice to Tenant of Landlord's intention
to dispose of any Collateral pursuant to the enforcement of such security
interest shall be satisfied if such notice is given at least ten (10) days
before the time of any such disposition. Contemporaneously with the execution of
this Lease (and if requested hereafter by Landlord), Tenant shall execute and
deliver to Landlords such UCC Financing Statement in sufficient form so that
when properly filed, the security interest hereby given shall thereupon be
perfected. If requested hereafter by Landlord, Tenant shall also execute and
deliver to Landlord UCC Financing Statement Change instruments in sufficient
form to reflect any proper amendment of, modification in or extension of the
aforesaid contract lien and security interest hereby granted. Landlord shall, in
15
addition to all of its rights hereunder, also have all the rights and remedies
of a secured party under the UCC.
21. SURRENDER OF PREMISES:
No act by Landlord shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be valid
unless the same is made in writing and signed by Landlord. At the expiration or
termination of this Lease, Tenant shall deliver to Landlord the Premises with
all improvements located thereon in good repair and condition, reasonable wear
and tear (and condemnation and fire or other casualty damage not caused by
Tenant, as to which Sections 14 and 15 shall control) excepted, and shall
deliver to Landlord all keys to the Premises. Provided that Tenant has performed
all of its obligations hereunder, Tenant may remove all trade fixtures and all
unattached furniture and personal property placed in the Premises by Tenant (but
Tenant shall not remove any such item which was paid for, in whole or in part,
by Landlord), and shall remove such alterations, additions, improvements, trade
fixtures, equipment, and furniture as Landlord has designated in advance
pursuant to Section 8(a) hereof. Tenant shall repair all damage caused by such
removal. All items not so removed shall be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed
of by Landlord without notice to Tenant and without any obligation to account
for such items. The provisions of this Section 21 shall survive the end of the
Term.
22. HOLDOVER:
If Tenant fails to vacate the Premises at the end of the Term, then
Tenant shall be a tenant at will and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding over, Tenant shall
pay, in addition to the other Rent, a daily Basic Rental equal to the greater of
(a) 150% of the daily Basic Rental payable during the last month of the Term, or
(b) the prevailing rental rate in the Building for similar space. In the event
of any unauthorized holding over, Tenant shall be liable to Landlord against all
claims made by any other tenant or prospective tenant against Landlord resulting
from delay by Landlord in delivering possession of the Premises to such other
tenant or prospective tenant.
23. CERTAIN RIGHTS RESERVED BY LANDLORD:
Landlord shall have the following rights:
a. To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements whether structural or otherwise, in and
about the Building, or any part thereof; for such purposes, to enter upon the
Premises upon reasonable notice to Tenant and, during the continuance of any
such work, to temporarily close doors, entryways, public space, and corridors in
the building; to interrupt or temporarily suspend Building services and
facilities; and to change the arrangement and location of entrances and
passageways, doors, and doorways, corridors, elevators, stairs, rest rooms, or
other public parts of the building.
b. To take such reasonable measures as Landlord deems advisable for
the security of the Building and its occupants, including without limitation
searching all persons entering or leaving the Building; evacuating the Building
for cause, suspected cause, or for drill purposes; temporarily denying access to
the Building; and closing the Building after normal business hours and on
Saturdays, Sundays, and holidays, subject however, to Tenant's right to enter
when the Building is closed after normal business hours under such reasonable
regulations as Landlord may prescribe from time to time which may include by way
of example, but not of limitation, that persons entering or leaving the
Building, whether or not during normal business hours, identify themselves to a
16
security officer by registration or otherwise and that such persons establish
their right to enter or leave the Building;
c. To change the name by which the Building is designated;
d. To enter the Premises at all reasonable hours to inspect same
to assure Tenant's compliance with its obligations hereunder to show the
Premises to prospective purchasers, lenders, or tenants and to perform all
services, maintenance and repairs required to be performed by Landlord
hereunder; and
e. Landlord shall use good faith efforts in connection with all
of the foregoing to minimize interference with Tenant's business at its
premises.
24. MISCELLANEOUS:
a. LANDLORD TRANSFER. Landlord may transfer the Building and any of
its rights under this Lease. If Landlord assigns its rights under this Lease,
then Landlord shall thereby be released from any further obligations hereunder
accruing after the date of such transfer, provided that the assignee assumes
Landlord's obligations hereunder accruing after the date of such transfer in
writing except that such assignee shall not be bound by, or assume any liability
with respect to (a) any payment of Rent for more than one month in advance
(except pre-payments for security deposits, if any), (b) any amendments or
modifications of this Lease made without prior written consent of Landlord's
mortgagee if Tenant was advised on the interest of same, or (c) any credits,
offsets, defenses, or claims which Tenant may have against Landlord.
b. LANDLORD'S DEFAULT AND LIABILITY. If Landlord fails to perform
any of its obligations under this Lease, Landlord shall not be in default
hereunder and Tenant shall not have any rights or remedies growing out of such
failure unless Tenant gives Landlord written notice setting forth in reasonable
detail the nature and extent of such failure and such failure by Landlord is not
cured within a ten (10) day period following delivery of such notice or such
longer period therefore provided elsewhere in this Lease. If such failure cannot
reasonable be cured within such ten (10) day period, the length of such period
shall be extended for the period reasonably required therefore if Landlord
commences curing such failure within such thirty (30) ten (10) day period and
continues to take action to cure such failure with reasonable diligence and
continuity. The liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease shall be limited to Tenant's actual direct, but
not consequential, damages therefor and shall be recoverable only from the
interest of Landlord in the Building and the Land.
c. FORCE MAJEURE. Other than Tenant's monetary obligations under the
Lease, whenever a period of time is herein prescribed for action to be taken by
either party hereto, such party shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations, or restrictions, or any other causes of any kind
whatsoever which are beyond the control of such party. Any elimination or
shutting off of light, air or view by any structure which may be erected on
lands adjacent to the Building shall in no way affect this Lease or impose any
liability on Landlord.
d. CRIMINAL ACTS OF THIRD PARTIES. Any security guards or security
services provided by Landlord for the Building, Appurtenant Facilities or Land
are provided for the protection of Landlord's property. Tenant shall be
responsible for the protection of Tenant and Tenant's employees, agents,
contractors, invitees and licensees and their property against criminal acts of
third parties. Landlord shall not be liable to Tenant or any other party for
17
criminal acts of third parties. Tenant shall contact the local police and rely
on the local police for protection against criminal acts.
e. RELOCATION. Landlord shall have the option to relocate Tenant to
alternate space in the Building which alternate space shall be of comparable
size and value. If Landlord desires to relocate Tenant, Landlord shall give
Tenant not less than sixty (60) days prior written notice, which notice shall
include the date on which Tenant shall be required to relocate or move and the
space to which Tenant will be relocated. The reasonable cost and expense of
improving the alternate space with improvements substantially similar to those
located in the Premises and the reasonable cost of moving Tenant and Tenant's
property and equipment to the alternate space shall be paid by Landlord. If
Landlord relocates Tenant to alternate space, such alternate space shall for all
purposes be deemed to be the Premises hereunder.
f. BROKERAGE. Landlord and Tenant each warrant to the other that it
has not dealt with any broker or agent in connection with the negotiation or
execution of this Lease. Tenant and Landlord shall each indemnify the other
against all costs, expenses, attorney's fees and other liability for commissions
or other compensation claimed by any broker or agent claiming the same by,
through, or under the indemnifying party.
g. ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish to
any party designated by Landlord, within 10 days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease as Landlord may
request.
h. NOTICES. All notices and other communications given pursuant to
this Lease shall be in writing and shall be (i) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in the Basic Lease
Information, (ii) hand delivered to the intended address, (iii) sent by prepaid
telegram, cable, facsimile transmission, or telex followed by a confirmatory
letter, or (iv) expedited delivery service with proof of delivery. Notices sent
by certified mail, postage prepaid, shall be effective 3 business days after
being deposited in the United States Mail (or Canada Mail, as appropriate); all
other notices shall be effective upon delivery to the address of the addressee.
The parties hereto may change their addresses by giving notice thereof to the
other in conformity with this provision.
i. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such
clause or provision, there shall be added as a part of this Lease a clause
or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be legal, valid, and
enforceable.
j. AMENDMENTS AND BINDING EFFECT. This Lease (including all Exhibits
hereto) constitutes the entire agreement between Landlord and Tenant and
supersedes all prior discussions and agreements of the parties relating to the
Premises and the Building. This Lease may not be amended except by instrument in
writing signed by Landlord and Tenant. Whenever any approval or consent of the
Landlord is required, such approval or consent shall not be binding on Landlord
unless expressed in writing and executed by an authorized representative of
Landlord. No provision of this Lease shall be deemed to have been waived by
either party unless such waiver is in writing signed by such party, and no
custom or practice which may evolve between the parties in the administration of
the terms hereof shall waive or diminish the right of either party to insist
upon the performance by such party in strict accordance with the terms hereof.
The terms and conditions contained in this Lease shall inure to the benefit of
18
and be binding upon the parties hereto, and upon their respective successor in
interest and legal representatives, except as otherwise herein expressly
provided. This Lease is for the sole benefit of Landlord and Tenant, and other
than Landlord's Mortgagee and Tenant's guarantors, no third party shall be
deemed a third party beneficiary hereof.
k. QUIET ENJOYMENT. Provided Tenant has performed all of the
material terms and conditions of this Lease to be performed by Tenant, Tenant
shall peaceably and quietly hold and have use and enjoyment of the Premises for
the Term, without hindrance from Landlord or any party claiming by, through, or
under Landlord, subject to the terms and conditions of the Lease.
l. JOINT AND SEVERAL LIABILITY. If there is more than one Tenant,
then the obligations hereunder imposed upon Tenant shall be joint and several.
If there is a guarantor of Tenant's obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint and several obligations of
Tenant and such guarantors except as otherwise provided in the Guaranty
Agreements executed by such guarantors. Landlord need not first proceed against
Tenant before proceeding against such guarantors nor shall any such guarantor be
released from its guaranty for any reason whatsoever, except as otherwise
provided in the Guaranty Agreement executed by such guarantor.
m. CAPTIONS. The captions contained in this Lease are for
convenience of reference only, and do not limit or enlarge the terms and
conditions of this lease.
n. NO MERGER. There shall be no merger of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof if the
same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
o. NO OFFER. The submission of the Lease to Tenant shall not be
construed as an offer, nor shall Tenant have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
p. NO RIGHTS TO USE OF BUILDING NAME. Tenant shall have no interest
in, or rights to, the name of the Building. Landlord will have the right,
exercisable upon written notice and without liability to any tenant, to change
the name and street address of the Building. Tenant shall not engage in any
advertising mentioning the Building without the prior written consent of
Landlord. Landlord shall have the right to prohibit any advertising by Tenant
mentioning the Building that, in Landlord's opinion, tends to impair the
reputation of the Building or its desirability as a building for offices, and
upon written notice from Landlord, Tenant will refrain from or discontinue such
advertising.
q. TIME OF ESSENCE. Except as provided in Section 24c. hereof,
time is of the essence of this Lease and each and all of its provisions in which
performance is a factor.
r. AUTHORITY OF PARTIES. If Tenant is a corporation, limited
partnership, partnership, trust or other entity, each person executing this
Lease on behalf of said entity represents and warrants to Landlord that such is
duly authorized to execute and deliver this Lease on behalf of said entity in
accordance with all laws and documents which determine and limit the operations
of such entity and that this Lease is binding upon said entity in accordance
with its terms.
s. GOVERNING LAW. This Lease shall be governed by the laws of the
state in which the Premises are located.
t. EXHIBITS. All exhibits and attachments listed in the Basic
Lease Information and attached hereto are incorporated herein by this
reference.
19
u. SIGNAGE. Subject to compliance with ordinances of the City of
Farmers Branch, Texas, Tenant shall have the exclusive right to display its name
on the exterior of the Building, in a style and manner as has been approved in
advance by Landlord, an example of which is diagramed on Exhibit "I" attached
hereto. Tenant's rights in this regard shall expire upon the assignment of this
Lease by Tenant or the subletting by Tenant of more than fifty percent (50%) of
the Agreed Rentable Area of the Premises.
25. SPECIAL PROVISIONS:
This Lease may be subject to approval by Landlord's mortgagee. In the
event Landlord's mortgagee requires the approval of Landlord's mortgagee and
Landlord's mortgagee refuses to approve this Lease and enter into a
Subordination, Attornment, and Non-Disturbance Agreement with Tenant within 120
days of the execution date hereof, then this Lease will, at Tenant's option, be
void.
26. DISCLAIMER OF IMPLIED WARRANTY:
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE. TENANT'S
OBLIGATIONS TO PAY RENT HEREUNDER ARE NOT DEPENDENT UPON THE CONDITION OF THE
PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT,
WITHOUT ABATEMENT, SETOFF, DEDUCTION, NOT WITHSTANDING ANY BREACH BY LANDLORD OR
ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESSED OR IMPLIED. Tenant
accepts the Premises AS IS, with all faults.
27. REPRESENTATION AND WARRANTIES:
a. OF LANDLORD. As of this date hereof, and as of the commencement
date, Landlord warrants to Tenant the following:
i. the execution, delivery and performance of this Lease
by Landlord and the consummation of the transactions contemplated by Landlord:
A. are within Landlord's powers, are not in
contravention of law or of the terms of Landlord's Limited Partnership
Agreement or any amendments thereto and have been duly and properly authorized
by all appropriate partnership action;
B. will neither conflict with nor result in
any breach or contravention of, nor permit the acceleration of the
maturity of, or the creation of any lien under, any indenture, mortgage,
agreement, lease, contract, instrument or understanding to which Landlord is a
party or by which Landlord or the Premises are bound;
C. are and will constitute the valid and
legally binding obligation of Landlord, enforceable in accordance with the
terms of this Lease, except as enforceability may be restricted, omitted, or
delayed by applicable bankruptcy or other laws affecting creditors' rights
generally and except as enforceability may be subject to general principles of
equity.
ii. Landlord has not received notice of a violation of any
applicable ordinance or other law, order, regulation, or requirement, and has
not received notice of condemnation, lien, assessment or the like, relating to
any part of the Land, the Building or the operation thereof and, to the best of
Landlord's knowledge, there is not presently contemplated or proposed and
condemnation operation thereof.
20
iii. Landlord has no knowledge that the Land or the Building
is in violation of any federal, state or local statutes, regulations, laws or
orders pertaining to environmental matters, including, without limitation, the
comprehensive Environmental Response Compensation and Liability Act ("CERCLA"),
the Environmental Cleanup Responsibility Act ("ECRA") and the Resource
Conservation and Recovery Act ("RCRA"). To the best of Landlord's knowledge, no
Hazardous Substances (which for purposes of this Section 27 c. shall mean and
include polychlorinated biphenyls, asbestos and any substances, materials,
constituents, waste or other elements which are included under or regulated by
any federal, state or local law, rule or regulation pertaining to environmental
regulations, contamination, clean-up or disclosures, including, without
limitation, CERCLA, ECRA and RCRA) have been or through the Term will be,
disposed of on or released or discharged from (including groundwater
contamination) or in respect of the Land or the Building by Landlord. Landlord
shall not knowingly allow any Hazardous Substances to be discharged, possessed,
managed, processed or otherwise handled on the Land or the Building by Landlord,
its employees, agents, or independent contractors, in a manner which is in
violation of applicable law, and Landlord shall not knowingly violate and
environmental laws affecting the Land of the Building. Landlord shall
immediately notify Tenant should Landlord become aware of any lien, notice,
litigation or threat of litigation relating to any alleged unauthorized release
of any Hazardous Substance or the existence of any Hazardous Substances or other
environmental contamination, liability or problem with respect to or arising out
of or in connection with the Land or the Building.
b. OF TENANT. As of this date hereof, and as of the commencement
date, Tenant warrants to Landlord that the execution, delivery and performance
of this Lease by Tenant and the consummation of the transactions contemplated by
Tenant:
i. are within Tenant's corporate powers, are not in
contravention of law or of the terms of Tenant's Articles of Incorporation,
Bylaws or any amendments thereto and have been duly and properly authorized by
all appropriate corporate action, as evidenced by a Secretary's Certificate in
the form attached as Exhibit "H";
ii. will neither conflict with nor result in any breach or
contravention of, nor permit the acceleration of the maturity of, or the
creation of any lien under, any indenture, mortgage, agreement, lease, contract,
instrument or understanding to which Tenant is a party or by which Tenant or the
Premises are bound;
iii. are and will constitute the valid and legally binding
obligation of Tenant, enforceable in accordance with the terms of this Lease,
except as enforceability may be restricted, omitted, or delayed by applicable
bankruptcy or other laws affecting creditors' rights generally and except as
enforceability may be subject to general principles of equity.
EXECUTED effective as of the Lease Date set forth in the Basic Lease
Information.
LANDLORD: TENANT:
4901 LBJ Limited Partnership IDX Information Systems Corporation
By: /S/ XXXX X. XXXX By: /S/ XXXX X. XXXX
--------------------------------- ---------------------------------
Printed Name: Xxxx X. Xxxx Printed Name: Xxxx X. Xxxx
----------------------- -----------------------
Title: Treasurer & V.P. Title: Sr. V.P. & Treasurer
------------------------------ ------------------------------
Date: November 11, 2002 Date: November 11, 2002
------------------------------- ------------------------------
21
EXHIBIT "A"
OUTLINE OF PREMISES &
LEGAL DESCRIPTION OF THE LAND
[FOUR PAGES FOLLOW]
22
EXHIBIT "B"
BUILDING RULES AND REGULATIONS
1. Tenant shall not obstruct the sidewalks, entrances, passages,
corridors, vestibules, halls, elevators or stairways in or about the Building.
2. Tenant shall not place objects against glass partitions, doors or
windows that would be unsightly from the Building corridor or from the exterior
of the Building. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or fixed by Tenant on any window or part of the
outside or inside of the Buildings without prior consent of Landlord.
3. Tenant shall not place a load upon any floor of the Building
exceeding the lesser of the floor load that such floor was designed to carry or
that allowed by law.
4. Tenant shall not waste electricity or water in the Building and
shall cooperate fully with Landlord to assure the most effective operation of
the Building HVAC system. All regulating and adjusting of HVAC equipment shall
be done by the Landlord's agents or employees.
5. Tenant shall affix no additional or different locks or bolts on
exterior doors. Tenant shall return all keys to Landlord upon termination of
Tenant's lease. Tenant shall not allow peddlers, solicitors or beggars in the
Building and shall report such persons to the Landlord's agent.
6. Tenant shall not use the Premises so as to cause any increase
above normal insurance premiums on the Building.
7. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises. No space in the Building shall be used for
manufacturing or for the sale of merchandise of any kind at auction or for
storage thereof preliminary to such sale.
8. Tenant shall not engage or pay any employees of the Building
without approval from the Landlord. Tenant shall not employ any persons other
than the janitor or employees of Landlord for the purpose of cleaning Premises
without the prior written consent of Landlord.
9. All removals from the Building or the carrying in or out of the
Building or the Premises of any freight, furniture or bulky matter of any
description must take place at such time and in such manner as Landlord may
determine from time to time. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of the rules and regulations or provisions of Tenant's lease.
10. Normal Building Operating Hours are 8:00 a.m. to 6:00 p.m. Mondays
through Fridays and 8:00 a.m. to 1:00 p.m. on Saturdays excluding New Years Day,
Xxxxxx Xxxxxx Xxxx'x Birthday, President's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day (and the applicable weekday when any
such day occurs on a weekend day) and all other federal, state, county or
municipal holidays and all Sundays, except that Landlord reserves the option (at
its sole election) to expand or alter Normal Building Operating Hours. Any day
(other than a Saturday) on which Normal Building Operating Hours shall occur
shall be a "Business Day". At all times, Landlord reserves the right to exclude
23
from the Building all persons connected with or calling upon Tenant who do not
present a pass to the Building signed by Tenant. Landlord will furnish passes to
persons designated by Tenant and Tenant shall be responsible to Landlord for all
acts of such persons.
11. Tenant shall cooperate with Landlord in minimizing loss and risk
thereof from fire and associated perils.
12. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the Landlord and/or its contractors, agents and employees
during the making of repairs, alterations, additions or improvements in or to
the demised premises.
13. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were designed and
constructed and no sweepings, rubbish, rags, acid or like substance shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by Tenant.
14. Tenant may request HVAC service outside of Normal Building
Operating Hours by submitting a request in writing to the Building Manager's
office by noon of the preceding workday.
15. Landlord reserves the right to establish, modify and enforce
parking rules and regulations.
16. All refuse from the Premises shall be disposed of in accordance
with the requirements established therefore by Landlord and no dumpster shall be
overloaded by Tenant.
17. Landlord reserves the right at any time to rescind, alter or waive
any rule or regulation at any time prescribed for the Building and to impose
additional rules and regulations when in its judgment Landlord deems it
necessary, desirable or proper for its best interest and for the best interest
of tenants and other occupants and invitees thereof. No alteration or waiver of
any rule or regulation in favor of one Tenant shall operate as an alteration or
waiver in favor of any other Tenant. Landlord shall not be responsible to any
Tenant for the non-observance or violation by any other Tenant however resulting
of any rules or regulations at any time prescribed for the Building.
24
EXHIBIT "C"
TENANT FINISH-WORK
A. General
-------
1. All alterations, installations or improvements ("Alterations") to
be made by Tenant in, to or about the Premises shall be made in accordance with
the requirements of this Exhibit and by contractors or mechanics approved by
Landlord.
2. Tenant shall, prior to the commencement of any Alterations,
submit for Landlord's written approval, complete plans of the Premises, or of
the floor on which the Alterations are to occur, including mechanical,
electrical, plumbing and architectural drawings. Drawings are to be complete
with full details and specifications for all of the Alterations and shall be
stamped by an architect licensed in the state or district in which the Property
is located certifying compliance with building codes.
3. The proposed Alterations must comply with the building code in
effect for the City of Farmers Branch, Texas and the requirements, rules and
regulations and any governmental agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit from the building department and/or other agencies
having jurisdiction in the City of Farmers Branch, Texas.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after Building hours and Tenant shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters shall
be processed through the Building manager.
7. Tenant shall be responsible for payment of all costs of the
architect/engineer, contractor, construction manager and all costs of
construction, including, but not limited to, materials, supplies, labor and
related labor costs, insurance, legal fees, permits, and other construction
related items.
B. Prior to Commencement of Work
-----------------------------
1. Tenant shall submit to the Building manager a request to perform
the Alterations. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors
for Landlord's approval.
(ii) Four complete sets of plans and specifications properly
stamped by a registered architect and professional engineer certifying
compliance with applicable building codes.
(iii) A properly executed building permit application form.
25
(iv) Four executed copies of the Insurance Requirements
Agreement in the form set forth in Schedule I attached hereto from
Tenant's contractor and if requested by Landlord, from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance certificates
including an indemnity in accordance with the Insurance Requirements
agreement.
2. Landlord will return the following to Tenant:
(i) Plans approved or returned with comments (Such approval
or comments shall not constitute a waiver of Building Department
approval or approval of other governmental agencies).
(ii) Two fully executed copies of the Insurance Requirements
agreement.
3. Tenant shall obtain a building permit from the building
department and necessary permits from other governmental agencies. Tenant shall
be responsible for keeping current all permits. Tenant shall submit copies of
all approved plans and permits to Landlord and shall post the original building
permit on the Premises prior to the commencement of any work. All Alterations
shall be subject to reasonable supervision and inspection by Landlord's
representative. Such supervision and inspection shall be at Tenant's sole
expense and Tenant shall pay Landlord's reasonable charges for such supervision
and inspection.
C. Requirements and Procedures
---------------------------
1. All structural and floor loading requirements shall be subject to
the prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers. When necessary, Landlord will require engineering and shop
drawings, which drawings must be approved by Landlord before work is started.
Drawings are to be prepared by Tenant and all approvals shall be obtained by
Tenant.
3. Building access and elevator service for construction work shall
be charged to Tenant at standard Building rates. Tenant shall make prior
arrangements for elevator use with Building manager. No material or equipment
shall be carried under or on top of elevators. If an operating engineer is
required by any union regulations, Tenant shall pay for such engineer.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler
and plumbing work is required, such work shall be supervised by Landlord's
representative at Tenant's expense. No work will be performed in Building
mechanical equipment rooms without Landlord's approval and under Landlord's
supervision.
5. Tenant's contractor shall:
(i) have a superintendent or xxxxxxx on the Premises at all
times;
26
(ii) police the job at all times, continually keeping the
Premises orderly;
(iii) maintain cleanliness and protection of all areas,
including elevators and lobbies;
(iv) protect the front and top of all peripheral HVAC units
and thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts
to keep dust from entering into the Building HVAC system; and
(vi) take all reasonable steps to avoid the disturbance of
other tenants.
6. If Tenant's contractor is negligent in any of its
responsibilities, Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the Building
standards. Any deviation from such standards will be permitted only if indicated
or specified on the plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to
Landlord a permanent certificate of occupancy and final approval by the other
governmental agencies having jurisdiction.
10. Tenant shall submit to Landlord a final "as-built" set of sepia
drawings (and a set of the drawings on "AutoCAD 12") showing all items of
Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
D. Tenant Allowance
----------------
So long as an Event of Default has not occurred and is continuing, at
any time after the first anniversary of the commencement of this Lease, Tenant
may request reimbursement for actual improvements made to the Premises (whether
structural or cosmetic) in an amount of up to $5 per square foot of the Agreed
Rentable Area of the Premises. To obtain such reimbursement, Tenant shall
furnish to Landlord:
1. a notarized affidavit executed by Tenant's architect and
contractor stating that all work and materials performed have been completed in
accordance with approved plans and specifications;
2. a notarized affidavit executed by Tenant stating that all work
and materials performed and used in connection with the improvements to the
Premises have been paid for by Tenant;
3. true and correct original releases or waivers of lien from the
general contractor, subcontractors and suppliers; and
27
4. evidence of all costs of construction of the improvements to the
Premises.
Upon receipt and approval of all documentation set forth above, Landlord shall
reimburse Tenant within thirty (30) days after Landlord's approval of said
documentation, in an amount equal to the lesser of (a) $5 per Agreed Rentable
Area of the Premises, or (b) the actual cost of Tenant's work paid by Tenant.
28
SCHEDULE I TO EXHIBIT "C"
CONTRACTOR'S INSURANCE REQUIREMENTS
Building: 0000 XXX Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx
Tenant: IDX Information Systems Corporation
Premises: Suite 200, being all of the second, third and fourth floors
The undersigned contractor or subcontractor ("Contractor") has been
hired by the tenant or occupant (hereinafter called "Tenant") of the Building
named above or by Tenant's contractor to perform certain work ("Work") for
Tenant in the Premises identified above. Contractor and Tenant have requested
the undersigned landlord ("Landlord") to grant Contractor access to the Building
and its facilities in connection with the performance of the Work and Landlord
agrees to grant such access to Contractor upon and subject to the following
terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, and
if Landlord is a general or limited partnership each of the partners thereof,
and if Landlord is a nominee trust the trustee(s) and all beneficiaries thereof,
and all of their respective officers, employees and agents, from and against any
claims, demands, suits, liabilities, losses and expenses, including reasonable
attorneys' fees, arising out of or in connection with the Work (and/or imposed
by law upon any or all of them) because of personal injuries, including death,
at any time resulting therefrom and loss of or damage to property, including
consequential damages, whether such injuries to person or property are claimed
to be due to negligence of the Contractor, Tenant, Landlord or any other party
entitled to be indemnified as aforesaid except to the extent specifically
prohibited by law (and any such prohibition shall not void this agreement but
shall be applied only to the minimum extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers Liability Insurance covering
each and every xxxxxxx employed in, about or upon the Work, as provided for in
each and every statute applicable to Workmen's Compensation and Employers'
Liability Insurance.
(b) Commercial General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for the
indemnification clause of this agreement) for not less than the following
limits:
Bodily Injury: $5,000,000 per person
$5,000,000 per occurrence
Property Damage: $5,000,000 per occurrence
$5,000,000 aggregate
(c) Commercial Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
29
Bodily Injury: $5,000,000 per person
$5,000,000 per occurrence
Property Damage: $5,000,000 per occurrence.
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the
Work to provide the following insurance:
(a) Commercial General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal to the
limits stated in paragraph 2(b).
(b) Commercial Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
with limits of liability at least equal to the limits stated in paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 200 .
-------- ------------------- ---
Contractor: Landlord:
4901 LBJ Limited Partnership
By: By:
--------------------------------- ----------------------------------
Printed Name: Printed Name:
----------------------- ------------------------
Title: Title:
------------------------------ -------------------------------
30
EXHIBIT "D"
PARKING
At the time of execution of the Lease, there is currently a parking
garage and parking area associated with the Building in which the Premises are
located (collectively referred to as the "Parking Area") which serves the
Building which includes the Premises.
During the primary Term and any Renewal Term of this Lease Landlord
agrees to provide free parking, to the extent spaces are available, to Tenant
and its employees in the garage level and surface parking areas. The number of
spaces provided shall be consistent with Tenant's Proportionate Share. As of the
commencement of this Lease, there are 85 standard garage spaces and 55 standard
surface spaces; Tenant shall be entitled to 66 standard garage spaces and 43
standard surface spaces, subject to increase or decrease if Tenant's
Proportionate Share increases or decreases.
Tenant will comply with all traffic, security, safety and other rules
and regulations promulgated from time to time by Landlord. Vehicles which are
unmoved or abandoned for more than three (3) days will be removed from the
Parking Area and impounded at Tenant's expense. Tenant shall be responsible for
any damage to the Parking Area caused by Tenant and Tenant's employees.
Tenant shall at all times maintain with Landlord a list of permits held
by Tenant, which list shall be in form, scope and substance reasonably
satisfactory to Landlord, and shall identify the individual to whom a Permit has
been issued, the vehicle used by such individual and the license place number of
such vehicle.
Tenant shall indemnify and hold harmless Landlord from and against all
claims, losses, liabilities, damages, costs and expenses (including, not limited
to, reasonably attorney's fees and court costs) arising or alleged to arise out
of Tenant's use of such parking spaces. In the event any of the parking spaces
reserved to Tenant are or become temporarily unavailable at any time or from
time to time throughout the Term, whether due to casualty beyond Landlord's
control, this Lease shall continue in full force and effect.
31
EXHIBIT "E"
RENEWAL OPTION
Provided no uncured Event of Default exists, Tenant may renew this
Lease (the "Renewal Option") for one (1) additional period of five (5) years
(the "Renewal Term") on the same terms provided in the Lease (except as set
forth below), by delivering written notice of the exercise thereof (which notice
must be unconditional and shall be irrevocable) to Landlord not earlier than 270
days and not later than 180 days before the expiration of the initial Term. On
or before the commencement date of the Renewal Term, Landlord and Tenant shall
execute an amendment to this Lease extending the Term on the same general terms
provided in this Lease, except that (a) this Lease shall not be further
available for renewal and (b) the rental for the Renewal Term shall be
ninety-five percent (95%) of the "Market Rental Rate". The Market Rental Rate is
hereby defined to mean the then prevailing rents (including, without limitation,
those similar to the Basic Annual Rent and Additional Rent) payable on lease
transactions by tenants having a credit standing substantially similar to that
of Tenant, in buildings of comparable quality, condition and age, for space of
comparable quality, size, utility and location within the building as the
Premises, located within a three mile radius of the intersection of LBJ Freeway
and North Dallas Tollway in the City of Dallas and leased for a term
approximately equal to the Renewal Term. The Market Rental Rate will take into
consideration the tenant inducements, concessions, allowances and/or abatements
offered in the transactions considered in determining the Market Rental Rate.
Tenant's rights under this Exhibit shall terminate if (i) this Lease or
Tenant's right to possession of the Premises is terminated in accordance with
the Lease, or (ii) Tenant fails to timely exercise its option under this
Exhibit, time being of the essence with respect to Tenant's exercise thereof.
32
EXHIBIT "F"
RIGHT OF first offer
and expansion option
1. The term "Offer Expansion Space" as used herein shall mean the
first floor of the Building. Prior to leasing to a third party any of the Offer
Expansion Space, Landlord shall first deliver to Tenant a written statement
("Statement") specifying the amount and location of such space, the anticipated
date of tender of possession, the rental rate (including any projected rate
increases over the applicable term), and other applicable terms. Tenant shall
have five (5) business days after receipt of the Statement within which to
notify Landlord in writing that it elects to lease the applicable Offer
Expansion Space (each such written notice is herein referred to as a "Notice").
If Tenant elects to lease the applicable Offer Expansion Space within such five
(5) business day period, then Tenant's election shall be irrevocable. If Tenant
elects not to lease the applicable Offer Expansion Space, Landlord shall have
the right to lease such space to any other party; provided, however, that (i) if
such space if not leased within six months after the date of the Statement, or
(ii) if the economic benefit derived from any such lease with any prospective
tenant is less than 90% of the economic benefit of the lease expansion proposed
in the Statement, then Landlord shall again be required to comply with the terms
of this Exhibit prior to leasing all or any portion of the Offer Expansion Space
to other parties (or prior to Landlord itself occupying any portion of the Offer
Expansion Space). Failure by Tenant to notify Landlord within such five (5)
business day period shall be deemed an election by Tenant not to lease the
applicable Offer Expansion Space. Subject to Paragraph 4 hereof, Tenant's Right
of First Offer shall continue into the Renewal Term, if applicable.
2. If Tenant elects to lease the applicable Offer Expansion Space,
then such space shall be leased to Tenant upon the terms and conditions set
forth in the Statement, subject to Section 3 below. Tenant shall, within 15 days
after Landlord's written request, execute and return a lease amendment adding
the Offer Expansion Space to the Premises for all purposes under the Lease
(including any extensions or renewals) and confirming the rent and other
applicable terms specified in the Statement. If Tenant fails to timely execute
and return the required lease amendment, then Tenant's rights and Landlord's
obligations under this Rider shall expire and be of no further force or effect.
3. In exercising its right to lease the Offer Expansion Space,
Tenant may elect to make the lease term for the Offer Expansion Space
coterminous with the Term; in which event, however, the Basic Rent for the lease
term for the Offer Expansion Space shall be adjusted as Landlord deems necessary
to ensure that the economic benefit to be received by Landlord under such
coterminous lease term shall be no less than the economic benefit that Landlord
would have received under a lease made in accordance with the terms specified in
the Notice. Tenant acknowledges and agrees that the application of the preceding
sentence may result in an adjustment that significantly increases Basic Rent
payable for the Offer Expansion Space over the coterminous lease term.
4. Notwithstanding any other provision or inference herein to the
contrary, Tenant's rights and Landlord's obligations under this Rider shall
expire and be of no further force or effect on the earliest of (i) the
expiration or earlier termination of the term (whether the initial term or the
Renewal Term) of the Lease, (ii) an assignment of this Lease by Tenant (other
than to an affiliate of Tenant), (iii) the subletting by Tenant of more than 50%
of the Agreed Rentable Area of the Premises (other than to an affiliate of
Tenant), or (iv) a default by Tenant under the Lease.
33
5. In addition to the foregoing, Landlord grants to Tenant an option
(the "Expansion Option") to lease the Offer Expansion Space (e.g., the entire
first floor of the Building) simultaneously with its exercise of its renewal
option set forth in Exhibit "E" hereof; provided, however, that Landlord shall
not be obligated to include in the Offer Expansion Space made available to
Tenant at the commencement of the Renewal Term any such space which is vacant as
of December 31, 2004. Tenant shall exercise its Expansion Option simultaneously
with its execution of the Renewal Option. If the Tenant does not exercise the
Expansion Option, Tenant shall have no further option on the Offer Expansion
Space; provided, however, that its Right of First Offer shall continue.
34
EXHIBIT "G"
Janitorial Specifications
4901 LBJ Freeway Office building
AREAS TO BE SERVICED:
I. General Cleaning - Nightly
--------------------------
A. Sweep or vacuum all hard surface flooring using approved dust-down
preparations. Damp mop all hard surface flooring, and buff as needed.
B. Vacuum all accessible carpeted areas.
C. Empty, clean and dust all wastebaskets, ashtrays, receptacles, etc.
wash if necessary.
D. Remove wastepaper and waste materials to a designated area.
E. Dust and wipe clean all furniture, fixtures, telephones,
and windowsills.
F. Damp wipe all glass furniture tops.
G. Dust al1- chair rails, trim, etc.
H. Dust all baseboards;- remove stains if possible.
I. Wash and clean all water fountains and coolers.
J. Keep entrance doors to offices locked while cleaning.
K. Wipe out microwaves and wipe down countertops in break
room areas.
L. Clean all elevators; wipe down chrome and spot clean carpet.
II. Restrooms (Each Business Day)
-----------------------------
A. Wash all countertops.
B. Sweep and mop floors.
C. Wash both sides of all toilet seats.
B. Wipe clean all toilet tissue, soap, towel and sanitary napkin
dispensers and disposal units.
D. Wash and disinfect all basins, bowls and urinals.
E. Empty and clean towel and sanitary napkin disposal receptacles.
F. Remove wastepaper and refuse to a designated area.
G. Fill toilet tissue holders, soap dispensers, towel dispensers and
sanitary napkin dispensers.
35
III. Periodic Scheduled Cleaning (monthly)
-------------------------------------
A. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
B. Dust all vertical surfaces such as walls, partitions, ventilating
louvers, fresh-air grills and others not reached in nightly cleaning in
office and public areas.
C. Stairway, office, and utility doors and frames on all floors to be
checked for general cleanliness; remove finger marks and dust.
D. Dust all window frames as needed.
E. Spot carpet cleaning will be done daily, as needed.
F. Dust all building standard blinds.
36
EXHIBIT "H"
SECRETARY'S CERTIFICATE
I,___________________, the duly elected and acting Secretary of, IDX
Information Systems Corporation, a corporation (the "Corporation"), hereby
certify that:
(A) at a meeting of the board of directors of the Corporation held
on_____________________in accordance with law and the Bylaws of the Corporation
the following resolutions were duly adopted:
VOTED:
a. To approve a lease of approximately 32,432 square feet of space
for a term of five (5) years from 4901 LBJ Limited Partnership in the building
commonly known as 0000 XXX Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx, which lease grants
the Tenant an option to extend the term for one (1) term of five (5) years,
substantially in the form of the draft presented at this meeting, a copy of
which shall be placed on file in the office of the Secretary and be incorporated
by reference in this vote;
b. To authorize and , or any one of them (each hereinafter referred
to as a "Signatory"), to execute and deliver in the name and on behalf of the
Corporation the above-described lease and to execute and deliver all other
documents, agreements and instruments, including, without limitation, notices of
lease, and to take all other actions with respect to the foregoing which any
Signatory, in such Signatory's discretion, shall determine to be necessary or
appropriate to effect or secure the transactions contemplated herein, the
execution and delivery of any of the foregoing or the taking of any such action
to be conclusive evidence of such Signatory's determination and of the
Signatory's authority so to do granted by this vote;
(B) as of this date the following individuals are duly elected and
qualified officers of the Corporation holding at this date, the offices
specified next to their names and the signature next to each such name is such
individual's true signature.
NAME OFFICE SIGNATURE
---- ------ ---------
_________________________ _______________________ _______________________
_________________________ _______________________ _______________________
_________________________ _______________________ _______________________
(C) The form of lease is attached to this Certificate.
--------------------------------
Secretary
37
EXHIBIT "I"
EXAMPLE OF ACCEPTABLE EXTERIOR SIGNAGE
[LOGO]
38
