EXHIBIT 10.16
AUSTIN CENTRE LEASE AGREEMENT
By and Between
BRAZOS AUSTIN CENTRE, LTD.
("Landlord")
and
CITYSEARCH, INC.
("Tenant")
AUSTIN CENTRE LEASE AGREEMENT
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This Lease is entered into as of August 15, 1996, between BRAZOS AUSTIN
CENTRE, LTD., a Texas Corporation ("Landlord"), whose address for purposes of
notice hereunder is 000 Xxxxxx Xxxxx 000, Xxxxxx, Xxxxx, 00000 and CitySearch,
Inc., a Delaware corporation, "Tenant"), whose address prior to the Commencement
Date (defined in Section 2.01 hereof) and for purposes of notice is 0000 Xxxx
Xx., Xxxxx 000, Xx Xxxxxxxxx, Xxxxxxxxxx 00000 and whose address after the
Commencement Date shall be 000 Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx. 78701.
W I T N E S S E T H:
ARTICLE 1
1.01 PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
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from Landlord, for the rent and subject to the provisions of this Lease, the
space (the "Premises") reflected on the floor plan(s) attached as Exhibit A
hereto, located on floor four (4) of the building (the "Building") known as
Austin Centre located at 000 Xxxxxx, Xxxxxx Xxxxxx Xxxxxx, Xxxxx (such Building,
the enclosed arrium area and ground-level open areas and walkways appurtenant to
the Building, any parking areas and garages serving the Building, any other
structure or improvement utilized in the operation or maintenance of the
Building, and the land (the "Land") on which all such improvements are located
said Land being more particularly described on Exhibit B attached hereto and
made a part hereof for all purposes and any present or future associated
underground or elevated pedestrian tunnels or walkways being hereinafter
collectively referred to as the "Project"). As used herein, the term "Project"
does not include the building located on the land that is now known and operated
as Omni Austin Hotel of Austin Centre (the "Hotel"). Landlord and Tenant hereby
agree that the Premises contain 4,473 square feet of rentable area and the
Project contains 343,664 square feet of rentable area.
ARTICLE 2
2.01 TERM. Subject to the other provisions hereof, and any exhibits
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hereto, this Lease shall be for a term of approximately sixty-six and one half
(66 1/2) months commencing on the Commencement Date (defined in Section 2.02
hereof) and expiring on March 31, 2002 (the "Expiration Date"). Such term, as
it may be modified, is herein called the "Term."
2.02 COMMENCEMENT. As used herein, "Commencement Date" means the latter
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to occur of: (a) the date Tenant's leasehold improvements are substantially
completed (or would have been substantially completed except for delays caused
by Tenant) in accordance with Exhibit C attached hereto and made a part hereof
for all purposes, or (b) September 16, 1996. Notwithstanding the foregoing, if
Tenant occupies all or any part of the Premises prior to (a) or (b) above, the
Commencement Date shall be the date of such occupancy. If Landlord is unable to
deliver possession of the Premises to Tenant on or before September 16, 1996,
Landlord agrees that it will continue to provide Tenant with office space on the
third and fourth floors and the use of twenty-five (25) telephones at no cost
(excluding long distance and information charges) until the Landlord delivers
possession.
Within five (5) days after the Commencement Date and at any time thereafter
upon the request of Landlord, Tenant shall execute and deliver to Landlord a
declaration (in the form of Exhibit F hereto) specifying, among other things,
the date upon which the same occurred.
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ARTICLE 3
3.01 BASE RENT. Tenant, in consideration for this Lease, agrees to pay to
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Landlord a base rental ("Base Rent") in the amounts and installments indicated
below for each square foot of rentable area agreed by Landlord and Tenant to be
within the Premises, payable at Landlord's address herein provided in legal
tender of the United States of America without notice, demand, counterclaim,
set-off or abatement, in advance on the first day of each calendar month
throughout the Term:
Lease Dates Base Rent
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09/16/1996 - 03/15/1997 Free Rent Period (No Base Rent or Rental
Adjustment)
03/16/1997 - 03/31/1993 $3,727.50 per month (based on a rental rate
of $10.00 per rental square foot per year)
04/01/1998 - 03/31/1999 $3,913.88 per month (based on a rental rate
of $10.50 per rental square foot per year)
04/01/1999 - 03/31/2000 $4,100.25 per month (based on a rental rate
of $11.00 per rental square foot per year)
04/01/2000 - 03/31/2001 $4,286.63 per month (based on a rental rate
of $11.50 per rental square foot per year)
04/01/2001 - 03/31/2002 $4,473.00 per month (based on a rental rate
of $12.00 per rental square foot per year)
3.02 RENTAL ADJUSTMENT Tenant's pro rata share of all Operating
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Expenses (defined in Section 3.03 hereof) for purposes of rental adjustment is
agreed to be 1.3016% ("Tenant's Pro Rata Share"). On or before the Commencement
Date and thereafter on or before the first day of each calendar year of the
Term, Landlord shall provide to Tenant the Estimated Operating Expense (defined
in Section 3.03 hereof) for the upcoming year. In addition to the Base Rent,
Tenant shall pay in advance on the first day of each calendar month during the
Term, installments equal to one-twelfth (1/12) of Tenant's Pro Rata Share of the
Estimated Operating Expense. Within one hundred fifty (150) days after the
end of each calendar year during the Term, Landlord shall furnish to Tenant a
statement certified by Landlord of the Actual Operating Expense (defined in
Section 3.03 hereof) for the immediately preceding calendar year, which
statement shall specify the various types of Operating Expenses and set forth
Landlord's calculations of Tenant's Pro Rata Share thereof. If Tenant's Pro Rata
Share of the Estimated Operating Expense paid to Landlord during the previous
calendar year exceeds Tenant's Pro Rata Share of the Actual Operating Expense,
then Landlord shall refund the difference to Tenant at the time Landlord
furnishes the statement of the Actual Operating Expense. Otherwise, within
fifteen (15) days after Landlord furnishes such statement to Tenant, Tenant
shall make a lump sum payment to Landlord equal to Tenant's Pro Rata Share of
the positive difference between the Actual Operating Expense and the Estimated
Operating Expense theretofore paid by Tenant. As used in this Lease the term
"Rent" shall refer collectively to the Base Rent and all rental adjustments. If
the Term commences on a day other than the first day of the month or calendar
year, or terminates on a day other than the last day of a month or calendar
year, then Tenant shall be required to pay only a pro rata portion of the
installments and adjustments of Rent due for such month or year.
3.03 OPERATING EXPENSES.
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(a) "Operating Expenses" shall mean and include all reasonable
amounts, expenses, and costs of whatsoever nature incurred because of or in
connection with the ownership, management, operation, repair, maintenance
or security of the Project, all additional facilities which may be added to
the Project, and Landlord's personal property which may be utilized in
connection therewith. Operating Expenses shall not include capital
improvements, depreciation, interest and principal payments on mortgage and
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other nonoperating debts of Landlord, management fees and management
overhead to the extent they exceed market rates, attorney's fees related to
disputes with other tenants, and specific costs for special items or
services billed to and paid by specific tenants. Operating Expenses shall,
however, include the amortization of capital improvements (over the
expected payback period) which are primarily for the purpose of reducing
Operating Expenses or which are required by governmental or quasi-
governmental authorities. Operating Expenses shall be determined on an
accrual basis in accordance with generally accepted accounting principles
consistently applied. The "Estimated Operating Expense" (currently 58.25.
per rental square foot per year) shall equal the Landlord's estimate of
Operating Expenses for the applicable calendar year. Landlord's statement
of Estimated Operating Expense shall control for the year specified in such
statement and for each succeeding year during the Term until Landlord
provides a new statement of the Estimated Operating Expense." The Actual
Operating Expense" shall equal the operating expenses actually incurred
for the applicable calendar year. Notwithstanding any provision contained
herein to the contrary, if less than 95% of the total square feet of
rentable area in the Building is occupied by tenants or Landlord is not
supplying services to 95% of the total square feet of rentable area of the
Building at any time during any calendar year. Operating Expenses for such
calendar year shall be determined to be an amount equal to the like expense
which would normally be expected to be incurred had such occupancy been 95%
of the Building's total square feet of rentable area and had Landlord been
supplying services to 95% of the Building's total square feet of rentable
area throughout such calendar year.
(b) Operating Expenses from the Commencement Date through September
15, 1997 shall not exceed $8.25 per rentable square foot; for the balance
of 1997, Operating Expenses shall not exceed $8.50 per rentable square
foot. Controllable Operating Expenses (defined as all Operating Expenses
except real estate taxes, insurance and utilities) shall not increase more
than eight percent (8%) per year.
3.04 SECURITY DEPOSIT. Tenant shall deposit with Landlord on the date
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Tenant executes this Lease the sum of Thirteen Thousand Four Hundred Nineteen
and No/100 Dollars ($13,419.00) as a "Security Deposit" on the understanding:
(a) the Landlord shall apply $6,709.50 to the payment of the first accruing
rental installment due and subsequent rental installments until exhausted,
provided Tenant is not in default under this Lease at that time: (b) that the
Security Deposit or any portion thereof may be applied to the curing of any
Default (defined in Section 13.01 hereof), without prejudice to any other remedy
or remedies which the Landlord may have on account thereof, and upon such
application Tenant shall pay Landlord on demand the amount so applied which
shall be added to the Security Deposit so the same will be restored to its
original amount: (c) that Landlord shall not be obligated to hold the Security
Deposit as a separate fund, but may commingle it with other funds: and (d) that
if no Default exists and no event has occurred that with notice and/or the
passage of time would constitute a Default, the remaining balance of the
Security Deposit shall be returned to Tenant, without interest, within thirty
(30) days after the expiration of the Term; provided, however, that Landlord
shall have the right to retain and expend such remaining balance for cleaning
and repairing the Premises if Tenant shall fail to deliver the Premises at the
termination of this Lease in a near and clean condition and in as good a
condition as existed at the date of possession of same by Tenant, ordinary wear
and tear only excepted.
ARTICLE 4
4.01 USE. Tenant shall use and occupy the Premises only for office purposes
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and for no other purposes. Tenant shall not do or permit anything to be done
in or about the Premises nor bring or keep anything therein that will in any
way increase the existing rate of or affect any fire or other insurance upon the
Project or any of its contents, or cause cancellation of any insurance policy
covering the Project or any part thereof or any of its contents. Tenant shall
not do or permit anything to be done in or about the Premises that will in any
way obstruct or interfere with the rights of other tenants or occupants of the
Project or injure or annoy them or tend to lower the first class character of
the building or create unreasonable elevator loads or otherwise interfere with
standard Building operations. Tenant shall not permit any nuisance in, on or
about the Premises. Tenant shall not commit or suffer to be committed any
waste in or upon the Premises. Tenant shall not use the Premises or permit
anything to be done in or about the Premises that will in any way conflict with
any reasonable rule or
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regulation of Landlord, any reasonable restrictive covenant imposed by Landlord,
or any law, statute, ordinance or any governmental or quasi-governmental
authority now in force or that may hereafter be enacted or promulgated.
ARTICLE 5
5.01 LANDLORD'S SERVICES. Provided Tenant is not in default hereunder,
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Landlord shall, at Landlord's expense, except as provided to the contrary in
this Lease, furnish to Tenant the following services:
(a) Subject to curtailment as required by governmental laws, rules or
regulations, air conditioning and central heat, in season, at such
temperatures and in such amounts as are deemed by Landlorn to be standard
for first class office buildings in Austin, Texas, during normal Building
hours, which are presently scheduled to be 7:00 a.m. through 6:00 p.m. on
weekdays and 8:00 a.m. through 2:00 p.m. on Saturdays, exclusive of normal
business holidays. Normal business holidays for purposes of this Lease
shall include, without limitation New Year's Day, Xxxxxx Xxxxxx Xxxx Day,
Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
the Friday following Thanksgiving Day and Christmas Day. If in the case of
any holiday described herein a different day shall be observed than the
respective day described then the day which constitutes the day observed by
national banks in Austin, Texas, on account of such holiday shall
constitute the holiday under this Lease.
(b) Janitorial services in the Premises and public portions of the
Building for all days except Saturdays, Sundays, and normal business
holidays.
(c) Water at those points of supply provided for drinking, toilet, and
lavatory purposes.
(d) Normal and customary routine maintenance for all public,
structural, and exterior portions of the Project according to Landlord's
standards.
(e) Electric lighting service for all public portions of the Project
in the manner and to the extent deemed by Landlord to be in keeping with
the standards of a first class office building in Austin, Texas.
(f) Reasonably adequate, non-exclusive automatic passenger elevator
service at all times for access to and egress from the Premises. Freight
elevator service, in common with other tenants, shall be provided during
reasonable business hours as prescribed by Landlord, exclusive of
Saturdays, Sundays, and normal business holidays.
(g) Electric energy that Tenant shall require for standard office
equipment such as personal computers, typewriters, dictation machines,
calculators, other machines of a similar low electrical consumption, and
Building Standard (defined in Exhibit C attached hereto) lighting in the
Premises. Without Landlord's prior written consent, Tenant shall not be
entitled to employ lighting on the Premises that consumes electrical
current in excess of Building Standard lighting nor utilize any office
equipment that requires a voltage other than 120 volts single phase.
(h) Building security to encourage compliance with the Rules and
Regulations (defined in Section 15.09 hereof) and to limit after-hour
access to the Building; provided, however, Landlord shall have no
responsibility to prevent, and shall not be liable to Tenant for, liability
or loss to Tenant, its agents, employees and visitors arising out of losses
due to theft, burglary, or damage or injury to persons or property caused
by persons having or gaining access to the Building or the Premises, unless
caused by Landlord's negligence, and Tenant hereby releases Landlord from
all liability relating thereto.
(i) Window washing services for the outside portions of the Building
at least one (1) time per calendar year.
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(j) Replacement of florescent light bulbs in any florescent light
fixtures which are located in the Premises and which contain the Building
Standard light bulbs (Paralux 3 tube Florescent Lighting).
5.02 ADDITIONAL SERVICE COST. Tenant shall pay Landlord, upon demand, such
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additional amounts as are necessary to recover additional costs incurred by
Landlord in performing or providing janitorial, maintenance, security, or other
services or requirements of Tenant(and in paying additional taxes) as to any
non-Building Standard installations in the Premises. Tenant shall pay Landlord,
upon demand, monthly as billed charges for providing off-hour and nonstandard
air conditioning, heating and electricity; provided, however, that there shall
be no charge for off-hour air conditioning and heating prior to September 1,
1997, and the charge thereafter shall be $7.50 per hour.
5.03 SERVICE INTERRUPTION. To the extent any of the services described
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above require electricity, gas, water or other services supplied by public
utilities. Landlord's covenants hereunder shall impose on Landlord only the
obligation to use its good faith efforts to cause the applicable public
utilities to furnish the same. Any failure or defect in the services described
above shall not be construed as an eviction of Tenant nor entire Tenant to any
reduction, abatement, offset, or refund of Rent or to any damages from Landlord.
Landlord shall not be in breach or default under this Lease, provided Landlord
uses reasonable diligence during normal business hours to restore any such
failure or defect after Landlord receives written notice thereof.
ARTICLE 6
6.01 ALTERNATIONS Tenant shall not make or allow to be made any
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alterations, installations, additions or improvements in or to the Premises, or
place safes, vaults or other heavy furniture or equipment within the Premises,
without Landlord's prior written consent. All alterations, installations,
additions or improvements, other than movable furniture and movable trade
fixtures, made by Tenant to the Premises shall remain upon and be surrendered
with the Premises and become the property of Landlord at the expiration or
termination of this Lease or the termination of Tenant's right to possession of
the Premises: provided, however, that Landlord may require Tenant, at Tenant's
cost, to remove any or all of such items that are not Building Standard upon the
expiration or termination of this Lease or the termination of Tenant's riitht to
possession of the Premises. Tenant, at its sole cost and prior to the expiration
or termination of this Lease. shall remove all of T enant's property from the
Premises and make, or reimburse Landlord for the reasonable cost of, all repairs
to the Premises and/or Project for damage resulting from such removal, provided
that Landlord has indicated that it will require such removal at the time of
providing consent to such alterations, installations, additions or improvements.
All work shall be completed promptly and in a good and workmanlike matter and
shall be performed in such a manner that no mechanic's, materialman's or other
similar liens shall attach to Tenant's leasehold estate, and in no event shall
Tenant permit, or be authorized to permit, any such liens or other claims to be
asserted against Landlord or Landlord's rights, estate and interests with
respect to the project or this Lease. Landlord may require, at Tenant's sole
cost and expense, a lien and completion bond in an amount equal to the estimated
cost of any improvements, additions or alterations in the Premises.
6.02 TENANT REPAIRS By taking possession of the Premises, Tenant shall be
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deemed to have accepted the Premises as being in good, sanitary order, condition
and repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises
in good condition and repair, damage thereto from causes beyond the reasonable
control of Tenant and ordinary wear and tear damage excepted. Any injury or
damage to the Premises or Project, or the appurtenances or fixtures thereof,
caused by or resulting from the act, omission or neglect of Tenant or Tenant's
employees, servants, agents, invitees, assignees, or subtenants shall be
repaired or replaced by Tenant, or at Landlord's option by Landlord, at the
expense of Tenant. If Tenant fails to maintain the Premises or falls to repair
or replace any damage to the Premises or Project resulting from the negligence
or intentional act of Tenant, its employees, servants, agents, invitees,
assignees or subtenants, Landlord may, but shall not be obligated to, cause
such maintenance, repair or replacement to be done, as Landlord deems necessary,
and Tenant shall immediately pay to Landlord all reasonable costs related
thereto plus a charge for overhead of 15% of such costs.
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6.03 LANDLORD REPAIRS: Unless otherwise Stipulated herein, Landlord shall
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not be required to make any improvements to or repairs of any kind or character
to the Premises during the Term, except such repairs to Building Standard
improvements as may be deemed necessary by Landlord for normal maintenance
operations; provided, however, non-Building Standard leasehold improvements
will, at Tenant's written request, be maintained by Landlord at Tenant's
expense, at a cost or charge equal to the costs incurred in such maintenance
plus an additional charge or 15%. Notwithstanding any provisions of this
Lease to the contrary, all repairs, alterations or additions to the base
Building or its systems (as opposed to those involving only Tenant's Leasehold
improvements), and all repairs, alterations or additions to Tenant's non-
Building Standard leasehold improvements which affect the Building's
structural components or major mechanical, electrical or plumbing systems in the
Building, to be made by or for or on behalf of Tenant, shall be made by Landlord
or its contractor only, and, except as otherwise provided in Exhibit C attached
hereto, shall be paid for by Tenant in an amount equal to Landlords, costs plus
an additional charge of 15%.
ARTICLE 7
7.01 LANDLORD INSURANCE. Landlord shall insure the Project and shall
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maintain liability and other insurance in such amounts as may be required by
Landlord's mortgagee, or in such greater amounts as Landlord, in its sole
discretion, may deem appropriate. The cost of such insurance, including any
deductible paid thereunder by Landlord, shall be an "Operating Expense" as
defined in Section 3.03 hereof. Such insurance shall be for the sole benefit of
Landlord and, if required, Landlord's mortgagee. If the annual premiums to be
paid by Landlord exceed the standard rates because of Tenant's operations
within or contents of the Premises or because improvements to the Premises are
beyond Building Standard, Tenant shall promptly pay the excess amount of the
premium upon request by Landlord (and if necessary, Landlord may allocate the
insurance costs of the Building to give effect to this sentence).
7.02 TENANT INSURANCE. Tenant shall, at Tenant's expense fully insure its
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property located in the Premises against fire and other casualty and shall
maintain comprehensive general liability insurance insuring Landlord and Tenant
against any liability arising out of ownership, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto, including contractual liability
insurance (with respect to Section 7.04 hereof), with insurance companies
approved by Landlord and with limits of liability of at least $2,000.000 in each
occurrence for Bodily Injury and Property Damage combined and $2,000,00O general
aggregate for Bodily Injury and Property Damage combined with the endorsement
of comprehensive general liability CG-2504. Tenant shall cause Landlord to be
named as an additional insured under such policies and shall, not less than
twenty (20) days prior to (a) the Commencement Date, and (b) the expiration of
old policies, furnish Landlord with certificates of insurance with loss payable
clauses satisfactory to Landlord. The limit of such insurance shall not,
however, limit the liability of Tenant hereunder. 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.
7.03 WAIVER OF SUBROGATION. Whenever (a) any loss, cost, damage or expense
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resulting from fire, explosion or any other casualty or occurrence is incurred
by either of the parties to this Lease in connection with the Premises or the
Project, and (b) such party is then covered (or is required under this Lease to
be covered) in whole or in part by insurance with respect to such loss, cost,
damage or expense, then the party so insured hereby releases the other party
from any liability it may have on account of such loss, cost, damage or expense
to the extent of any amount recovered by reason of such insurance, and waives
any right of subrogation which might otherwise exist on account thereof,
provided that such release of liability and waiver of the right to subrogation
shall not be operative in any case where the effect thereof is to invalidate
such insurance coverage or increase the cost thereof (provided, that in the case
of increased cost, the other party shall have the right, within thirty (30) days
following written notice, to pay such increased costs, thereupon keeping such
release and waiver in full force and effect). Landlord and Tenant shall use
their respective best efforts to obtain such a release and
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waiver of subrogation from their respective insurance carriers and shall obtain
any special endorsements, if required by their insurer, to evidence compliance
with the aforementioned waiver.
7.04 INDEMNITY. Tenant hereby indemnifies and holds Landlord harmless from
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and against any and all claims arising from Tenant's use of the Premises for the
conduct of its business or from any activity, work or other thing done,
permitted or suffered by Tenant on or about the Project and shall further
indemnify and hold harmless Landlord from and against any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
omission of, or due to the negligence of, the Tenant, or any officer, agent,
employee, guest or invitee of Tenant, and from and against all costs, attorney's
fees expenses and Liabilities incurred in or related to any such claim or any
action or proceeding brought thereon. Tenant as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons including death in, upon or about the Project except for such,
damage or injury caused by Landlord's negligence, and Tenant hereby waives all
claims in respect thereof against Landlord.
ARTICLE 8
8.01 CASUALTY. Tenant shall give Landlord written notice of any fire or
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other casualty occurring within the Premises on the next business day following
such occurrence or Tenant's knowledge thereof, whichever is later. If the
Premises or Project (provided such damage to the Project would constitute an
interference with Tenant's quiet enjoyment of the Premises), or any portion of
either, shall be damaged by fire or other casualty covered by the insurance
carried by Landlord hereunder and the cost of repairing such damage shall not be
greater than 10% of the then full replacement cost thereof, then, subject to
the following provisions of this Article. Landlord shall repair the Premises
and/or Project. If the Premises or Project shall be damaged (a) by fire or other
casualty not covered by insurance carried by Landlord hereunder, (b) by fire or
other casualty covered by insurance carried by Landlord hereunder and Landlord's
mortgagee requires that such insurance proceeds be used to retire the mortgage
debt, or (c) to an extent greater than 40% of the then full replacement cost
thereof, then Landlord shall have the option (i) to repair or reconstruct the
damaged Premises or Project to substantially the same condition as immediately
prior to such fire or other casualty, or (ii) to terminate this Lease by so
notifying Tenant within one hundred twenty (120) days after the date of such
fire or other casualty, such termination to be effective as of the date of such
fire or other casualty. The Rent required to be paid hereunder shall be abated
in proportion to the portion of the Premises, if any, which is rendered
untenantable by fire or other casualty hereunder until repairs of the Premises
are completed or if the Premises are not repaired, until the Expiration Date
hereunder. Other than such rental abatement, no damages, compensation or claims
shall be payable by Landlord for loss of the use of the whole or any part of the
Premises, Tenant's personal property, or any inconvenience, loss of business, or
annoyance arising from any such repair and reconstruction. If the damage results
from the fault or negligence of Tenant, its agents, employees, licensees or
invitees, Tenant shall not be entitled to any abatement or reduction of any Rent
or other sums due hereunder, and such damage shall be repaired by Tenant, or at
Landlord's option by Landlord, at Tenant's expense. If this Lease is terminated
as provided in (c)(ii) above, all Rent shall be apportioned and paid up to the
date of such termination. Landlord shall not be required to repair or replace
any furniture, furnishings, or other personal property that Tenant may be
entitled to remove from the Premises or any property constructed and installed
by or for Tenant pursuant to Section 6.01 hereof or any installations in excess
of Building Standard.
8.02 END OF TERM CASUALTY. Notwithstanding anything to the contrary in
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this Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises or the Project when the damage resulting
from any casualty covered under this Article occurs during the last twelve (12)
months of Term or any extension thereof.
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ARTICLE 9
9.01 CONDEMNATION. If more than 20% of the Premises should be taken for
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any public or quasi-public use, by right of eminent domain or otherwise, or
should be sold in lieu of condemnation, then either party hereof shall have the
right, at its option, to terminate this Lease as of the date when physical
possession of the Premises is taken by the condemning authority. If 20% or less
of the Premises is so taken or sold or if this Lease is not terminated upon any
taking or sale of greater than 20% of the Premises, the Rent payable hereunder
(including an appropriate adjustment of the Pro Rata Share) shall be abated in
proportion to the portion of the Premises which is rendered untenantable by such
condemnation and Landlord shall, to the extent Landlord deems feasible and if
permitted by Landlord's mortgagee, ground lessor or other secured parry,
restore the Premises to substantiallv its former condition, but Landlord shall
not in any event be required to spend for such work an amount in excess of the
amount received by Landlord as compensation for such taking. If any part of the
Project other than the Premises may be so taken or sold, Landlord shall have
the right at its option to terminate this Lease as of the date when physical
possession of such part of the Project is taken by the condemning authority.
Al1 amounts awarded upon taking of any part or all of the Project or the
Premises shall belong to Landlord and Tenant shall not be entitled to, and
expressly assigns all claims, rights and interests to, any such compensation to
Landlord.
ARTICLE 10
10.01 ENTRY. Landlord, its agents, employees and representatives, shall
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have the right to enter the Premises at any time upon reasonable notice to
Tenant under the circumstances (which notice may be oral and not in compliance
with Section 15.08 hereof, but no notice shall be required in the case of
routine maintenance or an emergency) to show the Premises to prospective
tenants or purchasers or for any purpose that Landlord may reasonably deem
necessary for the operation and maintenance of the Project. Tenant hereby waives
any claim for damages or for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned thereby. For each of the aforesaid purposes. Landlord
shall at all times have and retain a key with which to unlock all of the doors
in upon and about the Premises, excluding Tenant's vaults, safes and files.
Landlord shall have the right to use any and all means which Landlord may deem
proper to open the doors in, upon and about the Premises in an emergency in
order to obtain entry to the Premises without liability to Tenant, except for
any failure to exercise due care for Tenant's property.
ARTICLE II
11.01 SUBORDINATION. This Lease is and shall be subject and subordinate to
-------------
any and all ground or similar leases affecting the Project, and to all
mortgages, deeds of trust, and security agreements that may now or hereafter
encumber or affect the Project or any interest of Landlord therein and/or the
contents of the Building, and to any advances made on the security thereof and
to any and all increases, renewals, modifications, consolidations, replacements
and extensions of any such leases, mortgages. deeds of trust and/or security
agreements. This clause shall be self-operative and no further instrument of
subordination need be required by any owner or holder of such ground lease
mortgage, deed of trust or security agreement. Tenant agrees to execute and
return any estoppel certificate, consent or agreement reasonably requested by
any such lessor, mortgagee, trustee or secured party in connection with this
Section within ten (10) days after receipt of same, and Tenant hereby
irrevocably appoints Landlord as Tenant's attorney-in-fact to execute the same
if Tenant fails to respond within such period. Tenant shall furnish any
mortgagee of Landlord secured by a lien on the Project, any lessor to Landlord
under a ground lease of the Project, or any secured party under a security
agreement encumbering the interest of Landlord, with written notice of any
default or breach by Landlord at least sixty (60) days prior to the exercise by
by Tenant of any rights and/or remedies of Tenant hereunder arising out of such
default or breach.
11.02 ATTORNMENT. If any ground or similar such lease, mortgage, deed of
----------
trust or security agreement is enforced by the ground lessor, the mortgagee, the
trustee, or the secured party, Tenant shall, upon
9
request attorn to the lessor under such lease or the mortgage or purchaser at
such foreclosure sale, or any person or party succeeding to the interest of
LandLord as a result of such enforcement as the case may be, and execute
instrument(s) confirming such attornment: provided however, that if this Lease
was approved and accepted in writing by such lessor, mortgagee, trustee or
secured party. Tenant's attornment shall be conditioned upon the agreement by
such successor to landlord's interest not to disturb Tenant's possession
hereunder during the Term so 1ong as Tenant performs its obligations under this
Lease. In the event of such enforcement and upon Tenant's attornment as
aforesaid. Tenant will automatically become the tenant of the successor to
Landlord's interest without charge in the terms or 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 such lessor or
mortgagee, or (c) any credits, offsets, defenses or claims which Tenant may have
against Landlord.
11.03 QUIET ENJOYMENT. Tenant, on paying the Rent and keeping and
---------------
performing the conditions and covenants herein contained, shall and may
peaceably and quietly enjoy the Premises for the Term, subject to the aforesaid
underlying leases, mortgages, deeds of trust and security agreements, all
applicable laws and other governmental and legal requirements, applicable
insurance requirements and regulations, and the provisions of this Lease. It is
understood and agreed that this covenant and any and all other covenants of
Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during its and their
respective ownership of the Landlord's interest hereunder.
ARTICLE 12
12.01 ASSIGNMENT AND SUBLETTING. Tenant shall not, voluntarily, by
-------------------------
operation of law, or otherwise, assign, transfer, mortgage, pledge, or encumber
this Lease or sublease the Premises or any part thereof, or suffer any person
other than Tenant, its employees, agents, servants and invitees to occupy or use
the Premises or any portion thereof, without the express prior written consent
of Landlord which will not be unreasonably withheld. Any attempt to do any of
the foregoing without such written consent shall be null and void and of no
effect and shall further constitute a material default under this Lease. If
Tenant so requests Landlord's consent, said request shall be in writing
specifying the identity of the proposed transferee, the duration of said desired
sublease or assignment, the date same is to occur, the exact location of the
space affected thereby and the proposed rentals on a square foot basis
chargeable thereunder, and shall be submitted to Landlord at least thirty (30)
days in advance of the date on which Tenant desires to make such assignment or
sublease or allow such occupancy or use. Upon such request Landlord may, with
reasonable business judgment, (a) grant such consent subject to Landlord's
approval of the assignee, transferee, subtenant, or mortgagee, or (b) deny such
consent. If Landlord does not give such consent in writing within fifteen (15)
days of the date such consent is requested, then Landlord's consent shall be
deemed to have been denied. In no event may Tenant assign this Lease or
sublease the Premises or any portion thereof to any party whose operations in
the Project would not be in keeping with, or would detract from, the operations
of other tenants in the Project. Tenant shall advise Landlord within thirty
(30) days of any change in a majority of the voting rights or other controlling
rights or interests of Tenant.
In any situation in which Landlord consents to an assignment or sublease
hereunder. Tenant shall promptly deliver to Landlord a fully executed copy of
the final sublease agreement or assignment instrument and all ancillary
agreements relating thereto. No assignment shall be effective unless the
assignee has agreed within the assignment instrument to assume the obligations
of Tenant hereunder and to be personally bound by all of the covenants, terms
and conditions hereof on the part of Tenant to be performed or observed
hereunder.
12.02 CONTINUED LIABILITY. Tenant shall, despite any permitted assignment
-------------------
or sublease, remain directly and primarily liable for the performance of all of
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.
12.03 CONSENT. Consent by Landlord to a particular assignment or sublease
-------
shall not be deemed a consent to any other or subsequent transaction. If this
Lease is assigned or if the Premises are subleased without
10
the permission of Landlord, then LandLord may nevertheless collect Rent from
the assignee or sublessee and apply the net amount collected to the Rent payable
hereunder, but no such transaction or collection of Rent or application thereof
by Landlord shall be deemed a waiver of any provision hereof or a release of
Tenant from the performance of the obligations of the Tenant hereunder.
12.04 PROCEEDS. All cash or other proceeds of any assignment, sale or
--------
sublease of Tenant's interest in this Lease, whether consented to by Landlord or
not, shall be paid to Landlord notwithstanding the fact that such proceeds
exceed the Rent called for hereunder, and Tenant hereby assigns all rights it
might have or ever acquire in any such proceeds to Landlord.
ARTICLE 13
13.01 DEFAULT. Each of the following shall constitute a "Default" by
-------
Tenant:
(a) The failure of Tenant to pay the Rent or any part thereof when
due, and the failure to cure the problem within five (5) days of receipt
of written notice from Landlord; provided, however that Landlord shall not
be obligated to give written notice more than three (3) times in any twelve
month period:
(b) Tenant shall become insolvent or unable to pay its debts as they
become due, or Tenant notifies Landlord that it anticipates either
condition:
(c) Tenant takes any action to, or notifies Landlord that Tenant
intends to, file a petition under any section or chapter of the United
States Bankruptcy Code, as amended from time to time or under any
similar law or statute of the United States or any state thereof: or a
petition shall be filed against Tenant under any such statute or Tenant
notifies Landlord that it knows such a petition will be filed: or the
appointment of a receiver or trustee to take possession of substantiallv
all of Tenant's assets located at the Premises or of Tenant's interest in
this Lease: or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease; unless the application of this subsection 13.01(c)
shall contravene any applicable law:
(d) Tenant shall fail to fulfill or perform, in whole or in part,
any of its obligations under this Lease (other than the payment of Rent)
and such failure or nonperformance shall continue for a period of thirty
(30) days after written notice thereof has been given by Landlord to
Tenant:
(e) Tenant shall vacate or abandon the Premises or any significant
portion thereof:
(f) Tenant shall fail to take possession of the Premises when
Landlord notifies Tenant that the Premises are ready for occupancy;
(g) The occurrence of any event or condition having a material and
adverse effect on the assets, liabilities, financial condition, business or
operations of Tenant as they exist on the date of this Lease, or the
ability of Tenant to meet its obligations under this Lease on a timely
basis as provided herein: or
(h) Any representation or warranty by Tenant in this Lease or in any
certificate, statement or other document furnished pursuant to or under
this Lease, including, without limitation, financial statements, proves to
be or becomes incorrect in any material respect.
13.02 RIGHTS UPON DEFAULT. If a Default by Tenant occurs, then at any time
-------------------
thereafter prior to the curing thereof, with or without notice or demand,
Landlord may exercise any and all rights and remedies available to Landlord
under this Lease, at law or in equity, including without limitation, termination
of this Lease and termination of Tenant's right to possession without
terminating the Lease. If Tenant is in Default for nonpayment of Rent and if
Tenant fails to pay same in full within five (5) days after Landlord hand
delivers to the
11
Premises written notice of Landlord's intent to exercise its lockout rights,
then Landlord shall be entitled to change or modify door locks on all entry
doors of the Premises and Tenant shall not be entitled to a key to re-enter the
Premises until all delinquent Rent is paid in full: provided, however, Landlord
shall immediately thereafter post a notice on an entry door to the Premises,
stating that Landlord has exercised such lockout rights. If Tenant vacates or
abandons the Premises or any significant portion thereof. Landlord may
permanently change the locks without notice to Tenant, and Tenant shall not be
entitled to a key to re-enter the Premises. The two preceding sentences shall
supersede any conflicting provisions of Section 93.002 of the Texas Property
Code or any successor statue In the event of a Default, Landlord may, without
additional notice and without court proceedings, re-enter and repossess the
Premises and remove all persons and property therefrom, and Tenant hereby agrees
to surrender possession of the Premises, waives any claim arising by reason
thereof or by reason of issuance of any distress warrant or writ of
sequestration, and agrees to hold Landlord harmless from any such claims. If
Landlord elects to terminate this Lease, it may treat the default as an
entire breach of this Lease and Tenant shall immediately become liable to
Landlord for damages equal to the total of (a) the cost of recovering,
reletting, including, without limitation, the cost of leasing commissions
attributable to the unexpired portion of the Term of this Lease, and remodeling
the Premises, (b) all unpaid Rent and other amounts earned or due through such
termination, including interest thereon at the rate specified in Section 13.04
hereof, plus (c) the present value (discounted at the rate of 8% per annum) of
the balance of the Rent for the remainder of the Term less the present value
(discounted at the same rate) of the fair market rental value of the Premises
for said period and (d) any other sum of money and damages owed by Tenant to
Landlord. If Landlord elects to terminate Tenant's right to possession of the
Premises without terminating this Lease. Landlord may (but shall not be
obligated to) rent the Premises or any part thereof for the account of Tenant to
any person or persons for such rent and for such terms and conditions as
Landlord deems appropriate, and Tenant shall be liable to Landlord for the
amount, if any, by which the Rent for the unexpired balance of the Term exceeds
the net amount, if any, received by Landlord from such reletting, being the
gross amount so received by Landlord less the costs of repossession, reletting,
remodeling, and other expenses incurred by Landlord. Such sum or sums shall be
paid by Tenant in monthly installments on the first day of each month of the
Term. In no case shall Landlord be liable for failure to relet the Premises or
to collect the rent due under such reletting, and in no event shall Tenant be
entitled to more than 50% of any excess rents received by Landlord. All rights
and remedies of Landlord shall be cumulative and not exclusive.
13.03 COSTS. If a Default by Tenant occurs, then Tenant shall reimburse
-----
Landlord on demand for all costs reasonably incurred by Landlord in connection
therewith including, but not limited to, reasonable attorney's fees, court
costs, and related costs, plus interest thereon from the date such costs are
paid by Landlord until Tenant reimburses Landlord, at the rate specified in
Section 13.04 hereof.
13.04 INTEREST. ALL late payments of Rent, costs or other amounts due from
--------
Tenant under this Lease shall bear interest from the date due until paid at the
rate of 18% per annum; provided, however, in no event shall the rate of interest
hereunder exceed the maximum non-usurious rate of interest (the Maximum Rate)
permitted by the applicable laws of the State of Texas or the United States of
America, whichever shall permit the higher non-usurious rate, and as to which
Tenant could not successfully assert a claim or defense of usury, and to the
extent that the Maximum Rate is determined by reference to the laws of the State
of Texas the Maximum Rate shall be the indicated rate ceiling (as defined and
described in Texas Revised Civil Statutes, Article 5069-1.04, as amended) at the
applicable time in effect.
13.05 LANDLORD'S LIEN. Landlord reserves (and is hereby granted) a first and
---------------
superior lien and security interest (which shall be in addition to and not in
lieu of the statutory landlord's lien) on all fixtures, equipment, and personal
property (tangible and intangible) (excluding any confidential or proprietary
information or trade secrets, or trade secret information, stored in any form)
now or hereafter placed by Tenant in or on the Premises to secure all sums due
by Tenant hereunder, which lien and security interest may be enforced by
Landlord in any manner provided by law, including, without limitation, under and
in accordance with the Texas Uniform Commercial Code. The provisions of this
Section shall constitute a security agreement under the Texas Uniform Commercial
Code and, at Landlord's request. Tenant shall execute and file, where
appropriate, all documents required to perfect the security interest herein
granted in accordance with the Texas Uniform Commercial Code. Landlord may at
its election at any time file a copy of this Lease as a financing statement.
Unless otherwise provided by law and for the purpose of exercising any right
pursuant to this Section. Landlord
12
and Tenant agree that reasonable notice shall be met if such notice is given by
five days' written notice, certified mail, return receipt requested, to Landlord
or Tenant at the address specified herein.
13.06 NON-WAIVER. The failure of Landlord to seek redress for violation
----------
of, or to insist upon the strict performance of, any covenant or condition of
this Lease shall not prevent a subsequent act or omission that would have
originally constituted a violation of this Lease from having all the force and
effect of an original violation. The receipt by Landlord of Rent with or without
knowledge of the breach of any provision of this Lease shall not be deemed a
waiver of such breach, shall not reinstate this Lease or Tenant's right of
possession if either or both have been terminated, and shall not otherwise
affect any notice, election, action, or suit by Landlord. No provision of this
Lease shall be deemed to have been waived by Landlord unless such waiver is in
writing signed by Landlord. No act or thing done by Landlord during the Term
shall be deemed an acceptance of a surrender of the Premises and no agreement to
accept such surrender shall be valid, unless express and in writing signed by
Landlord.
ARTICLE 14
14.01 FINANCIAL STATEMENTS. Tenant, at the reasonable request of Landlord
--------------------
from time to time, shall deliver to Landlord current financial statements,
including, without limitation, balance sheets, profit and loss statements,
reconciliations of capital and surplus, changes in financial condition,
schedules of sources and applications of funds, and operating statements with
respect to the business of Tenant, all of which shall, at the request of
Landlord, be certified by an independent certified public accountant. Landlord
agrees that such information shall be kept confidential.
14.02 CORPORATE RESOLUTIONS. If Tenant is a corporation, Tenant shall,
---------------------
within thirty (30) days following the execution and delivery of this Lease,
deliver a fully executed Certificate of the Secretary in the form attached
hereto as Exhibit G. Such certificate shall have attached a copy of the
resolution(s) of Tenant's corporate board authorizing its officers to enter into
this Lease; the resolution(s) may be in the form indicated or otherwise.
ARTICLE 15
15.01 AMENDMENT. Any agreement hereafter made between Landlord and Tenant
---------
shall be ineffective to modify, release, or otherwise affect this Lease, in
whole or in part unless such agreement is in writing and signed by the party to
be bound thereby.
15.02 SEVERABILITY. If any term or provision of this Lease shall, to any
------------
extent, be held invalid or unenforceable by a final judgment of a court of
competent jurisdiction, the remainder of this Lease shall all not be affected
thereby.
15.03 ESTOPPEL LETTERS. Tenant shall promptly upon request from Landlord
----------------
execute and acknowledge a certificate containing such information as may be
reasonably requested for the benefit of Landlord, any prospective purchaser or
any current or prospective mortgagee of all or any portion of the Project.
15.04 LANDLORD'S LIABILITY AND AUTHORITY. The liability of Landlord to
----------------------------------
Tenant for any default by Landlord under the terms of this Lease shall be
limited to the interest of Landlord in the Project, it being intended that
Landlord, its officers, directors and employees shall not be personally liable
for any judgment or deficiency. Whenever in this Lease there is imposed upon
Landlord the obligation to use its best efforts, reasonable efforts, diligence
or act in good faith, Landlord shall be required to do so only to the extent the
same is economically feasible and otherwise will not impose upon Landlord
extreme financial or other burdens.
15.05 HOLDOVER. If Tenant shall remain in possession of the Premises after
--------
the Expiration Date or earlier termination of this Lease, then Tenant shall be
deemed a tenant-at-will whose tenancy is terminable at any time. In such event,
Tenant shall pay Rent at one and one quarter the daily rental rate prevailing on
the date of
13
such termination or expiration, but otherwise shall be subject to all of the
obligations of Tenant under this Lease. Additionally, Tenant shall pay to
LandLord all damages sustained by Landlord on account of such holding over by
Tenant.
15.06 SURRENDER. Upon the expiration or earlier termination of the Term.
---------
Tenant shall peaceably quit and surrender the Premises in good order and
condition excepting ordinary wear and tear, but subject to Sections 6.01 and
6.02 hereof. All obligations of Tenant for the period of time prior to the
expiration or earlier termination of the Term shall survive such expiration or
termination.
15.07 PARTIES AND SUCCESSORS. Subject to the limitations and conditions
----------------------
set forth elsewhere herein, this Lease shall bind and inure to the benefit
of the respective heirs, legal representatives, successors, and permitted
assigns and/or sublessees of the parties hereto. The term "Landlord", as used in
this Lease, so far as the performance of any covenants or obligations on the
part of Landlord under this Lease are concerned, shall mean only the owner of
the Project at the time question, so that in the event of any transfer of title
to the Project, the party by whom may such transfer is made shall be relieved of
all liability and obligations of the Landlord arising under this Lease from and
after the date of such transfer. Landlord shall have the right to transfer,
sell, assign, mortgage or encumber, in whole or in part, all of its rights and
obligations hereunder and in the Building, the Land, the Project and other
property of Landlord referred to herein.
15.08 NOTICE. Except as otherwise provided herein, any statement, notice
------
or other communication that Landlord or Tenant may desire or be required to
give to the other shall be deemed sufficiently given or rendered if hand
delivered, or if sent by registered or certified mail, return receipt
requested, addressed at the address(es) first hereinabove given or at such other
addresses(es) as the other parry shall designate from time to time by prior
written notice, and such notice shall be effective when the same is received or
in the case of mail notice, the earlier of when delivery is attempted or
acceptance of a letter is declined, and otherwise upon receipt, if mailed as
herein provided.
15.09 RULES AND REGULATIONS. Tenant, its servants, employees, agents,
---------------------
visitors, invitees, and licensees, shall observe faithfully and comply strictly
with the Rules and Regulations set forth in Exhibit D hereto, and shall abide by
and conform to such further Rules and Regulations as Landlord may from time to
time reasonably make, amend or adopt, after Tenant receives a copy thereof.
15.10 CAPTIONS. The captions in this Lease are inserted only as a matter
--------
of convenience and for reference and they in no way define, limit, or describe
the scope of this Lease or the intent of any provision hereof.
15.11 NUMBER AND GENDER. All genders used in this Lease shall include the
-----------------
other genders, the singular shall include the plural, and the plural shall
include the singular, whenever and as often as may be appropriate.
15.12 GOVERNING LAW. This Lease shall be governed by and construed in
-------------
accordance with the Laws of the State of Texas.
15.13 INABILITY TO PERFORM. Notwithstanding Section 15.18 hereof, whenever
--------------------
a period of time is herein prescribed for the taking of any action by Landlord,
Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of 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 cause whatsoever beyond the control of
Landlord, and such nonperformance or delay in performance by Landlord shall not
constitute a breach or default by Landlord under this Lease nor give rise to any
claim against Landlord for damages or constitute a total or partial eviction,
constructive or otherwise.
15.14 USE OF NAME. Tenant shall not, except to designate Tenant's business
-----------
address (and then only in a conventional manner and without emphasis or
display), use the name or xxxx "Austin Centre" for any purpose whatsoever.
14
15.15 BROKER. Tenant represents and warrants that Tenant has dealt with,
------
and only with OMNI Commercial Realty Advisors, Inc. as Landlord's exclusive
broker and Xxxxx Realty as Tenant's exclusive broker in connection with this
Lease and that, insofar as Tenant knows, no other broker(s) negotiated this
Lease or are entitled to any commission in connection herewith. Tenant shall
indemnify and hold harmless Landlord from and against all claims (and costs of
defending against and investigating such claims) of any other broker(s) or
similar parties claiming under Tenant in connection with this Lease. Landlord
shall indemnify and hold harmless Tenant from and against all claims (and
costs of defending against and investigating such claims) of any other broker(s)
or similar parties claiming under Landlord in connection with this Lease.
15.16 MEMORANDUM OF LEASE. Without the prior written consent of Landlord
-------------------
(which may be granted or withheld in Landlord's sole discretion), Tenant shall
not record this Lease or any memorandum or other instrument with respect to this
Lease. Upon the date of execution of this Lease, or at any time thereafter, and
at the request of Landlord, Tenant and Landlord shall execute a memorandum in
recordable form setting forth the material terms and conditions of this Lease.
15.17 ENTIRE AGREEMENT. This Lease, including all Exhibits attached
----------------
hereto (which Exhibits are hereby incorporated herein and shall constitute a
portion hereof), contains the entire agreement between Landlord and Tenant with
respect to the subject matter hereof. Tenant hereby acknowledges and agrees
that neither Landlord nor Landlord's agents or representatives have made any
representations, warranties, or promises with respect to the Project, the
Premises, Landlord's services, or any other matter or thing except as herein
expressly set forth, and no rights, easements, or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in this Lease.
The taking of possession of the Premises by Tenant shall be conclusive evidence,
as against Tenant, that Tenant accepts the Premises and the Project, and that
same were in good and satisfactory condition at the time such possession was so
taken. Further, the terms and provisions of this Lease shall not be construed
against or in favor of a party hereto merely because such party is the
"Landlord" or the "Tenant" hereunder or such party or its counsel is the
draftsman of this Lease.
15.18 TIME OF ESSENCE. Time is of the essence of this Lease and each and
---------------
all of its provisions in which performance is a factor.
15.19 PARKING. Tenant shall have the right to use the parking facilities
-------
of the Building, subject to the monthly rates, rules and regulations, and any
other charges of Landlord for such parking facilities, all as more particularly
set forth on Exhibit E hereto.
15.20 TENANT TAXES. Tenant shall pay, or cause to be paid, before
------------
delinquency any and all taxes levied or assessed and which become payable during
the Term upon all of Tenant's leasehold improvements, equipment, furniture,
fixtures and personal property located in the Premises; except such property
which has been paid for by Landlord and is the standard of the Building.
15.21 ATTORNEY'S FEES. In the event Tenant defaults in the performance of
---------------
any of the terms, agreements or conditions contained in this Lease and Landlord
places the enforcement of this Lease, or any part thereof, or the collection of
any rent due or to become due hereunder, or recovery of the possession of the
Premises, in the hands of any attorney who files suit upon the same, the Tenant
shall pay the Landlord's reasonable attorney's fees.
15.22 LANDLORD ALTERATIONS OR MODIFICATIONS. Notwithstanding anything
-------------------------------------
herein to the contrary, Landlord expressly reserves the right in its sole
discretion to temporarily or permanently change the location of, close, block or
otherwise alter any entrances, corridors, skywalks, tunnels, doorways, or
walkways leading to or providing access to the Building or any part thereof or
otherwise restrict the use of same provided such acts do not unreasonably impair
Tenant's access to the Premises. Landlord shall not incur any liability
whatsoever to Tenant as a consequence thereof and such acts shall not be deemed
to be a breach of any of Landlord's obligations hereunder. Landlord agrees to
exercise good faith in notifying Tenant within a reasonable time in advance of
any alterations, modification or other acts of Landlord under this Section.
15
15.23 NAME CHANGE. Landlord and Tenant covenant and agree that Landlord
-----------
hereby reserves and shall have the right at any time and from time to time to
change the name of the Building as Landlord may deem advisable, and Landlord
shall not incur any liability whatsoever to Tenant as a consequence thereof.
LANDLORD:
BRAZOS AUSTIN CENTRE, LTD.
By:_______________________________
Printed Name:_____________________
Title:____________________________
Date:_____________________________
TENANT:
CITYSEARCH, INC.
By: [SIGNATURE ILLEGIBLE]
-------------------------------
Printed Name: Xxxxxxx Xxxxxxx
---------------------
Title: CFO - VP Finance
----------------------------
Date:
----------------------------
16
EXHIBITS:
EXHIBIT A: FLOOR-PLANS
EXHIBIT B: LEGAL DESCRIPTION
EXHIBIT C: WORK-LETTER
EXHIBIT D: RULES AND REGULATIONS
EXHIBIT E: PARKING
EXHIBIT F: COMMENCEMENT DATE DECLARATION
EXHIBIT G: CERTIFICATE OF THE SECRETARY
EXHIBIT H: NONE
EXHIBIT I: NONE
EXHIBIT J: RIGHT OF FIRST REFUSAL
EXHIBIT K: NONE
EXHIBIT L: MEMORANDUM OF LEASE
EXHIBIT M: LIMITED TERMINATION OPTION
17
EXHIBIT A
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
FLOOR-PLANS
-----------
[SEE ATTACHED]
INITIALED FOR IDENTIFICATION BY LANDLORD ______ AND TENANT ILLEGIBLE]
-----------
EXHIBIT A
[PLAN OF CITYSEARCH SUITE 440 APPEARS HERE]
EXHIBIT B
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
LEGAL DESCRIPTION
-----------------
A FIELD NOTE DESCRIPTION OF A 1.75 ACRE TRACT OF LAND BEING ALL OF BLOCK 85
ORIGINAL CITY OF XXXXXX, XXXXXX COUNTY, TEXAS. PLAT OF SAID ORIGINAL CITY OF
AUSTIN BEING RECORDED AT THE GENERAL LAND OFFICE IN AUSTIN, TEXAS. SAID 1.75
ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
COMMENCING at a concrete monument found in the intersection or the centerlines
of East Eighth Street and Brazos Street.
THENCE S 26 degrees 03'0l" E, a distance of 56.52 feet to a punchhole set in
concrete at the intersection of the south right-of-way line of East Eighth
Street and the east right-of-way lines of Brazos Street, and being a
perpendicular distance of 40.00 feet east of the said monumented centerline of
Brazos Street and being a perpendicular distance of 40.00 feet south of the
monumented centerline of East Eighth Street for the northwest corner and POINT
OF BEGINNING hereof:
THENCE with the west line of said Block 85 being parallel to and a perpendicular
distance of 40.00 feet east of the said monumented centerline of Brazos Street S
19 degrees 00'00" W, for a distance of 276.69 feet to an iron pin in the north
right-of-way line of East Seventh Street and being a perpendicular distance of
40.00 feet north of the monumented centerline of East Seventh Street for the
southwest corner hereof:
THENCE with the south line of said Block 85 being parallel to and a
perpendicular distance of 40.00 feet north of the monumented centerline of East
Seventh Street S 71 degrees 06"5l" E, a distance of 276.17 feet to an iron pin
set in the west right-of-way line of San Jacinto Street and being a
perpendicular distance of 40.00 feet to the west of said monumented centerline
of San Jacinto Street for the southeast corner hereof:
THENCE with the east line of said Block 85 being parallel to and a
perpendicular distance of 40.00 feet west of the monumented centerline of San
Jacinto Street N 18 degrees 59'22" E, for a distance of 276.52 feet to an
iron pin set in the south right-of-way line of East Eighth Street and being a
perpendicular distance of 40.00 feet south of the said monumented centerline of
East Eighth Street for the northeast corner hereof:
THENCE with the north line of said Block 85 being parallel to and a
perpendicular distance of 40.00 feet south of the monumented centerline of East
Eighth Street N 71 degrees 06"03" W, a distance of 276.12 feet to the POINT OF
BEGINNING and containing 1.75 acres of land, more or less.
INITIALED FOR IDENTIFICATION BY LANDLORD ______ AND TENANT [SIGNATURE ILLEGIBLE]
---------------------
EXHIBIT C
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
WORK-LETTER
-----------
1. Prior to the Commencement Date, Landlord shall, at its sole cost and
expense, do the work described and reflected in the approved plans (herein
called the "Work") necessary to furnish and install within the Premises, the
tenant improvements defined below as Building Standard. The cost of the Work
shall be advanced by Landlord for the benefit of Tenant, to be repaid by Tenant
in the form of Base Rent. All Work completed by Landlord will meet applicable
building codes.
For purposes of this Lease. "Building Standard" shall mean those
improvements and other items as approved by Landlord as standard for buildout
purposes on initial space and for expansion and additional space in the
Building. The following shall apply unless otherwise specified in this Lease or
in the plans and specifications for the Work:
a. Ceiling Systems: 2' X 4" suspended lay-in acoustical ceiling. Ceiling
---------------
tile is regular edged and is cut to resemble 1' X 1'.
b. HVAC System: A multi-zoned heating, ventilating, and air conditioning
-----------
system is provided with perimeter slot diffusers, light fixture mounted supply
troffers and ceiling mounted supply and return air grilles. Main duct runs and
mixing boxes are provided on each floor for spin-in connections to supply
points. Each zone is individually controlled by a wall mounted thermostat.
Landlord's central plant will provide heat and conditioned air to each floor in
quantities necessary to support typical office use occupancy during ordinary
business hours as set forth in this Lease.
c. Window Wall: Window blinds in Landlord selected color will be provided
-----------
at each exterior window. Interior window blinds will be provided to Tenant if
they are determined by Landlord to be appropriate for the project.
d. Public Restroom: Complete men's and women's restroom facilities are
---------------
provided on each floor. All restrooms meet current handicap requirements.
e. Interior Partition: One (1) linear foot of latex flat painted
------------------
partition with rubber base per twelve (12) square feet of rentable area.
Measurement will be through door openings.
f. Demising Partitions: One-half (1/2) the total length of demising
-------------------
partitions separating tenants on multi-tenant floors will be added to interior
partition footage.
g. Interior Doors: One (1) solid core wood veneer door with hollow metal
--------------
frames and latchset will be provided per three hundred (300) square feet of
rentable area.
h. Entry Doors: Front and rear entry doors will be provided with
-----------
a building standard lockset and closer. Two (2) keys will be supplied with each
lockset.
i. Light Fixtures: One (1) 2' X 4' parabolic lay-in fluorescent light
--------------
fixture will be provided for each ninety (90) square feet of rentable area.
Light fixtures are capable of receiving saddle type air troffer for supply air
or adjustable slots for return air.
INITIALED FOR IDENTIFICATION BY LANDLORD ______ AND TENANT [SIGNATURE ILLEGIBLE]
---------------------
C-1
j. Light Switches: One (1) single pole wall switch for lighting control
--------------
will be provided for each three hundred twenty five (325) square feet of
rentable area.
k. Duplex Outlets: One (1) 120 volt house circuited duplex wall outlet
--------------
will be provided for each one hundred twenty five (125) square feet of rentable
area.
l. Telephone Outlets: One (1) wall mounted telephone pull string will be
-----------------
provided for each two hundred twenty (220) square feet of rentable area.
m. Flooring: Building standard flooring will be 32 ounce carpet glued
--------
directly to the concrete slab.
Standard line VCT can be installed in lieu of carpet at no additional cost.
In order to ensure that the Landlord is able to maintain and monitor the
quality of the building construction, the design intent of the systems,
including warranties, guarantees, etc. and to further protect the unit prices
established for the Building Standard items, it shall be understood that all
Work will be performed by Landlord's contractor unless otherwise provided
herein. It shall be understood that all mechanical, structural, electrical,
plumbing and fire sprinkler engineering required to develop Tenant's
improvements through modifications to Building Standard requested by Tenant and
approved by Landlord to accommodate Tenant's layout will be done by the
Landlord's engineers at Tenant's expense.
2. Landlord shall provide, in consultation with Tenant, architectural
working drawings for the improvements to the Premises (hereinafter called
"Drawings"). The Drawings shall include partition and door location drawings,
telephone and electric drawings and reflect ceiling drawings, and include any
specifications required by Tenant including, but not limited to, paint colors,
finish details, and non-standard construction work to be performed within the
Premises by Landlord's contractors. Tenant covenants and agrees to deliver to
Landlord all information necessary to cause said Drawings to be prepared in a
timely matter. Landlord will, at Landlord's sole cost and expense, have
mechanical (sprinkler, air conditioning, hearing, electric and plumbing)
drawings prepared by Landlord's mechanical engineer or contractor covering, and
limited to the mechanical elements of the Work as shown on the Drawings as the
Work relates specifically to Building Standard installations as set forth in
Paragraph 1 above. The cost of mechanical drawings relating to Work in addition
to or exceeding Building Standard installations shall be paid by Tenant.
3. Except as set forth in Paragraph 1 and Paragraph 2, Landlord has no
other agreement with Tenant and has no other obligation to do any other work
with respect to the Premises. Any other work in the Premises that may be
permitted by Landlord pursuant to the terms and conditions of this Lease shall
be done at Tenant's sole cost and expense and in accordance with said terms and
conditions. If Landlord agrees to perform, at Tenant's request and upon
submission by Tenant (at Tenant's sole cost and expense) of all necessary
drawings, plans and specifications (the "Extra Work Drawings"), any other work
in addition to the Work (the"Extra Work"), such Extra Work will be done at
Tenant's sole cost and expense. Landlord shall submit to Tenant written
estimates of the cost of Extra Work. Such estimate shall include a charge of 7
% of the total expenses and costs otherwise chargeable for the Extra Work, for
Landlord's overhead (exclusive of and in addition to the general contractor's
overhead and profit), whether the Extra Work is to be performed by Landlord or
others). If Tenant shall fail to approve said estimates within seven (7) days
from the receipt thereof, the same shall be deemed disapproved in all respects
by Tenant and Landlord shall not be authorized to proceed thereon. Upon
Landlord's approval of the Extra Work Drawings, Tenant agrees to pay 50% of the
cost of the Extra Work to Landlord and the balance of the cost upon being billed
therefor by Landlord at any time and from time to time thereafter. Landlord
shall not be liable for any damages, nor shall the Commencement Date be
delayed, nor any Rent abated, as a result of the construction or performance of
any Extra Work or any delay in such construction or performance.
4. Landlord, at Landlord's discretion, may permit Tenant and Tenant's
agents to enter the Premises prior to the Commencement Date in order that Tenant
may do such other work as may be required by Tenant to
INITIALED FOR IDENTIFICATION BY LANDLORD ______ AND TENANT BR
---------------
C-2
make the Premises ready for Tenant's use and occupancy thereof. If Landlord
permits such entry prior to commencement of the Term, then such permission is
conditioned upon Tenant and Tenant's agents, contractors, workmen, mechanics,
suppliers and invitees, working in harmony and not interfering with Landlord and
Landlord's agents in doing Landlord's work in the Premises or for other tenants
and occupants of said Building. If at any time such entry shall cause or
threaten to cause such disharmony or interference. Landlord shall have the right
to withdraw such permission upon twenty-four (24) hours written notice to
Tenant. Tenant agrees that any such entry into and occupation of the Premises
shall be deemed to be under all of the terms, covenants, conditions and
provisions of this Lease except as to the covenant to pay Rent, and further
agrees Landlord shall not be liable in any way for any injury, loss or damage
that may occur to any of Tenant's work and installations made in the Premises or
to properties placed therein prior to the Commencement Date, the same being at
Tenant's sole risk.
5. Tenant agrees that in the event Tenant shall have:
(A) caused changes to be made in the Drawings after they have
been prepared by Landlord or in the mechanical drawings and/or specifications
thereof or work or improvements required thereby (notwithstanding Landlord's
approval of such changes), or
(B) directly, or indirectly through any person, firm or
corporation employed by Tenant, unreasonably interfered with or delayed the work
of Landlord's contractor, or
(C) caused any delay in Landlord's completion of the Premises
through any fault or negligence of Tenant or its agents.
thereby delaying Tenant's occupancy of the Premises, Tenant shall commence
payment of Rent on the Commencement Date specified in Article 2 of this Lease.
INITIALED FOR IDENTIFICATION BY LANDLORD ______ AND TENANT [SIGNATURE ILLEGIBLE]
C-3
EXHIBIT D
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH INC., AS TENANT
RULES AND REGULATIONS
---------------------
1. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators and elevators of the Project shall not be obstructed or
used by Tenant, or the employees, agents, servants, visitors or licensees of
Tenant for any purpose other than ingress and egress to and from the Premises.
No bicycle or motorcycle shall be brought into the Building or kept on the
Premises without the prior written consent of Landlord.
2. No freight, furniture or bulky matter of any description will be received
into the Project or carried into the elevators except in such a manner, during
such hours and using such elevators and passageways as may be approved by
Landlord, and then only upon having been scheduled in advance. Any hand trucks,
carryalls of similar equipment used for the delivery or receipt of merchandise
or equipment shall be equipped with rubber tires, side guards and such other
safeguards as Landlord shall require.
3. Landlord shall have the right to prescribe the weight, position and
manner of installation of safes or other heavy equipment which shall, if
considered necessary by Landlord, be installed in a manner that shall insure
satisfactory weight distribution. All damage done to the Premises shall be
repaired at the expense of Tenant. The time, routing and manner of moving
safes or other heavy equipment shall be subject to prior approval by Landlord.
4. Only persons authorized by Landlord will be permitted to furnish
newspapers, ice, towels, barbering, shoe shining, janitorial services, floor
polishing and other similar services and concessions to Tenant, and only at
hours and under regulations fixed by Landlord. Tenant shall use no other method
of heating or cooling than that supplied by Landlord without Landlord's prior
written consent.
5. Neither Tenant nor the employees, agents, servants, visitors or
licensees of Tenant shall at any time place, leave or discard any rubbish paper,
articles or objects of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Project. No animals or birds shall be
brought or kept in or about the Project.
6. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion, tends to impair the reputation of the Project or
its desirability for offices and, upon written notice from Landlord, Tenant will
refrain from or discontinue such advertising.
7. Tenant shall not place or cause or allow to be placed, any sign,
placard, picture, advertisement, notice or lettering whatsoever, in, about or on
the exterior of the Premises, Building or Project except in and at such places
as may be designated by Landlord and consented to by Landlord in writing. Any
such sign, placard, advertisement, picture, notice or lettering and graphics on
corridor doors shall conform to the building standard prescribed by Landlord. No
trademark shall be displayed in any event.
8. Canvassing, soliciting or peddling in the Building and/or Project is
prohibited and Tenant shall cooperate to prevent same.
9. Landlord shall have the right to exclude any person from the Project
other than during customary business hours as set forth in the Lease, and any
person in the Project will be subject to identification by employees and agents
of Landlord. All persons in or entering the Project shall be required to comply
with the security policies of the Project.
INITIALED FOR IDENTIFICATION BY LANDLORD _____ AND TENANT BR
---------------
D-1
If Tenant desires additional security service for the Premises, Tenant shall
have the right (with the prior written consent of Landlord) to obtain such
additional service at Tenant's sole cost and expense. Tenant shall keep doors to
unattended areas locked and shall otherwise exercise reasonable precautions to
protect property from theft, loss or damage. Landlord shall not be
responsible for the theft, loss or damage of any property or for any error with
regard to the exclusion from or admission to the Project of any person. In case
of invasion, mob, riot or public excitement, the Landlord reserves the right to
prevent access to the Project during the continuance of same by closing the
doors or taking other measures for the safety of the tenants and protection of
the Project and property or persons therein.
10. Only workmen employed, designated or approved by Landlord may be employed
for repairs, installations, alterations, painting, material moving and other
similar work that may be done in or on the Premises.
11. Tenant shall not conduct any restaurant, luncheonette, automat or
cafeteria for the sale of food or beverages to its employees or to others.
Tenant may, however, operate a coffee bar and microwave oven by and for its
employees.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises or Project any inflammable, combustible, corrosive, caustic, poisonous,
or explosive substance, or cause or permit any odors to permeate in or emanate
from the Premises, or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Project
by reason of light, radiation, magnetism, noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business in the Project.
13. Tenant shall not xxxx paint, drill into, or in any way deface any part
of the Project or the Premises, provided that Tenant may hang artwork,
whiteboards, corkboards and similar items as a part of their normal business
operations. No boring, driving of nails or screws, cutting or stringing of wires
shall be permitted, except with the prior consent of Landlord and as Landlord
may direct. Tenant shall not install any resilient tile or similar floor
covering in the Premises except with the prior approval of Landlord. The use of
cement or other similar adhesive material is expressly prohibited.
14. No additional locks or bolts of any kind shall be placed by Tenant on
any door in the Project or the Premises, and no lock on any door therein shall
be changed or altered by Tenant in any respect. Landlord shall furnish two keys
for each lock on exterior doors to the Premises and shall on Tenant's request
and at Tenant's expense, provide additional duplicate keys. All keys shall be
returned to Landlord upon the termination of this Lease, and Tenant shall give
to Landlord the explanations of the combinations of all safes, vaults and
combination locks remaining with the Premises. Landlord may at all times keep a
pass key to the Premises. All entrance doors to the Premises shall be left
closed at all times and left locked when the Premises are not in use.
15. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation or accident in the Premises or in the Project or of
defects therein or in any fixtures or equipment, or of any known emergency in
the Project.
16. Tenant shall not allow the Premises to be used for photographic,
lithographic or multigraphic reproductions except in connection with its own
business and not as a service for others without Landlord's prior written
consent.
17. Tenant shall not use or permit any portion of the Premises to be used as
an office for a public stenographer or typist, offset printing, the sale of
liquor or tobacco, a xxxxxx or manicure shop, an employment bureau, a labor
union office, a doctor's or dentist's office, a dance or music studio, any type
of school, or for any use other than those specifically granted in this Lease.
18. Tenant shall not advertise for laborers giving the Premises as an
address, nor pay such laborers at a location in the Premises.
INITIALED FOR IDENTIFICATION BY LANDLORD __________AND TENANT
[SIGNATURE ILLEGIBLE]
---------------------
D-2
19. The requirements of Tenant will be attended to only upon application at
the office of Landlord in the Building or at such other address as may be
designated by Landlord in the Lease. Employees of Landlord shall not perform any
work or do anything outside of their regular duties, unless under special
instructions from the office of Landlord.
20. Tenants shall not place a load upon any floor of the Premises that
exceeds the load per square foot that such floor was designed to carry and that
is allowed by law. Business machines and mechanical and electrical equipment
belonging to Tenant that cause noise, vibration, electrical or magnetic
interference, or any other nuisance that may be transmitted to the structure or
other portions of the Project or to the Premises to such a degree as to be
objectionable to Landlord or that interfere with the use or enjoyment by other
tenants of their premises or the public portions of the Project shall be placed
and maintained by Tenant, at Tenant's expense, in settings of cork, rubber,
spring type, or other vibration eliminators sufficient to eliminate noise or
vibration.
21. No awnings, draperies, shutters or other interior or exterior window
coverings that are visible from the exterior of the Building or from the
exterior of the Premises within the Building may be Installed by Tenant.
22. Tenant shall not place, install or operate within the Premises or any
other part of the Project any engine, stove or machinery, or conduct mechanical
operations therein, without the written consent of Landlord.
23. No portion of the Premises or any other part of the Project other than
that portion of the Project operated as a hotel shall at any time be used or
occupied as sleeping or lodging quarters.
24. Tenant shall at all times keep the Premises neat and orderly.
25. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the tenant who or whose employees or invitees shall have
caused it.
26. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgement of Landlord, is intoxicated or under the Influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the Rules and Regulations of the Project.
27. No noxious, illegal or offensive activities shall be carried on in the
Premises or the Project, nor shall anything be done which is an annoyance or
nuisance or which interferes with the quiet enjoyment of other occupants of the
Project. No activity is permitted which increases the rate of insurance for the
Project or causes any insurance policy to be cancelled or not renewed, or which
will impair the structural integrity of the Project.
28 . Tenants and their employees, agents, visitors and licensees shall conduct
themselves in an orderly, polite and inoffensive manner throughout the Project.
Any tenant or employee, agent, visitor or licensee of any tenant who is
intoxicated or under the influence of alcoholic beverages or drugs anywhere in
the Project will be in violation of these rules and regulations.
29. Landlord reserves the right, without the approval of Tenant, to rescind
any Rules or Regulations, to add new reasonable Rules or Regulations or make
reasonable amendments thereto, and to waive any Rules or Regulations with
respect to any tenant or tenants.
INITIAL FOR IDENTIFICATION BY LANDLORD _____ AND TENANT BR
----------------
D-3
EXHIBIT E
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD. AS LANDLORD
AND CITYSEARCH, INC. AS TENANT
PARKING
-------
(a) Guaranteed Spaces - Austin Centre Garage. Landlord agrees to provide,
----------------------------------------
and Tenant agrees to rent through the Term of the Lease, six (6) unreserved
spaces for the parking of automobiles in the parking garage located at Austin
Centre, Xxxxxx, Xxxxxx County, Texas. Tenant shall rent all such spaces unless
and until Landlord releases Tenant from such spaces after Tenant gives at least
sixty (60) days prior written notice to Landlord that Tenant desires to take
fewer spaces, but Landlord shall be under no obligation to later make available
to Tenant any spaces relinquished by Tenant. As rental for such parking spaces
provided to Tenant hereunder, Tenant shall pay to Landlord or the operator of
the garage, as may be designated from time to time by Landlord, monthly in
advance in the same manner and in addition to the Base Rent provided in the
Lease, rental on each such parking space at the rate of $80.00 for each
unreserved space per month, plus tax.
(b) Guaranteed Spaces - St. David's Garage. Landlord also agrees to make
--------------------------------------
available to Tenant through the term of the Lease up to fourteen (14) spaces in
the St. David's Garage at an initial cost of $68.00 per space per month, plus
tax; rates for these spaces may be adjusted from time to time as specified by
the operator of the garage. Landlord shall have no obligation to make available
to Tenant any such spaces used and later relinquished by Tenant.
(c) Optional Spaces - St. David's Garage. If Tenant has used all of its
------------------------------------
Guaranteed Spaces in the St. David's Garage, then, subject to availability.
Tenant may lease up to five (5) additional spaces in the St. David's Garage on a
month to month basis at the rates specified from time to time by the operator of
the garage.
(d) Default in Payment of Parking Fees. Upon the failure of Tenant to pay
----------------------------------
any parking fees when due, and the failure to cure such problem within five (5)
days of receipt of written notice from Landlord (provided, however, that
Landlord shall not be obligated to give written notice more than three (3) times
in any twelve month period), Landlord shall be relieved of any further
obligations under this Exhibit E furthermore, if Tenant has not paid such
overdue amounts within ninety (90) days of receipt of the written notice or if
Tenant is otherwise in default under the Lease at such time, then Tenant's
failure to pay will be deemed to be a default under the Lease and Landlord may
then exercise any other remedy allowed under this Lease.
(e) Miscellaneous. Tenant shall comply with all traffic, security, safety
-------------
and other rules and regulations promulgated from time to time by Landlord.
Tenant shall indemnify and hold harmless Landlord from and against all claims,
losses, liabilities, damages, costs and expenses (including, but not limited to,
attorneys' fees and court costs) arising or alleged to arise out of Tenant's use
of any such parking spaces, except to the extent caused by Landlord's
negligence. In the event any of the guaranteed parking spaces are or become
unusable at any time or from time to time throughout the Term, whether due to
casualty or any other cause, this Lease shall continue in full force and
effect; provided however, (i) Landlord shall make reasonable efforts to provide
alternate parking and (ii) Tenant shall be entitled to an abatement of the rent
due for any such space for so long as it is unavailable for use by Tenant during
normal Building hours.
INITIALED FOR IDENTIFICATION BY LANDLORD _____ AND TENANT [SIGNATURE ILLEGIBLE]
---------------------
FOR EXAMPLE PURPOSES ONLY -- TO BE COMPLETED
UPON ACTUAL OCCUPANCY OF THE PREMISES.
EXHIBIT F
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
COMMENCEMENT DATE DECLARATION
-----------------------------
This declaration is executed with respect to that certain Austin Centre
Lease Agreement (the "Lease") dated August 15, 1996 by and between Brazos Austin
Centre, Ltd., a Texas corporation ("Landlord"), and CitySearch Inc., a Delaware
corporation ("Tenant"), covering approximately 4,473 square feet of rentable
area on floor four (4) of the Building. Capitalized terms used but not defined
herein shall have the meanings given to them in the Lease.
By their respective execution below. Landlord and Tenant each hereby
stipulates and agrees that:
(1) The Commencement Date (as defined in Section 2.02 of the Lease)
occurred on_________, 1996 and the Expiration Date is March 31, 2002;
(2) The Premises contain 4,473 rentable square feet:
(3) Tenant's Pro Rata Share for purposes of calculating rental
adjustments based on payment of Operating Expenses is 1.3016%; and
(4) Base Rent is payable in monthly installments as follows:
Lease Dates Base Rent
----------- ---------
09/16/1996 - 03/15/1997 Free Rent Period (No Base Rent or
Rental Adjustment)
03/16/1997 - 03/31/1998 $3,727.50 per month (based on a rental
rate of $10.00 per rental square foot
per year)
04/01/1998 - 03/31/1999 $3,913.88 per month (based on a rental
rate of $10.50 per rental square foot
per year)
04/01/1999 - 03/31/2000 $4,100.25 per month (based on a rental
rate of $11.00 per rental square foot
per year)
04/01/2000 - 03/31/2001 $4,286.63 per month (based on a rental
rate of $11.50 per rental square foot
per year)
INITIALED FOR IDENTIFICATION BY LANDLORD_____ AND TENANT BR
----------------
F-1
04/01/2001 - 03/31/2002 $4,473.00 per month (based on a rental
rate of $12.00 per rental square foot
per year)
This declaration may be relied upon by any person having or acquiring an
interest in the Lease or the Building, without notice to or consent of
Landlord or Tenant.
LANDLORD:
BRAZOS AUSTIN CENTRE, LTD.
By:_________________________________
Printed Name:_______________________
Title:______________________________
Date:_______________________________
TENANT:
CITYSEARCH, INC.
By:_________________________________
Printed Name:_______________________
Title:______________________________
Date:_______________________________
INITIALED FOR IDENTIFICATION BY LANDLORD____________AND TENANT___________
F-2
EXHIBIT G
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE LTD., AS LANDLORD
AND CITYSEARCH INC., AS TENANT
CERTIFICATE OF THE SECRETARY
----------------------------
The undersigned, Secretary of CitySearch, Inc., a Delaware corporation (the
"Corporation"), hereby certifies that attached is a true and correct copy of the
resolutions duly adopted by unanimous consent dated 03/30/91, 1996, of all
directors of the Board of Directors of the Corporation and that the same have
not been amended, altered or rescinded and are now in full force and effect;
that the Corporation is duly organized and existing under the laws of the State
of Delaware; that all franchise and other taxes, if any, required to maintain
the corporate existence of the Corporation have been paid when due and that no
such taxes are delinquent that no proceedings are pending for the forfeiture of
the Certificate of Incorporation of the Corporation or for its dissolution,
voluntary or involuntary; that the Corporation is duly qualified to do business
in the State of Texas and is in good standing in such state; that there is no
provision of the Articles of Incorporation or Bylaws of the Corporation limiting
the powers of the Board of Directors to pass or consent to the resolutions set
out in the instrument attached hereto and that said resolutions are in
conformity with the provisions of said Articles of Incorporation and Bylaws; and
that the Secretary is the keeper of the records and minutes of the proceedings
of the Board of Directors of the Corporation.
This is to further certify that the persons named below are the duly
elected and qualified officers of the Corporation, holding the respective
offices set forth opposite their names, that they continue to hold these
offices at the present time, and that the respective signatures set opposite
their names are the genuine, original signatures of each respectively:
Name Title Signature
Xxxxxxx Xxxx President /s/ Xxxxxxx Xxxx
------------------ -----------------------
Xxxxxxx Xxxxxxx Vice President /s/ Xxxxxxx Xxxxxxx
------------------ -----------------------
Xxxxxxx Xxxxxx Secretary /s/ Xxxxxxx Xxxxxx
------------------ -----------------------
Xxxxxx X. Xxxxxx Treasurer /s/ Xxxxxx X. Xxxxxx
------------------ -----------------------
INITIALED FOR IDENTIFICATION BY LANDLORD______ AND TENANT BR
----------------
G-1
IN WITNESS WHEREOF I have hereunto affixed my name as Secretary and have
caused the corporate seal of the Corporation to be hereto affixed this 3rd
day of August, 1996.
/s/ Xxxxxxx Xxxxxx
---------------------------------
Secretary
The undersigned, Xxxxxxx Comm, President of the Corporation, hereby
certifies that Xxxxxxx Xxxxxx is the duly elected and qualified Secretary of the
Corporation, that the signature above is his (her) genuine signature, that
attached is a true and correct copy of the resolutions duly adopted by the Board
of Directors of the Corporation, which are now in full force and effect and that
the foregoing certificate is true and correct.
/s/ Xxxxxxx Comm
---------------------------------
President
INITIAL FOR IDENTIFICATION BY LANDLORD____________AND TENANT ILLEGIBLE
---------
G-2
RESOLUTIONS OF CORPORATE BOARD
------------------------------
RESOLVED: That CitySearch Inc. (this "Corporation") enter into the Austin Centre
Lease Agreement (the "Lease") dated August 15, 1996, with Brazos Austin Centre,
Ltd., a Texas corporation ("Landlord"), covering premises located on the 4th
floor of Austin Centre (the "Building").
FURTHER RESOLVED: That the Lease shall be in form and substance satisfactory to
Landlord and in form and substance approved by the officer of this Corporation
executing the same, his approval of each such instrument to be conclusively
evidenced by his execution thereof.
FURTHER RESOLVED: That the President or any Vice President of this Corporation
be and each hereby is severally authorized and directed for and on behalf, and
as the act and deed of this Corporation to execute and deliver to Landlord the
Lease and any addenda, amendments and supplements thereto, and to take such
other action in the consummation of the transaction herein contemplated as the
officer acting shall deem to be necessary or desirable, without the necessity of
attestation by the secretary or any other officer of this Corporation and with
or without the seal of this Corporation; any and all acts heretofore taken by
the President or any Vice President of this Corporation to such end are hereby
expressly ratified and confirmed as the acts and deeds of this Corporation.
INITIALED FOR IDENTIFICATION BY LANDLORD_____________AND TENANT ILLEGIBLE
---------
G-3
EXHIBIT J
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
RIGHT OF FIRST REFUSAL
----------------------
1. Landlord hereby grants to Tenant a right of first refusal (the "Right
of First Refusal") exercisable as hereinafter set forth, covering the property
designated as Refusal Space on Exhibit A. All rights of Tenant to lease the
Refusal Space pursuant to the Right of First Refusal shall be applicable to the
entire Refusal Space or to any portion thereof which may become available from
time to time. The Right of First Refusal shall be as follows:
(a) Upon receipt of a bona fide offer for the lease of any
portion of the Refusal Space, which offer Landlord wishes to
accept, and provided Tenant is not at such time in default
under the Lease, Landlord shall give Tenant notice (the
"Notice") in writing of the terms and conditions of the
offer. Tenant may exercise the Right of First Refusal by
delivering to Landlord written notice of Tenant's election
on or before the tenth (10th) calendar day after the date of
Landlord's delivery to Tenant of the Notice. In the event
Tenant exercises its Right of First Refusal, it shall be
required to lease the Refusal Space on the same terms and
conditions provided in the Notice, subject to section (c)
below.
(b) In the event Landlord does not actually receive notice of
Tenant's election to lease the Refusal Space described in
the Notice within the period provided herein, then Landlord
shall be free to lease such space to one or more third
parties.
(c) All Refusal Space leased to Tenant pursuant to the Right of
First Refusal, shall at Landlord's option, be for a term
which is coterminous with the initial Term of this Lease and
any renewal or extension thereof.
(d) The term "Premises", as used in this Lease and/or the
Underlying Lease, shall include all expansions thereof that
may occur from time to time pursuant to this Right of First
Refusal.
(e) This Right of First Refusal shall terminate at the end of
the twelfth month following the Commencement Date.
INITIALED FOR IDENTIFICATION BY LANDLORD _____ AND TENANT [SIGNATURE ILLEGIBLE]
---------------------
EXHIBIT L
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE, LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
MEMORANDUM OF LEASE
-------------------
THE STATE OF TEXAS (S)
(S) KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF XXXXXX (S)
This Memorandum of Lease is executed in connection with that certain Austin
Centre Lease Agreement (the "Lease") between Brazos Austin Centre, Ltd., a
Texas corporation ("Landlord") and CitySearch, Inc., a Delaware corporation
("Tenant") dated August 15, 1996, relating to the real property (the "Land")
situated on Xxxxxx County, Texas, described in Exhibit "B" attached hereto and
-----------
made a part hereof for all purposes, which land has a street address of 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx.
Landlord has leased to Tenant, and Tenant has leased from Landlord for the
rent and subject to the provisions of the Lease, certain space described in the
Lease located on floor four (4) of the building known as Austin Centre as more
particularly described on Exhibit "A" hereto.
----------
The initial term of the Lease commences on ___________ and expires on
March 31, 2002.
This Memorandum of Lease is executed for purposes of giving public notice
of the matter contained herein, and shall not operate to add to, reduce, or
change any of the substantive rights of any of the parties to the Lease.
LANDLORD:
BRAZOS AUSTIN CENTRE LTD.
By:________________________________
Printed Name:______________________
Title:_____________________________
Date:______________________________
TENANT:
CITYSEARCH, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Printed Name: Xxxxxxx Xxxxxxx
----------------------
Title: CFO
-----------------------------
Date: 9/12/96
------------------------------
INITIALED FOR IDENTIFICATION BY LANDLORD______ AND TENANT [SIGNATURE ILLEGIBLE]
---------------------
X-0
XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF XXXXXX (S)
THIS INSTRUMENT was acknowledged before me on ________________________,
1996, by _________________ ,__________________ of Brazos Austin Centre Ltd., a
Texas corporation, on behalf of said corporation.
__________________________________
Notary Public in and for
The State of Texas
__________________________________
Typed or Printed Name of Notary
My Commission Expires:____________
THE STATE OF CALIFORNIA (S)
(S)
COUNTY OF LOS ANGELES (S)
THIS INSTRUMENT was acknowledged before me on Sept 12, 1996, by Xxxxxxx
Xxxxxxx, CFO of CitySearch Search, Inc., a Delaware corporation on behalf of
said corporation.
[STAMP APPEARS HERE] [SIGNATURE ILLEGIBLE]
---------------------------------------
NotarY Public in and for
The State of California
Xxxxx Xxxxxxxxx
---------------------------------------
Typed or Printed Name of Notary
My Commission Expires: Jan 15, 2000
INITIALED FOR IDENTIFICATION BY LANDLORD___________ AND TENANT_________
L-2
EXHIBIT M
---------
TO LEASE BETWEEN
BRAZOS AUSTIN CENTRE LTD., AS LANDLORD
AND CITYSEARCH, INC., AS TENANT
LIMITED RIGHT OF TERMINATION
----------------------------
Notwithstanding anything to the contrary contained in the Lease. Tenant
shall have the limited right to change the Expiration Date of the Lease to March
15, 2000. Tenant may do so if, and only, if, (i) Tenant delivers written notice
of the new Expiration Date to Landlord no later than September 15, 1999, (ii)
Tenant is not then in default under the Lease, and (iii) Tenant pays to
Landlord at the time notice is given the sum of the following amounts:
(a) the full amount of the unamortized portion of the Tenant improvement
costs incurred by Landlord and the real estate commission paid by Landlord
to the Broker;
(b) one half (1/2) of the full rental abatement given to Tenant in Section
3.01 of the Lease: and
(c) the sum of $1,000.00 to cover after hours utility charges.
For purposes of calculating the unamortized portion of the improvement
costs and Broker's commission, such expenses shall be deemed to be amortizing on
a straight line basis over the unmodified lease term.
INITIALED FOR IDENTIFICATION BY LANDLORD___________ AND TENANT [SIGNATURE
----------
ILLEGIBLE
---------
[LOGO OF CONSTRUCTIONS CONSTRUCTIONS & ASSOCIATES, INC
& ASSOCIATES, INC Date: 29-Jul-98
APPEARS HERE] FOR: CITY SEARCH
SUITE 440 4,473 SF
701 BRAZOS
-----------------------------------------------------------------------------------------
COSTS PERCENT
SUMMARY OF REMODEL COSTS TOTALS /SF OF TOTALS
-----------------------------------------------------------------------------------------
DEMOLITION/CONC CUT & FOUR SACK $ 1,025 $ 0.13 1%
MILLY/CRK $ 1,500 $ 0.34 2%
DOORS/FRAMES/HARDWARE $ 9,329 $ 2.09 13%
GLASS AND GLAZING $ 910 $ 0.21 1%
DRYWALL/ACCUSTICAL $10,850 $ 2.43 15%
FLOORING $ 7,290 $ 1.63 10%
PAINT $ 5,554 $ 1.24 8%
SIGNAGE (ALLOWANCE) N/A $ 0.00 0%
FOOD SERVICE EQUIPMENT $ 675 $ 0.15 1%
METAL SHELVING $ 395 $ 0.09 1%
FIRE PROTECTION $ 2.185 $ 0.48 3%
PLUMBING $ 3,344 $ 0.76 5%
HVAC $ 8,871 $ 1.49 9%
ELECTRICAL $12,524 $ 2.80 18%
--------------------------------------------
SUBTOTAL $62,241 $13.91 87%
GENERAL CONDITIONS $ 5,550 $ 1.24 8%
--------------------------------------------
SUBTOTAL $87,791 $15.16 95%
OVERHEAD AND PROFIT 5.00% $ 3,390 $ 0.76 5%
--------------------------------------------
SUBTOTAL $71,187 $15.81 100%
STATE REMODEL TAX 5.25% N/A $ 0.00 0%
--------------------------------------------
N/A SHELL SPACE SUBTOTAL $71,181 $15.81 100%
-----------------------------------------------------------------------------------------
TOTAL PROJECT COST $71,181 $15.81 100%
-----------------------------------------------------------------------------------------
QUALIFICATIONS:
-----------------------------------------------------------------------------------------
1. POWER TO LOW WALLS BY POLE TO PLENUM SPACE.
2. OWNER TO REMOVE EXISTING BUILDING STOCK IN
SPACE.
3. WE ASSUME AVAILABLE SPACE IN EXISTING
ELECTRICAL PANEL NO NEW PANEL BE NECESSARY.
UTAH
SAN XXXXXXX
XXXXXXX
DALLAS
FORT WORTH
DENVER
NEW YORK
BOSTON
WASHINGTON
LONDON
[LOGO OF CITYSEARCH
APPEARS HERE]
VIA FEDERAL EXPRESS
AUGUST 20, 1996
Xx. Xxxxx Xxxxxxx
OMNI Commercial Realty Advisors
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Dear Xxxxx:
I am enclosing two copies of the Austin Centre Lease Agreement by and
between Brazos Austin Centre, Ltd. and CitySearch Inc. both of which have
been executed by us. As we discussed, we are holding onto Exhibits G and
L. As soon as all of our Board members are in town, we will return
Exhibit G. I will return Exhibit L next week. I am also enclosing three
copies of the approved space plan. Please return one fully executed lease
and space plan to me.
If you have questions, please call me at (000) 000-0000.
Sincerely,
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Chief Financial Officer
BR/pc
Enclosures
