SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement (this "AMENDMENT") is made as
of March 29, 2000 by and between W9/LWS II REAL ESTATE LIMITED PARTNERSHIP
("LANDLORD"), and 0-XXXXXXXX.XXX, INC., a Texas corporation ("TENANT").
RECITALS
A. Landlord and Tenant entered into that certain Office Space Lease
Agreement dated June 16, 1999, as amended by that certain First Amendment to
lease dated September 27, 1999 (collectively, the "LEASE"), pursuant to which
Landlord leases to Tenant approximately 5,998 rentable square feet of space
(the "ORIGINAL PREMISES") in the building known as Loop Central Three located
at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx (the "BUILDING"). All capitalized
terms used herein shall have the meanings given them in the Lease, unless
otherwise defined herein.
B. The term of the Lease (the "Term") expires on October 31, 2002.
Landlord and Tenant have agreed to extend the Term and expand the Premises,
and wish to confirm their agreements regarding such extension and expansion.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. EXTENSION. The Term is hereby extended for a period of sixty-(60)
months, commencing on November 1, 2002 ("RENEWAL COMMENCEMENT DATE") and
ending on October 31, 2007, which date shall be the new Termination Date.
2. EXPANSION SPACE. Effective as of the Expansion Space Commencement
Date (as defined below), the Premises shall be expanded to include that
certain space, known as suites 100, 110 and 120, containing approximately
6,745 rentable square feet, as depicted on EXHIBIT A attached hereto and made a
part hereof (the "EXPANSION SPACE"). The Original Premises as expanded by the
Expansion Space shall hereinafter be referred to as the "Premises." As of the
Expansion Space Commencement Date, the Rentable Area of Premises shall be
increased to 12,743. As used herein, the "EXPANSION SPACE COMMENCEMENT DATE"
shall mean the earlier to occur of (i) the date on which Tenant commences
occupancy of the Expansion Space and (ii) May 1, 2000. Promptly following
Tenant's receipt of a written notice ("COMMENCEMENT NOTICE") from Landlord
setting forth the Expansion Space Commencement Date, Tenant shall acknowledge
said date by countersigning the Commencement Notice and returning it to
Landlord. Notwithstanding the foregoing, neither Landlord's failure to
deliver a Commencement Notice nor Tenant's failure to countersign same shall
affect Landlord's determination of the Expansion Space Commencement Date.
3. BASE RENTAL. Until the expiration of the current Term, Tenant
shall pay Monthly Base Rent with respect to the Original Premises as
originally provided in the Lease. Effective as of the Renewal Commencement
Date, Monthly Base Rent with respect to the Original Premises shall be
payable in the following amounts during the periods indicated:
PERIOD ANNUAL BASE RENT PER MONTHLY BASE
SQUARE FOOT RENT
------ -------------------- ------------
November 1, 2002 to October 31, 2004 $18.50 $ 9,237.67
November 1, 2004 to October 31, 2005 $19.50 $ 9,737.00
November 1, 2005 to October 31, 2006 $20.50 $10,236.33
November 1, 2006 to October 31, 2007 $21.50 $10,735.67
Effective as of the Expansion Space Commencement Date, Monthly Base Rent
with respect to the Expansion Space shall be payable in the following amounts
during the periods indicated:
PERIOD ANNUAL BASE RENT PER MONTHLY BASE
SQUARE FOOT RENT
------ -------------------- ------------
Expansion Space Commencement Date to
October 31, 2000 $17.25 $ 9,695.94
November 1, 2000 to October 31, 2001 $17.50 $ 9,836.46
November 1, 2001 to October 31, 2002 $17.75 $ 9,976.98
November 1, 2002 to October 31, 2004 $18.50 $10,389.54
November 1, 2004 to October 31, 2005 $19.50 $10,960.63
November 1, 2005 to October 31, 2006 $20.50 $11,522.71
November 1, 2006 to October 31, 2007 $21.50 $12,084.79
4. EXPENSE ADJUSTMENT AND TAX ADJUSTMENT. Tenant shall continue to
pay Expense Adjustment and Tax Adjustment as described in Section 4.04 of the
Lease except that, effective as of the Expansion Space Commencement Date,
Tenant's Share shall be 6.49%.
5. TENANT IMPROVEMENTS. Landlord shall, at Tenant's sole expense
(subject to the application of the Allowance), complete the improvements to
the Premises (the "WORK") in accordance with plans and specifications
prepared by Xxxxxxx & Associates and mutually approved by Landlord and
Tenant. After mutual approval of the plans and specifications, Landlord shall
engage a contractor to diligently complete the Work. Landlord shall
contribute an allowance ("ALLOWANCE") of up to $183,653.00 (i.e., $13.00 per
rentable square foot in the
Expansion Space and $16.00 per rentable square foot in the Original Premises)
toward the Cost of the Work. As used herein, the "COST OF THE WORK" shall
mean the total costs incurred in connection with the Work including, without
limitation, all construction related costs, all architectural and engineering
fees and costs, the cost of permits and a construction supervision fee
payable to Landlord in the amount of five percent (5%) of the so-called "hard
costs" of construction. If the estimated Cost of the Work exceeds the
Allowance, Tenant shall pay the amount of such excess to Landlord prior to,
and as a condition of, the commencement of the Work and Tenant shall be
responsible for any further such excess after completion of the Work. Tenant
shall not be entitled to any unused Allowance, whether by credit or otherwise.
6. RIGHT OF REFUSAL. Provided that Tenant is not in default under
the Lease, Tenant shall have a continuing right of refusal with respect to
the leasing of space on the second (2nd) floor of the Building, such space
being designated herein as the "REFUSAL SPACE". Space shall be deemed
"available for leasing" at such time that the space is not subject to (i) a
current lease; (ii) an assignment or sublease by the current tenant of the
space; (iii) a renewal, extension or renegotiation of the current lease; or
(iv) specific expansion rights, right of first refusal or preferential right
existing under any other tenant leases in the Building. Such right of refusal
shall be exercisable upon and shall be subject to the following conditions:
a. Upon receipt by Landlord of a bona fide offer acceptable to
Landlord to lease the Refusal Space (herein, the "BONA FIDE OFFER"),
Landlord shall notify Tenant of the existence and terms and conditions of
the Bona Fide Offer.
b. Upon Tenant's receipt of notice of the Bona Fide Offer from
Landlord, Tenant shall have three (3) business days to notify Landlord in
writing that Tenant intends to lease all of the space covered by the Bona
Fide Offer upon all of the terms and conditions stated in the Bona Fide
Offer, including the length of the term, except that Tenant will lease the
Refusal Space in its "AS IS, WHERE IS" condition (except for any buildout
allowance included within the Bona Fide Offer), with all faults and Tenant
acknowledges and agrees that Landlord has not made and expressly disclaims
any representations or warranties about the condition of the Refusal Space.
If Tenant does not exercise its right of refusal under this Paragraph 6,
either by notifying Landlord in writing of its election not to exercise
such right or by failing to notify Landlord in writing of Tenant's election
within the three (3) business day period following its receipt of notice of
the Bona Fide Offer to lease the Refusal Space, then Tenant conclusively
shall be deemed to have elected not to lease such space and Landlord shall
be entitled to lease the Refusal Space to such third party at any time upon
such terms as Landlord desires in its sole discretion, without any further
notice to Tenant. Tenant may not lease less than all of the Refusal Space
identified in Landlord's notice. If Tenant leases the Refusal Space within
said three (3) business day period, the Tenant promptly shall enter into a
modification of the Lease with Landlord to incorporate the subject space in
the Lease on
the terms and conditions set forth in such Bona Fide Offer with
appropriate adjustments as set forth in this Paragraph 6.
7. RELOCATION. Section 26 of the Lease is hereby deleted in its
entirety and the following paragraph is inserted in lieu thereof:
Landlord shall have the right and option, upon sixty (60) days notice to
Tenant, to require Tenant to relocate the Premises to any other premises
within the Building or to other buildings in the Loop Central project (the
"RELOCATED PREMISES") on a date of relocation (the "RELOCATION DATE")
specified therein. In such event, all reasonable expenses of moving Tenant
and decorating the Relocated Premises with substantially the same leasehold
improvements shall be at the expense of Landlord, including the physical
move, computer network relocation and installation, telephone installation,
stationery costs and other related items. Within thirty (30) days following
receipt of Landlord's relocation notice, Tenant shall have the option to
either (i) enter into a new lease (the "NEW LEASE") with Landlord for a new
five (5) year term commencing on the Relocation Date; or (ii) terminate this
Lease on the Relocation Date. Failure of Tenant to choose either option shall
cause this Lease to terminate, effective on the Relocation Date.
Notwithstanding the foregoing, if Tenant elects to enter into a New Lease,
Landlord shall have the option to tender the Relocated Premises to Tenant on
any date within a thirty (30) day period prior to or after the Relocation
Date, in which event the term of the New Lease shall commence on the date of
tender of possession of the Relocated Premises. For the portion of the term
of the New Lease between the Relocation Date and the expiration of the Term
of this Lease (as extended herein), Monthly Base Rent for the Relocated
Premises shall be calculated as follows: (i) for up to the then-current
Rentable Area of Premises, at the rate in effect under this Lease as of the
Relocation Date; and (ii) for any portion of the Relocated Premises in excess
of the Rentable Area of Premises, at the prevailing Building rental rate then
in effect. For the remainder of the term of the New Lease, Monthly Base Rent
for the entire Relocated Premises shall be calculated at the prevailing
Building rental rate then in effect.
8. PARKING. In consideration for its demise of the Premises (as
expanded herein) Tenant shall be entitled to the use of a total of
twenty-four (24) unreserved parking spaces in the Building parking garage.
Tenant shall pay Twenty-Five Dollars ($25.00) per month for each of the
unreserved spaces, provided, however, that so long as Tenant is not in
default under the Lease, all parking charges shall be abated for the period
between May 1, 2000 and April 30, 2002. Tenant's right to use such parking
spaces shall be subject to the rules and regulation set forth on Exhibit B to
the Lease.
9. BROKER. Tenant represents and warrants to Landlord that Tenant
has dealt with, and only with, Xxxxxxx-Xxxxxx Properties of Texas Ltd., Inc.
in connection with the renewal described in this Amendment. Tenant agrees to
indemnify and hold Landlord harmless from and against any claim, liability,
damage or expenses arising out of any claim by an other broker that
it is entitled to a commission based upon its representation of Tenant in
connection with said renewal.
10. CONFIRMATION OF LEASE. Except as modified in this Amendment, the
Lease remains unmodified and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first above written.
LANDLORD: TENANT:
W9/LWS II REAL ESTATE LIMITED 0-XXXXXXXX.XXX, INC., a Texas
PARTNERSHIP, a Delaware limited corporation
partnership
By: W9/LWS II GEN-PAR, INC., a By: /s/ Xxxxxxx X. Xxxxxx
Delaware corporation, its General --------------------------------
Partner Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Chief Technology Officer
-----------------------------
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT A
EXPANSION SPACE
[MAP]
APPROXIMATELY 6,745 square feet
of rentable space.
