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EXHIBIT 10.04
OFFICE LEASE AGREEMENT
BETWEEN
KCD-TX I INVESTMENT LIMITED PARTNERSHIP
AS LANDLORD
AND
LACERTE SOFTWARE CORPORATION
AS TENANT
DATED: February 22, 2000
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LEASE INDEX
ARTICLE 1 - LEASE .........................................................2
Section 1.01 Property .............................................2
Section 1.02 Rentable Area ........................................3
ARTICLE 2 - CONSTRUCTION OF THE BUILDING ..................................3
Section 2.01 Development Schedule .................................3
Section 2.02 Base Building Work ...................................3
Section 2.03 Tenant Improvements ..................................5
Section 2.04 Bidding ..............................................6
Section 2.05 Construction .........................................6
Section 2.06 Substantial Completion ...............................7
Section 2.07 Inspection ...........................................7
Section 2.08 Reports ..............................................8
Section 2.09 Compliance with Laws .................................8
Section 2.10 Insurance and Restoration ............................8
Section 2.11 Indemnity ............................................9
Section 2.12 Correction of Construction Defects ...................9
Section 2.13 Schedule ............................................10
Section 2.14 Change Orders .......................................10
Section 2.15 Force Majeure .......................................12
Section 2.16 Landlord and Tenant Delay ...........................12
Section 2.17 Building Materials ..................................13
Section 2.18 Signage .............................................13
Section 2.19 Access ..............................................13
ARTICLE 3 - COSTS OF CONSTRUCTION OF THE BUILDING
AND THE TENANT IMPROVEMENTS ......................................14
Section 3.01 Base Building Work ..................................14
Section 3.02 Tenant Improvement Allowances .......................14
Section 3.03 Payment .............................................15
Section 3.04 Supplemental Allowance ..............................16
ARTICLE 4 - TERM AND RENEWALS ............................................16
Section 4.01 Term ................................................16
Section 4.02 Renewal Options .....................................17
Section 4.03 Refurbishment Allowance .............................18
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OFFICE LEASE AGREEMENT
BETWEEN
KCD-TX I INVESTMENT LIMITED PARTNERSHIP
AS LANDLORD
AND
LACERATE SOFTWARE CORPORATION
AS TENANT
DATED: February 22, 2000
4
LEASE INDEX
ARTICLE 1 - LEASE .........................................................2
Section 1.01 Property .............................................2
Section 1.02 Rentable Area ........................................3
ARTICLE 2 - CONSTRUCTION OF THE BUILDING ..................................3
Section 2.01 Development Schedule .................................3
Section 2.02 Base Building Work ...................................3
Section 2.03 Tenant Improvements ..................................5
Section 2.04 Bidding ..............................................6
Section 2.05 Construction .........................................6
Section 2.06 Substantial Completion ...............................7
Section 2.07 Inspection ...........................................7
Section 2.08 Reports ..............................................8
Section 2.09 Compliance with Laws .................................8
Section 2.10 Insurance and Restoration ............................8
Section 2.11 Indemnity ............................................9
Section 2.12 Correction of Construction Defects ...................9
Section 2.13 Schedule ............................................10
Section 2.14 Change Orders .......................................10
Section 2.15 Force Majeure .......................................12
Section 2.16 Landlord and Tenant Delay ...........................12
Section 2.17 Building Materials ..................................13
Section 2.18 Signage .............................................13
Section 2.19 Access ..............................................13
ARTICLE 3 - COSTS OF CONSTRUCTION OF THE BUILDING
AND THE TENANT IMPROVEMENTS ......................................14
Section 3.01 Base Building Work ..................................14
Section 3.02 Tenant Improvement Allowances .......................14
Section 3.03 Payment .............................................15
Section 3.04 Supplemental Allowance ..............................16
ARTICLE 4 - TERM AND RENEWALS ............................................16
Section 4.01 Term ................................................16
Section 4.02 Renewal Options .....................................17
Section 4.03 Refurbishment Allowance .............................18
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ARTICLE 5 - RENT .........................................................18
Section 5.01 Rent ................................................18
Section 5.02 Late Charge .........................................19
Section 5.03 Net Lease ...........................................19
Section 5.04 Additional Rent .....................................20
ARTICLE 6 - HOLDING OVER .................................................20
Section 6.01 Holding Over ........................................20
ARTICLE 7 - QUIET POSSESSION .............................................20
Section 7.01 Quiet Possession ....................................20
ARTICLE 8 - USE OF BUILDING ..............................................20
Section 8.01 Use .................................................20
Section 8.02 Maintenance .........................................21
ARTICLE 9 - TAXES ........................................................22
Section 9.01 Personal Property Taxes .............................22
Section 9.02 Ad Valorem Taxes ....................................22
Section 9.03 Delinquency of Payment ..............................23
ARTICLE 10 - INSURANCE ...................................................23
Section 10.01 Tenant's Insurance .................................23
Section 10.02 Policy Requirements ................................23
Section 10.03 Landlord's Insurance ...............................25
ARTICLE 11 - INDEMNIFICATION .............................................26
Section 11.01 Tenant's and Landlord's Indemnities ................26
ARTICLE 12 - LANDLORD'S LIABILITY ........................................26
Section 12.01 Limited Liability ..................................26
ARTICLE 13 - UTILITIES AND SERVICES ......................................27
Section 13.01 Utilities and Services .............................27
Section 13.02 Association Fees ...................................27
ARTICLE 14 - ALTERATIONS .................................................27
Section 14.01 Alterations ........................................27
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ARTICLE 15 - REPAIR AND MAINTENANCE ......................................28
Section 15.01 Tenant's Obligations ...............................28
Section 15.02 Landlord's Obligations .............................29
Section 15.03 Removal of Fixtures ................................29
ARTICLE 16 - DAMAGE AND DESTRUCTION ......................................29
Section 16.01 Fire and Other Casualty ............................29
Section 16.02 Third-Party Architect ..............................30
ARTICLE 17 - CONDEMNATION ................................................31
Section 17.01 Takings ............................................31
ARTICLE 18 - ENTRY BY LANDLORD ...........................................31
Section 18.01 Reasonable Access ..................................31
ARTICLE 19 - ASSIGNMENT AND SUBLETTING ...................................32
Section 19.01 Assignment and Subletting ..........................32
Section 19.02 Assignment by Landlord .............................33
Section 19.03 No Right to Right of Assignment/Sublease
Independent of Lease .............................................33
Section 19.04 No Right to Seek Extension Under
11 U.S.C. section 365(d) .........................................33
ARTICLE 20 - SUBORDINATION AND LENDER AGREEMENTS .........................33
Section 20.01 Lender and Mortgages ...............................33
Section 20.02 Estoppel ...........................................34
ARTICLE 21 - DEFAULT AND REMEDIES ........................................35
Section 21.01 Defaults ...........................................35
Section 21.02 Remedies ...........................................36
Section 21.03 Landlord's Default .................................40
Section 21.04 Waiver .............................................42
ARTICLE 22 - NOTICES .....................................................43
ARTICLE 23 - BROKER'S COMMISSIONS ........................................44
Section 23.01 Broker's Commission ................................44
ARTICLE 24 - ENVIRONMENTAL MATTERS .......................................44
Section 24.01 Hazardous Substances Contamination .................44
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ARTICLE 25 - PROJECT EXPANSIONS ..........................................46
Section 25.01 Expansion Notice ...................................46
Section 25.02 Specification Notice ...............................47
Section 25.03 Governing Provisions ...............................47
ARTICLE 26 - MISCELLANEOUS ...............................................53
Section 26.01 Miscellaneous Terms ................................53
Section 26.02 Landlord's Representations .........................55
Section 26.03 Tenant's Representations ...........................56
Section 26.04 Landlord's Cooperation .............................56
Section 26.05 Confidentiality ....................................56
Section 26.06 Memorandum of Lease ................................56
EXHIBITS:
Exhibit "A" Phase I Property
Exhibit "A-1" Future Development Property
Exhibit "A-2" Acquisition Contract
Exhibit "B" Development Schedule
Exhibit "C" Base Building Outline Specifications
Exhibit "C-1" Site Plan
Exhibit "D" Completion Guaranty
Exhibit "D-1" Intuit Guaranty
Exhibit "E" Weather Standard
Exhibit "F" Subordination and Non-Disturbance Agreement
Exhibit "G" Commission Agreement
Exhibit "H" Base Rent Example
Exhibit "I" Permitted Exceptions
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (this "LEASE"), dated to be effective as of
this 22nd day of February, 2000, is made by and between KCD-TX I INVESTMENT
LIMITED PARTNERSHIP, a Texas limited partnership ("LANDLORD OR KCD"), and
LACERTE SOFTWARE CORPORATION, a Delaware corporation ("TENANT" or "LACERTE").
PRELIMINARY RECITALS
A. Electronic Data Systems Corporation ("EDS") is the owner of (i) a
certain tract of unimproved real property containing approximately 10.7 acres
located in the Legacy Park development in the City of Plano, Texas, which real
property is generally described on Exhibit "A," attached hereto and made a part
hereof, and which shall be used for Phase I of the Project (the "PHASE I
PROPERTY"); and (ii) a tract containing approximately 8.8 acres of land which
may be used for additional phases and/or expansions of the Project (the "FUTURE
DEVELOPMENT PROPERTY") which is generally described on Exhibit "A-1" attached
hereto (the Phase I Property and the Future Development Property are hereinafter
collectively referred to as the "REAL PROPERTY").
B. Landlord warrants that it shall acquire those portions of the Real
Property from EDS as necessary to satisfy the requirement to develop the Project
and any Project Expansion as contemplated herein, in accordance with the terms
of that certain Contract for the Purchase and Sale of Real Estate to be executed
by Landlord and EDS (the "ACQUISITION CONTRACT"), and when so executed, a copy
of which shall be attached hereto as Exhibit "A-2" in accordance with Section
1.01(b). Landlord also warrants that, so long as Lacerte has not committed an
uncured Event of Default, Landlord will not amend the provisions of the
Acquisition Contract without Lacerte's consent, which shall not be unreasonably
withheld.
C. When Landlord acquires the Phase I Property, it shall construct on
the Phase I Property an office building containing approximately 165,000 square
feet of gross building area (the "BUILDING") as well as a minimum of seven
hundred fifty (750) parking spaces, or such greater amount as may be necessary
to satisfy applicable ordinances with respect to the parking required for the
Building (the "PARKING") (the Building and Parking are collectively sometimes
referred to herein as "PHASE I"). The Building, Parking and the Phase I
Property, if and when constructed, are collectively hereinafter referred to as
the "PROJECT"). The development of the Future Development Property shall be
controlled by the provisions of Article 25 hereof, and upon the acquisition of
any portion of the Future Development Property, such property shall become part
of the Project for purposes of this Lease.
D. Tenant desires to lease the Project on the terms and conditions
hereinafter provided.
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E. To induce Landlord to execute this Lease, Tenant has caused, and
Intuit Inc. (the "GUARANTOR" or "INTUIT") has agreed to execute, that certain
guaranty agreement (the "INTUIT GUARANTY") attached hereto as Exhibit "D-1." For
purposes of this Lease, the term "Guarantor" shall include any "Substitute
Guarantor" as provided in the Intuit Guaranty, unless expressly stated to the
contrary herein.
NOW, THEREFORE, for and consideration of the rent herein after reserved
and the mutual covenants hereinafter contained, Landlord and Tenant agree as
follows:
ARTICLE 1 - LEASE
SECTION 1.01 PROPERTY.
(a) Subject to Landlord's acquisition of the Phase I Property and
completion of the Project in accordance with the terms of this Lease, Landlord
hereby leases and demises the Project to Tenant and Tenant hereby hires, leases
and accepts the Project from Landlord, for the Term (as defined in Section 4.01)
and subject to the agreements, conditions and provisions contained herein.
(b) Title to the Real Property shall be burdened by certain title
exceptions which exist as of the date hereof and which are required to be
established by the Landlord in connection with the Acquisition Contract and the
development of the Project. Upon receipt thereof by Landlord, Landlord shall
deliver to Tenant (i) a commitment for title insurance covering the Real
Property and legible copies of all exception documents shown therein for
Tenant's review and approval, (ii) an on the ground boundary survey of the Real
Property showing the location of any easements and other encumbrances to title,
and (iii) the final form of Acquisition Contract to be executed-by Landlord and
EDS. Tenant will receive an opportunity to review and approve the Supplemental
Declaration referred to in Section 14.04(b) of the Acquisition Contract, the
Option Supplemental Declaration referred to in Section 14.05, as well as any
other restrictions or instruments that will be recorded pursuant to the terms of
the Acquisition Contract, including the terms and provisions of the Special
Warranty Deed. Within ten (10) business days following receipt by Tenant of all
of the foregoing materials, Tenant shall either approve the Acquisition
Contract, the exceptions to title shown in such title commitment, the additional
title documents referenced above, and the survey (the "PERMITTED EXCEPTIONS"),
or Tenant shall deliver written notice to Landlord terminating this Lease. If
Tenant fails to deliver such notice, Tenant shall be deemed to have waived any
objection to title to the Real Property and shall have accepted the Acquisition
Contract and Permitted Exceptions. Upon approval of the Permitted Exceptions,
Landlord and Tenant agree that same shall be described on Exhibit "I" to the
Lease which shall be incorporated herein by reference for all purposes. Upon
approval of the Acquisition Contract, a fully executed copy of same shall be
attached to this Lease as Exhibit "A-2" which shall be incorporated herein by
reference for all purposes. Landlord covenants that it shall not permit any
additional easements and exceptions other than the Permitted Exceptions to title
to be recorded against title to the Real Property except those easements and
exceptions which are necessary in connection with the development of the
Project, and in any event such additional exceptions and easements shall not
impair Tenant's use of the Project. As soon as possible after the
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Substantial completion of construction of the shell of the Building, Landlord's
architect, HKS, Inc. ("ARCHITECT"), shall compute the Rentable Area (hereafter
defined) contained in the Building. For purposes of calculating rentals due
hereunder, the good faith calculations of Architect made in accordance with
Section 1.02 hereof shall, subject to the review and approval thereof by Tenant
and Landlord, determine the Rentable Area contained in the Building. If Tenant
and Landlord are unable to agree on the Rentable Area contained in the Building,
the President of the Dallas Chapter of the AIA shall be appointed (and
compensated equally by Landlord and Tenant, unless the Architect's determination
of the total square feet of area contained in the Building exceeds the amount of
total square feet of area contained in the Building as determined by the
President of the Dallas Chapter of the AIA by more than 5%, in which case such
compensation shall be paid by Landlord) as the final arbiter of the Rentable
Area in the Building.
SECTION 1.02 RENTABLE AREA. The measurement for the total square feet of
gross building area contained in the Building (which shall, for purposes of this
Lease, be referred to as "RENTABLE AREA") shall be made in accordance with the
method of measuring gross building area of office space in a single tenant
occupied building as specified in the Standard Method for Measuring Floor Area
in Office Buildings published by the Building Owners and Managers Association
International in ANSI Z 65.1-1996, revised and readopted June 7, 1996.
ARTICLE 2 - CONSTRUCTION OF THE BUILDING
SECTION 2.01 DEVELOPMENT SCHEDULE. Attached hereto as Exhibit "B" and
incorporated herein by reference is a development schedule (the "DEVELOPMENT
SCHEDULE") detailing the Project's construction process, responsibilities of
Landlord and Tenant and the time periods within which each party's obligations
are to be performed. Both parties acknowledge that strict adherence to the
Development Schedule is essential for an orderly and timely completion of
construction of the Project, including the Base Building Work (as hereinafter
defined) and all Tenant Improvements (as hereinafter defined); provided,
however, each construction period obligation which is to be performed shall be
extended in the event of a delay in a prior date [whether caused by Landlord,
Tenant, a third party, or Force Majeure (as hereinafter defined)] by the number
of days of such delay. Phase I of the Project shall consist of the construction
and occupancy of approximately 165,000 square feet of Rentable Area and shall
contain a minimum of seven hundred fifty (750) parking spaces or such greater
amount as may be required to satisfy Laws based upon a building which contains
165,000 square feet, as shown on the site plan attached hereto as Exhibit "C-1"
(the "SITE PLAN"). Landlord and Tenant agree that construction of the Project
may occur in multiple phases and such future phases and/or expansions of the
Project (each, a "PROJECT EXPANSION") may consist of the construction and
occupancy of an additional amount of square feet of Rentable Area as described
in Article 25 of this Lease. Any Project Expansion shall be constructed and
occupied, and Base Rent shall commence to accrue thereon, all in accordance with
the provisions of Article 25.
Section 2.02 BASE BUILDING WORK. Landlord and Tenant agree that the
construction specifications attached hereto as Exhibit "C" (the "BASE BUILDING
OUTLINE SPECIFICATIONS") constitute the outline specifications for the
Landlord's work in the development of the Project. The
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Base Building Outline Specifications shall be deemed to include such additional
detail as may be necessary to satisfy the intent of the parties that such
specifications are sufficient, as drafted, to permit the Architect to prepare
the Base Building Final Plans and Specifications (as hereinafter defined)
without the addition of substantive design elements not described therein
(hereinafter referred to as "Additional Detail"). The Base Building Outline
Specifications incorporate the Site Plan for the Project which is attached
hereto as Exhibit "C-l," which Site Plan is hereby approved by Landlord and
Tenant. Landlord and Tenant acknowledge that the Site Plan is merely
illustrative of the conceptual layout of the Project and is not intended to
provide the scope or detail which is shown in the Base Building Outline
Specifications. Landlord shall provide all utilities and off-site improvements
for the construction of the Building, and shall construct or cause the Project
to be constructed: (i) substantially in accordance with the Base Building Final
Plans and Specifications; (ii) in a good and workmanlike manner; and (iii) in a
timely manner in accordance with the Development Schedule (subject to Force
Majeure, as described in Section 2.15, and Tenant Delays, as described in
Section 2.16) at no cost to Tenant, except for costs related to Tenant Changes
as described in Section 2.14 and Tenant Delays. The scope of the physical
improvements which constitute the Project excluding the Tenant Improvements
shall be limited to the improvements described in the Base Building Outline
Specifications. Landlord's undertakings described in this Section 2.02 shall be
referred to collectively as the "BASE BUILDING WORK." Landlord shall solicit one
(1) or more bids from, or may negotiate directly with one or more, general
contractors unaffiliated with Landlord or Tenant and shall contract with (with
Tenant's approval, which approval shall not be unreasonably withheld,
conditioned or delayed) a general contractor to construct the Base Building Work
(the "CONTRACTOR"), shall cause the Base Building Work to be constructed, and
shall cause the Project to be constructed in accordance with Laws (as defined in
Section 8.01) and Covenants (as defined in Section 13.02). The Tenant may, at
its election, cause the Contractor to solicit bids from subcontractors to
provide any of the work for the Project as required by the Tenant. Any cost
increases attributable to any contractor selected by the Tenant, shall be
considered a Tenant Change pursuant to Section 2.14. Any delay attributable to
materials or finishes not timely installed or delivered by any contractor
selected by the Tenant which is providing services directly to the Tenant or the
Contractor shall be considered a Tenant Delay for purposes of this Lease. All
preliminary plans and specifications for construction of the Base Building Work
shall be prepared by Architect at Landlord's sole cost and expense in accordance
with the budget established for the Project by the Landlord, shall be based upon
the Base Building Outline Specifications and shall be completed in accordance
with the terms of the Development Schedule. Preliminary and final drafts of the
final plans shall be promptly submitted by Landlord to Tenant. If within fifteen
(15) days after receipt by Tenant of any plans and specifications for the
Project, Tenant informs Landlord, in writing, that such plans and specifications
are not substantially in conformance with the Base Building Outline
Specifications and how such plans and specifications deviate from the Base
Building Outline Specifications, then Landlord shall promptly cause the plans
and specifications to be modified so as to conform to the Base Building Outline
Specifications. If Tenant has not so notified Landlord within fifteen (15) days
after receipt by Tenant of any plans and specifications for the Project, such
plans and specifications shall be deemed to be approved. Once the plans and
specifications have been approved by Tenant, or deemed to have been approved by
Tenant due to its non-response to any submission for approval, such set shall
then become the final plans and
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specifications ("BASE BUILDING FINAL PLANS AND SPECIFICATIONS"). It is agreed
that the Base Building Final Plans and Specifications shall be deemed to include
the Additional Detail, whether or not specifically identified therein, as such
Base Building Outline Specifications may have been modified with Tenant's
consent. It is expressly understood and agreed by Landlord and Tenant that the
Base Building Final Plans and Specifications shall, when approved, supersede the
Base Building Outline Specifications for purposes of the completion of the Base
Building Work.
Section 2.03 TENANT IMPROVEMENTS. Prior to the date specified in the
Development Schedule for preparation of the Tenant Improvements design work, as
such date may be extended in accordance with the terms of this Lease, Landlord,
Tenant's representative and the architect retained by Tenant to design the
Tenant Improvements, who may also be the Architect at Tenant's election (such
architect providing design services in connection with the Tenant Improvements
shall be referred to herein as the "TI ARCHITECT") shall meet to discuss the
design and construction of those improvements to the Building desired by Tenant
other than the Base Building Work (the "TENANT IMPROVEMENTS"). All improvements
not part of the Base Building Work shall be considered Tenant Improvements.
Tenant shall contract directly with the TI Architect to provide architectural
services in connection with the design and installation of the Tenant
Improvements. Such agreement with the TI Architect for the Tenant Improvements
shall be in a form reasonably acceptable to the Landlord and shall name
Landlord's representative as a party to whom all correspondence shall be copied
under the terms of the such agreement and shall also entitle Landlord's
representative to be present at all design and development meetings coordinating
completion of the Tenant Improvements. Tenant shall deliver to TI Architect
reasonably sufficient information and instructions to enable TI Architect to
prepare preliminary plans and specifications for construction of the Tenant
Improvements desired by Tenant. All fees and expenses charged by the TI
Architect in connection with the Tenant Improvements shall be charged against
the improvement Allowance described in Section 3.02. All preliminary and final
plans and specifications for the Tenant Improvements shall be subject to
Tenant's and Landlord's approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Tenant and TI Architect shall develop the
final plans and specifications for the Tenant Improvements (the "TENANT
IMPROVEMENTS FINAL PLANS AND SPECIFICATIONS"). Tenant and TI Architect shall use
their best efforts to complete the plan preparation and approval process within
the time periods shown on the Development Schedule. Failure by either Tenant or
TI Architect to comply with the plan preparation and approval process within the
time periods shown on the Development Schedule will constitute a Tenant Delay.
Concurrently with preparation of the Tenant Improvements Final Plans and
Specifications, the TI Contractor (hereinafter defined) shall prepare for
Tenant's review and approval an estimated budget for the Tenant Improvements.
Upon receipt of Tenant's written comments with respect to the estimated budget,
the TI Contractor shall promptly modify the estimated budget and deliver a
revised budget to Tenant for its approval. In addition, TI Architect shall
promptly modify the Tenant Improvements Final Plans and Specifications to
accommodate the requested changes to the estimated budget. From time to time
during the design, bidding and construction stages, upon Tenant's request,
Landlord, TI Architect and the TI Contractor shall make value engineering
recommendations and shall otherwise advise Tenant with regard to methods of
reducing the total cost of construction of the Tenant Improvements. Tenant shall
have the sole option of whether to
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accept or reject any value engineering recommendations. All costs involved in
approving, drafting and preparing the Tenant Improvements Final Plans and
Specifications shall be charged against the Improvement Allowance described in
Section 3.02 hereof.
Section 2.04 BIDDING. After final, written approval by Tenant of the
estimated budget for the Tenant Improvements and of the Tenant Improvements
Final Plans and Specifications, the Landlord shall solicit at least three (3)
bids (or as many as reasonably practical) from general contractors unaffiliated
with Landlord or Tenant (some of whom may be recommended by Tenant) and shall
contract (with Tenant's approval, which approval shall not be unreasonably
withheld, conditioned or delayed) with a general contractor (the "TI
CONTRACTOR"), which shall act as the general contractor for the Tenant
Improvements work. Tenant shall be entitled to supply to Landlord, for use by
the TI Contractor, a list of approved subcontractors to whom the Tenant wishes
to be delivered bid packages in connection with certain components of the Tenant
Improvements. All fees, supervision, costs and charges relating to the Tenant
Improvements including, without limitation, all architectural and engineering
fees and other "soft costs," shall be charged against the Improvement Allowance
described in Section 3.02 hereof. TI Contractor, with the advice and consent of
Landlord and Tenant, shall select the respective subcontractors within seven (7)
days after its receipt of all of the bids for the respective work; however, if
all of the subcontractors' bids received for any portion of the Tenant
Improvements work exceed the estimated budget for such work, or if some or all
of the bids which have been received are within the budget but are otherwise
unsatisfactory to Landlord or Tenant, then Landlord or Tenant may, in writing,
within seven (7) days after the receipt of the respective bids, either request
modification of the plans and specifications for the subject portion of the
Tenant Improvements or request that the TI Contractor solicit additional
subcontractor bids. If such modifications or requests for solicitation of
additional bids are made by Tenant and will result in delays in completion of
construction of the Tenant Improvements, Landlord shall immediately notify
Tenant, in writing, of the amount of anticipated delay, which shall be deemed a
Tenant Delay (as hereinafter defined). If Landlord fails to notify Tenant of any
delay which may result from such modifications or solicitation of additional
bids within seven (7) days of Tenant's request therefor, then any delay
resulting therefrom shall not be deemed a Tenant Delay.
SECTION 2.05 CONSTRUCTION. The Contractor shall construct the Base
Building Work promptly, and in accordance with the requirements of all Covenants
and Laws and the standards expressed in Section 2.02. The TI Contractor shall
construct the Tenant Improvements promptly, in a good and workmanlike manner and
in substantial accordance with the Tenant Improvements Final Plans and
Specifications. Landlord shall be responsible for causing the Contractor, TI
Contractor and Architect (but not the TI Architect) to perform all of their
respective obligations described in this Lease pursuant to written contracts,
the terns of which shall be in accordance with the terns and provisions hereof
and the requirements of all Covenants and Laws. In addition, an affiliate of
Landlord, Xxxx Development Company, LLC ("XXXX") shall guarantee the Landlord's
obligations under this Section 2.05 by execution of the Completion Guaranty
attached hereto as Exhibit "D." Landlord shall use commercially reasonable
efforts to work with the City of Plano, Texas to assist Tenant and Tenant's
broker in acquiring the municipal incentives which may reduce the cost of
Tenant's occupancy of the Project. Any municipal incentives which are achieved
through
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the efforts of Landlord, Tenant or Tenant's broker shall inure to the benefit of
the Tenant, to the extent that the Tenant continues to occupy the Project.
Section 2.06 SUBSTANTIAL COMPLETION. The Base Building Work and Tenant
Improvements shall be deemed substantially completed (hereinafter,
"SUBSTANTIALLY COMPLETED" or "SUBSTANTIAL COMPLETION") upon the completion of
the Base Building Work and the Tenant Improvements, such that only minor or
insubstantial details of construction or mechanical adjustment remain to be
performed, the existence of which do not materially interfere with Tenant's
occupancy and use of the Building for the conduct of Tenant's business, and upon
the issuance of a temporary or permanent certificate of occupancy by the
governing local authority for the Building. A certificate furnished by Architect
as to the date of Substantial Completion shall be conclusive and binding upon
both parties. Notwithstanding the delivery of such certificate of Substantial
Completion by the Architect, Substantial Completion shall be deemed not to have
occurred with respect to the Base Building Work and Tenant Improvements until
Landlord has provided Tenant prior written notice and at least sixty (60) days
of reasonably unrestricted physical access to the Building for purposes of
Tenant's installation of furniture, fixtures and equipment. Within ninety (90)
days after the date of Substantial Completion, Tenant shall notify Landlord in
writing of any remaining "punch list" or other corrective work to be completed
by Landlord through the Contractor and TI Contractor. Such "punch list" or other
corrective work shall be commenced by Landlord and completed within sixty (60)
days following receipt of such notification from Tenant, or such longer period
of time as is reasonably necessary to permit Landlord to complete such work in
the event that the completion of same is not possible within such sixty (60) day
period with the exercise of reasonable diligence. Upon completion of such "punch
list" and other corrective work to Tenant's, TI Architect's and Architect's
reasonable satisfaction, and upon Tenant's installation of its furniture,
fixtures and equipment, Landlord shall obtain the issuance of a permanent
certificate of occupancy, unless such certificate has previously been obtained.
Landlord shall have no other obligation to perform other work except with regard
to Landlord's obligations to correct construction defects and deficiencies as
provided in Section 2.12 and to maintain certain structural and other elements
of the Project as set forth in Section 15.02. Tenant shall reasonably cooperate
with Landlord in obtaining the temporary and permanent certificates of
occupancy.
SECTION 2.07 INSPECTION. Tenant may, at its election, perform on-site
inspections of the Base Building Work and the Tenant Improvements from time to
time, provided that such inspections do not interfere with the completion of the
Project by the Landlord. The Tenant agrees to indemnify, defend and hold
Landlord harmless from any loss, cost, liability or damage resulting from any
(i) installation of furniture, fixtures and equipment pursuant to Section 2.06,
and (ii) personal injury resulting from any inspection of the Project by the
Tenant, its employees or agents prior to Substantial Completion, unless arising
out of Landlord's negligence. Landlord shall be responsible for inspecting the
construction work for the Base Building Work and the Tenant Improvements. In
addition, Tenant and its designated agents and representatives shall, upon
Landlord's request (which may occur at regular intervals), inspect a
specifically identified element of the construction work of the Base Building
Work or the Tenant Improvements and Landlord shall cooperate fully with Tenant
and/or its designated agents and representatives during any such inspections. If
Tenant's inspections
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of a specific element of the Project requested by Landlord result in Tenant
recognizing any occurrence of material deviations from the Base Building Final
Plans and Specifications or from the Tenant Improvements Final Plans and
Specifications approved by Tenant, Tenant shall notify Landlord in writing of
such deviations within seven (7) days of such inspection, and Landlord shall,
upon receipt of such written notice, either respond in writing to objections to
the claim or correct such deviations promptly. However, if Tenant fails to
notify Landlord of any such material deviations within seven (7) days after an
inspection specifically requested by Landlord, Tenant shall be deemed to have
accepted all work relating to the item specifically inspected by Tenant which
has been completed to the date of Tenant's inspection. Landlord shall not be
obligated to uncover work already in place, except upon written request by
Tenant in connection with an inspection of the Building by Tenant. If a material
deviation from the plans and specifications is thereby uncovered, Landlord shall
cause such deviation to be corrected and the costs of the tests, uncovering and
correction, as well as delays caused thereby, shall be Landlord's sole
responsibility. If no material deviation is found, all testing, uncovering and
recovering costs, as well as any delays caused thereby, shall be Tenant's sole
responsibility and sums due therefor shall be payable within twenty (20) days
following written demand by Landlord. Tenant's failure to detect a deviation
from plans or specifications shall not relieve Landlord from its obligation to
cause the Project to be constructed free of design (as to the Base Building Work
only) and construction defects (as to the Base Building Work and the Tenant
Improvements) and in accordance with the approved final plans and
specifications, and to correct any unsafe, illegal or latent defective
conditions in accordance with Section 2.12.
SECTION 2.08 REPORTS. Landlord shall provide to Tenant periodic
construction reports as the construction of the Project progresses, but no less
frequently than once every thirty (30) days.
SECTION 2.09 COMPLIANCE WITH LAWS. The Building, including, but not
limited to, the Base Building Work and the Tenant Improvements, shall be
constructed in accordance with Laws (as defined in Section 8.01) and the
Covenants (as defined in Section 13.02). After the Term Commencement Date (as
defined in Section 4.01) for Phase I, and the Project Expansion Commencement
Date for any Project Expansion (as such terms are defined in Article 25), Tenant
shall have sole responsibility for ongoing compliance with all Laws and
Covenants, except to the extent Landlord has responsibility for any such
compliance as set forth in Sections 2.12 or 15.02, in which event Tenant shall
have no responsibility therefor.
SECTION 2.10 INSURANCE AND RESTORATION. At Landlord's sole cost and
expense and as part of the cost of construction Landlord shall procure or cause
to be procured and maintained during the construction of the Project (including,
without limitation, the construction of Tenant Improvements), builder's risk
insurance insuring the Building and all other improvements constructed on the
Real Property against fire, the perils insured under the standard form extended
coverage endorsement, vandalism, and malicious mischief in the full amount of
the cost of construction. In the event the Building or Tenant Improvements shall
be damaged or destroyed by fire or other insured casualty, Landlord shall repair
or restore the damaged Building, upon Tenant's reaffirmation of the Lease or
giving of such other comfort to Landlord and Lender (as defined in Article 20)
as may be reasonably
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agreed to between Tenant, Landlord and Lender, which shall be subject to the
conditions provided in this Section 2.10. Landlord shall promptly commence such
repairs and this Lease shall be unaffected except that the Term Commencement
Date (as hereinafter defined) and the Project Expansion Commencement Date for
any Project Expansion shall be extended until the Building is Substantially
Completed; provided, however, in the event (a) the damage is such that
restoration and completion is not reasonably possible within nine (9) months
after the date of the casualty in the opinion of the Third-Party Architect (as
defined in Section 16.02), or (b) Landlord has not Substantially Completed the
restoration of the Building in accordance with the terms hereunder, including,
but not limited to, Tenant Improvements, within twelve (12) months after the
date of the casualty (such time period being extended by up to six (6)
additional months by Force Majeure), then Tenant shall have the right to
terminate this Lease within thirty (30) days thereafter by giving written notice
of such termination to Landlord and, upon such termination, the parties shall
have no further obligations hereunder, one to the other, except for obligations
arising under Section 2.11 hereof. In no event shall Landlord be responsible for
any loss or damage to Tenant's personal property or to improvements installed or
stored by Tenant other than as may be contained within the Tenant Improvements.
The insurance coverage required in this Section 2.10 shall terminate on the Term
Commencement Date for Phase I and the Project Expansion Commencement Date for
any Project Expansion.
SECTION 2.11 INDEMNITY. Prior to the Term Commencement Date for Phase I,
and the Project Expansion Commencement Date for any Project Expansion, Landlord
shall indemnify, defend and hold Tenant, its officers, directors, agents,
employees, contractors, licensees and invitees, harmless from and against any
and all claims, losses, damages, injuries and liabilities (including the costs
of audit or attorney's fees) arising (a) from the death or injury of any person
or persons, including, but not limited to, the employees of Landlord, Architect
or the Contractor or any subcontractor, and/or (b) from damage or destruction of
any property or properties, where such injuries, death or .damage are caused by
Landlord's sole negligence or the joint negligence of Landlord and any other
person or entity (excluding the Tenant). In addition to the Tenant indemnity
provided in Section 2.07, Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all claims, losses, damages, injuries and
liabilities (including the reasonable costs of suit and attorneys' fees) arising
from (a) replacement of defective work relating to the TI Architect's design
work in connection with the Tenant Improvements, in the event that the TI
Architect fails to correct and/or replace such defective work at TI Architect's
sole cost and expense in accordance with Section 2.12, and (b) any mechanic's
lien or materialmen's lien filed as a result of Tenant's failure to pay sums due
directly by Tenant to the TI Architect with respect to the Tenant Improvements
and to any contractors or subcontractors, if any.
SECTION 2.12 CORRECTION OF CONSTRUCTION DEFECTS. Landlord, at its sole
cost and expense, shall repair, or cause to be repaired, any deviations, defects
or deficiencies, whether patent or latent, in the Project (as well as any
Project Expansion) and/or Tenant Improvements (including, without limitation,
air conditioning, plumbing, electrical and heating systems) installed by
Landlord or its agents or contractors which are due to faulty design (except
with respect to the design of the Tenant Improvements, for which Tenant shall be
responsible to replace work necessitated by a defective
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design of any of the Tenant Improvements, in the event that the TI Architect
fails to replace work necessitated by its defective design in accordance with
this provision), defective materials or workmanship in construction thereof for
a period of one (1) year following the Term Commencement Date for Phase I and
for a period of one (1) year following the Project Expansion Commencement Date
for each Project Expansion. Tenant covenants that it shall use commercially
reasonable efforts to cause the TI Architect, in such architect's agreement with
Tenant, to indemnify and hold Landlord harmless from any defective design in the
Tenant Improvements which causes any loss, damage, cost or liability to the
Landlord in construction of the Project. The TI Architect's agreement shall
identify the Landlord as a third-party beneficiary of such agreement to the
extent of the indemnity contained therein. Landlord's primary recourse for
design defects in the Tenant improvements shall be against the TI Architect. In
the event that the architect's agreement with the TI Architect fails to contain
the indemnity of Landlord described in this Section 2.12, or, in the event
Landlord is unsuccessful in recovering all of its losses, costs, liability or
damage from the TI Architect after exercising reasonable efforts, Tenant shall
be responsible for the unrecovered costs of correcting any defective work
resulting from errors in the Tenant Improvements Final Plans and Specifications
caused by the TI Architect. Any and all rights of Landlord in and to any
guaranties or warranties in effect on the first anniversary of the Term
Commencement Date for items, the repair, replacement and/or maintenance of which
Tenant has assumed responsibility under Section 15.01 hereof shall be assigned
to Tenant. This Section shall not limit Landlord's repair requirements for
so-called "punch list" items in accordance with Section 2.06 hereof or its
obligation to maintain Structural Elements as provided in Section 15.02 hereof.
SECTION 2.13 SCHEDULE. Notwithstanding anything contained in this
Article 2 to the contrary, the right of Tenant hereunder to any review,
approval, or modification of plans, or additional bidding, shall comply with the
Development Schedule [as may be extended for acts of third parties, Landlord
Delays (as defined in Section 2.16) or by Force Majeure], and any delay in the
Development Schedule resulting from Tenant's exercise of such rights in excess
of any time periods specified in this Lease shall be deemed a Tenant Delay.
SECTION 2.14 CHANGE ORDERS.
(a) Net Increased Costs. All Net Increased Costs (hereinafter defined)
associated with Change Orders (hereinafter defined) resulting from Tenant
Changes in the Base Building Work or Tenant Improvements shall be Tenant's sole
expense and any delays caused by such Change Orders shall be deemed to be Tenant
Delays. For purposes of this Lease, the term "NET INCREASED COSTS" shall mean
the aggregate positive difference expressed in dollars resulting from Change
Orders approved by Tenant which result in an increase in the cost of the Base
Building Work or Tenant Improvements. Any Change Orders initiated and approved
by Tenant resulting in cost savings shall be credited against those changes
resulting in cost increases for purposes of determining Net Increased Costs. For
purpose of this Lease, the TERM "CHANGE ORDER" SHALL mean (i) a Tenant requested
and approved modification in scope, quality or materials or a change in the
Development Schedule to either the Base Building Work or the Tenant Improvements
or (ii) corrections to the Base Building Final Plans or the Tenant Improvement
Final Plans and Specifications necessitated
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because of Tenant's errors, inconsistencies or omissions in its submissions to
Landlord. Change Orders shall not include work due to changes in the Base
Building Final Plans and Specifications resulting from Additional Detail, unless
modifications to the Base Building Outline Specifications were necessitated
because of Tenant's errors, inconsistencies or omissions or because the Base
Building Outline Specifications were modified at Tenant's request. Net cost
savings in the Base Building Work or Tenant Improvements below the final bid
price for the Base Building Work or Tenant Improvements due to Change Orders
shall reduce the amount of Base Rent payable in accordance with Section 5.01(c).
Change Orders to the Base Building Work or Tenant Improvements resulting from
either of the events described in subsections (i) or (ii) above shall be
referred to herein as "TENANT CHANGES."
(b) Base Building Work Tenant Changes. In the event of Net Increased
Costs in the Base Building Work due to Tenant Changes, the actual costs of
construction associated with Tenant Changes, including, but not limited to, (i)
Landlord's overhead administration costs equal to five percent (5%) of the cost
of Tenant Changes, and (ii) reasonable and actual associated soft costs of
Tenant Changes including, but not limited to, title charges, financing costs and
legal expenses, shall be Tenant's sole expense and payable by Tenant to Landlord
within twenty (20) days after Substantial Completion and Tenant's receipt of an
invoice therefor, and any delays caused by such Tenant Changes shall be deemed
to be Tenant Delays. Notwithstanding the foregoing, Tenant may elect to cause
Landlord to fund a certain amount of Net Increased Costs out of the Supplemental
Allowance as set forth in Section 3.04.
(c) Tenant Improvements Tenant Changes. All Net Increased Costs
associated with Change Orders resulting from Tenant Changes in the Tenant
Improvements in excess of the Improvement Allowance shall be Tenant's sole
expense and any delays caused by such Change Orders shall be Tenant Delays. In
the event of Net Increased Costs in the Tenant Improvements due to Tenant
Changes, the actual costs of such Tenant Changes, including, but not limited to,
(i) Landlord's overhead administration costs equal to five percent (5%) of the
cost of Tenant Changes, and (ii) reasonable and actual associated soft costs of
Tenant Changes including, but not limited to, title charges, financing costs and
legal expenses, shall be Tenant's sole expense and payable by Tenant to Landlord
within twenty (20) days after Substantial Completion and Tenant's receipt of an
invoice therefor, and any delays caused by such Tenant Changes shall be deemed
to be Tenant Delays. Notwithstanding the foregoing, the Tenant may elect to
either (i) cause Landlord to fund a certain amount of Net Increased Costs in
excess of the Improvement Allowance out of the Supplemental Allowance as set
forth in Section 3.04, or (ii) reallocate any items of costs allocated for
Tenant Improvements in the Improvement Allowance to satisfy any increased costs
for which the Tenant may be obligated to pay to Landlord hereunder.
(d) Classification. All Change Orders requested by Tenant shall be
delivered to Landlord in writing and Architect and TI Architect shall determine
the portion thereof that constitutes Base Building Work and the portion thereof
that constitutes Tenant Improvements. Upon receipt of any
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Change Order, Landlord shall, as soon as possible but within fourteen (14) days
following receipt thereof. apprise the Tenant in writing of any Tenant Changes
outlined therein, the cost associated with such Change Order and if and to the
extent such Change Order will result in a Tenant Delay.
SECTION 2.15 FORCE MAJEURE. Whenever a period of time is herein
prescribed for action to be taken by either party hereto, such party shall not
be responsible for and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, act of God. inclement weather
in excess of the days set forth in Exhibit "E." war, governmental laws, or
regulations or restrictions ("FORCE MAJEURE"). Any claim of a "Force Majeure"
must be made in writing, by the party making such claim delivered to the other
party within thirty (30) days after the event causing such Force Majeure delay.
In calculating the amount of Force Majeure delays, the parties agree that the
total amount of Force Majeure delays shall include both the actual number of
days resulting from the event and constituting the Force Majeure delays and the
additional number of days resulting in the contractor being unable to recommence
work on the site following the delay due to the fact that the Real Property is
physically inaccessible. The parties further agree that in calculating delays
due to weather, that they shall rely upon the attached Exhibit "E" to determine
if the weather events in question are beyond the standard weather conditions
expected for the site (herein the "WEATHER STANDARD"), and the weather events
within the Weather Standard shall not constitute a Force Majeure delay
hereunder. Force Majeure shall not apply to the payment of any debt or other sum
of money then due or owing hereunder including Base Rent and Additional Rent.
SECTION 2.16 LANDLORD AND TENANT DELAY.
(a) The terms "LANDLORD DELAY," "Delays caused by Landlord," "TENANT
DELAY" or "Delays caused by Tenant" shall mean delay in completion of
construction of the Building, the Tenant Improvements and/or the Base Building
Work caused by:
(i) Unless and to the extent due to the acts or omissions of
the other party or such party's agents, employees or contractors, the
respective party's failure to perform its construction period
obligations by the dates or within the term periods shown in the
Development Schedule; subject, however, to Force Majeure;
(ii) Any subsequent changes, modifications or alterations to the
final plans and specifications for the Base Building Work and/or Tenant
Improvements initiated by the respective party after final approval by
Landlord and Tenant, except to the extent any such changes,
modifications or alterations are required (a) by Laws enacted after the
date of approval of the final plans and specifications for the Base
Building Work and/or Tenant Improvements; or (b) for work resulting from
Additional Detail.
(iii) Any other act required to be timely performed in accordance
with the provisions of this Lease which is not timely performed by the
respective party; and
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(iv) Any other act or omission stated in this Lease to be a
Landlord or Tenant Delay.
(b) For purposes of determining delay, the terms Landlord and Tenant
shall include their respective contractors, agents and employees; and any delay
caused by a contractor selected or hired by Landlord shall be considered a
Landlord Delay, and any delay caused by a contractor selected and hired by
Tenant pursuant to Section 2.04 shall be considered a Tenant Delay.
SECTION 2.17 BUILDING MATERIALS. Tenant shall use reasonable efforts not
to request specially fabricated or exotic materials or equipment ("SPECIAL
ORDER") which will delay Landlord's timely construction of the Base Building
Work and the Tenant Improvements and any delay resulting therefrom shall be
deemed to be a Tenant Delay. Within ten (10) days following receipt from Tenant
of a request for a Special Order, Landlord shall give written notice to Tenant,
prior to acceptance of a Special Order, specifying the approximate time of
delay, and the parties shall negotiate in good faith to seek a mutual agreement
as to whether such Special Order will be accepted.
SECTION 2.18 SIGNAGE. During the Term of this Lease, Tenant shall have
the exclusive right to Tenant's corporation identification on the Building and
monument signage (to the extent permitted by Laws and Covenants) located on the
Real Property. To the extent installation of Tenant's signage adversely affects
the structural integrity of the Project or any component thereof, such signage
is subject to Landlord's consent, which consent shall not be unreasonably
withheld. All such signage shall comply with Laws and Covenants.
SECTION 2.19 ACCESS. During the Term of this Lease, Tenant may use the
roof of the Building to install communications equipment, and the roof and
easements located within the Project to connect cabling under the Building for
telecommunication equipment (including satellite disk, antenna, microwave dish
and fiber optics), at Tenant's expense, provided such use complies with Laws and
does not violate Covenants. Tenant shall be permitted to place communications
equipment on the roof, as long as the equipment does not exceed the structural
capacity of the roof, and is approved as to size and location by Landlord, which
approval shall not be unreasonably withheld. Upon receipt of Tenant's request to
place communications equipment on the roof of the Building, in the event
Landlord fails to respond within thirty (30) days thereafter, such request of
Tenant shall be deemed approved. Tenant shall be solely responsible for any
damage caused by the placement of communications equipment on the roof. Any
penetrations of the roof membrane necessitated by the installation of such
equipment shall be made by the roofing contractor (including related
maintenance, repair and replacement) who installed the roof system, or such
other roofing contractor authorized by the manufacturer to perform warranty work
on the roof system installed at the Project, and any damage or loss of warranty
resulting therefrom shall be Tenant's responsibility, notwithstanding the
provisions of Section 15.02.
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ARTICLE 3 - COSTS OF CONSTRUCTION OF THE BUILDING
AND THE TENANT IMPROVEMENTS
SECTION 3.01 BASE BUILDING WORK. All costs and expenses of construction
of the Base Building Work (excluding costs related to Net Increased Costs of
Tenant Changes and Tenant Delays and the cost of payment and performance bonds
if requested by Tenant) shall be borne by Landlord. All preliminary and final
cost estimates submitted for Tenant's approval by the Contractor, TI Contractor
and/or Landlord shall specifically identify which costs constitute Tenant
Improvements costs which shall be the subject of the Improvement Allowance
provided in Section 3.02.
SECTION 3.02 TENANT IMPROVEMENT ALLOWANCES. Tenant shall bear the costs
and expenses of planning and constructing the Tenant Improvements; provided,
however, that Landlord shall provide Tenant with an improvement allowance of
Thirty and No/100 Dollars ($30.00) per square foot of Rentable Area of the
Building as determined pursuant to Section 1.02 (the "IMPROVEMENT ALLOWANCE").
Any portion of the Improvement Allowance which is not applied to Tenant
Improvements construction or design costs shall, subject to finalization by
Landlord and Tenant of invoices for all Tenant Improvements work, if Tenant is
not then in default beyond applicable grace periods, be paid to Tenant within
thirty (30) days of Tenant's written request therefor, or in Tenant's sole
discretion, may be applied by Tenant to other costs in connection herewith;
provided, however, Tenant agrees to reimburse Landlord for any additional bills
that are subsequently received by Landlord within ninety (90) days following
Substantial Completion for Tenant Improvements work. Such reimbursement shall be
made by Tenant within twenty (20) days after receipt of Landlord's written
request therefor accompanied by a certified invoice from Landlord accompanied by
applicable bills received. Construction costs on Tenant Improvements in excess
of the Improvement Allowance shall be paid for by Tenant in accordance with
Section 2.14(c) and Section 3.03. Landlord shall provide Tenant with an
accounting (unaudited), certified by an officer of the general partner of
Landlord, together with copies of applicable invoices for the construction costs
of the Tenant Improvements within ninety (90) days after Substantial Completion
of the Project and each Project Expansion. Notwithstanding anything herein to
the contrary, if performance or payment bonds are required by Tenant in
connection with the Tenant Improvements, such bonds shall be at Tenant's
expense, and such expense shall be charged against the Improvement Allowance.
Notwithstanding anything contained herein to the contrary, the following amounts
shall not be charged against the Improvement Allowance:
(i) payment for any work which is a portion of the Base Building
Work, including all soft costs related to same;
(ii) utility costs expended by Landlord during the installation of the
Tenant Improvements and any work associated with hazardous
substances not introduced by Tenant;
(iii) any TI Contractor costs and claimed damages resulting from
Landlord Delays;
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(iv) demolition and removal of non-conforming work installed by the TI
Contractor including but not limited to replacement of defective
materials and workmanship (unless necessitated by an error or
omission of the TI Architect, in which event the provisions of
Section 2.12 shall control payment of the costs incurred in
replacement of defective materials and workmanship);
(v) expediting and overtime costs specifically due to Landlord's or
TI Contractor's negligence or Landlord Delays;
(vi) Landlord's overhead administration costs, title charges,
financing costs and legal expenses (except costs relating to
Change Orders, Tenant Delays or costs in excess of the
Improvement Allowance);
(vii) use and reasonable access to vertical transportation;
(viii) repair or correction to Building equipment systems unless caused
by Tenant;
(ix) removal of debris or stored materials from the Project except in
connection with Tenant Improvements work;
(x) performance and payment bonds if required by Landlord;
(xi) builders risk insurance; and
(xii) premiums associated with liquidated damage requirements of
Landlord.
SECTION 3.03 PAYMENT. Payments of amounts up to but not in excess of the
Improvement Allowance shall be made and disbursed by Landlord to (i) the TI
Contractor in accordance with the provisions of the contract with the TI
Contractor or (ii) to Tenant or to any subcontractor directly contracting with
Tenant which has been approved by Landlord. Prior to the Term Commencement Date
and the Project Expansion Commencement Date for any Project Expansion, if
applicable, Tenant shall not be entitled to draw more than twenty percent (20%)
of the Improvement Allowance for items which are not shown in the Tenant
Improvements Final Plans and Specifications. Disbursements of the Improvement
Allowance to any party, including the TI Contractor or to any subcontractor who
contracts directly with the Tenant, shall be made thirty (30) days following
delivery of a draw request and supporting documentation and must satisfy any
documentation requirements reasonably imposed by the Lender, including, but not
limited to, partial and/or final lien waivers and releases. Landlord shall
provide Tenant the right and opportunity, upon reasonable request, to review
Landlord's records and accounting for disbursements of amounts paid or payable
under the Improvement Allowance and shall report to Tenant, in a form reasonably
acceptable to Tenant, the amounts expended during the course of completion of
the Tenant Improvements. Within thirty (30) days of receipt of a certified
invoice therefor from Landlord together with copies of applicable bills, Tenant
shall pay those costs of construction of the Tenant Improvements in excess
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of the Improvement Allowance, if any. If Tenant fails to pay the invoiced costs
within such thirty (30) day period, then interest shall commence accruing on the
thirty-first (31st) day and shall continue until paid at the lesser of (i) two
percent (2%) per annum in excess of the prime rate of interest of Bank One,
Texas, N.A. or (ii) the maximum rate of nonusurious interest permitted by Texas
law (the "SPECIFIED RATE"). All invoiced costs and accrued interest shall be
deemed Additional Rent (as defined in Section 5.04) for purposes of this Lease.
SECTION 3.04 SUPPLEMENTAL ALLOWANCE. Upon the election of Tenant (which
may only be exercised with respect to Phase I and must be done prior to the Term
Commencement Date), and written verification from the Guarantor that it consents
to such election by Tenant and Guarantor agrees to be bound thereby, Landlord
shall provide a supplementary improvement allowance (the "SUPPLEMENTAL
ALLOWANCE") of up to Two Million and No/100 Dollars ($2,000,000.00) to cover
Change Orders or Tenant Changes in the Base Building Work or the Tenant
Improvements. The Tenant may not elect to receive such money directly in cash.
In addition, the Supplemental Allowance may be used for payment of, without
limitation, architectural and engineering fees and other third party payments
for professional services incurred in connection with the completion of the
Project. All fundings of the Supplemental Allowance will include Landlord's
overhead administration costs equal to five percent (5%) of the amount of
Supplemental Allowance expended, and additional reasonable costs actually
incurred by Landlord as a result of Tenant's utilization of the Supplemental
Allowance, such as incremental costs of borrowing (e.g., interest carry incurred
by Landlord from the time of such draw of the applicable portion of the
Supplemental Allowance until the commencement of the payment of increase in the
Base Rent related thereto, additional title premiums, legal expenses and similar
costs relating to additional borrowings). In the event Tenant elects to receive
the Supplemental Allowance, the Base Rent shall increase as provided in Section
5.01(c).
ARTICLE 4 - TERM AND RENEWALS
SECTION 4.01 TERM. The term of this Lease (the "TERM") shall be for a
period often (10) years commencing on the earliest to occur of (a) the date of
Tenant's occupancy of all or any part of the Phase I Building for the conduct of
its business; (b) ten (10) days after the date the Base Building Work and the
Tenant Improvements for Phase I are Substantially Completed; or (c) the date the
Base Building Work and the Tenant Improvements for Phase I would have been
Substantially Completed but for Tenant Delays (the "TERM COMMENCEMENT DATE").
The Term shall be extended by the exercise by the Tenant of its rights under
Sections 4.02 and 25.03(e). Base Rent, Additional Rent, and other costs
described herein for Phase I which are associated with the use of the Building
shall commence on the Term Commencement Date, but in no event earlier than June
1, 2001. Tenant shall have the right for a period of sixty (60) days prior to
Substantial Completion, or earlier if in Landlord's reasonable judgment such
entry and installation would not interfere with the progress of construction, to
enter the Building and install Tenant's furniture, equipment, communications
cabling and fixtures, and may equip completed portions of the Project at an
earlier date if any of such activity
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Would not unreasonably interfere with remaining construction activities.
Landlord shall use its best efforts to give Tenant twenty (20) days advance
written notice of the date on which Tenant may commence installation of its
furniture and equipment. Once the Term Commencement Date is ascertained,
Landlord and Tenant shall promptly execute a letter specifying such date.
SECTION 4.02 RENEWAL OPTIONS.
(a) Tenant, at its option, may, if it has not committed an uncured Event
of Default (as defined in Article 21), either at the time it gives its notice
hereunder to Landlord or at the time of commencement of the respective extended
term, extend the Term of this Lease for the Project for up to two (2) additional
five (5) year terms. Notwithstanding anything in this Lease to the contrary, if
the Term of this Lease, as extended by the provisions of this Section 4.02 or
Section 25.03(e), shall exceed twenty (20) years, Base Rent payable for each
year of this Lease beyond such twenty (20) year period shall increase by two
percent (2%) per annum. A schedule of Base Rent per square foot of Rentable Area
for the maximum permissible Term of this Lease, including periods beyond such
twenty (20) year period, is attached hereto as Exhibit "H." This Lease shall be
extended effective upon (i) the expiration of the previous respective term, and
(ii) Landlord's receipt of written verification that the Guarantor agrees to the
exercise of such renewal options and that the Guarantor shall guarantee the
obligations of the Tenant with respect thereto. Within thirty (30) days after
the receipt by Landlord of Tenant's notice and Guarantor's verification,
Landlord and Tenant covenant that they shall execute an agreement memorializing
the exercise of the First Renewal Term or Second Renewal Term. The first such
extended term (the "FIRST RENEWAL TERM") shall commence upon the expiration date
of the initial term of this Lease, expire upon the fifth (5th) anniversary of
said date, and be upon the same terms, covenants and conditions as provided in
this Lease for the initial term, except that the Base Rent payable during the
First Renewal Term for Phase I and each Project Expansion, if any, shall be
calculated in accordance with Exhibit "H." as modified by Section 5.01 (c) and
Article 25. The second such extended term (the "SECOND RENEWAL TERM"), if
exercised by Tenant and conditioned upon Tenant's exercise of its first option
to extend, shall commence upon the expiration date of the First Renewal Term of
this Lease and expire upon the fifth (5th) anniversary of said date, and be upon
the same terms, covenants and conditions as provided in this Lease for the
initial term, except that the Base Rent payable during the Second Renewal Term
for Phase I and each Project Expansion, if any, shall be calculated in
accordance with Exhibit "H." as modified by Section 5.01(c)and Article 25.
(b) In order to exercise such renewal options, Tenant shall advise
Landlord in writing at least twelve (12) months prior to the end of the initial
term, or First Renewal Term, as the case may be, that Tenant intends to exercise
its option to renew this Lease.
(c) Payment of all Additional Rent and other payments required to be
made by Tenant as provided in this Lease for the initial term shall continue to
be made during such extended term. Any termination of this Lease during the
initial term shall terminate all rights of extension hereunder.
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SECTION 4.03 REFURBISHMENT ALLOWANCE. Provided Tenant has not committed
an uncured Event of Default at the time it gives notice hereunder. upon the
election of the Tenant (which may only be exercised with respect to Phase I and
which must be elected simultaneously with the delivery of the renewal notice for
the First Renewal Term with respect to the Project), Landlord shall provide to
Tenant, within thirty (30) days following the execution by Landlord and Tenant
of an agreement memorializing the exercise of the First Renewal Term, and
written verification from the Guarantor that it consents to such election by
Tenant and Guarantor agrees to be bound thereby, a refurbishment allowance (the
"REFURBISHMENT ALLOWANCE") of up to Ten and No/100 Dollars ($10.00) per square
foot of Rentable Area in Phase I, which may be used by Tenant for cleaning,
replacements, renovations, repairs and upgrades to the Project in accordance
with Tenant's discretion. Upon the funding of the Refurbishment Allowance, Base
Rent shall increase as provided in Section 5.01(c). Notwithstanding anything
contained herein to the contrary, the Refurbishment Allowance may only be used
by the Tenant to improve, renovate and/or redecorate the Project and Tenant may
not elect to receive such money directly in cash.
ARTICLE 5 - RENT
SECTION 5.01 RENT.
(a) Tenant covenants and agrees to pay to Landlord at its address for
notice, in lawful money of the United States, without demand, abatement, offset
or deduction, except as expressly permitted by the terms of this Lease, base
annual rentals for Phase I (the "BASE RENT") equal to the product of Fourteen
and 81/100 Dollars ($14.81) times the Rentable Area of the Building for years 1
through 5 ("LEASE PERIOD 1"); and the product of Sixteen and 29/100 Dollars
($16.29) times the Rentable Area for years 6 through 10 ("LEASE PERIOD 2"). Such
Base Rent shall be payable in advance in equal monthly installments during the
initial term of this Lease commencing on the Term Commencement Date. Any partial
month's Base Rent shall be prorated based on the actual number of days in the
partial month Base Rent is payable. Upon final measurement of Phase I, as
provided for in Section 1.01, Landlord and Tenant shall promptly execute
amendments to this Lease specifically setting forth the aggregate amounts of
Base Rent payable hereunder.
(b) Base Rent for any Project Expansion shall be calculated in
accordance with Article 25 of this Lease.
(c) (i) In the event that Tenant elects to utilize the Supplemental
Allowance for payment of any of the Change Orders or Tenant Changes associated
with Base Building Work or the Tenant Improvements (as described in Section
3.04), the Base Rent shall increase in Lease Period 1 by the amount of Ten Cents
(10(cent)) per square foot of Rentable Area per year for each One Dollar ($1.00)
per square foot of Supplemental Allowance utilized, Eleven Cents (11(cent)) per
square foot of Rentable Area per year for Lease Period 2, Twelve Cents
(12(cent)) per square foot of Rentable Area per year for the First Renewal Term
and Thirteen Cents (13(cent)) per square foot of Rentable Area
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per year for the Second Renewal Term. In other words, if Tenant elects to
receive a Supplemental Allowance of Three Dollars and No/100 Dollars ($3.00) per
square foot of Rentable Area. the initial Base Rent shall increase by the amount
of Thirty Cents (30(cent)) per square foot of Rentable Area per year for Lease
Period 1, and shall increase correspondingly for Lease Period 2, the First
Renewal Term and Second Renewal Term.
(ii) In the event that the Tenant elects to utilize the
Refurbishment Allowance for renovation of any of the Project (as defined in
Section 4.03), the Base Rent shall increase during the First Renewal Term by the
amount of Twelve Cents ($0.12) per square foot of Rentable Area per year for
each One and No/100 Dollars ($1.00) per square foot of Refurbishment Allowance
utilized and Thirteen Cents ($0.13) per square foot of Rentable Area per year
for the Second Renewal Term.
(iii) In the event that any of the Tenant approved Change Orders
reduce the cost of the Base Building Work below the final bid price approved by
Landlord and Tenant or the final funded amount of the Improvement Allowance is
less than Thirty and No/100 Dollars ($30.00) per square foot of Rentable Area,
the Base Rent shall be reduced during the Term by the amount of Ten Cents
($0.10) per square foot of Rentable Area per year for each One Dollar and No/100
Dollars ($1.00) per square foot that (i) the final bid price for the Base
Building Work is reduced by Tenant approved Change Orders or (ii) the funded
Improvement Allowance is less than Thirty and No/100 Dollars ($30.00) per square
foot of Rentable Area.
SECTION 5.02 LATE CHARGE. If Tenant fails to pay when due any
installment of Base Rent or Additional Rent within ten (10) days after the date
the payment is due, Tenant shall pay a late charge equal to five percent (5%) of
the delinquent rent payment. For the first occurrence of a late payment of Base
Rent or Additional Rent. in any lease year during the Term of this Lease and
provided Tenant is not otherwise in default of its obligations under this Lease,
Landlord agrees it will waive receipt of such late charge and such late charge
payment will be made by Tenant for the second and any subsequent late payments
of Base Rent or Additional Rent. Such late charge shall be paid with the next
accruing rental installment and shall be deemed rent for purposes of this Lease.
Base Rent that is more than fifteen (15) days past due shall also accrue
interest at the Specified Rate (as defined in Section 3.03).
SECTION 5.03 NET LEASE. It is the intention of Landlord and Tenant that,
except for the obligations, costs and expenses expressly assumed by Landlord in
this Lease, including but not limited to the requirements of Section 15.02, all
rentals paid to Landlord in accordance with the terms of this Lease shall be
absolutely net; that is, except as specifically provided for herein to the
contrary, all costs, expenses and obligations of every kind relating directly
or indirectly in any way, foreseen or unforeseen, to Tenant's use, occupancy and
possession of the Project, which may arise or become due during the Term shall
be paid by Tenant and Landlord shall be indemnified by Tenant therefrom,
including, without limitation, all taxes, assessments, excises, levies and other
charges by any public authority which are general or special, ordinary or
extraordinary, foreseen or unforeseen, of any kind and nature whatsoever, except
as expressly set forth to the contrary in Section 9.02, and
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which shall or may, during or in respect to the Term, be assessed levied,
charged, confirmed or enforced upon, or become due and payable out of, or become
a lien on the Project, or appurtenances or facilities used in connection with
the Project.
SECTION 5.04 ADDITIONAL RENT. Any and all payments of any kind
(including, without limitation. taxes, insurance premiums, maintenance
obligations and utilities) required to be made by Tenant under this Lease, other
than Base Rent, shall be classified as additional rent due and owing hereunder
("ADDITIONAL RENT"), and failure to pay Additional Rent when due shall
constitute an Event of Default. Landlord shall provide to Tenant written notice
of the requirement of payment of amounts deemed Additional Rent hereunder and
failure of Tenant to pay such amounts within thirty (30} days following receipt
of such notice from Landlord shall constitute an Event of Default.
ARTICLE 6 - HOLDING OVER
SECTION 6.01 HOLDING OVER. Any holding over by Tenant after the
expiration of the Term, or any extension thereof, shall be construed as a
tenancy from month-to-month upon the same terms and conditions as set forth
herein, except that monthly installments of Base Rent shall be equal to one
hundred twenty-five (125%) percent of the monthly installments of Base Rent in
effect during the last calendar month prior to the expiration of the Term or any
extension, as appropriate, for the first six (6) months following expiration of
the Term, with such amount then increasing to one hundred fifty (150%) percent
of the monthly installments of Base Rent in effect during the last calendar
month prior to expiration of the Term or extension, as appropriate. Either
Landlord or Tenant may terminate such month-to-month tenancy upon thirty (30)
days written notice to the other.
ARTICLE 7 - QUIET POSSESSION
SECTION 7.01 QUIET POSSESSION. Provided Tenant is not then in default
beyond applicable cure periods, Landlord covenants and agrees, subject to the
Permitted Exceptions, to keep Tenant in quiet possession and enjoyment of the
Project during the Term and any extensions thereof and warrants that it has full
power and authority to lease the Project to Tenant for the Term and any
extensions thereof.
ARTICLE 8 - USE OF BUILDING
SECTION 8.01 USE. Tenant shall specifically have the right to use the
Building only for any lawful business purposes in accordance with applicable
laws, statutes, ordinances, codes, rules and regulations of all governmental
bodies (state, federal and municipal) (collectively, the "LAWS"), the Permitted
Exceptions and permitted by the Covenants (as defined in Section 13.02)
affecting the Building. Landlord hereby represents as of the date hereof that
the Laws and Covenants would not prohibit the use of the Building for general
office purposes. Landlord represents and covenants that, as of the date hereof
and throughout the Term of this Lease, it shall not file, cause to be filed, or
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consent to the filing of, any additional Covenants which restrict Tenant's use
of the Building or the Project, or otherwise increase or affect Tenant's rights
hereunder without Tenant's prior written consent, which consent may be withheld
in Tenant's sole discretion.
SECTION 8.02 MAINTENANCE.
(a) Tenant shall use the Project in a careful, safe, and proper manner;
and Tenant covenants, except as provided herein to the contrary, to keep,
maintain and be responsible for routine maintenance and repair and replacement
of all elements (except Structural Elements, as defined in Section 15.02) of the
Project and to keep such elements in reasonably good condition and repair,
including, without limitation, HVAC, plumbing, mechanical and electrical; and,
with respect to Tenant's use of the Project, the Building and appurtenances,
Tenant covenants to comply with all applicable Covenants and Laws, including,
without limitation, the Americans with Disabilities Act of 1990, and any and all
Environmental Laws (as defined in Section 24.01(a)(ii)). After Substantial
Completion, Tenant, at its cost, shall manage all aspects of the Project (it
being understood that Landlord shall have no management responsibility
hereunder) and shall maintain the Project in compliance with all Covenants and
Laws; provided, that alterations to the Project required by Covenants and Laws
which involve Structural Elements shall be Landlord's cost and responsibility,
unless such modification to a Structural Element is necessitated by Tenant's
special or unique use of the Project, or Tenant's change in use of the Project
which requires alterations to the Project or any part thereof. Tenant shall be
liable for and shall promptly cause the repair of any damage to the Project to
the extent caused by Tenant, its employees, contractors, agents or invitees,
unless such damage is specifically required herein to be repaired by Landlord
and, to the extent that Landlord, its employees, contractors, agents or invitees
have caused the damage, Landlord shall cause it to be repaired. Tenant shall not
commit waste or suffer or permit waste to be committed or to allow or permit any
nuisance in the Project. Tenant shall not use the Building or allow or permit
the Building to be used for any purposes which may render the Building
uninsurable at normal rates by responsible insurance carriers authorized to do
business in the State of Texas unless Tenant shall pay the extra cost thereof,
or which may render void or voidable any insurance on the Building. Except as
provided herein, Tenant shall not erect, place, allow to be placed any sign,
advertising matter, stand, booth, or showcase in or upon the doorsteps,
vestibules, doors, exterior walls, windows, or pavement of the Building without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, or which may violate any of the Covenants. Tenant covenants and agrees
that it shall not overload the floors or surpass the utility specifications of
the Building, as reasonably determined by Landlord.
(b) Notwithstanding anything contained above to the contrary, if Tenant
is required to make a capital improvement in satisfaction of its obligations
hereunder to any item that is described in the Base Building Final Plans and
Specifications, and if the useful life of such capital improvement as provided
by the Internal Revenue Code and Regulations cannot be fully amortized over the
remainder of the Term, Tenant shall so notify Landlord. Upon receipt of such
notice, Landlord shall either (i) direct Tenant that Landlord elects not to
cause Tenant to make such capital expenditure and Tenant shall thereby be
relieved of any liability for such replacement obligation,
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in which event Tenant may repair such item without, except as hereinafter
provided in subsection (ii) hereof, reimbursement from Landlord and satisfy its
obligations under this Lease, or (ii) direct Tenant to make such capital
expenditure, in which event Tenant shall be reimbursed by Landlord (unless
Tenant caused such damage to occur, in which event Tenant shall not be
reimbursed by Landlord) at the end of the Term for that portion of the
replacement cost that is represented by the extent to which the useful life
(determined in accordance with the Internal Revenue Code and Regulations)
thereof extends beyond the expiration of the Term, which portion shall be
determined by dividing the number of months of useful life of the replacement
that extend beyond the expiration of the Term by the total number months of
useful life of the replacement and multiplying the resultant percentage
calculation against the total cost of the replacement. If the cost of repairing
any item described in the Base Building Final Plans and Specifications by Tenant
as required under this Section 8.02(b) (i) is so extensive that the cost would,
in the opinion of the Third Party Architect (as defined in Section 16.02),
exceed seventy-five percent (75%) of the cost to replace such item, then Tenant
shall replace such item and the provisions of subsection (ii) herein shall apply
with respect to said replacement costs.
ARTICLE 9 - TAXES
SECTION 9.01 PERSONAL PROPERTY TAXES. Tenant shall pay before
delinquency all taxes and assessments, special or otherwise, of any nature that
become payable during the Term and/or any extension thereof which are levied or
assessed upon Tenant's equipment, furniture, fixtures and Tenant's other
personal property installed or located in or on the Project.
SECTION 9.02 AD VALOREM TAXES. All ad valorem taxes, assessments,
business taxes, impact fees, rental taxes ("RENTAL TAXES") or other similar
rates and taxes levied or imposed upon the Project, or any part thereof, shall
be paid by Tenant, and shall be considered Additional Rent hereunder. Tenant's
sole obligation to pay Rental Taxes shall arise only in the event such taxes are
imposed upon the gross income of the Project and are not denominated as an
"income tax" or other tax imposed on the net income of the Landlord, giving
credit for deduction, depreciation and other reductions to the gross income
attributable to the Project. Nothing contained in this Lease shall require
Tenant to pay any local, county, municipal, state or federal income, franchise,
corporate, estate, inheritance, succession or transfer tax of Landlord. Upon
receipt by Landlord from any association, governmental agency or authority of
statements for ad valorem taxes and assessments against the Project during the
Term and any extension thereof, Landlord shall promptly submit to Tenant an
invoice for such taxes and assessments, together with copies of the original
statements from each taxing authority. Tenant shall pay such invoice to Landlord
no later than twenty (20) days prior to the delinquency date as shown on each
tax statement, but in no event shall it be required to pay the invoice earlier
than thirty (30) days after its receipt; provided, however, Tenant may, in good
faith, contest the assessed valuation of such taxes or assessments, and, receive
a refund from the appropriate governmental authority, if successful, provided
that Tenant shall pay all taxes and amounts due and owing hereunder in
accordance with all applicable laws. Landlord shall reasonably
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cooperate with Tenant, at no cost to Landlord, in Tenant's appeal. If the Term
Commencement Date or the Project Expansion Commencement Date is on a date other
than January 1, the taxes, assessments, fees or other rates for the first and
last year of the Term shall be prorated. Any and all property tax refunds
accruing to the project shall, during the Term, belong exclusively to Tenant.
SECTION 9.03 DELINQUENCY OF PAYMENT. If Tenant fails to pay any real or
personal property taxes or assessments in accordance with the terms of this
Article, Landlord shall have the right, after providing thirty (30) days written
notice to Tenant of such failure, to thereafter pay any or all of such taxes and
assessments and Tenant shall reimburse Landlord, within thirty (30) days of
receipt of Landlord's invoice for the amount of such real and personal property
taxes and assessments paid by Landlord together with interest on the amount paid
by Landlord from the date advanced until reimbursed at the Specified Rate. Such
sums shall become rent for the purposes hereof and shall be payable with the
next monthly installment of Base Rent.
ARTICLE 10 - INSURANCE
SECTION 10.01 TENANT'S INSURANCE. Tenant covenants and agrees that from
and after the Term Commencement Date for Phase I and the Project Expansion
Commencement Date for any Project Expansion, Tenant will carry and maintain, at
its sole cost and expense, the following types of insurance, in the amounts
specified and in the forms hereinafter provided for:
(a) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Project and Tenant's use thereof
against claims for bodily injury or death, third party property damage and
product liability occurring upon, in or about the Project, such insurance to be
written on an occurrence basis (not a claims made basis), to be in combined
single limit amounts not less than $5,000,000 and to have general aggregate
limits of not less than $10,000,000 for each policy year. The insurance coverage
required under this Section 10.01 shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in Section 11.01 and, if
necessary, the policy shall contain a contractual endorsement to that effect;
and
(b) Insurance covering all of the Tenant's items located in the
Building, including, but not limited to, furniture, fixtures and equipment from
time to time in, on or upon the Project, in an amount not less than one hundred
percent (100%) of their full replacement value from time to time during the
Term, providing protection against perils included within the standard form of
"all-risk" property insurance policy, together with insurance against vandalism
and malicious mischief. Any policy proceeds from such insurance relating to the
Building shall be used solely for the repair, construction and restoration or
replacement of such property damaged or destroyed unless this Lease shall cease
and terminate under the provisions of Article 16.
SECTION 10.02 POLICY REQUIREMENTS. All policies of the insurance
provided for in Section 10.01 shall be issued in form and content reasonably
acceptable to Landlord by insurance companies with a rating of not less than
"A-" and financial size of not less than Class VII, in the most current
available "Best's Insurance Reports," and licensed to do business in Texas.
Tenant shall
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provide Landlord with a certificate for each such policy of insurance required
by this Lease. Any insurance coverage required of the Tenant hereunder may be
provided by the Guarantor, as long as such coverage otherwise satisfies the
provisions of this Article 10. Each and every such policy (as evidenced by the
certificate):
(i) shall name Landlord as well as Lender, as defined in Article 20, and
any other party reasonably designated by Landlord, who has an insurable
interest, as an additional insured. In addition, the coverage described in
Section 10.01(b) relating to the Building shall also name Landlord as loss
payee;
(ii) shall be delivered to Landlord prior to the Term Commencement Date
and the Project Expansion Commencement Date for any Project Expansion and
thereafter within ten (10) days prior to the scheduled expiration date of each
such policy, within, and, as often as any such policy shall expire or terminate.
Renewal or additional policies shall be procured and maintained by Tenant in
like manner and to like extent;
(iii) shall contain a provision that the insurer will give to Landlord
and such other parties in interest at least thirty (30) days notice in writing
in advance of any material change, cancellation, termination or lapse, or the
effective date of any reduction in the amounts of insurance; and
(iv) shall be written as a primary policy which does not contribute to
and is not in excess of coverage which Landlord may carry;
(v) Landlord and Tenant hereby waive any rights each may have against the
other on account of any loss or damage occasioned to Landlord or Tenant, as the
case may be, their respective property, the Project, its contents or to the
other portions of the Building, arising from any risk covered by "all risk"
property coverage insurance and commercial general liability of the type and
amount required to be carried hereunder, provided that such waiver does not
invalidate such policies or prohibit recovery thereunder and is applicable only
to the extent of receipt of the insurance proceeds. The parties hereto each
agree to use reasonable efforts to cause their respective insurance companies
insuring the property of either Landlord or Tenant against any such loss, to
waive any right of subrogation that such insurers may have against Landlord or
Tenant, as the case may be.
(vi) Neither Landlord nor Tenant shall take any action that will cause
the premiums for insurance coverage to rise.
(vii) Any insurance coverage enumerated above may be satisfied by a
blanket policy or policies of insurance or under so-called "all risk" or
"Multi-peril" insurance policies provided that the total amounts of insurance
available with respect to the Project and Tenant's liability hereunder shall be
at least the equivalent of separate policies in the amount herein required, and
provided further that in all other respects any such policy or policies shall
comply with the provisions of this Section 10.02. Tenant shall not, unless
expressly set forth herein to the contrary, have the right to, self-insure
against any of the risks recited herein, except for the amount of any
commercially
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reasonable deductible (for purposes of this Lease, a deductible amount of
$100,000 shall be deemed to be reasonable). An increased coverage or "umbrella"
policy may be provided and utilized by other parties to increase the coverage
provided by individual or blanket policies in lower amounts and the aggregate
coverage provided by all such policies with respect to the limits required
herein shall be satisfactory, provided that such policies shall otherwise comply
with the provisions of this Section 10.02.
(viii) Upon receipt of the Landlord's and its Lender's consent, which
consent shall not be unreasonably withheld, conditioned or delayed, the Tenant
may self-insure against any of the risks or portions thereof set forth in this
Section 10.02, provided that the Tenant or Guarantor has an Investment Grade
Credit Rating (as defined in Section 19.01(a)). Landlord and Lender may not
withhold their consent in the event that the Tenant or Guarantor satisfy the net
worth requirements set forth herein and have provided to Landlord and Lender
evidence of a program of self insurance which has been properly adopted and
implemented by the Tenant or Guarantor and which satisfies prudent risk
underwriting practices.
SECTION 10.03 LANDLORD'S INSURANCE.
(a) During the Term, Landlord shall maintain, at its sole expense,
liability insurance in the Commercial General Liability form (or reasonable
equivalent thereto) covering the Project and Landlord's use thereof against
claims for bodily injury or death, third party property damage and product
liability occurring upon, in or about the Project, such insurance to be written
on an occurrence basis (not a claims made basis), to be in combined single limit
amounts not less than $3,000,000 and to have general aggregate limits of not
less than $5,000,000 for each policy year. The insurance coverage required under
this Section 10.03 shall, in addition, extend to any liability of Landlord
arising out of the indemnities provided for in Section 11.01 and, if necessary,
the policy shall contain a contractual endorsement to that effect.
(b) During the Term Landlord shall keep the Project insured against loss
or damage by fire and the perils covered under standard "all-risk," "special
form" coverage in the amount of the full replacement cost of the Building,
exclusive of excavation, footings and foundation, with a commercially reasonable
deductible for which Tenant shall be fully responsible (for purposes of this
Lease, a deductible amount of $100,000 shall be deemed to be reasonable). Lender
and Tenant shall be named in such policy or policies as additional insureds as
their respective interests may appear. All cost of such insurance and payment of
any deductible under such coverage shall be Tenant's expense and shall be deemed
to be Additional Rent under this Lease. Landlord's insurance coverage required
hereunder shall comply with the provisions of Section 10.02 above.
(c) Upon prior written notice to Landlord and Lender, Lacerte or Intuit
may provide the casualty coverage required by the provisions of Section
10.03(b), at their sole cost and expense. Landlord and its Lender shall be named
as loss payees under the provisions of such coverage and such coverage must
otherwise satisfy the requirements of this Article 10. Neither Lacerte nor
Intuit may self insure against the risks described in Section 10.03(c).
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ARTICLE 11 -INDEMNIFICATION
Section 11.01 Tenant's and Landlord's Indemnities. Tenant shall defend,
indemnify and hold harmless landlord, its agents, employees, officers,
directors, partners and shareholders from and against any and all liabilities,
judgments, demands, causes of action, claims, losses, damages, costs and
expenses, including reasonable attorneys' fees and costs, arising out of the
acts, willful misconduct or negligence of tenant, its officers, contractors,
licensees, agents, servants or employees, in or about the building and/or the
project. This indemnification shall survive the expiration or earlier
termination of this lease, and shall inure to the benefit of landlord and
landlord's successors and assigns. This provision shall not be construed to make
tenant responsible for and landlord hereby agrees to defend, indemnify and hold
tenant, its agents, employees, officers, directors, partners and shareholders
harmless from and against any and all liabilities, judgments, demands, causes of
action, claims, losses, damages, costs and expenses, including reasonable
attorneys' fees and costs arising out of the acts, negligence or willful
misconduct of landlord or its officers, contractors, licensees, agents, servants
or employees. The indemnities contained in this Article 11 shall begin on the
date of execution of this lease, and shall continue after the expiration of the
term or earlier termination of this lease. this indemnification shall survive
the expiration or earlier termination of this lease, and shall inure to the
benefit of tenant and tenant's successors and assigns.
ARTICLE 12 - LANDLORD'S LIABILITY
SECTION 12.01 LIMITED LIABILITY. Except as provided herein with respect
to Xxxx, neither Landlord nor any officer, director, shareholder, attorney,
agent, partner or principal of Landlord, whether disclosed or undisclosed, shall
be under any personal liability with respect to any of the provisions of this
Lease, except for Landlord's failure to apply insurance proceeds or condemnation
awards as herein required in the Lease. In the event Landlord is in breach or
default with respect to Landlord's obligations or otherwise under this Lease,
except for Landlord's failure to apply insurance proceeds or condemnation awards
as herein required in the Lease, Tenant shall look solely to the equity of
Landlord in the Project and all rents, revenues and profits arising from the
Project for the satisfaction of Tenant's remedies. Notwithstanding Xxxx'x
liability under the Completion Guaranty, it is expressly understood and agreed
that Landlord's liability under the terms, covenants, conditions, warranties and
obligations of this Lease shall in no event exceed the loss of Landlord's equity
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interest, rents, revenues and profits in the Project. Nothing contained herein
shall be construed to limit Xxxx'x liability under the Completion Guaranty.
Xxxx'x liability thereunder shall be strictly construed in accordance with the
provisions of the Completion Guaranty.
ARTICLE 13 - UTILITIES AND SERVICES
SECTION 13.01 UTILITIES AND SERVICES. From and after the Term
Commencement Date and the Project Expansion Commencement Date for any Project
Expansion, Tenant shall pay the costs and all deposits for all telephone, water,
gas, electricity, sewage, garbage and other services required by Tenant or
supplied to the Project (collectively, the "UTILITY BILLS"). Landlord, at no
expense to Landlord, shall cooperate fully with Tenant in the manner and to the
extent reasonably required by Tenant in obtaining such services for the Project
during the Term. Following the Term Commencement Date and the Project Expansion
Commencement Date for any Project Expansion, Tenant shall have the right to
select the entities which will provide utility services, to the extent
applicable, in its reasonable discretion. If Tenant fails to pay any Utility
Bills when due, Landlord shall have the right, after giving Tenant thirty (30)
days written notice of its failure to pay such Utility Bills, to thereafter pay
such delinquent Utility Bills. Tenant shall reimburse Landlord, within twenty
(20) days of receipt of Landlord's invoice, for the amount of such delinquent
Utility Bills paid by Landlord together with interest on the sums advanced at
the Specified Rate. Such sums shall be considered Additional Rent.
SECTION 13.02 ASSOCIATION FEES. From and after the Term Commencement Date
and the Project Expansion Commencement Date for any Project Expansion, Tenant
shall pay, prior to delinquency, any assessments and fees assessed against the
Project during the Term and any extension thereof pursuant to that certain
Declaration of Covenants, Conditions and Restrictions dated October 16, 1986,
affecting the Project, as recorded in Volume 2481, Page 784 of the real property
records of Collin County, Texas, as well as all additional amendments thereto
and additional covenants which affect the Real Property (collectively, the
"COVENANTS"). If invoices issued by the applicable association are delivered to
Landlord as owner of the Project, Landlord shall, within thirty (30) days
following receipt thereof, promptly deliver same to Tenant.
ARTICLE 14 - ALTERATIONS
SECTION 14.01 ALTERATIONS. From and after the Term Commencement Date and
the Project Expansion Commencement Date for any Project Expansion, Tenant shall
have the right to make non-structural alterations to the interior of any of the
Building, in order to conduct Tenant's business in the Building, provided such
alterations are of a quality which is equal to or greater than the Base Building
Work, and provided further that Tenant shall make no alterations, other than as
provided below, to the electrical, plumbing or HVAC systems, nor shall any such
alterations require drilling through the Building's slab floors or foundation or
penetrating their roofs without Landlord's consent, such consent not to be
unreasonably withheld. Tenant's request to make alterations to the Building
shall be made in writing and shall describe in sufficient detail the nature of
such proposed alterations and Tenant shall provide Landlord with a complete set
of plans for any proposed structural
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alterations for its review and approval. Tenant shall not make or suffer to be
made any structural alterations of any kind, on or to the Project, or any part
thereof, without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Landlord shall, within thirty (30) days following
Tenant's notice of proposed alterations to the Building, either approve such
alterations to the Building or state the reasons for any disapproval with such
additional modifications, which, if remedied by Tenant, shall result in the
Landlord's approval of such proposed alterations. If the Landlord fails to
respond to such notice delivered by Tenant within thirty (30) days following
receipt thereof, Landlord shall be deemed to have approved Tenant's proposed
alterations to the Building. Tenant shall furnish Landlord with plans and
specifications for all alterations, additions or improvements which require
Landlord's consent. All alterations, additions, or improvements constructed by
Tenant shall be constructed in compliance with all Laws and Covenants. Tenant
shall keep the Project free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant in connection with such
alterations and, prior to the commencement of any such structural alterations,
in the event the Intuit Guaranty is not in full force and effect, Tenant must
furnish Landlord with payment and performance bonds for Tenant's contractor(s)
in amounts reasonably satisfactory to Landlord, from sureties reasonably
acceptable to Landlord. Tenant may, in good faith, contest the validity of any
mechanic's or materialman's lien and, pending the conclusion of such contest,
Tenant shall not be deemed in default hereunder unless it fails to either pay
the sums due on the lien as determined by the contest or it fails to provide to
Landlord a bond or other acceptable security such that the lien is, by law,
removed from the Project. Landlord shall have the right, but not the obligation,
to post and keep posted on the Project any notice which Landlord may reasonably
deem proper for the protection of Landlord and the Project from such liens.
ARTICLE 15 - REPAIR AND MAINTENANCE
SECTION 15.01 TENANT'S OBLIGATIONS. Except as otherwise specifically
contained within this Lease, including, but not limited to, Section 8.02 hereof,
and in addition to the payment of its monthly installments of Base Rent, Tenant,
at its sole cost and expense, shall cause to be performed all repairs (other
than repairs required herein to be made by Landlord), maintenance, replacements
and, except with respect to Structural Elements (as defined in Section 15.02)
for which Landlord has responsibility, required capital improvements of every
kind, nature or description now or hereafter needed in, on or about the Project
and each part thereof (including, but not limited to, repairs, replacements and
maintenance of the major building systems), whether inside or outside, foreseen
or unforeseen, and Tenant shall keep and maintain both the inside and outside of
the Building and the Project in a first class condition, ordinary wear and tear
and insured casualty excepted. There shall be no abatement, diminution or
reduction of the fixed monthly rental because of any inconvenience,
interruption, cessation or loss of business caused directly or indirectly by
Tenant's obligations hereunder unless Tenant's inability to meet such
obligations is caused by the acts, omissions or negligence of Landlord, its
agents, contractors or employees. In addition to the foregoing, the Landlord
shall be obligated to enforce all contractors' warranties and to pursue all
rights and remedies which the Landlord may have against contractors for work
performed by such contractors, even though pursuit of such warranty obligations
may include a maintenance obligation of the Tenant under this Lease.
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SECTION 15.02 LANDLORD'S OBLIGATIONS. Landlord, at its sole cost and
expense, shall maintain in good condition the structural elements of the
Building and shall make all structural repairs and replacements to the Building,
including the structural elements of any parking deck constructed by Landlord as
a portion of the Base Building Work, the roof structure (excluding the roof
membrane), structural elements of the building facade, and the foundation and
load bearing walls (as well as any building and utility systems, including,
without limitation, plumbing, electrical and water systems located beneath or
within the foundation or which are imbedded in any load bearing walls)
(collectively referred to herein as the "STRUCTURAL ELEMENTS"), as Landlord's
sole maintenance, repair or replacement obligation under this Lease (except as
expressly set forth in Section 2.12 to the contrary), unless any such
maintenance, repairs or replacements are necessitated by the acts, omissions or
negligence of Tenant or its agents, contractors or invitees, in which case such
obligations shall be satisfied by Tenant. Landlord shall be obligated to satisfy
all Laws and Covenants with respect to the Structural Elements of the Project,
unless compliance with such Laws and Covenants is Tenant's obligation, as
described in Section 8.02. To the extent that the cause of any of the Landlord's
maintenance, repair or replacement obligations set forth in Section 15.02 also
causes any damage to related portions of the Building which would otherwise be
maintained by Tenant (for example, in the event that the failure of a Structural
Element necessitates a building system repair which would otherwise be the
obligation of the Tenant), then such related damage shall be the obligation of
the Landlord.
SECTION 15.03 REMOVAL OF FIXTURES. So long as Tenant is not in default
beyond applicable grace periods, Tenant shall have the right at its option to
remove any trade fixtures, machinery, equipment and tenant improvements
installed by Tenant, at its cost (and not those charged against the Supplemental
Allowance or the Improvement Allowance), in the Building at any time during the
Term or when vacating the Building. Tenant shall not remove any Tenant
Improvements unless agreed to in writing by both Landlord and Tenant, which
agreement of Landlord shall not be unreasonably withheld. Tenant shall repair
any damage caused to the Building by reason of the removal of such trade
fixtures, machinery, equipment and tenant improvements. Any trade fixtures,
machinery, equipment or tenant improvements not removed by Tenant shall be
deemed the property of Landlord.
ARTICLE 16 - DAMAGE AND DESTRUCTION
SECTION 16.01 FIRE AND OTHER CASUALTY. In the event that any Building is
damaged by fire or other casualty, Landlord agrees to promptly restore and
repair the Building, including the Tenant Improvements, at Landlord's expense,
but only to the extent Landlord actually receives sufficient insurance proceeds
therefor, from the insurance required to be carried by Landlord and Tenant
hereunder. Tenant agrees to immediately make available to Landlord all proceeds
of any insurance policies covering the Project, excluding that portion of
insurance proceeds applicable to Tenant's personal property and Tenant shall
also be obligated to pay to any insurer providing coverage the amount of any
deductible, retained risk or self insurance amount. Notwithstanding the
foregoing, in the event that the Building is (i) in the reasonable opinion of
Third-Party Architect (as hereinafter defined), so destroyed that it cannot be
repaired or rebuilt within three hundred sixty-five (365) days
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after the date of such damage (subject to Force Majeure and Tenant Delays); (ii)
destroyed by a casualty which is not covered by insurance, the proceeds of which
are made available to Landlord in accordance with this Section 16.01, or if such
casualty is covered by insurance but such proceeds are insufficient for
restoration of the Project, and only if the Project is thus rendered
untenantable, as determined in the reasonable discretion of Landlord and Tenant;
or (iii) damaged by a casualty event during the last year of the Term which
destroys more than twenty-five percent (25%) of the Rentable Area, and upon
receipt by Landlord of the deductible amount and all insurance proceeds under
the coverages to be provided for casualty damage under Article 10, then Landlord
or Tenant may terminate and cancel this Lease effective as of the date of such
casualty by giving written notice to the other party within thirty (30) days of
the date of such casualty. Upon the giving of such notice, all obligations
hereunder with respect to periods from and after the effective date of
termination shall thereupon cease and terminate except as expressly provided to
the contrary in this Lease. Tenant may obviate Landlord's right to terminate
this Lease in accordance with the provisions of Section 16.01 (iii) in the event
that the Tenant properly exercises a right to renew the Term expressly granted
in accordance with the terms of this Lease. If no such notice is given, Landlord
shall, to the extent of the available insurance proceeds, make such repair or
restoration of the Building to substantially the same condition existing prior
to such casualty, promptly and in such manner as not to unreasonably interfere
with Tenant's use and occupancy of the Project (if Tenant is still occupying the
Project). Base Rent and all Additional Rent and other charges shall xxxxx during
the time that the Building or any part thereof is unusable by reason of any such
damage thereto (and for sixty (60) days following completion of restoration for
the purpose of Tenant refixturing), but only to the extent of any proceeds of
rental loss insurance received by Landlord on account thereof. Tenant shall not
be entitled to any compensation or damages for loss of use of the whole or any
part of the Project and/or any inconvenience or annoyance caused by such damage,
repair or restoration. Notwithstanding anything to the contrary contained
herein, proceeds of any rental loss insurance policies shall be paid to
Landlord, and Tenant shall have no claim therefor.
SECTION 16.02 THIRD-PARTY ARCHITECT. For purposes of this Lease, the term
"THIRD-PARTY ARCHITECT" shall mean an AIA designated architect licensed in the
State of Texas selected reasonably in good faith by Landlord and Tenant solely
for the purpose of determining certain time periods for restoration or costs in
question under this Lease including, but not limited to, the provisions of this
Article 16. The cost of such Third-Party Architect shall be shared equally by
Landlord and Tenant. In the event that the Landlord and Tenant cannot agree upon
the identity of the Third-Party Architect within fifteen (15) days following a
request for determination by the Third-Party Architect issued by either Landlord
or Tenant, then, upon request of either Landlord or Tenant, the president of the
local chapter of the AIA representative board shall appoint the Third-Party
Architect who shall not be affiliated with either Landlord or Tenant and shall
be experienced in commercial construction for purposes of determining the cost
or period of time required for such restoration or replacement, which
appointment shall be binding upon Landlord and Tenant. The Third-Party Architect
shall be directed, upon request to determine any period of time or cost
hereunder to make such determination within fifteen (15) days following receipt
of such request for a determination by Landlord or Tenant. Any decision rendered
by the Third-Party Architect requested in accordance with this Lease shall be
binding upon the Landlord and Tenant.
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ARTICLE 17 - CONDEMNATION
SECTION 17.01 TAKINGS.
(a) If all of the Project is taken or condemned for a public or
quasi-public use, or if a material portion (defined as twenty percent (20%) or
more of the Project and/or the parking area) of the Project is taken or
condemned for a public or quasi-public use and the remaining portion thereof is
not usable by Tenant in the reasonable opinion of Landlord and Tenant, this
Lease shall terminate on the sixtieth (60th) day following such taking. In such
event, the Base Rent herein reserved and all additional rent and other sums
payable hereunder shall be apportioned and paid in full by Tenant to Landlord to
that date and all Base Rent, additional rent and other sums payable hereunder
prepaid for periods beyond that date shall forthwith be repaid by Landlord to
Tenant, and neither party shall thereafter have any liability hereunder, except
that any obligation or liability of either party, actual or contingent, under
this Lease which has accrued on or prior to such termination date shall survive.
(b) If less than twenty percent (20%) of the Project and/or the Parking
is taken or condemned for a public or quasi-public use and this Lease does not
terminate pursuant to Section 17.01 (a) and Tenant can occupy and reasonably use
for its intended purposes the remaining portion of the Project, Landlord, to the
extent of the award it receives, shall restore the Project to a condition and to
a size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the taking, and there shall be a proportionate
reduction to the Base Rent according to the size of the Project before and after
the taking.
(c) Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Section 17.01,
without deduction therefrom for any estate vested in Tenant by this Lease, and
Tenant shall receive no part of such award, except any part of the award
specifically designed to compensate Tenant's costs of moving and business
interruption. Nothing herein contained shall be deemed to prohibit Tenant from
making a separate claim, against the condemnor, to the extent permitted by law,
for Tenant's moveable trade fixtures, machinery and moving expenses, provided
that the making of such claim shall not and does not adversely affect or
diminish Landlord's award.
(d) Landlord has no actual or constructive knowledge of any pending or
threatened condemnation proceeding.
ARTICLE 18 - ENTRY BY LANDLORD
SECTION 18.01 REASONABLE ACCESS. Subject to Tenant's reasonable security
procedures, Tenant agrees to permit Landlord and the authorized representatives
of Landlord and of Lender to enter upon the Project during normal business hours
(except in the event of emergency) for the purposes of inspecting the Project
and Tenant's compliance with this Lease, and making any necessary repairs
thereto; provided that, except in the case of an emergency, Landlord shall give
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Tenant twenty-four (24) hours prior written notice of Landlord's intended entry
upon the Project. Nothing herein shall imply any duty upon the part of Landlord
to do any work required of Tenant hereunder, and the performance thereof by
Landlord shall not constitute a waiver of Tenant's default in failing to perform
it. Except in the event of negligence by Landlord, its agents, employees or
contractors, Landlord shall not be liable for inconvenience, annoyance,
disturbance or other damage to Tenant by reason of making such repairs or the
performance of such work in the Project or on account of bringing materials,
supplies and equipment into or through the Project during the course thereof,
and the obligations of Tenant under this Lease shall not thereby be affected;
provided, however that Landlord shall use reasonable efforts not to annoy,
disturb or otherwise interfere with Tenant's operations in the Building in
making such repairs or performing such work. Landlord also shall have the right
to enter the Project at all reasonable times to exhibit the Project to any
prospective purchaser or lender thereof, after reasonable prior written notice
to Tenant.
ARTICLE 19 - ASSIGNMENT AND SUBLETTING
SECTION 19.01 ASSIGNMENT AND SUBLETTING.
(a) Upon the receipt of Landlord's consent which shall not be
unreasonably withheld, Tenant shall have the right to assign or sublet all or
any part of the Project provided that such assignee assumes in writing the
obligations of Tenant under this Lease, or in the event of a sublease, the
sublessee agrees to subordinate to and be subject to the terms of this Lease.
Tenant shall provide Landlord written notice of any proposed assignment or
subletting, with sufficient detail to apprise Landlord of the material terms of
such assignment of subletting transaction. Within thirty (30) days following
receipt of such written notice, Landlord shall either disapprove or approve such
proposed assignment or subletting transaction, which approval shall not be
unreasonably withheld. In the event that Landlord fails to respond to such
notice delivered by the Tenant within thirty (30) days following receipt of such
written notice, Landlord shall be deemed to have approved the proposed
assignment or subletting transaction proposed by the Tenant. Notwithstanding any
assignment or subletting hereunder, unless expressly set forth in this Article
19 to the contrary, Lacerte and Intuit shall remain liable for the performance
of all of the obligations of Tenant hereunder. Such right of assignment or
subletting by Tenant may also be exercised by any subtenant or assignee of
Tenant which has been previously approved by the Landlord, provided at the time
of exercise of such assignment or subletting Guarantor has an "Investment Grade
Credit Rating." For purpose of this Lease the term "INVESTMENT GRADE CREDIT
RATING" shall mean a credit rating, either on corporate credit or issuances of
indebtedness, for the four (4) most recent fiscal year quarters, as issued by
(i) Standard & Poor's Rating Services equal to or greater than BBB or (ii)
Xxxxx'x Investors Services, Inc. equal to or greater than Baa.
(b) Notwithstanding the foregoing, Tenant shall have the right to assign
this Lease or sublet all or any part of the Project to any entity which
controls, is controlled by, or is in common control of, Lacerte or Intuit
(hereinafter referred to as a "Related Party"). Any assignment or subletting to
such Related Party shall not require consent of the Landlord, but Tenant shall
be obligated to supply Landlord with written notice of such assignment or
subletting, and evidence of the assumption of Tenant's obligations under this
Lease. Such Related Party assignment or
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subletting shall not relieve Lacerte or Intuit, or their legal successor or
acquiring company, of any liability or obligations under this Lease. If, at any
time during the Term of this Lease, Intuit ceases to exist, Landlord shall have
the right to approve any assignment or subletting transaction entered into
thereafter unless the Guarantor has an Investment Grade Credit Rating, in which
event no approval by Landlord is required. Any purported assignment or
subletting which requires Landlord's consent shall be null and void if made
without such consent.
SECTION 19.02 ASSIGNMENT BY LANDLORD. Landlord covenants that it shall
not sell or assign its interest in the Project prior to Substantial Completion,
except for any collateral assignment to the Lender. Upon Substantial
Completion, Landlord shall have the right to sell, transfer or assign its
interest hereunder without the prior consent of Tenant, provided that such
purchaser, transferee or assignee assumes, in writing, Landlord's obligations
and liabilities, including any then unfulfilled financial obligation of Landlord
to Tenant hereunder. After such sale, transfer or assignment, Tenant shall
attorn to the new landlord and KCD and Xxxx shall be released from all
obligations hereunder accruing after the date of such sale, transfer or
assignment.
SECTION 19.03 NO RIGHT TO RIGHT OF ASSIGNMENT/SUBLEASE INDEPENDENT OF
LEASE. Tenant's (or any subtenant's or assignee's) right to sublease or assign
the Lease shall not be conveyed independently of an assignment or sublease
without the consent of Landlord.
SECTION 19.04 NO RIGHT TO SEEK EXTENSION UNDER 11 U.S.C. Section 365(d).
Tenant agrees not to seek any extension of time to assume or reject the Lease in
the event of Tenant's (or any subtenant's or assignee's) bankruptcy proceeding
without the consent of Landlord greater than sixty (60) days from the date of
filing any bankruptcy petition.
ARTICLE 20 - SUBORDINATION AND LENDER AGREEMENTS.
SECTION 20.01 LENDER AND MORTGAGES.
(a) For purposes of this Lease:
(i) "LENDER" as used herein means the current holder of a
Mortgage;
(ii) "MORTGAGE" as used herein means any or all mortgages,
deeds to secure debt, deeds of trust or other instruments in the nature
thereof which may now or hereafter affect or encumber Landlord's title
to the Project, and any amendments, modifications, extensions or
renewals thereof.
(b) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien and security interest of any Mortgage.
Tenant recognizes and acknowledges the right of Lender to foreclose or exercise
the power of sale against the Project under any Mortgage, provided that Tenant's
right of quiet enjoyment shall not be disturbed unless and until an Event of
Default occurs under this Lease. As a condition of such subordination, Landlord
shall cause Lender (and all
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future lenders) to execute a subordination and nondisturbance agreement (the
"SNDA") in substantially the form attached hereto as Exhibit "F" (or in such
other form as is mutually acceptable to Lender, Landlord and Tenant), and shall
cause Lender to deliver a fully executed counterpart to Tenant. The SNDA shall
contain provisions acceptable to Lender and Tenant covering rights and
obligations of Lender and Tenant in the event of a foreclosure of Landlord's
interest in the Project.
(c) Tenant shall, in confirmation of the subordination set forth in
Section 20.01(6) and notwithstanding the fact that such subordination is
self-operative, and no further instrument or subordination shall be necessary,
within a reasonable period from receipt of written notice, at any time or times,
execute, acknowledge, and deliver to Landlord or to Lender reasonable
instruments mutually agreed upon by Landlord, Tenant and Lender to evidence such
subordination.
(d) Tenant shall, upon reasonable request, at any time or times, execute,
acknowledge, and deliver to Lender and all future lenders, a subordination and
nondisturbance agreement in substantially the form attached hereto as Exhibit
"F." contingent upon Landlord's and Lender's simultaneous execution of same.
(e) If Lender (or Lender's nominee, or other purchaser at foreclosure)
shall hereafter succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease, Tenant
shall, if requested by such successor, attorn to and recognize such successor as
Tenant's landlord under this Lease without change in the terms and provisions of
this Lease, provided that such successor shall not be bound by any payment of
Base Rent for more than one month in advance, except prepayments in the nature
of security for the performance by Tenant of its obligations under this Lease,
and then only if such prepayments have been deposited with and are under the
control of such successor. Tenant shall promptly execute and deliver any
reasonable instrument that may be necessary to evidence such attornment.
SECTION 20.02 ESTOPPEL. Tenant and Landlord agree, at any time, and from
time to time, within twenty (20) days after written request of the other, to
execute, acknowledge and deliver a statement in writing ("ESTOPPEL CERTIFICATE")
in recordable form to the other party and/or its designee in form and content
mutually satisfactory to Tenant, Lender and Landlord (or successor owner, if
any), certifying that: (i) if such should be the case, this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same is in full force and effect, as modified if such be the case), (ii) the
dates to which Base Rent, and other charges have been paid, (iii) whether or
not, to the best knowledge of the signer of such certificate, there exists any
failure by the requesting party to perform any term, covenant or condition
contained in this Lease, and, if so, specifying each such failure of which the
signer may have knowledge, (iv) (if such be the case) Tenant has accepted the
Project and is conducting its business therein, and (v) as to such additional
matters as may be reasonably requested, and being in fact true, it being
intended that any such statement delivered pursuant hereto may be relied upon by
Landlord, Tenant and Tenant's successors and by any purchaser of title to the
Project or by any mortgagee or any assignee thereof or any party to any
sale-leaseback of the Project, or the landlord under a ground lease affecting
the Project.
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ARTICLE 21 - DEFAULT AND REMEDIES
SECTION 21.01 DEFAULTS.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" of Tenant under this Lease:
(i) if Tenant fails to pay Base Rent, Additional Rent or any
other sum due hereunder as and when such rent or other sum becomes due
and such failure shall continue for more than ten (10) days after
receipt of written notice from Landlord of such failure;
(ii) if Tenant permits to be done anything which creates a
lien upon the Project and fails to discharge such lien, bond such lien
or post security with Landlord reasonably acceptable to Landlord within
thirty (30) days after receipt by Tenant of written notice thereof;
(iii) if Tenant fails to maintain in force all policies of
insurance required by this Lease and such failure shall continue for
more than ten (10) days after Landlord gives Tenant written notice of
such failure;
(iv) if any petition is filed by or against Tenant or
Guarantor under any present or future section or chapter of the
Bankruptcy Code, or under any similar law or statute of the United
States or any state thereof (which, in the case of an involuntary
proceeding, is not permanently discharged, dismissed, stayed, or
vacated, as the case may be, within ninety (90) days of commencement),
or if any order for relief shall be entered against Tenant or the
Guarantor in any such proceedings;
(v) if Tenant or Guarantor becomes insolvent or makes a
transfer in fraud of creditors or makes an assignment for the benefit
of creditors;
(vi) if a receiver, custodian, or trustee is appointed for
Tenant's interest in the Project or for all or substantially all of the
assets of Tenant or Guarantor, which appointment is not vacated within
ninety (90) days following the date of such appointment;
(vii) if Tenant fails to perform or observe any other term of
this Lease and such failure shall continue for more than thirty (30)
days after Landlord gives Tenant written notice of such failure, or, if
such failure cannot be corrected within such thirty (30) day period, if
Tenant does not commence to correct such default within said thirty
(30) day period and thereafter diligently prosecute the correction of
same to completion within a reasonable time;
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(viii) if Guarantor fails to perform or observe any other
term or provision of this Lease and such failure shall continue for
more than thirty (30) days after Landlord gives Guarantor written
notice of such failure, or, if such failure cannot be corrected within
such thirty (30) day period, if Guarantor does not commence to correct
such default within said thirty (30) day period and thereafter
diligently prosecutes the correction of same to completion within a
reasonable time;
(ix) if Tenant notifies Landlord in writing that it does not
intend to occupy the Project and/or will not commence payment of Base
Rent; or
(x) if Guarantor fails to execute the Intuit Guaranty
simultaneously with the execution of this Lease, or if the Guarantor
fails to perform or observe any term or provision of the Intuit
Guaranty and such failure shall continue for more than thirty (30) days
after Landlord gives Guarantor written notice of such failure, or, if
such failure cannot be corrected within such thirty (30) day period, if
Guarantor does not commence to cure such default within said thirty
(30) day period and thereafter does not prosecute the correction of
same to completion within a reasonable amount of time.
Landlord agrees that it shall accept a cure by the Guarantor of any default by
the Tenant hereunder prior to the date such default has become an Event of
Default.
SECTION 21.02 REMEDIES.
(a) Upon the occurrence of any one or more Events of Default, Landlord
may, at Landlord's option, without any demand or notice whatsoever (except as
expressly required in this Section 21.02):
(i) Continue this Lease in full force and effect, and Landlord
shall have the right to collect Base Rent and other sums when due; or
(ii) Terminate Tenant's right to possession of the Project at
any time by giving written notice to that effect, and relet the Project
or any part thereof. On the giving of the notice, all of Tenant's
rights in the Project shall terminate. Upon such termination, Tenant
shall surrender and vacate the Project in good condition, ordinary wear
and tear excepted, within sixty (60) days of the date of the notice,
and Landlord may re-enter and take possession of the Project in
accordance with applicable law. Any termination under this Section
21.02 shall not release Tenant from the payment of any sum then due
Landlord or from any claim for damages or Base Rent or other sum
previously accrued or then accruing against Tenant. Upon such
termination Tenant shall be liable immediately to Landlord for all
reasonable costs Landlord incurs in reletting the Project or any part
thereof, including, without limitation, broker's commissions, expenses
of cleaning and reasonable costs and expenses for redecorating the
Project required by the reletting, reasonable attorneys' fees actually
incurred and like costs. Such costs shall be due and payable twenty
(20) days after
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written demand for, and verification of, such costs are provided to
Tenant. Reletting may be for a period shorter or longer than the
remaining Term of this Lease. In the event such reletting is for a
period longer than the remaining Term of this Lease, such costs shall
be allocated based upon the ratio that the remaining Term of this Lease
bears to the term of the reletting, unless such costs would not have
been incurred but for Tenant's breach of the Lease. No act by Landlord
other than giving express written notice of termination to Tenant shall
terminate this Lease. Acts of maintenance, efforts to relet the Project
permitted hereunder or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession. On
termination, Landlord has the right, at Tenant's cost and without
liability for the loss thereof or damage thereto, if Tenant has left
any personal property or the Project, to remove all Tenant's personal
property, which shall be deemed to have been abandoned by Tenant, and
either store same or otherwise dispose of same in Landlord's sole and
absolute discretion. Landlord and Tenant hereby acknowledge that in the
event of such a termination, actual damages to Landlord may be
difficult to ascertain and, accordingly, hereby agree that in such
event, the net present value of the Base Rent due from the date of such
termination to the expiration date of the Term or any extension, if
exercised (the "EXPIRATION DATE"), discounted at five percent (5%) per
annum, shall thereupon be due and payable to Landlord as liquidated
damages within twenty (20) days after written notice therefor to
compensate Landlord for Tenant's default and such termination. Such
liquidated damages and costs shall be reduced (but not below zero) by
the amount of rentals which Landlord has received at the time of
payment by Tenant. In addition, Landlord shall reimburse Tenant (but
not in excess of such liquidated damages and costs) the amount of
rentals which Landlord receives as a result of its duty to mitigate set
forth in subsection (f) of this Section 21.02 for the remaining Term of
the Lease (without consideration of any renewal options), which payment
by Landlord to Tenant shall be reduced by any reasonable costs, fees
and expenses including brokerage commissions and refurbishment costs,
incurred by Landlord in the exercise of its duty to mitigate
hereunder)]. Rentals received by the Landlord after the aforesaid
payments by Tenant (but not in excess of Tenant's payment of such
liquidated damages and payment of Landlord's costs hereunder) for any
period of time prior to the date that would have been the expiration
date of this Lease had this Lease not been terminated, shall be
immediately due and payable by Landlord to Tenant, and costs incurred
by Landlord for reletting for a period longer than the remaining Term
of this Lease shall be allocated as provided hereinabove, unless such
costs would not have been incurred but for Tenant's breach of the
Lease. Tenant waives redemption or relief from forfeiture under any
other present or future law, in the event Tenant is evicted or Landlord
takes possession of the Project by reason of any default of Tenant
hereunder; or
(iii) Without terminating this Lease, and without terminating
Tenant's obligation to pay all sums due and owing hereunder, including,
without limitation, Base Rent and other sums due hereunder, in its own
name but as agent for Tenant enter into and upon and take possession of
the Project or any part thereof. Any property remaining in the Project
may be removed and stored in a warehouse or elsewhere at the cost of,
and for the account of Tenant
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without Landlord being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby unless caused by
Landlord's negligence. Thereafter, Landlord shall exercise commercially
reasonable efforts to, in accordance with Section 21.02(f), lease to a
third party the Project or any portion thereof as the agent of Tenant
upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Project. The remainder of any rentals
actually received by Landlord from such reletting, after the payment of
any indebtedness due hereunder from Tenant to Landlord, and the payment
of any costs and expenses of such reletting, shall be held by Landlord
to the extent of and for application in payment of future rent owed by
Tenant, if any, as the same may become due and payable hereunder. If
such rentals received from such reletting shall at any time or from
time to time be less than sufficient to pay to Landlord the entire sums
then due from Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for
any such previous default provided same has not been cured; or
(iv) Without terminating this Lease, and with or without
notice to Tenant, enter into and upon the Project and without being
liable for prosecution or any claim for damages therefor, maintain the
Project and repair or replace any damage thereto or do anything or make
any payment for which Tenant is responsible hereunder. Tenant shall
reimburse Landlord immediately upon demand for any expenses which
Landlord incurs in thus effecting Tenant's compliance under this Lease
and Landlord shall not be liable to Tenant for any damages with respect
thereto.
(v) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor,
utilities or other service, wherever Landlord is obligated to furnish
or render the same so long as Tenant is in default under this Lease; or
(vi) Without terminating this Lease, immediately cease all
construction work required to be performed by Landlord pursuant to the
terms of this Lease and/or allow the Project to remain unoccupied and
/or incomplete until the Event of Default is cured to the reasonable
satisfaction of Landlord (which right to cure such Event of Default is
subject to the consent of Landlord, which consent shall not be
unreasonably withheld), and collect rent from Tenant as it comes due
(for purposes of this provision, Base Rent shall commence on the date
which Tenant commits an Event of Default); or
(vii) Fulfill any obligation of Tenant under this Lease,
including, without limitation, the payment of insurance premiums or
obtaining insurance policies required under this Lease, and Tenant
shall reimburse Landlord upon demand for all costs, expenses and/or
premiums paid by Landlord; or
(viii) Pursue such other remedies as are available at law or
in equity.
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(b) If this Lease shall terminate as a result of or while there exists an
Event of Default hereunder, any funds of Tenant held by Landlord may be applied
by Landlord to any damages payable by Tenant (whether provided for herein or by
law) as a result of such termination or default.
(c) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted.
(d) No agreement to accept a surrender of the Project and no act or
omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Project unless made in writing and signed by
Landlord. No re-entry or taking possession of the Project by Landlord pursuant
to this Section 21.02 shall constitute an election by Landlord to terminate this
Lease unless a written notice of such intention is given to Tenant. Landlord's
acceptance of Base Rent or other sums in full or in part following an Event of
Default hereunder shall not be construed as a waiver of such Event of Default.
No custom or practice which may come to exist between the parties in connection
with the terms of this Lease shall be construed to waive or lessen either
party's right to insist upon strict performance of the terms of this Lease,
without a written notice thereof to the other party.
(e) If an Event of Default shall occur, Tenant shall pay to Landlord, on
demand, all expenses incurred by Landlord as a result thereof, including
reasonable attorneys' fees, court costs and expenses actually incurred.
(f) Landlord's and Tenant's rights pursuant to this Section 21.02,
including, without limitation, Landlord's rights to collect Base Rent and other
charges due under this Lease, shall survive any termination of this Lease.
Notwithstanding anything to the contrary contained herein, Landlord and Tenant
hereby agree that Landlord shall have a duty to reasonably mitigate or attempt
to offset any damages which are or may be suffered by Landlord as a result of
any default of Tenant under this Lease in accordance with and to the extent
required by Texas law. Any payment by Tenant of a sum of money less than the
entire amount due Landlord at the time of such payment shall be applied to the
obligations that are then furthest in arrears. No endorsement or statement on
any check or accompanying any payment shall be deemed an accord and satisfaction
and any payment accepted by Landlord shall be without prejudice to Landlord's
right to obtain the balance due or pursue any other remedy available to Landlord
both in law and in equity.
(g) Upon occurrence of an uncured Event of Default, Tenant's rights to
sublease or assign under Section 19.01 of this Lease shall immediately
terminate.
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(h) Notwithstanding anything contained herein to the contrary, upon the
occurrence of an Event of Default, Landlord shall not have the right to
dispossess Tenant from the Project without judicial process and Landlord shall
specifically have no right of commercial lock-out without the benefit of
judicial review.
SECTION 21.03 LANDLORD'S DEFAULT.
(a) (i) If prior to Substantial Completion, and as an
alternative to recourse under the Completion Guaranty, Landlord
defaults in the performance or observance of any provision of this
Lease or the Covenants (including, but not limited to, the failure to
deliver to Tenant an executed original of the Completion Guaranty),
Tenant may, at its option, give Landlord and Lender written notice
specifying in what manner Landlord has defaulted, provided that
Tenant's failure, if any, to give such notice shall not be deemed to be
a waiver by Tenant of such default. If such default shall not have been
cured by Landlord or its Lender within thirty (30) days after the
receipt of such notice (except that if such default cannot be cured
within said thirty (30) day period, this period shall be extended for a
reasonable additional time provided that Landlord or its Lender
commences to cure such default within the thirty (30) day period and
diligently proceeds to effect such cure), Tenant may cure such default
and Landlord shall reimburse Tenant within twenty (20) days after
receipt of a certified invoice from Tenant accompanied by applicable
bills for any reasonable amount paid and any reasonable expense or
contractual liability incurred with interest at the Specified Rate
accruing from the date of payment by Tenant to the date of
reimbursement by Landlord; provided, however, Tenant hereby expressly
waives any right to claim or collect consequential or punitive damages
therefor and waives all other remedies except for those specifically
made available in this Section 21.03 to Tenant for the respective
default by Landlord. If Landlord fails to reimburse Tenant within the
time period specified herein, Tenant may offset the amounts required to
be reimbursed against the next following payments of Base Rent and/or
Additional Rent, plus interest at the Specified Rate accrued to the
date of offset, against subsequent payments of Base Rent and/or
Additional Rent until such amounts have been reimbursed in full;
provided, however, such offset shall be limited to 25% of the Base Rent
and/or Additional Rent due and payable each month throughout the then
existing Term of this Lease, but in the event such percentage
limitation will not enable Tenant to be fully reimbursed prior to the
expiration of the then existing Term of this Lease, then the amount
required to be reimbursed shall be divided by the number of months
remaining in the then existing Term of this Lease, and the quotient
thereof, plus accrued interest at the Specified Rate shall be offset
against the monthly payments of Base Rent and/or Additional Rent over
the remainder of the then existing Term of this Lease.
(ii) The foregoing provisions to the contrary notwithstanding,
in the event that subsequent to Substantial Completion, Landlord
defaults in the performance or observance of any provision of this
lease, beyond any applicable cure period, tenant may cure such default
and Landlord shall reimburse Tenant within thirty (30) days after
receipt of a certified invoice from Tenant accompanied by applicable
bills for any reasonable amount paid and any reasonable expense or
contractual liability incurred, with interest at the Specified Rate
accruing from the date of payment by Tenant to the date of
reimbursement by Landlord and if Landlord fails to reimburse
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Tenant within such time period, Tenant may offset the amounts required
to be reimbursed, plus interest at the Specified Rate accrued to the
date of offset, against subsequent payments of Base Rent and/or
Additional Rent until such amounts have been reimbursed in full;
provided, however, such offset shall be limited to 25% of the Base Rent
and/or Additional Rent due and payable each month throughout the then
existing Term of this Lease, but in the event such percentage
limitation will not enable Tenant to be fully reimbursed prior to the
expiration of the then existing Term of this Lease as of the date the
reimbursement is due and payable, then the amount required to be
reimbursed shall be divided by the number of months remaining in the
then existing Term of this Lease, and the quotient thereof, plus
accrued interest at the Specified Rate shall be offset against the
monthly payments of Base Rent and/or Additional Rent over the remainder
of the then existing Term of this Lease. In the event that Tenant
determines, in the exercise of its good faith reasonable judgment, that
the remedy of self help and offset is either unavailable or inadequate,
then Tenant may institute a proceeding for specific performance against
Landlord and/or for a declaratory judgment with the appropriate legal
or equitable remedies, and in the event that Tenant determines, again
in the exercise of its good faith reasonable judgment, that the remedy
of specific performance and/or declaratory judgment is either
unavailable or inadequate, Tenant may plead in the alternative for
actual damages (and Tenant hereby expressly waives any right to claim
or collect consequential or punitive damages), which damages shall be
limited to the lesser of Landlord's equity in the Project or the sum of
$5,000,000.00.
(b) Except as otherwise provided in Section 21.03(c) and (d), and in
addition to recourse under the Completion Guaranty, in the event of Landlord's
failure to achieve Substantial Completion by the date set forth in the
Development Schedule, as may be extended by Force Majeure and Tenant Delays,
Landlord shall be obligated, as liquidated damages and Tenant's sole and
exclusive remedy for such delay, to pay to Tenant the sum of Eight Thousand and
No/100 Dollars ($8,000.00) for each day that the Landlord fails to achieve
Substantial Completion, until the date Landlord achieves Substantial Completion.
At Landlord's election, such liquidated damage sum may be paid to Tenant in the
form of a rental credit upon the commencement of payment of Base Rent. The
parties acknowledge and agree that the damages that the Tenant will incur in
such event are difficult to determine or ascertain with certainty as of the time
of the signing of this Lease and that the amount of liquidated damages provided
for herein is not intended as a penalty but, instead, represents their best
reasonable estimate, based on the information available to them, of the damages
that would be incurred and which shall be payable by Landlord in that event to
compensate Tenant as damages resulting from such event.
(c) In lieu of the remedies set forth in Section 21.03(a)(i) and (b), as
an alternative to recourse under the Completion Guaranty, in the event that the
Landlord fails to complete the following elements of the Project in accordance
with the dates set forth below, subject to Force Majeure and Tenant Delays, the
Tenant may, at Tenant's sole discretion and upon thirty (30) days prior written
notice to Landlord and as its sole and exclusive remedy (except as provided in
subsection (v) below), terminate this Lease in which event neither Tenant nor
Landlord shall have any further obligation hereunder, one to the other:
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(i) Landlord fails to deliver to Tenant an executed original
of the Completion Guaranty within fifteen (15) days of the date of this
Lease;
(ii) Landlord's failure to acquire title to the Phase I
Property (subject only to the Permitted Exceptions and such other
exceptions permitted by Section 1.01(b)) on or before the date which is
ninety (90) days following the date set forth for such event in the
Development Schedule;
(iii) Landlord fails to commence the site work for the Project
on or before the date which is one hundred fifty (150) days following
the date set forth for such event in the Development Schedule;
(iv) Landlord fails to complete the "dry-in" of the Building
on or before the date which is one hundred fifty (150) days following
the date set forth for such event in the Development Schedule; or
(v) Landlord fails to achieve Substantial Completion within
one hundred fifty (150) days following the date set forth for such
event in the Development Schedule, in which event Tenant shall also be
entitled to exercise the remedy in Section 21.03(d) below.
(d) In the event that the Landlord fails to achieve Substantial
Completion within one hundred fifty (150) days following the date set forth for
such event in the Development Schedule, subject to Force Majeure and Tenant
Delays, provided the Lease has then been terminated pursuant to subsection (c)
above, Landlord shall pay to Tenant as liquidated damages the amount of Five
Hundred Thousand and No/100 Dollars ($500,000.00) to compensate Tenant for
damages it will incur due to Landlord's failure to timely complete the Project.
The parties acknowledge and agree that the damages that the Tenant will incur in
such event are difficult to determine or ascertain with certainty as of the time
of the signing of this Lease and that the amount of liquidated damages provided
for herein is not intended as a penalty but, instead, represents their best
reasonable estimate, based on the information available to them, of the damages
that would be incurred and which shall be payable by Landlord in that event to
compensate Tenant as damages resulting from such event.
SECTION 21.04 WAIVER. The waiver by either party of any default of the
failure to insist upon strict compliance with any provision hereof, shall not be
deemed to be a waiver of any subsequent default under the same, or under any
other term, covenant or condition of this Lease. The subsequent acceptance of
any rent by Landlord shall not be deemed to be a waiver of any preceding default
by Tenant under any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding default at the time of acceptance of such
Rent.
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ARTICLE 22 - NOTICES
Any notice required to be delivered hereunder must be in writing and
shall be deemed to be delivered when actually received or on the date attempted
to deliver and refused, after (i) being sent by a recognized, bonded, national,
overnight courier service; (ii) deposited in the United States mail, postage
prepaid, certified mail, return receipt requested; or (iii) sent by telecopy
("FAX") during normal business hours in which case it shall be deemed delivered
on the day sent, provided an original is received by the addressee after being
sent by a nationally recognized overnight courier within one (1) business day of
the Fax, addressed to Landlord or Tenant at their addresses specified hereunder,
respectively, or at such other address as specified by written notice by either
party.
If to Landlord: KCD-TX I INVESTMENT LIMITED PARTNERSHIP
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxx Xxxxxxx
w/a copy to: Kane, Russell, Xxxxxxx & Xxxxx, P.C.
3700 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx
If to Tenant:
(before Term Commencement Date)
Lacerte Software Corporation
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx, General Counsel
(and, after the Term Commencement Date to the attention of the General
Counsel at the Project address)
with a copy to: Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxxx, General Counsel
w/a copy to: Xxxxxxx & Xxxxx, P.L.L.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
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ARTICLE 23 - BROKER'S COMMISSIONS
SECTION 23.01 BROKER'S COMMISSION. Each party hereto represents that it
has not dealt with any real estate broker or agent in connection with the
negotiation of this Lease or the leasing of the Building except for The Staubach
Company (the "BROKER"), who shall be compensated by Landlord for the
transactions contemplated by this Lease (including, but not limited to, any
renewals hereof and/or any Project Expansions) pursuant to a written Commission
Agreement, a copy of which is attached hereto as Exhibit "G," and that no
commissions are due any party other than Broker in connection with the
transactions contemplated by this Lease. Each party shall hold the other
harmless from all damages resulting from any claims that may be asserted against
the other party by any broker, finder, or other person or entity with whom the
other party has dealt (other than Broker).
ARTICLE 24 - ENVIRONMENTAL MATTERS
SECTION 24.01 HAZARDOUS SUBSTANCES CONTAMINATION.
(a) For purposes of this Lease:
(i) "CONTAMINATION" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances (as
hereinafter defined) into any environmental media from, upon, within,
below, into or on any portion of the Project or the Building, so as to
require remediation, cleanup or investigation under any applicable
Environmental Law (as hereinafter defined).
(ii) "ENVIRONMENTAL LAWS" as used herein means all federal,
state, and local laws, regulations, orders, permits, ordinances or
other requirements, concerning protection of human health, safety and
the environment, all as may be amended from time to time.
(iii) "HAZARDOUS SUBSTANCES" as used herein means any
hazardous or toxic substance, material, chemical, pollutant,
contaminant or waste as those terms are defined by any applicable
Environmental Laws [including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601
et seq. ("CERCLA") and the Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq. ("RCRA")] and any solid wastes, polychlorinated
biphenyls, urea formaldehyde, asbestos, radioactive materials, radon,
explosives, petroleum products and oil.
(b) Landlord represents and covenants that Landlord has not treated,
stored or disposed of any Hazardous Substances upon or within the Project, nor
shall Hazardous Substances be used in connection with the construction of the
Building (except as normally utilized in construction of similar projects), nor,
to Landlord's current, actual knowledge, has any predecessor owner of the
Project stored, treated or disposed of Hazardous Substances upon or within the
Project. Landlord's
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investigation and knowledge with respect to the environmental condition of the
Real Property shall be limited to the content of that certain Phase I
Environmental Report No. 94007041 A dated January 27, 2000 and prepared by HBC
Engineering, Inc.
(c) Tenant represents and covenants that all its activities on the
Project and the Building, during the course of this Lease will be conducted in
compliance with Environmental Laws. Tenant warrants to the best of Tenant's
actual knowledge that it is currently in compliance with all applicable
Environmental Laws and that there are no pending or threatened notices of
deficiency, notices of violation, orders, or judicial or administrative actions
involving alleged violations by Tenant of any Environmental Laws. Tenant, at
Tenant's sole cost and expense, shall be responsible for obtaining all permits
or licenses or approvals under Environmental Laws necessary for Tenant's
operation of its business on the Project and shall make all notifications and
registrations required by any applicable Environmental Laws. Tenant, at Tenant's
sole cost and expense, shall at all times comply with the terms and conditions
of all such permits, licenses, approvals, notifications and registrations and
with any other applicable Environmental Laws. Tenant covenants that it will
obtain all such permits, licenses or approvals and make all such notifications
and registrations required by any applicable Environmental Laws necessary for
Tenant's operation of its business on the Project. Tenant shall not, however, be
required to obtain any permits, licenses, approvals, notifications or
registrations related to the construction of the Building.
(d) Tenant shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Project or the Building, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld; provided, however, that the consent of Landlord shall not be required
for the use at the Project of cleaning supplies, toner for photocopying machines
and other similar materials, as well as other substances typically used in
Tenant's business that might otherwise be considered Hazardous Substances, in
containers and quantities reasonably necessary for and consistent with normal
and ordinary use by Tenant, at the Project, in the routine operation of Tenant's
business or maintenance of Tenant's office or in the routine janitorial service,
cleaning and maintenance for the Project. For purposes of this Section 24.01,
Landlord shall be deemed to have reasonably withheld consent if Landlord
determines that the presence of such Hazardous Substance within the Project
could result in a risk of harm to person or property or otherwise negatively
affect the value or marketability of the Building or the Project.
(e) Tenant shall not cause or permit the release of any Hazardous
Substances by Tenant or its agents, contractors, employees or invitees into any
environmental media such as air, water or land, or into or on the Project or the
Building in any manner that violates any Environmental Laws. If such release
shall occur, Tenant shall (i) take all steps reasonably necessary to contain and
control such release and any associated Contamination, (ii) clean up or
otherwise remedy such release and any associated Contamination to the extent
required by, and take any and all other actions required under, applicable
Environmental Laws and (iii) notify and keep Landlord reasonably informed in
writing of such release and response.
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(f) Regardless of any consents granted by Landlord pursuant to Section
24.01 (d) allowing Hazardous Substances upon the Project, Tenant shall under no
circumstances whatsoever (i) cause or permit any activity on the Project which
would cause the Project to become subject to regulation as a hazardous waste
treatment, storage or disposal facility under RCRA or the regulations
promulgated thereunder; (ii) discharge Hazardous Substances into the storm sewer
system serving the Project; or (iii) install any underground storage tank or
underground piping under the Project.
(g) Tenant shall and hereby does indemnify, defend and hold Landlord
harmless from and against any and all expense, loss and liability suffered by
Landlord (with the exception of those expenses, losses, and liabilities arising
from Landlord's own negligence or willful act), by reason of Tenant's improper
storage, generation, handling, treatment, transportation, disposal, or
arrangement for transportation or disposal, of any Hazardous Substances caused
or permitted by Tenant to be brought upon the Project (whether accidental,
intentional, or negligent) or by reason of Tenant's breach of any of the
provisions of this Section 24.01. Such expenses, losses and liabilities shall
include, without limitation, (i) any and all expenses that Landlord may incur to
comply with any Environmental Laws as a result of Tenant's failure to comply
therewith; (ii) any and all costs that Landlord may incur in studying or
remedying any Contamination at or arising from the Project or the Building;
(iii) any and all costs that Landlord may incur in studying, removing, disposing
or otherwise addressing any Hazardous Substances; (iv) any and all fines,
penalties or other sanctions assessed upon Landlord by reason of Tenant's
failure to comply with Environmental Laws; and (v) any and all legal and
professional fees and costs incurred by Landlord in connection with the
foregoing. The indemnity contained herein shall survive the termination or
expiration of this Lease.
(h) Landlord shall have the right, but not the obligation, upon
twenty-four (24) hours prior written notice and during normal business hours,
except for emergencies, to enter the Project accompanied by Tenant's
representative throughout the Term to audit and inspect the Project for Tenant's
compliance with this Section 24.01.
(i) Landlord shall and hereby does indemnify, defend and hold Tenant
harmless from and against any and all expenses, loss and liability suffered by
Tenant (with the exception of those expenses, losses and liabilities arising
from Tenant's own negligence or willful act or the negligence or willful act of
Tenant's officers, contractors, licensees, agents, servants, guests, invitees or
visitors) by reason of the presence of any Hazardous Substances in the Building
or on or under the Project at any time prior to the Term Commencement Date, or
placed or caused to be placed by Landlord, its agents or employees in, on or
under the Project thereafter.
ARTICLE 25 - PROJECT EXPANSIONS
SECTION 25.01 EXPANSION NOTICE. The Tenant shall have the right to cause
the development of one or more Project Expansions by satisfying the provisions
of this Article 25. Likewise, the Tenant reserves the right to cause Landlord to
acquire one or more portions of the Future Development Property and to construct
Project Expansions in the event that the Tenant provides written notices (an
"EXPANSION NOTICE") TO THE Landlord on or before September 30, 2005 (or such
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earlier date which is two hundred seventy (270) days prior to the outside option
closing date set forth in the Acquisition Contract), which notices shall contain
substantially the same specificity of detail for the Project Expansion as is
described for Phase I of the Project in the Base Building Outline Specifications
attached hereto as Exhibit "C" (including, but not limited to, any surface
parking or parking structures required by Tenant), modified to reflect the
features and square footage of the Project Expansion. An Expansion Notice shall
also contain a proposed development timeline (the "EXPANSION DEVELOPMENT
TIMELINE") requested by Tenant in connection with the development of the Project
Expansion, which Expansion Development Timeline shall consist of dates for the
development of plans and specifications, acquisition of the portion of the Real
Property applicable to the Project Expansion, commencement of the construction
of the Project Expansion and the date for Substantial Completion of the Project
Expansion. In addition, the Expansion Notice shall identify with specificity the
portion of the Real Property upon which the Project Expansion shall be
developed, subject to the provisions of the Acquisition Contract. Subject to the
provisions of this Article 25, Landlord shall acquire the portion of the Future
Development Property outlined in the Expansion Notice on or before the date set
forth in the Expansion Development Schedule (as approved by Landlord and Tenant
as provided in Section 25.02) for the acquisition of the Future Development
Property and in accordance with the terms of the Acquisition Contract.
SECTION 25.02 SPECIFICATION NOTICE. Within sixty (60) days following
receipt of an Expansion Notice, Landlord shall submit to Tenant a notice (the
"SPECIFICATION NOTICE"), which notice shall contain preliminary conceptual plans
and specifications for the Project Expansion (the "Outline Specifications"), as
well as (i) Landlord's best good faith estimate of total costs (hard and soft)
of constructing the Project Expansion, (ii) the projected Base Rent, based on
the prevailing interest rates at the date of the Specification Notice, and (iii)
a development schedule consisting of dates for the development of plans and
specifications, acquisition of the portion of the Real Property applicable to
the Project Expansion, commencement of the construction of the Project Expansion
and the date for Substantial Completion of the Project Expansion (the "EXPANSION
DEVELOPMENT SCHEDULE"), all of which shall be mutually reviewed and approved by
Landlord and Tenant within thirty (30) days following receipt of the
Specification Notice. During such thirty (30) days, Landlord and Tenant agree to
act reasonably and in good faith to reconcile any differences between the
Expansion Notice and the Specification Notice in order to avoid any delay in the
commencement of the Project Expansion.
SECTION 25.03 GOVERNING PROVISIONS. In the event that the Tenant timely
exercises its rights to cause the development of a Project Expansion, the
following provisions shall control the development thereof:
(a) Tenant acknowledges that each Project Expansion must satisfy the
provisions of the Acquisition Contract with respect to the notices required to
be given and timing of any closings to occur thereunder and the configuration of
the portion of the Future Development Property to be acquired by Landlord in
connection with the Project Expansion described in the Expansion Notice.
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The Landlord shall not be bound to develop the Project Expansion described in
the Expansion Notice unless the provisions of such Expansion Notice expressly
satisfy the terms, provisions and conditions of the Acquisition Contract related
thereto.
(b) The building and other improvements to be constructed pursuant to
each Project Expansion shall be of a design, nature and type substantially
similar to the Building, unless at the request of Tenant, Landlord, in its sole,
reasonable discretion, shall agree to construct a Project Expansion of a
different design, nature and type. Notwithstanding anything herein to the
contrary, the Tenant Improvements may be of a different design, nature and type
but if the cost of such Tenant Improvements exceeds $30.00 per square foot,
Tenant shall pay such excess cost.
(c) Base Rent for each Project Expansion calculated as provided herein
below, shall commence upon the date that each Project Expansion is Substantially
Completed, subject only to "punch list" items and other items of incomplete work
that do not materially adversely interfere with the use and occupancy of the
Project Expansion (as certified to Landlord and Tenant by the Architect) and
delivered to Tenant for Tenant's occupancy (the "PROJECT EXPANSION COMMENCEMENT
DATE"). Each Project Expansion Base Rent shall be included in the definition of
"Base Rent" for purposes of this Lease, and shall be payable concurrently with
payments of Base Rent hereunder as set forth in Section 5.01 of this Lease. Upon
the acquisition of any portion of the Future Development Property, each Project
Expansion shall be deemed to be a part of the Project hereunder, and, upon the
Project Expansion Commencement Date, in addition to Base Rent, Tenant shall pay
all Additional Rent for each Project Expansion as set forth in the Lease.
(d) Annual Base Rent for each Project Expansion shall be equal to the
amount obtained by multiplying (i) one hundred percent (100%) of the costs
(including both so-called "hard costs" and "soft costs" and land acquisition
costs) incurred by Landlord to construct the Project Expansion (which costs
shall be subject to Tenant's reasonable right of audit and review) by (ii) an
interest rate equal to four hundred (400) basis points in excess of the interest
rate payable for the most recently issued 10-year treasury obligations of the
United States government as of each Project Expansion Commencement Date (as
reported in The Wall Street Journal or its successor publication). Base Rent for
each Project Expansion shall increase over the Term in an amount corresponding
to the percentage increase of Base Rent for the Project Expansion for each Lease
Period, as described in Section 5.01 and in the expansion phases of Exhibit "H,"
or for each Renewal Term, as described in Section 4.02 and the expansion phases
of Exhibit "H."
(e) This Lease shall be modified such that the Term of the Lease for the
Project (including each prior Project Expansion, if any) shall expire ten (10)
years from the last of any Project Expansion Commencement Dates.
(f) Anything in this Article 25 to the contrary notwithstanding,
Landlord shall be obligated to construct any Project Expansion and lease the
Project Expansion to Tenant only if the following conditions shall be satisfied:
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(i) No uncured Event of Default shall exist:
(ii) This Lease shall not have been terminated and shall be in
full force and effect; and
(iii) Either (1) Guarantor consents to such Project Expansion
and agrees that the Guarantor shall guarantee the obligations of the
Tenant with respect to the Project Expansion, or (2) Lacerte (if
Lacerte is not then the Tenant under this Lease) or Tenant shall have a
tangible net worth calculated in accordance with generally accepted
accounting principles at the time of delivery of such Expansion Notice
equal to or greater than One Hundred Million and No/100 Dollars U.S.
($100,000,000.00 U.S.), and Tenant agrees that the Base Rent payable
with respect to such Project Expansion shall equal the calculation
provided for Base Rent in Section 25.03(d), except that the reference
therein to four hundred (400) basis points shall become five hundred
fifty (550) basis points. Failure of Guarantor to consent to any
Project Expansion shall not relieve Guarantor of any other liability
under the Intuit Guaranty.
(g) Except as provided otherwise in this Article 25, each and every
right, duty, obligation, agreement and remedy of the Landlord and of the Tenant
respectively, under this Lease Agreement with respect to the development and
construction of Phase I of the Project shall be equally applicable and binding
on the respective parties with respect to the development and construction of
each Project Expansion, it being understood that the Base Building Outline
Specifications and Site Plans for the Project Expansion and the Expansion
Development Schedule for each Project Expansion shall be attached hereto as
additional and consecutively lettered exhibits and dated and signed by the
Landlord and Tenant promptly after approval thereof by Landlord and Tenant. Each
such set of exhibits shall further identify each Project Expansion numerically
in the order in which they occurred. In addition, all the terms, provisions and
conditions of this Lease shall govern the rights and liabilities of Landlord and
of Tenant with respect to any Project Expansion, including, but not limited to,
the provisions relating to the commencement and payment of Base Rent and
Additional Rent, the providing of the Improvement Allowance at Thirty and No/100
Dollars ($30.00) per square foot of Rentable Area of the Project Expansion as
provided in Section 3.02 hereof, Landlord and Tenant repair and replacement
obligations, remedies upon an Event of Default and payments owed to Brokers.
When the portion of the Future Development Property for each Project Expansion
is acquired in accordance with terms hereof, then such Project Expansion shall
be deemed to be part of the Project for purposes of this Lease.
(h) In the event that Landlord has sold the Project and it is no longer
the Landlord hereunder, the Tenant may cause a Project Expansion to be developed
by the successor landlord (the "SUCCESSOR LANDLORD"). If the Successor Landlord
elects not to be the developer of the Project Expansion, the Successor Landlord
shall identify in the Specification Notice the proposed developer for the
Project Expansion, the use of which proposed developer shall be subject to the
Tenant's
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reasonable prior right of approval, which reasonable approval shall not be
unreasonably withheld. Each and every obligation of the Landlord with respect to
the development and construction of a Project Expansion shall be applicable to
and binding upon the Successor Landlord.
(i) Any reference in any part of this Article 25 to specific sections
or terms of this Lease Agreement is not intended to imply or infer that the
other sections or terms of this Lease Agreement are inapplicable to any Project
Expansion, it being agreed instead that all sections and terms of this Lease
Agreement shall apply equally to any Project Expansion, except as modified in
this Article 25. Landlord and Tenant agree that the terms of Section 2.05
regarding the guarantee of the construction obligations by Xxxx, the terms of
Section 3.04 regarding "Supplemental Allowance" and the terms of Section 4.03
regarding "Refurbishment Allowance" shall not apply to any Project Expansion.
Landlord and Tenant further agree that the following defined terms in the Lease
Agreement shall have the following meanings in the context of an Article 25
Project Expansion for which an Expansion Notice has been given by Tenant:
(i) The term "Phase I" shall, whenever the context so requires
to give meaning to the term as it relates to a Project Expansion, mean
the Project Expansion;
(ii) The term "Architect" shall mean the architect retained by
the Landlord or Successor Landlord for the Base Building Work for the
Project Expansion to perform the Architect's duties as identified in
the Lease, and the term "TI Architect" shall mean the architect
retained by Tenant for the Tenant Improvements for the Project
Expansion to perform the TI Architect's duties as identified in the
Lease;
(iii) The term "Development Schedule" shall mean the Expansion
Development Schedule provided for in Section 25.02 hereof for the
development and construction of the Project Expansion;
(iv) The term "Building" shall mean the structure and related
improvements being constructed by the Landlord or Successor Landlord
for the Project Expansion;
(v) The term "Parking" shall mean the number and types of
parking spaces to be provided for the Project Expansion, to be
configured and of the type and amount to accommodate the capacity of
the Project Expansion and to comply with all Laws;
(vi) The term "Base Building Outline Specifications" shall
mean the Outline Specifications for the Project Expansion;
(vii) The terms "Base Building Final Plans and Specifications"
and "Tenant Improvements Final Plans and Specifications" shall mean the
final plans and specifications developed by Landlord and Tenant
pursuant to the terms of Sections 2.02 and 2.03 for the Project
Expansion;
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(viii) The term "Contractor" shall mean the contractor
proposed and/or used by Landlord or Successor Landlord for the
construction of the Base Building Work for the Project Expansion, and
the term "TI Contractor" shall mean the contractor proposed and/or used
by Tenant for construction of the Tenant Improvements for the Project
Expansion;
(ix) The term "Base Building Work" shall mean the scope of the
work and responsibilities of the Landlord or Successor Landlord,
together with the applicable standards for quality and workmanship as
expressed in Section 2.02 of the Lease, for the construction of the
Project Expansion;
(x) The term "Tenant Improvements" shall mean all improvements
not part of the Base Building Work for the Project Expansion.
(j) For purposes of a Project Expansion, Section 21.03(a)(i), (b), (c),
and (d) shall be inapplicable and the following provisions shall apply:
(i) In the event that the Landlord or Successor Landlord fails
to complete the following elements of any Project Expansion in
accordance with the dates set forth below, subject to Force Majeure and
Tenant Delays, (aa) the Tenant may at Tenant's sole discretion and upon
thirty (30) days' prior written notice to Landlord either terminate
this Lease as to the Project Expansion only, in which event neither
Tenant nor Landlord shall have any further obligation hereunder as to
the Project Expansion only, one to the other, or (bb) the Tenant may
seek the remedies provided in Section 21.03(a)(ii) (notwithstanding
that such remedies as to Phase I are applicable only after Substantial
Completion);
(1) Landlord or Successor Landlord fails to acquire
title to the Future Development Property (subject only to the
Permitted Exceptions and such other exceptions permitted by
Section 1.01(b)) on or before the date which is ninety (90)
days following the date set forth for such event in the
Expansion Development Schedule;
(2) Landlord or Successor Landlord fails to commence
the site work for the Project Expansion on or before the date
which is one hundred fifty (150) days following the date set
forth for such event in the Expansion Development Schedule;
(3) Landlord or Successor Landlord fails to complete
the "dry-in" of the Project Expansion improvements on or
before the date which is one hundred fifty (150) days
following the date set forth for such event in the Expansion
Development Schedule; or
(4) Landlord or Successor Landlord fails to achieve
Substantial Completion within one hundred fifty (150) days
following the date set forth for such event in the Expansion
Development Schedule.
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(ii) As an alternative remedy to subsection (j)(i) above, in
the event of Landlord's or Successor Landlord's failure to achieve
Substantial Completion by the date set forth in the Expansion
Development Schedule, as that date may be extended by Force Majeure and
Tenant Delays, Landlord shall be obligated, as liquidated damages for
such delay, to pay to Tenant the sum of Eight Thousand and No/100
Dollars ($8,000.00) for each day that the Landlord fails to achieve
Substantial Completion, until the date Landlord achieves Substantial
Completion. At Landlord's election, such liquidated damage sum may be
paid to Tenant in the form of a rental credit upon the commencement of
payment of Base Rent for the Project Expansion. The parties acknowledge
and agree that the damages that the Tenant will incur in such event are
difficult to determine or ascertain with certainty as of the time of
the signing of this Lease and that the amount of liquidated damages
provided for herein is not intended as a penalty but, instead,
represents their best reasonable estimate, based on the information
available to them, of the damages that would be incurred and which
shall be payable by Landlord in that event to compensate Tenant as
damages resulting from such event.
(iii) As an additional remedy in the event of a termination
under subsection (j)(i)(aa) above, in the event that the Landlord or
Successor. Landlord fails to achieve Substantial Completion within one
hundred fifty (150) days following the date set forth for such event in
the Expansion Development Schedule, subject to Force Majeure and Tenant
Delays, in the event Tenant has exercised its right to terminate the
Lease as to Project Expansion only as described in subsection (j)(i)
(aa) above, Landlord shall pay Tenant as liquidated damages the amount
of Five Hundred Thousand and No/100 Dollars ($500,000.00) to compensate
Tenant for damages it will incur due to Landlord's or Successor
Landlord's failure to timely complete the Project Expansion. The
parties acknowledge and agree that the damages that the Tenant will
incur in such event are difficult to determine or ascertain with
certainty as of the time of the signing of this Lease and that the
amount of liquidated damages provided for herein is not intended as a
penalty but, instead, represents their best reasonable estimate, based
on the information available to them, of the damages that would be
incurred and which shall be payable by Landlord in that event to
compensate Tenant as damages resulting from such event.
(iv) In the event there are recorded against the Future
Development Property any easements or exceptions which arise or exist
as a result of the acts, omissions or participation, directly or
indirectly, of Landlord (other than the Permitted Exceptions and other
than those easements and exceptions which are necessary in connection
with the development of the Project, provided such additional easements
and exceptions do not impair Tenant's use of the Project, in which
event the remedies provided in this subsection (iv) shall not apply),
(1) the Tenant may, prior to the commencement of construction of the
Project Expansion and upon thirty (30) days prior written notice to
Landlord either terminate this Lease as to the Project Expansion only,
in which event neither Tenant nor Landlord shall
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have any further obligation hereunder as to the Project Expansion only,
one to the other, or (2) the Tenant may seek the remedies provided in
Section 21.03(a)(ii) (notwithstanding that such remedies as to Phase I
are applicable only after Substantial Completion).
(v) In the event there are recorded against the Future
Development Property any easements or exceptions which do not arise or
exist as a result of the acts, omissions or participation, directly or
indirectly, of Landlord (other than the Permitted Exceptions and other
than those easements and exceptions which are necessary in connection
with the development of the Project, provided such additional easements
and exceptions do not impair Tenant's use of the Project, in which
event the remedies provided in this subsection (v) shall not apply),
(1) the Tenant may, prior to the commencement of construction of the
Project Expansion and upon thirty (30) days prior written notice to
Landlord either terminate this Lease as to the Project Expansion only,
in which event neither Tenant nor Landlord shall have any further
obligation hereunder as to the Project Expansion only, one to the
other, and/or (2) Tenant may request Landlord to, and Landlord shall,
use commercially reasonable efforts to remove such easements or
exceptions, and/or (3) Tenant may request Landlord to, and Landlord
shall, assign to Tenant those contractual rights and claims held by
Landlord pertaining to such easements or exceptions, and Tenant may
contest the same at its sole cost and expense.
ARTICLE 26 - MISCELLANEOUS
SECTION 26.01 MISCELLANEOUS TERMS.
(a) The parties hereto hereby covenant and agree that Landlord shall
receive the Base Rent and all other sums payable by Tenant hereinabove provided
as net income from the Project, without any abatement, reduction, set-off,
counterclaim, defense or deduction whatsoever, except as expressly permitted in
this Lease.
(b) If any clause or provision of this Lease is determined to be
illegal, invalid or unenforceable under present or future laws effective during
the Term, then and in that event, it is the intention of the parties HERETO THAT
the remainder of this Lease shall not be affected thereby, and that in lieu of
such illegal, invalid or unenforceable clause or provision there shall be
substituted a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
(c) All rights, powers, and privileges conferred hereunder upon the
parties hereto shall be cumulative, but not restrictive to those given by law.
(d) Time is of the essence in the performance of each term of this
Lease.
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(e) No failure of Landlord or Tenant to exercise any power given
Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or
Tenant with its obligations hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Landlord's or
Tenant's rights to demand exact compliance with the terms hereof.
(f) No provision of this Lease shall be deemed to have been waived by
either party unless such waiver is in writing and signed by the party making
such waiver.
(g) This Lease contains the entire agreement of the parties hereto and
no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect. The
masculine (or neuter) pronoun, and the singular number shall include the
masculine, feminine and neuter gender and the singular and plural number.
(h) This contract shall create the relationship of Landlord and Tenant
between Landlord and Tenant; no estate shall pass out of Landlord, other than a
leasehold interest.
(i) The captions of this Lease are for convenience only and are not a
part of this Lease, and do not in any way define, limit, describe or amplify the
terms or provisions of this Lease or the scope or intent thereof.
(j) This Lease may be executed in multiple counterparts, each of which
shall constitute an original, but all of which taken together shall constitute
one and the same agreement.
(k) This Lease shall be interpreted under the laws of the State of
Texas, without regard to principles of conflict of laws. Venue for any action
arising hereunder shall lie exclusively in the state and federal courts of
Dallas County, Texas.
(l) The parties acknowledge that this Lease is the result of
negotiations between the parties, and in construing any ambiguity hereunder no
presumption shall be made in favor of either party. No inference shall be made
from any item which has been stricken from this Lease other than the deletion of
such item.
(m) In case it should be necessary for Landlord or Tenant to bring any
action under this Lease, the nonprevailing party agrees to pay reasonable
attorneys' fees, including, without limitation, legal assistant or paralegal
fees, secretarial overtime, special mailing and courier services,
telecopies/faxes, filing fees, and reasonable travel expenses (including,
without limitation, airfare, hotel accommodations, on-the-ground transportation,
meals) incurred by the prevailing party.
(n) No amendments or modifications shall be effective unless such
agreement is in writing and signed by Tenant, Guarantor (or in the event
Guarantor fails to consent to any amendment or modification, the Intuit Guaranty
shall remain in full force and effect, provided that
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such amendment or modification shall not be binding upon Guarantor) and
Landlord, nor shall anv custom, practice or course of dealing between the
parties be construed to waive the right to require specific performance by the
other party in compliance with this Lease.
(o) The preparation and submission of a draft of this Lease by either
party to the other party shall not constitute an offer, nor shall either party
be bound to any terms of this Lease or the entirety of this Lease, until both
parties have fully executed a final document and an original signature document
has been received by both parties. Until such time as described in the previous
sentence, either party is free to terminate negotiations without any obligation
to the other party.
(p) If Tenant shall fail to pay any sum of money required to be paid by
it hereunder following thirty (30) days written notice that such payment is
delinquent, or if Tenant shall fail to perform any other act on its part to be
performed hereunder, which such failure shall continue beyond the applicable
cure periods, then, in addition to an Event of Default, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Notwithstanding
the foregoing, in the event of an emergency, if Tenant shall fail to pay any sum
of money required to be paid by it hereunder or shall fail to perform any other
act on its part to be performed hereunder, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of Tenant, immediately make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the nonpayment of sums due under this subsection as in
the case of default by Tenant in the payment of Base Rent. All sums paid by
Landlord and all penalties, interest and costs in connection therewith, shall be
due and payable by Tenant as Additional Rent within thirty (30) days after such
payment by Landlord, together with interest thereon at the Specified Rate from
such date to the date of payment.
(q) Notwithstanding anything to the contrary herein contained, wherever
the consent or approval of a party hereto is required under this Lease, said
consent or approval shall not be unreasonably withheld, conditioned or delayed.
SECTION 26.02 LANDLORD'S REPRESENTATIONS. Landlord hereby represents
that:
(a) The Project will be constructed in accordance with all applicable
Laws and Covenants.
(b) The owner of the Real Property is not now, nor, upon acquisition
of the Real Property by Landlord, will Landlord be, in default under the
Covenants at the time of said acquisition and throughout the term of the Lease;
all Covenants are and shall be, throughout the term of this Lease, in full force
and effect and all items payable pursuant to the Covenants by the owner of the
Real Property or by Landlord have been paid or will be paid and shall continue
to be paid throughout the term of this Lease prior to delinquency.
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SECTION 26.03 TENANT'S REPRESENTATIONS. Tenant hereby represents that:
(a) Tenant is a Delaware corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware. Tenant has full
power and authority to enter into and carry out the terms of this Lease.
(b) The execution, delivery and performance of this Lease by Tenant do
not conflict with or result in the breach or violation of Tenant's articles of
incorporation, bylaws, or other documents of corporate self-governance; or any
agreement, instrument or other obligation to which Tenant is a party or by which
it is bound.
(c) No consent, license, permit, or approval, or authorization (other
than the corporate authorization obtained by Tenant) is required in connection
with the execution or delivery by Tenant of this Lease.
SECTION 26.04 LANDLORD'S COOPERATION. Landlord shall cooperate with
Tenant, at Tenant's sole cost and expense, in Tenant's seeking to obtain any
performance of the declarant under the Covenants or its seeking to obtain any
approvals. In addition, Tenant shall have the right, if necessary, to take
action in its own name with respect to and for the limited purposes of seeking
to enjoin or contest a proposed or pending declarant action under the Covenants,
or to cure any defaults by Landlord thereunder, but only if such action directly
affects the Project. If any such action by Tenant pursuant to this Section 26.04
shall be barred by reason of lack of privity, non-assignability or otherwise,
Landlord shall permit Tenant to take such action in Landlord's name. In any of
these events, Tenant shall, indemnify and hold Landlord harmless against all
liability, loss, cost (including reasonable attorneys' fees and court costs) or
damage which Landlord, its successors or assigns, may incur or suffer by reason
of such actions or events, and Tenant shall promptly forward copies of all
papers and notices of all proceedings to Landlord.
SECTION 26.05 CONFIDENTIALITY. The parties hereto, including, but not
limited to, their successors, assigns and legal representatives, agree that this
Lease may not be recorded. Landlord and Tenant also agree (i) not to disclose to
the media or to any third party having no legitimate business interest in the
Project the terms of this Lease and (ii) not to deliver copies of this Lease to
any third party having no legitimate business interest in the Project.
SECTION 26.06 MEMORANDUM OF LEASE. Landlord and Tenant agree, at the
other's request and at the sole expense of the requesting party, to execute a
Memorandum of Lease in recordable form setting forth such provisions hereof as
may be desired by Landlord and Tenant. The provisions of this Lease shall
control, however, with regard to any omissions from, or provisions hereof which
may be in conflict with, the Memorandum of Lease. Notwithstanding anything to
the contrary contained herein, no memorandum of lease or other similar document
shall be filed until such time as any Mortgage affecting the Project has been
recorded.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date set forth below.
LANDLORD:
Dated: February 22, 2000. KCD-TX I INVESTMENT LIMITED PARTNERSHIP,
a Texas limited partnership
By: KCD-TX Investments, Inc.
a Texas corporation
By: /s/ XXXXX X. XXXXX
-----------------------------------
Name: XXXXX X. XXXXX
---------------------------------
Title: Executive Vice President
---------------------------------
TENANT:
Dated: February 22, 2000. LACERTE SOFTWARE CORPORATION,
a Delaware corporation
By: /s/ G. XXXXX XXXXXX
-----------------------------------------
Name: G. XXXXX XXXXXX
---------------------------------------
Title: President
--------------------------------------
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65
EXHIBIT "A"
PHASE I PROPERTY
(see attached)
58
66
PHASE I
[SITE LOCATION MAP]
PHASE I PROPERTY
10.7 ACRES
HKS
LACERTE CORPORATE
PLANO, TEXAS
67
Metes and Bounds Description
Lacerte Corporate Campus
Purchase Parcel
Xxxxxx X. Xxxxx Survey, Abstract No. 108
City of Piano, Collie County, Texas
BEING a tract of land situated in the Xxxxxx X. Xxxxx Survey, Abstract No. 108,
in the City of Piano, Collin County, Texas and being a portion of a called
97.216-acre tract of land conveyed to EDS Realty Corporation, as evidenced in a
deed recorded in Volume 1283 at Page 0513 of the Land Records of Collie County,
Texas (L.RC.C.T.) and being more particularly described by metes and bounds as
follows (bearings based on the east line of a called 27.000-acre tract of land
conveyed to Citizens Telecom Services Company, L.L.C., as recorded in Volume
4312 at Page 2230 L.RC.C.T., said bearing being South 00E05'22" East):
BEGINNING at the intersection of the north right of way line of Headquarters
Drive (a 130-foot wide right of way at this point) with the east right of way
line of Parkwood Boulevard (a variable width right of way);
THENCE in a northerly, along the east right of way line of said Parkwood
Boulevard, the following:
North 45E00'27" West, a distance of 21.24 feet to a corner;
North 00E05'22" West, a distance of 52.02 feet to the point of
curvature of a curve to the right;
Along the arc of said curve to the right, through a central angle of
08E08'S5", having a radius of 935.00 feet and an arc length of 132.98
feet to the point of tangency of said curve;
North 08E03'33" East, a distance of 55.98 feet to the point of
curvature of a curve to the right;
Along the arc of said curve to the right, through a central angle of
09E11'31", having a radius of 589.03 feet and an arc length of 94.50
feet to the point of compound curvature of a curve to the right;
Along the arc of said curve to the right, through a central angle of
10E23'31", having a radius of 939.50 feet and an arc length of 170.40
feet to the end of said curve;
THENCE South 89E55'31" East, departing the east right of way line of said
Parkwood Boulevard, a distance of 845.13 feet to a corner;
THENCE South 00E04'29" West, a distance of 509.00 feet to a corner on the north
right of way line of proposed Headquarters Drive (a proposed 121-foot wide right
of way at this point);
68
THENCE in a westerly direction, along the north right of way line of said
Headquarters Drive, the following:
North 89E55'31" West, a distance of 597.11 feet to a corner;
North 88E12'25" West, a distance of 150.07 feet to a corner;
North 89E55'31" West, a distance of 185.00 feet to the POINT OF
BEGINNING and containing 10.72 acres of land, more or less.
69
EXHIBIT "A-1"
FUTURE DEVELOPMENT PROPERTY
(see attached)
70
SCHEME A PHASE I
[SITE LOCATION MAP]
FUTURE DEVELOPMENT PROPERTY
HKS
LACERTE CORPORATE
PLANO, TEXAS
71
having a radius of 939.50 and an arc length of 180.28 feet to the point
of tangency of said curve;
North 38E38'15" East, passing at a distance of 387.25 feet, the
northeast corner of said Parkwood Boulevard, continuing along the
extension of the east right of way line of said Parkwood Boulevard for
a total distance of 731.58 feet, to a corner;
THENCE South 51E21'45" East, departing the projected east right of way line of
said Parkwood Boulevard, a distance of 372.00 feet to a corner,
THENCE South 00E04'29" West, a distance of 491.00 feet to a corner;
THENCE North 89E55'31" West, a distance of 845.13 feet to the POINT OF BEGINNING
and containing 8.808 acres of land, more or less.
72
EXHIBIT "A-2"
ACQUISITION CONTRACT
(to be attached)
73
EXHIBIT "B"
DEVELOPMENT SCHEDULE
(see attached)
74
EXHIBIT "B"
[INTUIT LOGO]
LACERTE SOFTWARE
PROJECT SCHEDULE
1999 2000
--------- ---------------------------------------------------------------------
HD Task Name Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
-- --------------------------------------- --- --- --- --- --- --- --- --- --- --- --- --- --- ---
1 MILESTONE NOTES
2 Kick Off Design *12/1
3 Execute Lease *2/22
4 Close Land & Loan Transaction *4/28
5 Start Construction *5/15
6 Shell "Dry In"
7 Substantial Completion/Lease Term
Commencement
8 LAND
9 Site Evaluation/Due Diligence 12/1--12/31
10 Environmental Phase I Survey 1/18--1/27
11 Geotechnical Investigation 1/28--2/24
12 Plat Site 2/17--------4/17
13 Land Purchase or Transfer 2/22--------4/28
14 DESIGN
15 SHELL BUILDING & SITE
16 Prelim. Site Plans 12/1--12/20
17 Tenant Select Site Plan (Layout
& Height) *1/4
18 Develop Schematic Architectural
Plans 1/5---2/4
19 Tenant Approve Schematic
Architectural Plans *2/8
20 Design Development/Space Planning 2/8---3/8
21 Tenant Approve DD's *3/8
22 Tenant Decisions - Shell
Technical Issues: *3/8
23 Data Center, Phone, Food
24 Service, Ceiling Height,
Sound Levels, Power Poles
25 Construction Documents 3/1---4/15
26 Value Engineering 4/15--5/8
27 Tenant Approve CD's *5/15
28 PARKING STRUCTURE
29 Prelim. Site Plans 12/1--1/1
30 Tenant Approve Prelim. Site Plan *1/1
31 Develop Schematic Architectural
Plans 1/31--2/8
32 Tenant Approve Schematic Design *2/8
2001
---------------------------------------------
HD Task Name Jan Feb Mar Apr May Jun Jul Aug
-- --------------------------------------- --- --- --- --- --- --- --- ---
1 MILESTONE NOTES
2 Kick Off Design
3 Execute Lease
4 Close Land & Loan Transaction
5 Start Construction
6 Shell "Dry In" *2/1
7 Substantial Completion/Lease Term
Commencement *6/1
8 LAND
9 Site Evaluation/Due Diligence
10 Environmental Phase I Survey
11 Geotechnical Investigation
12 Plat Site
13 Land Purchase or Transfer
14 DESIGN
15 SHELL BUILDING & SITE
16 Prelim. Site Plans
17 Tenant Select Site Plan (Layout
& Height)
18 Develop Schematic Architectural
Plans
19 Tenant Approve Schematic
Architectural Plans
20 Design Development/Space Planning
21 Tenant Approve DD's
22 Tenant Decisions - Shell
Technical Issues:
23 Data Center, Phone, Food
24 Service, Ceiling Height,
Sound Levels, Power Poles
25 Construction Documents
26 Value Engineering
27 Tenant Approve CD's
28 PARKING STRUCTURE
29 Prelim. Site Plans
30 Tenant Approve Prelim. Site Plan
31 Develop Schematic Architectural
Plans
32 Tenant Approve Schematic Design
Project: LACERTE Task -------- Critical Task ---------- Milestone *
Date: FRI 2/18/000 [XXXX LOGO]
75
EXHIBIT "B"
[INTUIT LOGO]
LACERTE SOFTWARE
PROJECT SCHEDULE
2000
---------------------------------------------------------------------------------
HD Task Name Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
-- --------------------------------------- --- --- --- --- --- --- --- --- --- --- --- --- --- ---
33 Design Development 2/8---------3/8
34 Tenant Approve DD's *3/8
35 Construction Documents 3/3------------4/15
36 Value Engineering 4/15-------5/8
37 Tenant Approve CD's *5/15
38 INTERIORS
39 Space Programming 12/15-----------------------4/10
40 Tenant Final Sign Off - Space Program *4/10
41 Space Planning 3/8--------------------5/22
42 Tenant Final Sign Off - Space Plans *5/22
43 Design Development - Finishes 4/24---------------6/9
44 Tenant Final Sign Off - DD's *6/9
45 FURNITURE
46 Short List Manufacturers *4/1
47 Evaluation 4/1-----------5/29
48 Review Mock Ups 5/1------5/22
49 Final Decision on Furniture System *5/29
50 Negotiate Furniture Contract *6/2
51 Construction Documents 5/29-----------------------8/14
52 Preliminary Pricing/Value Engineering 8/14--------9/8
53 Revise CD's For Value Engineering 9/8-------------9/29
54 Tenant Final Sign Off - CD's *9/29
55 PRE-CONSTRUCTION
56 SHELL BUILDING & SITE
57 General Contractor Bids 4/17--------5/1
58 Building Permit 4/17--------5/12
59 PARKING STRUCTURE
60 General Contractor Bids 4/17--------5/1
61 Building Permit 4/17--------5/12
62 INTERIORS
63 Building Permit 8/15---------9/11
64 General Contractor Bids 10/4-----------10/18
2001
---------------------------------------------
HD Task Name Jan Feb Mar Apr May Jun Jul Aug
-- --------------------------------------- --- --- --- --- --- --- --- ---
33 Design Development
34 Tenant Approve DD's
35 Construction Documents
36 Value Engineering
37 Tenant Approve CD's
38 INTERIORS
39 Space Programming
40 Tenant Final Sign Off - Space Program
41 Space Planning
42 Tenant Final Sign Off - Space Plans
43 Design Development - Finishes
44 Tenant Final Sign Off - DD's
45 FURNITURE
46 Short List Manufacturers
47 Evaluation
48 Review Mock Ups
49 Final Decision on Furniture System
50 Negotiate Furniture Contract
51 Construction Documents
52 Preliminary Pricing/Value Engineering
53 Revise CD's For Value Engineering
54 Tenant Final Sign Off - CD's
55 XXX-XXXXXXXXXXXX
00 XXXXX XXXXXXXX & SITE
57 General Contractor Bids
58 Building Permit
59 PARKING STRUCTURE
60 General Contractor Bids
61 Building Permit
62 INTERIORS
63 Building Permit
64 General Contractor Bids
Project: LACERTE Task -------- Critical Task ---------- Milestone *
Date: FRI 2/18/000 [XXXX LOGO]
76
EXHIBIT "B"
[INTUIT LOGO]
LACERTE SOFTWARE
PROJECT SCHEDULE
2000
--------------------------------------
HD Task Name Nov Dec Jan Feb Mar Apr
-- ------------------------------------- --- --- --- --- --- ---
65 CONSTRUCTION
66 SITE WORK
67 Clear Site
68 Grade Surface Parking Lot
69 Site Utilities/Irrigation
70 Paving and Hardscape
71 Landscape
72 BUILDING SHELL
73 Mobilize & Layout Controls/
Erosion Control
74 Building Earthwork
75 Foundations
76 Underground MEP Rough In
77 Slab On Grade
78 Fabricate Exterior Walls
79 Erect Walls/Steel Structure
80 Structural Slabs
81 Roof/Windows/Sealants
82 Overhead MEP Rough In
83 Core Interior Construction/Finishes
84 PARKING STRUCTURE
85 Earthwork
86 Foundations
87 Underground MEP Rough In
88 Slab On Grade
89 Structure
90 Lighting/Drain Piping
91 Finishes
92 INTERIORS
93 Tenant Improvements
94 FF&E
2000 2001
-------------------------------- -------------------------------
HD Task Name May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug
-- ------------------------------------- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- ---
65 CONSTRUCTION
66 SITE WORK
67 Clear Site 5/22-5/24
68 Grade Surface Parking Lot 7/24----8/11
69 Site Utilities/Irrigation 8/14----9/15
70 Paving and Hardscape 9/18----------11/10
71 Landscape 1/22-------------4/13
72 BUILDING SHELL
73 Mobilize & Layout Controls/
Erosion Control 5/15--5/19
74 Building Earthwork 5/25----6/23
75 Foundations 6/12----8/4
76 Underground MEP Rough In 6/12----8/4
77 Slab On Grade 7/17-----8/18
78 Fabricate Exterior Walls 7/31-----9/15
79 Erect Walls/Steel Structure 9/13------------11/29
80 Structural Slabs 11/9------12/20
81 Roof/Windows/Sealants 11/23--------1/24
82 Overhead MEP Rough In 11/23-----------2/14
83 Core Interior Construction/Finishes 1/18-----------4/13
84 PARKING STRUCTURE
85 Earthwork 6/26----7/21
86 Foundations 8/7-----9/15
87 Underground MEP Rough In 8/7-----9/15
88 Slab On Grade 8/28----9/29
89 Structure 9/18--------11/17
90 Lighting/Drain Piping 11/20---12/15
91 Finishes 12/18---1/12
92 INTERIORS
93 Tenant Improvements 1/3----------------6/1
94 FF&E 4/2------6/1
Project: LACERTE Task -------- Critical Task ---------- Milestone *
Date: FRI 2/18/000 [XXXX LOGO]
77
EXHIBIT "C"
Base Building Outline Specifications
(see attached)
78
EXHIBIT C
BASE BUILDING OUTLINE SPECIFICATION
FOR
LACERTE SOFTWARE
The following is a general outline of requirements. It is not intended to be
all-inclusive or exhaustive. Lacerte Software will expect the building delivered
to be complete, ready for construction of tenant improvements, in compliance
with all codes and ordinances and generally equal to or better than the standard
for new Class A office buildings in Dallas, Texas.
Summary of the Work:
The project consists of general construction, sitework, mechanical, and
electrical work as required for a two-story corporate office, air-conditioned,
with office wings connected by a central atrium or lobby containing an initial
size of approximately 150,000 square feet. Surface parking ratio of 1/200
(provide an alternate for above-grade structured, cast-in-place concrete garage
in lieu of surface parking). Developer shall prepare an initial site layout on
specific approved sites subject to consultation between Developer and Lacerte
Software. Site amenities and landscaping shall be consistent with similar Class
A office buildings. Exterior skin shall be consistent with accepted norms for
Class A office buildings. e.g. architectural precast or premium concrete
tilt-wall construction. The exterior glass area should not exceed more than
sixty percent (60%) of the total exterior skin surface area. Floor to ceiling
height shall be not less than 10'-0". A three bay dock will provide for 24" and
48" dock high loading and a compactor slip. Building and site shall comply with
all applicable codes and ordinances and with any deed restrictions or covenants
associated with the property. Shell building design shall be coordinated with
all tenant requirements to minimize Tenant Improvement costs by avoiding rework
or retrofit of shell building conditions to accept tenant improvements (e.g.
plumbing and electrical rough-ins, sprinkler heads installed to accommodate
tenant drawings).
Building Design
Lacerte Software will require the opportunity to review and approve the base
building design and aesthetics, and will provide input for, but not necessarily
limited to, core configuration, common area finishes, lease depths and bay
spacing issues.
Sitework
1. Site shall be excavated and subsurface prepared for building and parking in
accordance with geotechnical recommendations prepared by a registered
professional engineer.
2. Parking and building foundation design shall comply with geotechnical
engineer's recommendations.
3. Landscaping and zoned irrigation in accordance with city and business park
requirements and consistent with class A properties, at a minimum.
4. Provide all necessary site utilities (electric, gas, water, telephone, cable
and fiber entrances). Provide separate and redundant copper/fiber service
entrances consisting of 2 sets of 2 each 4" diameter PVC conduits to the
building core.
5. Provide all necessary drainage requirements including water
quality/filtration and retention, if required.
6. Parking lot striping, fire lane marking and all required handicap signage.
7. Provide a minimum of two foot-candles (average maintained) site lighting
utilizing pole-mounted fixtures.
8. Fire hydrants as required by city.
9. Other features, such as water features, courtyards, etc., shall be
consistent with class A properties, and will be considered a plus.
10. All select fill, paving subgrades, concrete paving and concrete foundations
shall be designed by a professional engineer and inspected and tested by an
independent testing laboratory.
79
11. Provide assistance to Tenant in securing dual electrical feed service from
local power provider. Feeds shall be from separate substations. Provide
additional site improvement necessary to accommodate dual feed gear and
switches.
12. All parking and building storm drainage shall be collected in underground
storm drains and routed offsite. Sheet draining not allowed.
13. Provide one lighted, internal halyard, flagpole.
14. Provide off-site turn lanes and median cuts for ample site entry and egress.
Concrete
1. Cast-in-place concrete foundation in accordance with geotechnical report.
2. Composite steel second floor structure (no bar joists) designed to a minimum
50 pound floor live load plus partition loads, except in interior bays,
which shall be upgraded to 100 pound live load in the interior bays for
storage. Composite steel structure has been selected to eliminate vibration
and bouncing and offer clear plenum area.
3. First floor can be either slab-on-grade or structural slab.
4. When tested in accordance with the provisions of ASTM E1155, a minimum of
80% of the test samples shall fall inside a 3/4" envelope. The overall floor
flatness shall comply with Ff = 25, F1, = 20; and minimum local values shall
be Ff, = 17, F1, = 13.
5. If exterior skin is precast concrete, it shall be upgraded through the use
of stone, texture, integral stone chips, colored cement or otherwise as
consistent with a class A building. If the exterior skin is premium
tilt-wall concrete construction it shall employ combinations of heavy
sandblast, textured paint, form liner finishes and generous reveal
fenestration. Natural or artificial stone, precast, or masonry accents
should enhance prominent locations.
6. As an alternate to surface parking, provide a parking structure that shall
be cast-in-place or precast concrete structure with exterior panels
consistent in quality to the office building.
Xxxxx
1. The building shall, at a minimum, provide stone or cast stone accents at
lower level entrances.
2. Provide natural stone finishes in building lobby (its) and lavatory
countertops.
3. Provide interlocking payers, patterned concrete, or other accent materials
on entry plazas, courtyards, etc.
Metals
1. Provide steel stairs, railings, ladders, angles, bracing and access panels
as required.
2. Provide architectural metal stair handrail/guardrail system in the lobby
(ies).
Carpentry
1. Provide treated blocking and other rough carpentry as required.
2. Premium grade architectural millwork as required for security/reception
desk, lobby(ies), toilet rooms, etc.
Thermal and Moisture Protection
1. Appropriate waterproofing in elevator pits, mechanical room and penthouse
floors, and fountains, if applicable.
2. Provide ball and rigid insulation at exterior walls (R-12) and roof (R-20).
3. Provide sound attenuation as required (not to exceed NC-30) for quiet
adjacent occupancies around all mechanical rooms and other sound generating
spaces.
4. Four ply built up bituminous roofing or equivalent with as maximum uplift
rating of I-60. Provide walk-pads for access to maintenance areas.
Doors and Windows
1. Entrance doors and frames consistent in quality and appearance with class A
office properties.
2. Exterior glazing to be 1" Low E glass. No exterior glass should exceed a
seventeen percent (17%) visible reflectance percentage.
2
80
3. Provide one motorized 8' x 10' overhead coiling door, one 25,000# capacity
hydraulic leveler at a lighted and covered dock area.
4. In addition to standard hardware, all exterior door openings shall be
equipped with electrified panic devices, transfer hinges, terminal junction
boxes, frames and doors prepped and conduited to receive Lacerte
Software provided security access control systems connection.
5. Provide two (2) each handicap power assist openings at the lobby and rear
patio entrance.
6. Door hardware shall be mortise type latchsets and locksets.
7. Interior doors shall be premium grade wood veneer solid core doors in hollow
metal frames.
Finishes
1. All interior finishes to be consistent with class A office properties. All
common areas shall receive finishes as part of the shell building
construction (toilet rooms, telecommunications closets, janitor, electrical,
mechanical, ground lobbies, dock, etc.). Finishes include vinyl
wallcoverings, multi-color wall coatings, terrazzo, natural stone, ceramic
tile, paint, rubber base, floor sealer and VCT. All carpet is by Tenant.
Tenant reserves the right to review and approve all interior finishes.
2. Provide at each floor core area or minimally three (3) 1 hr. rated
telecommunications closets per floor level measuring 7' x 10.'
3. Provide 2' x 2' regular ceiling tile and secondary grid stacked on floor in
all tenant areas. Shell construction shall include 4' x 4' primary grid
throughout.
4. All finishes below the ceiling (except in common areas) shall be included in
tenant improvement allowance.
5. All core walls fronting Tenant areas shall be provided to the Tenant,
prepared and ready for final finish.
Specialties
1. Ceiling hung, enamel or better, toilet partitions and all toilet accessories
consistent with class A office properties.
2. Provide wall-mounted, lighted exterior tenant identification sign. Submit
proposed signage location.
3. Provide monument sign for Lacerte Software identification in front of
premises. Submit proposed sign(s) location.
4. Provide adjustable Levelor mini-blinds on all exterior windows in tenant
areas.
5. Provide walk-off mats at each main building entrance vestibule.
6. Provide a location and through conduit to the roof, with appropriate
structural capacity, for Tenant-installed satellite dish.
Conveying Systems
1. Provide geared electric passenger elevators, minimum 3000# capacity, minimum
250 feet per minute, aluminum xxxxx, protective pads, manufacturer's upgrade
ceiling system, custom detailed cab wall and floor finishes consistent in
quality with the building lobby.
2. Provide oversized freight elevator with 10' cab ceiling, nickel sill,
protective pads and minimum 4500# capacity, with ready access to loading
dock.
Mechanical
Plumbing
- Provide toilet rooms with wall-hung fixtures on each floor to exceed the
code minimum fixture count requirements for an occupant load of 1 person
per 225 s.f. and consistent in quality with class A office properties.
- Provide standard and accessible electric water coolers at each restroom
pair.
- Provide mop sink and mop holder in each janitor's closet.
- Provide wet stacks at minimum two locations per floor per pod (if
applicable) for tenant's coffee bars.
Mechanical
- Heating, ventilating and air conditioning systems shall be a central
plant configuration including cooling towers, chillers, chiller and
condenser water pumps, air handling units (with variable frequency
drives), variable air volume, energy conserving type designed to allow
the building to maintain 75(degree)F interior temperature and 50%
relative humidity in summer and 70(degree)F in winter. Provide
3
81
outside air to meet current ASHRAE standards. Central plant and
enclosure should be located adjacent the building on grade level (not
roof mounted).
- In common areas, provide complete air side distribution including medium
and low pressure sheetmetal ductwork, mech. room plenum sound
attenuation, terminal boxes, flex run outs and air devices including
slot diffusers and louver-faced supply grilles and perforated returns.
In tenant area, provide a complete medium pressure duct loop around the
building's core.
- System shall provide for DDC controls and be designed so as to be
consistent with other class A office properties with maximum reasonable
flexibility for base building and tenant requirements.
- Assume a density of one occupant per 225 square feet.
- Provide smoke detection as required by code.
- Provide a "building automation" system integrating fire alarms, HVAC and
lighting controls, as manufactured by Xxxxxxx Controls, CSI or equal.
- Procure the services of an AABC registered test and balance firm to
perform testing, adjusting and balancing of mechanical equipment and
systems.
- Provide vibration isolation and sound control for all motor driven
equipment.
- Provide a condenser water heat pump unit serving each group of
electrical room, elevator pump room and telecommunications closet rooms.
(total of 6 each required).
Fire Protection
- Provide wet pipe automatic sprinkler system (fire pump if required) for
all areas in conformance with all code requirements, furnished and
installed per tenant's space plan. Provide fully recessed heads. Provide
provision in sprinkler riser design only for tenant's future preaction
system for 10,000 s.f.
Electrical
1. Provide minimum 2500 amp, 277/480v 3 phase, secondary service from pad
mounted transformer, with associated main switchgear with TVSS protection,
low voltage transformers, panelboards and grounding system. Distribution of
primary and emergency power distribution will be complete to each electrical
room (minimally two per floor). Amperage is as required to accommodate
building requirements, building standard lighting and other
developer-provided lighting and equipment, plus tenant's convenience and
office equipment loads (see #2 below).
2. Within the service described above, provide 6 xxxxx/s.f. for tenant's
120/208 volt convenience and office equipment loads. Configure at least two
(2) electrical rooms per floor complete with feeders from switchgear,
switches, K-rated transformers and dual, 84 pole; distribution panels (one
clean, one dirty power) in each closet. Panels shall be electronic grade
with TVSS protection.
3. Within the service describe above, provide 1.5 xxxxx/sf. for tenant's 277
volt lighting loads. Configure at least two (2) electrical rooms per floor
complete with feeders from switchgear, switches, relays for lighting control
through BAS, and distribution panel(s).
4. Provide 4 - 4" sleeved cores at each telecommunication closet stack between
floors for tenant's use.
5. Provide 3-lamp 18 cell fluorescent parabolic light fixtures with whips, with
T-8 lamps and electronic ballasts, stacked on floor for tenant installation
at a rate of one fixture per 80 square feet.
6. Provide appropriate lighting in all building and floor common areas.
7. Provide time clocks for exterior lighting and lawn irrigation system.
Connect lawn irrigation system to the BAS.
8. Provide exit lights, emergency generator, fire alarm, smoke detectors, voice
enunciator (if applicable), flow/tamper switches and any other life safety
equipment required by code and as required to secure base building
Certificate of Occupancy. Capacity in generator available for tenant use
only should be 250 kW with automatic transfer switch suitable to serve
Tenant-furnished UPS.
9. Lightning protection system is required.
10. At each telecommunications closet, provide a separate ground bar connected
to building ground.
The standards outlined herein should be considered "minimum" standards for
development. Any proposal not incorporating Class A standards will be viewed in
a less favorable light by Lacerte Software. However, these restrictions are not
intended to limit creativity or "value enhancements" that would ultimately be to
the benefit of Lacerte Software.
4
82
APPENDIX 1 TO EXHIBIT C
TRANSMITTAL THE STAUBACH COMPANY
DESIGN AND CONSTRUCTION CONSULTING SERVICES
00000 XXXXXX XXXXXXX, XXXXX 000
XXXXXX, XXXXX 00000
FAX 972/000-0000
--------------------------------------------------------------------------------
TO: STARE VAN AMBURGH VIA FAX 000.000.0000
FROM: XXXX XXXXXXXXXXX
DATE: SEPTEMBER 14, 1999
PROJECT: LACERTE SOFTWARE
--------------------------------------------------------------------------------
PLEASE MAKE THE FOLLOWING REVISIONS TO LACERTE SOFTWARE BASE BUILDING OUTLINE
SPECIFICATIONS:
EXHIBIT "A", PAGE 3, ITEM 3 IN FINISHES - CHANGE "REGULAR" TO "TEGULAR."
EXHIBIT "A", PAGE 3, ITEM 1 IN CONVEYING SYSTEMS - CHANGE "GEARED" PASSENGER
ELEVATORS TO "HYDRAULIC." CHANGE SPEED FROM "250" FEET PER MINUTE TO "150" FEET
PER MINUTE.
1 of 1
83
APPENDIX 2 TO EXHIBIT C
LACERTE SOFTWARE
CLARIFICATIONS TO BASE BUILDING OUTLINE SPECIFICATIONS
The following clarifications apply to the Request for Proposal issued by The
Staubach Company for the Lacerte Software project. In the event of conflict
between Exhibit A of the Request for Proposal and these clarifications, the
information included in the clarifications below shall apply.
1) The requirement for parking lighting levels is clarified to be 2 fc average,
on a maintained basis, and shall include "Medium Activity Level" lighting
for parking structures, per IES standards.
2) Dual feed electrical service is not included at this time. Xxxx will assist
Lacerte in securing this requirement, based on the final site selection.
Lacerte will evaluate the cost impact for acceptance at that time.
3) Offsite turn lanes, median cuts, or utilities extensions are included for
the site located at the Northeast corner of Parkwood and Headquarters in
Legacy Business Park, Plano, Texas.
4) Main Lobby finishes are included in the shell building, based on one Main
Lobby area of approximately 2,000 - 2,500 s.f. and assuming that Main Lobby
floor coverings are approximately 50% hard surface and 50% carpet. All
carpeting, including Main Lobby, shall be included as part of the T.I.
allowance.
5) Full wet pipe fire protection system is included in the shell building,
including the installation of heads on a floor with no partitions in place
other than core partitions. Installation of heads will be coordinated with
final TI plans to minimize cost. However, increased headcount due to TI
plans, or relocations due to changes during TI buildout, will be a cost of
the TI allowance.
6) Tenant Power and Lighting Distribution: Xxxx has included dual 84 pole
electrical panels (one clean and one dirty) at each electrical room for
power distribution. It is anticipated that the building layout will include
one electrical room for each floor of each "Pod" serving approx. 25,000 to
30,000 sf. Therefore, a total of twelve (12) panels for tenant power
distribution, located in the electrical room serving each floor, have been
included. Additional panels, if required, to distribute the service of 6
xxxxx per s.f. reserved for tenant power, will be included as a part of the
TI allowance. Xxxx has included one (1) 84 pole electrical panel, located in
each electrical room, for distribution of Tenant's 277 v. lighting.
Additional lighting panels, if required, for distribution of the 1.5 xxxxx
per s.f. reserved for tenant lighting, will be included as a part of the TI
allowance.
7) One 250 kw emergency generator has been included and it is assumed that life
safety requirements may be served off of this system. All distribution
required for life safety is included in the shell building. All distribution
of emergency power for Tenant use is included in the TI allowance.
Page l of 2
84
APPENDIX 2 TO EXHIBIT C
LACERTE SOFTWARE
CLARIFICATIONS TO BASE BUILDING OUTLINE SPECIFICATIONS
8) Total gross / rentable area shall be approximately 165,000 s.f. and may be
comprised of two or three story buildings connected by a common atrium or
lobby.
9) Parking shall be provided as noted in the Preliminary Recitals of the Lease
Agreement, in lieu of one per 200 s.f. Approximately 400 spaces, of the
total required by the lease, shall be covered in a precast or cast-in-place
parking structure of finish complimentary to the building design. The
balance shall be a combination of parking on the top deck of the parking
structure or surface parked adjacent to the building(s).
Page 2 of 2
85
EXHIBIT "C-1"
Site Plan
(see attached)
86
SCHEME A
PHASE I
FUTURE DEVELOPMENT PROPERTY
LACERTE CORPORA
PLANO, TEXAS
XXXX
87
COMPLETION GUARANTY
For a valuable consideration, receipt of which is hereby acknowledged,
the undersigned, XXXX DEVELOPMENT COMPANY, LLC, a Delaware limited liability
company (hereinafter called "Guarantor"), absolutely, unconditionally and
irrevocably guarantees for the benefit of LACERTE SOFTWARE CORPORATION, a
Delaware corporation (hereinafter called "Creditor"): (a) to perform fully and
promptly when due all of the covenants, agreements and other obligations
undertaken by KCD-TX I INVESTMENT LIMITED PARTNERSHIP, a Texas limited
partnership (hereinafter called "Obligor") in Section 2.05 of the Office Lease
Agreement by and between Obligor and Creditor dated effective February 22, 2000
(the "Lease Agreement") (such covenants, agreements and other obligations
hereinafter called the "Obligations"); and (b) to pay any and all costs,
reasonable attorneys' fees and expenses incurred or expended by Creditor due to
any default in the performance of the Obligations or in enforcing any right
granted hereunder.
The liability of Guarantor hereunder shall not be modified, changed,
released, reduced, limited or impaired in any manner whatsoever on account of
any or all of the following: (a) the incapacity, death, disability, dissolution
or termination of Guarantor, Obligor, Creditor or any other person or entity;
(b) the failure by Creditor to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Obligor or any
other person or entity; (c) recovery from Obligor or any other person or entity
becomes barred by any statute of limitations or is otherwise prevented; (d) any
defenses, set-offs or counterclaims which may be available to Obligor or any
other person or entity; (e) any release of Obligor, any co-guarantor or any
other person (other than Guarantor) primarily or secondarily liable for the
performance of the Obligations or any part thereof, or (f) any impairment,
modification, change, release or limitation of the liability of, or stay of
actions or lien enforcement proceedings against, Obligor, its property, or its
estate in bankruptcy resulting from the operation of any present or future
provision of the Federal Bankruptcy Code (hereinafter called the "Bankruptcy
Code") or other similar federal or state statute, or from the decision of any
court.
Creditor shall not be required to pursue any other remedies before
invoking the benefits of the guaranties contained herein. Creditor may maintain
an action on this Guaranty without joining Obligor therein and without bringing
a separate action against Obligor.
If for any reason whatsoever (including but not limited to ultra xxxxx,
lack of authority, illegality, force majeure, act of God or impossibility) the
Obligations cannot be enforced against Obligor, such unenforceability shall in
no manner affect the liability of Guarantor hereunder and Guarantor shall be
liable hereunder notwithstanding that Obligor may not be liable for such
Obligations and to the same extent as Guarantor would have been liable if such
Obligations had been enforceable against Obligor.
1
88
Guarantor absolutely and unconditionally covenants and agrees that in
the event that Obligor does not or is unable so to perform the Obligations for
any reason, including, without limitation, liquidation, dissolution,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, sale of all or substantially all assets, reorganization,
arrangement, composition, or readjustment of, or other similar proceedings
affecting the status, composition, identity, existence, assets or obligations of
Obligor, or the disaffirmance or termination of any of the Obligations in or as
a result of any such proceeding, Guarantor shall perform the Obligations and no
such occurrence shall in any way affect Guarantor's obligations hereunder.
Notwithstanding anything to the apparent contrary contained herein,
Guarantor does not herein expressly or impliedly waive or release any rights of
subrogation that Guarantor may have against Obligor (except as same are
expressly subordinated as provided herein), rights of contribution that
Guarantor may have against any other guarantor of, or other person secondarily
liable for, the performance of the Obligations or rights of reimbursement that
Guarantor may have as against Obligor (except as same may be limited herein).
The rights of Creditor are cumulative and shall not be exhausted by its
exercise of any of its rights hereunder or otherwise against Guarantor or by any
number of successive actions until and unless all Obligations have been
performed and each of the obligations of Guarantor hereunder has been performed.
The existence of this Guaranty shall not in any way diminish or discharge the
rights of Creditor under any prior or future guaranty agreement executed by
Guarantor.
Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery, (b) expedited delivery service
with proof of delivery, or (c) United States mail, postage prepaid, registered
or certified mail, sent to the intended addressee at the address shown below, or
to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
and received either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO TEXAS' PRINCIPLES
OF CONFLICTS OF LAW) AND THE LAW OF THE UNITED STATES APPLICABLE TO TRANSACTIONS
IN SUCH STATE. GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY TEXAS OR FEDERAL COURT SITTING IN DALLAS, TEXAS OVER ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, AND
GUARANTOR HEREBY AGREES AND CONSENTS THAT IN ADDITION TO ANY
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METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY TEXAS OR FEDERAL COURT
SITTING IN DALLAS. TEXAS MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO GUARANTOR AT THE ADDRESS OF GUARANTOR FOR THE
GIVING OF NOTICES HEREUNDER.
Guarantor hereby expressly and unconditionally waives, in connection
with any suit, action or proceeding brought by Creditor in connection with this
Guaranty, any and every right it may have to (i) injunctive relief, (ii) a trial
by jury, (iii) interpose any counterclaim therein (other than a compulsory
counterclaim) and (iv) have the same consolidated with any other or separate
suit, action or proceeding. Nothing herein contained shall prevent or prohibit
Guarantor from instituting or maintaining a separate action against Creditor
with respect to any asserted claim.
This Guaranty may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
This Guaranty may only be modified, waived, altered or amended by a
written instrument or instruments executed by the party against which
enforcement of said action is asserted. Any alleged modification, waiver,
alteration or amendment which is not so documented shall not be effective as to
any party. This Guaranty shall lapse and become void and unenforceable upon
Obligor's satisfaction of its obligations under Section 2.05 of the Lease
Agreement.
The terms, provisions, covenants and conditions hereof shall be binding
upon Guarantor and the successors and assigns of Guarantor and shall inure to
the benefit of Creditor and all transferees, successors and/or assignees of
Creditor. Within this Guaranty, words of any gender shall be held and construed
to include any other gender and words in the singular number shall be held and
construed to include the plural, unless the context otherwise requires. A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
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EXECUTED this 22th day of February, 2000.
XXXX DEVELOPMENT COMPANY, LLC,
a Delaware limited liability company
By: [SIGNATURE ILLEGIBLE]
------------------------------------
Name: [NAME ILLEGIBLE]
----------------------------------
Title: EVP
---------------------------------
The address of Guarantor is:
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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LACERTE SOFTWARE CORPORATION,
a Delaware corporation By:
By: [SIGNATURE ILLEGIBLE]
------------------------------------
Name: [NAME ILLEGIBLE]
----------------------------------
Title: President
---------------------------------
The address of Creditor is:
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx, General Counsel
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EXHIBIT "D-1"
Intuit Guaranty
THIS LEASE GUARANTY ("GUARANTY") is made as of the 22 day of February,
2000, by INTUIT INC., a corporation formed under the laws of Delaware
("GUARANTOR") in favor of KCDTX I INVESTMENT LIMITED PARTNERSHIP, a Texas
limited partnership ("LANDLORD").
FOR VALUE RECEIVED, Guarantor hereby unconditionally, irrevocably and
absolutely guarantees to Landlord without demand or notice (except for the
notice of default which is delivered to Guarantor under the Lease) the prompt
and full payment and performance, when due, of all obligations and covenants of
LACERTE SOFTWARE CORPORATION, a Delaware corporation ("TENANT"), fixed or
contingent, under the terms of the Office Lease Agreement dated effective
February 22, 2000, executed by and between Tenant and Landlord and any and all,
subject to Paragraph 4 below, renewals, extensions, amendments, expansions and
modifications thereof (collectively, the "LEASE"), or which Tenant, or its
successors or assigns, may in any other manner now or at any time hereafter owe
Landlord under the terms of the Lease, including, but not limited to, rent,
taxes, insurance, operating expenses, maintenance costs, damages and expenses
resulting from Tenant's default under the Lease, (collectively, the
"OBLIGATIONS").
1. CONTINUING GUARANTY. This is a continuing Guaranty and shall apply to
any renewals, extensions, and modifications of the Lease.
2. OTHER REMEDIES. Landlord shall not be required to pursue any other
remedies before invoking the benefits of this Guaranty; specifically,
Landlord shall not be required to take any action against Tenant or any
other person, to exhaust its remedies against any other guarantor of
the Obligations, any collateral or other security, or to resort to any
balance of any deposit account or credit on the books of Landlord in
favor of Tenant or any other person.
3. OBLIGATIONS NOT IMPAIRED. Prior to performance and satisfaction in
full of the Obligations, the liability of Guarantor under this
Guaranty shall not be released or impaired without the prior written
consent of Landlord. Without limiting the generality of the foregoing,
the liability of Guarantor shall not be released or impaired on account
of any of the following events:
(a) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of
Tenant, or any receivership, insolvency, bankruptcy,
reorganization or other similar proceedings affecting Tenant
or any of its assets;
(b) the addition of a new guarantor or guarantors;
(c) any bankruptcy or insolvency proceedings against or by Tenant,
its property, or its estate or any modification, discharge or
extension of the Obligations resulting from the operation of
any present or future provision of the United States
Bankruptcy Code or any other similar federal or state statute,
or from the decision of ay court, it being
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the intention hereof that Guarantor shall remain liable on the
Obligations notwithstanding any act, omission, order, judgment
or event which might, but for the provisions hereof, otherwise
operate as a legal or equitable discharge of Guarantor;
(d) Landlord's failure to use diligence in preserving the
liability of any person on the Obligations, or in bringing
suit to enforce collection of the Obligations;
(e) the substitution or withdrawal of collateral, or release of
collateral, or the exercise or failure to exercise by Landlord
of any right conferred upon it herein or in any collateral
agreement;
(f) if Tenant is not liable for any of the Obligations because the
act of creating the Obligations is ultra xxxxx, or the
officers or person creating the Obligations acted in excess of
their authority, or for any reason the Obligations cannot be
enforced against Tenant;
(g) any payment by Tenant to Landlord if such payment is held to
constitute a preference under the bankruptcy laws, or if for
any other reason Landlord is required to refund such payment
to Tenant or pay the amount thereof to any other party; or
(h) any assignment of the Lease or subletting of all or any
portion of the Project (as defined in the Lease).
4. AMENDMENTS AND PROJECT EXPANSIONS. Notwithstanding anything in this
Guaranty to the contrary, Guarantor shall have no liability for any
obligations of Tenant incurred as a result of any amendment, extension,
renewal or modification of the Lease (collectively, an "Amendment"), or
any Project Expansion (as such term is defined in the Lease), unless
Guarantor shall have expressly agreed to the same in writing; provided,
however, that any such Amendment or Project Expansion may be effected
as between Landlord and Tenant as provided in the Lease without
Guarantor's consent, but shall not be binding on Guarantor in any way.
In the event of such an Amendment or Project Expansion effected by
Landlord and Tenant without Guarantor's consent, Guarantor shall remain
liable only for those obligations under the Lease which existed prior
to such Amendment or Project Expansion.
5. BENEFIT TO GUARANTOR. Guarantor represents and warrants that it derives
or expects to derive substantial financial and other advantage and
benefit, directly or indirectly, from the Lease and the Obligations.
Guarantor acknowledges that, in entering into the Lease, Landlord is
relying on Guarantor's agreements contained in this Guaranty and on
Guarantor's creditworthiness. Guarantor acknowledges that Landlord
would not have entered into the Lease without Guarantor's guarantee of
the Obligations pursuant to the terms hereof.
6. DISSOLUTION OF GUARANTOR. Upon the dissolution or bankruptcy of
Guarantor, the liability of Guarantor shall continue against its assets
as to all Obligations which shall have been incurred by Tenant.
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7. FINANCIAL STATEMENTS. The Guarantor warrants and represents to Landlord
that all financial statements heretofore delivered by Guarantor to
Landlord are true and correct in all material respects, if any.
8. WAIVER OF NOTICE. Guarantor waives diligence on the part of Landlord in
the collection and enforcement of the Obligations, notice, demand,
protest, and waives the right to notice of all extensions, amendments,
modifications and/or expansions that may be granted to Tenant with
respect thereto.
9. MODIFICATION OR CONSENT. No modification, consent or waiver of any
provision of this Guaranty, nor consent to any departure by Guarantor
therefrom, shall be effective unless the same shall be in writing and
signed by Landlord, and then shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on
Guarantor in any case shall, of itself, entitle Guarantor to any other
or further notice or demand in similar or other circumstances. No delay
or omission by Landlord in exercising any power or right hereunder
shall impair any such right or power or be construed as a waiver
thereof or any acquiescence therein, nor shall any single or partial
exercise of any such power preclude other or further exercise thereof
or the exercise of any other right or power hereunder. All rights and
remedies of Landlord hereunder are cumulative of each other and of
every other right or remedy which Landlord may otherwise have at law or
in equity or under any other contract or document, and the exercise of
one or more rights or remedies shall not prejudice or impair the
concurrent or subsequent exercise of other rights or remedies.
10. INDUCEMENT TO LANDLORD. Guarantor acknowledges that this Guaranty is
given to induce Landlord to enter into the Lease and to extend credit
to Tenant which would not be extended except in reliance upon this
Guaranty.
11. ATTORNEY'S FEES. If a lawsuit is instituted in connection with this
Guaranty, then the non-prevailing party in such lawsuit agrees to pay
to the prevailing party all expenses incurred by the prevailing xxxxx
in connection with such lawsuit (including, but not limited to,
reasonable attorneys' fees and costs of court).
12. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of Landlord,
and its successors and/or assigns. Landlord may assign its rights
hereunder in connection with assignment of the Lease or collaterally or
absolutely to the Lender (as defined in the Lease); and, upon any such
assignment, all the terms and provisions of this Guaranty shall inure
to the benefit of such assignee, to the extent so assigned. The
liability of Guarantor hereunder shall be binding upon all
administrators, legal representatives, successors and assigns of
Guarantor.
13. HEADINGS. The section headings hereof are inserted for convenience of
reference only and shall not alter, define or be used in construing the
text of this instrument.
14. DEFENSES. Notwithstanding anything to the contrary herein, Guarantor
shall have available to it all of Tenant's defenses to enforcement of
the Lease resulting from the acts or omissions
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of Landlord under the Lease, but Guarantor shall not be entitled to
raise any of Tenant's personal defenses to enforcement of Lease
obligations, including, but not limited to, bankruptcy, insolvency,
waiver, laches, ultra xxxxx or lack of authority.
15. CONSENT TO JURISDICTION. Guarantor hereby consents to the jurisdiction
of any state or federal court located within the County of Dallas,
State of Texas and irrevocably agrees that, subject to Landlord's
election, all actions or proceedings arising out or relating to this
Guaranty or the Lease shall be litigated in such courts. Guarantor
accepts for itself and in connection with its properties, generally and
unconditionally, exclusive jurisdiction of the aforesaid courts and
waives any defense of forum non conveniens.
16. TERM. This Guaranty shall terminate only when all of the Obligations
have been fully performed and satisfied.
17. GUARANTY OF PAYMENT AND PERFORMANCE. This is an unconditional,
irrevocable and absolute guaranty of payment and performance and not a
guaranty of collection.
18. PAST DUE AMOUNTS. All past due payments of the Obligations shall bear
interest at the Specified Rate (as defined in the Lease).
19. REPRESENTATIONS. Guarantor represents and warrants to Landlord that (i)
Guarantor has executed this Guaranty of its free will and accord, (ii)
Guarantor has read and understands the term of this Guaranty and the
Lease, (iii) Guarantor has had the opportunity to have this Guaranty
and the Lease reviewed by an attorney of Guarantor's choice, and (iv)
the execution of this Guaranty will benefit, directly or indirectly,
the Guarantor.
20. AUTHORITY. This Guaranty has been duly authorized by all appropriate
corporate action, and the undersigned is an authorized signatory of
Guarantor, fully empowered to execute this Guaranty.
21. GOVERNING LAW. This Guaranty shall be governed under the laws of the
State of Texas, without regard to principles of conflicts of laws.
22. EFFECTIVENESS. This instrument shall be effective and binding upon
Guarantor upon Guarantor's execution hereof and delivery hereof to
Landlord (which delivery may only be by original execution copy), and
shall remain in full force and effect, and shall survive the exercise
by Landlord of any remedy under the Lease.
23. SUBSTITUTION. In the event that Tenant is not a Related Party to
Intuit, Intuit may substitute a guarantor in its place hereunder
("Substitute Guarantor"), provided: (i) such Substitute Guarantor
assumes Intuit's obligations hereunder in a form reasonably
satisfactory to Landlord and Lender; (ii) Landlord's rights to enforce
the Guaranty will not be impaired thereby; (iii) such Substitute
Guarantor represents and warrants to Landlord that the Substitute
Guarantor derives or expects to derive substantial financial and other
advantage and benefit, directly or indirectly, from the Lease and the
Obligations, and (iv) such Substitute
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Guarantor has (1) an Investment Grade Credit Rating, or (2) at the time
the request is made by Intuit to substitute a guarantor, the proposed
Substitute Guarantor has a minimum tangible net worth calculated in
accordance with generally accepted accounting principles of not less
than Five Hundred Million and No/100 Dollars U.S. ($500,000,000.00
U.S.) and further provided that for each of the proposed Substitute
Guarantor's most recent three fiscal year end reporting periods, the
proposed Substitute Guarantor has both positive earnings and a minimum
tangible net worth of not less than Five Hundred Million and No/100
Dollars U.S. ($500,000,000.00 U.S.) as calculated in accordance with
generally accepted accounting principles. Upon such approval by
Landlord and Lender, Intuit shall thereafter be relieved of any and all
liability under the Lease or this Guaranty from and after the date of
such substitution. As used in the Lease and this Guaranty, unless
expressly set forth to the contrary, the use of the tern "Guarantor"
shall be applicable to, and mean the same as, the term "Substitute
Guarantor."
24. NOTICES. Any notice sent by Landlord to Guarantor shall be delivered as
specified in the Lease to the address given below.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first written above.
GUARANTOR:
INTUIT INC.,
a Delaware corporation
By: /s/ XXXX XXXXXXX
------------------------------------
Name: XXXX XXXXXXX
----------------------------------
Title: CFO & Senior Vice President
of Finance & Corporate Services
ADDRESS OF GUARANTOR: APPROVED
0000 Xxxxxx Xxxxxx INTUIT XXXXX XXXX.
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000 DATE FEBRUARY 22, 2000
Attn: Xxxxxxxxx X. Xxxxxxxxx, General Counsel By [SIGNATURE ILLEGIBLE]
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EXHIBIT "E"
WEATHER STANDARD
The following table of average work days lost per month due to weather
conditions has been anticipated with respect to Section 2.15 of this Lease:
AVERAGE LOST TIME
MONTH IN WORK DAYS
----- ------------
January 5
February 4
March 5
April 6
May 6
June 4
July 4
August 4
September 5
October 4
November 4
December 4
Contract time extensions for abnormal weather will be granted in accordance with
Section 2.15 only to the extent that the actual time lost during a particular
month exceeds the average lost time indicated in the above table.
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EXHIBIT "F"
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made effective as of the day of______________, 2000,
between _______________, a __________ (hereinafter called "Lender") and LACERTE
SOFTWARE CORPORATION, a Delaware corporation (hereinafter called "Tenant"),
WITNESSETH THAT:
WHEREAS, Lender will be the owner and holder of a Deed of Trust,
Mortgage and Security Agreement (hereinafter called the "Security Instrument"),
to be recorded in Collin County, Texas, covering the real property described in
Exhibit A and the building and improvements thereon (hereinafter collectively
called the "Mortgaged Premises") securing the payment of a promissory note in
the stated principal amount of $______ payable to the order of Lender;
WHEREAS, Tenant is the tenant under Lease Agreement (hereinafter called
the "Lease") dated February 22, 2000 made by KCD-TX I INVESTMENT LIMITED
PARTNERSHIP, a Texas limited partnership, as landlord (said landlord and its
successors and assigns occupying the position of landlord under the Lease
hereinafter called "Landlord"), covering certain property (hereinafter called
the "Demised Premises") consisting of all of the Mortgaged Premises; and
WHEREAS, Tenant and Lender desire to confirm their understanding with
respect to the Lease and the Security Instrument;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Lender and Tenant hereby agree and covenant as follows:
1. Subordination. The Lease now is, and shall at all times and for all
purposes continue to be, subject and subordinate, in each and every respect, to
the Security Instrument, with the provisions of the Security Instrument
controlling in all respects over the provisions of the Lease, it being
understood and agreed that the foregoing subordination shall apply to any and
all increases, renewals, modifications, extensions, substitutions, replacements
and/or consolidations of the Security Instrument, provided that any and all such
increases, renewals, modifications, extensions, substitutions, replacements
and/or consolidations shall nevertheless be subject to the terms of this
Agreement.
2. Non-Disturbance. So long as (i) Tenant is not in default (beyond any
period given Tenant to cure such default) in the payment of rent or additional
rent or in the performance of any of the other terms, covenants or conditions of
the Lease on Tenant's part to be performed, (ii) the Lease is in full force
and effect according to its original terms, or with such amendments or
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modifications as Lender shall have approved, and (iii) Tenant attorns to Lender
or a purchaser of the Mortgaged Premises as provided in Paragraph 3, then (a)
Tenant's possession, occupancy, use and quiet enjoyment of the Demised Premises
under the Lease, or any extensions or renewals thereof or acquisition of
additional space or all or any portion of the fee interest in the Mortgaged
Premises which may be effected in accordance with any option therefor in the
Lease, shall not be terminated, disturbed, diminished or interfered with by
Lender in the exercise of any of its rights under the Security Instrument, and
(b) Lender will not join Tenant as a party defendant in any action or
proceeding for the purpose of terminating Tenant's interest and estate under the
Lease because of any default under the Security Instrument.
3. Attornment. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of non-judicial or
judicial foreclosure or other proceedings brought to enforce the Security
Instrument or the Mortgaged Premises shall be conveyed by deed in lieu of
foreclosure, the Lease shall continue in full force and effect as a direct Lease
between Lender, or other purchaser of the Mortgaged Premises who shall succeed
to the rights and duties and obligations of Landlord, and Tenant, and Tenant
shall attorn to Lender or such purchaser, as the case may be, upon any such
occurrence and shall recognize Lender or such purchaser, as the case may be, as
the Landlord under the Lease. Such attornment shall be effective and
self-operative without the execution of any further instrument on the part of
any of the parties hereto. Tenant agrees, however, to execute and deliver at any
time and from time to time, upon the request of Landlord or of any holders) of
any of the indebtedness or other obligations secured by the Security Instrument
or any such purchaser, any instrument or certificate which, in the sole
reasonable judgment of the requesting party, is necessary or appropriate, in
connection with any such foreclosure or deed in lieu of foreclosure or
otherwise, to evidence such attornment.
4. Obligations and Remedies. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of non-
judicial or judicial foreclosure or other proceedings brought to enforce the
Security Instrument or the Mortgaged Premises shall be conveyed by deed in lieu
of foreclosure, Lender or other purchaser of the Mortgaged Premises, as the case
may be, shall have the same remedies by entry, action or otherwise in the event
of any default by Tenant (beyond any period given Tenant to cure such default)
in the payment of rent or additional rent or in the performance of any of the
other terms, covenants and conditions of the Lease on Tenant's part to be
performed that Landlord had or would have had if Lender or such purchaser had
not succeeded to the interest of Landlord. Upon attornment by Tenant as provided
herein, Lender or such purchaser shall be bound to Tenant under all the terms,
covenants and conditions of the Lease and Tenant shall have the same remedies
against Lender or such purchaser for the breach of an agreement contained in the
Lease that Tenant might have had under the Lease against Landlord if Lender or
such purchaser had not succeeded to the interest of Landlord; provided, however,
that Lender or such purchaser shall not be liable or bound to Tenant:
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100
(a) for any act or omission of any prior landlord (including Landlord)
which constitutes a default or breach of this Agreement; provided, however,
nothing contained herein shall be deemed to be a waiver of Tenant's rights or
remedies against Lender or such purchaser in the event such default is not cured
by Lender or such purchaser after Lender or such purchaser acquires the
Mortgaged Premises; or
(b) for any offsets or defenses except those based upon or related to
defects or deficiencies in the construction of the Project, which the Tenant
might be entitled to assert against Landlord arising prior to the date Lender
takes possession of Landlord's interest in the Lease or becomes a mortgagee in
possession, subject to Tenant's continued rights of offset and termination for
any default by Landlord which remains uncured; provided that notice of such
default is provided to Lender within a reasonable time after Lender acquires the
Mortgaged Premises;
(c) for or by any rent or additional rent which Tenant might have paid
for more than thirty (30) days in advance to any prior landlord (including
Landlord) unless such rent is actually received by Lender; or
(d) by any amendment or modification of the Lease made without Lender's
consent, except for any amendment or modification of a de minimis or
non-material nature; or
(e) for any security deposit, rental deposit or similar deposit given
by Tenant to a prior landlord (including Landlord) unless such deposit is
actually paid over to Lender or such purchaser by the prior landlord; or
(f) for any repairs or replacements to or required by the Demised
Premises or the Mortgaged Premises arising prior to the date Lender or such
purchaser takes possession of the Mortgaged Premises provided, however, nothing
contained herein shall be deemed to be a waiver of Tenant's rights or remedies
against Lender or such purchaser in the event such default is not cured by
Lender or such purchaser after Lender or such purchaser acquires the Mortgaged
Premises; or
(g) for the payment of any leasing commissions or other expenses for
which any prior landlord (including Landlord) incurred the obligation to pay; or
(h) by any notice given by Tenant to a prior landlord (including
Landlord) unless a copy thereof was also then given to Lender; or
(i) beyond Lender's or such purchaser's interest in the Mortgaged
Premises, notwithstanding any provision contained in the lease to the contrary,
it being agreed that Lender or such purchaser shall not be liable or responsible
whatsoever under the terns of the Lease after it ceases to own an interest in
the Mortgaged Premises.
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5. No Abridgment. Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of Landlord under
the Lease in the event of any default by Tenant (beyond any period given Tenant
to cure such default) in the payment of rent or additional rent or in the
performance of any of the other terms, covenants or conditions of the Lease on
Tenant's part to be performed.
6. Notices of Default to Lender. Tenant agrees to give Lender a copy of
any default notice sent by Tenant to Landlord.
7. Representations by Tenant. Tenant represents and warrants to Lender
that Tenant has validly executed the Lease; the Lease is valid, binding and
enforceable and is in full force and effect in accordance with its terms; the
Lease has not been amended except as stated herein; no rent under the Lease has
been or will be paid more than thirty (30) days in advance of its due date;
there are no defaults existing under the Lease; and, as of this date, no charge,
lien, counterclaim or claim of offset under the Lease, or otherwise, has accrued
against the rents or other charges due or to become due under the Lease.
8. Rent Payment. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of non-judicial or
judicial foreclosure or other proceedings brought to enforce the Security
Instrument or the Mortgaged Premises shall be conveyed by deed in lieu of
foreclosure, Tenant agrees to pay all rents directly to Lender or other
purchaser of the Mortgaged Premises, as the case may be, in accordance with the
Lease immediately upon notice of Lender or such purchaser, as the case may be,
succeeding to Landlord's interest under the Lease. Tenant further agrees to pay
all rents directly to Lender immediately upon notice that Lender is exercising
its rights to such rents under the Security Instrument or any other loan
documents (including but not limited to any Assignment of Leases and Rents)
following a default by Landlord or other applicable party. Tenant shall be under
no obligation to ascertain whether a default by Landlord has occurred under the
Security Instrument or any other loan documents. Landlord waives any right,
claim or demand it may now or hereafter have against Tenant by reason of such
direct payment to Lender and agrees that such direct payment to Lender shall
discharge all obligations of Tenant to make such payment to Landlord.
9. Notice of Security Instrument. To the extent that the Lease shall
entitle Tenant to notice of any deed of trust or security agreement, this
Agreement shall constitute such notice to the Tenant with respect to the
Security Instrument and to any and all other deeds of trust and security
agreements which may hereafter be subject to the terms of this Agreement.
10. Landlord Defaults. Tenant agrees with Lender that effective as of
the date of this Agreement: (i) except as permitted by the terms of the Lease
for failure to construct the Project in a timely manner, Tenant shall not take
any steps to terminate the Lease for any default by Landlord or any succeeding
owner of the Mortgaged Premises until after giving Lender written notice of such
default, stating the nature of the default and giving Lender thirty (30) days
from receipt of such notice to effect cure of the same, or if cure cannot be
effected within said thirty (30) days due to the
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102
nature of the default, Lender shall have a reasonable time to cure provided that
it commences cure within said thirty (30) day period of time and diligently
carries such cure to completion; and (ii) notice to Landlord under the Lease
(oral or written) shall not constitute notice to Lender.
11. Notice. Any notice or communication required or permitted hereunder
shall be given in writing, sent by (a) personal delivery, or (b) expedited
delivery service with proof of delivery, or (c) United States mail, postage
prepaid, registered or certified mail, or (d) telegram addressed as follows:
To Lender:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
To Tenant: Lacerte Software Corporation
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx, General
Counsel
With a copy to: Xxxxxxx & Xxxxx, P.L.L.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
and to: Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxxx, General
Counsel
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
and received either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein, or in the case of telegram, upon receipt.
12. No Amendment. Termination. Assignment or Subletting of Lease.
Lender and Tenant agree that Tenant's interest in and obligations under the
Lease shall not be altered, modified or terminated without the prior written
consent of Lender. Lender and Tenant also agree that in connection with any
assignment of subletting of the Lease where Landlord's consent is required under
the Lease, Tenant shall neither assign the Lease or allow it to be assigned in
any manner nor sublet the Demised Premises or any part thereof without the prior
written consent of Lender.
5
103
13. Modification. This Agreement may not be modified orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
14. Successor Lender. The term "Lender" as used throughout this
Agreement includes any successor or assign of Lender and any holder(s) of any
interest in the indebtedness secured by the Security Instrument.
15. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their successors and assigns, and any
purchaser or purchasers at foreclosure of the Mortgaged Premises, and their
respective successors and assigns.
16. Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
17. Gender and Number. Within this Agreement, words of any gender shall
be held and construed to include any other gender, and words in the singular
number shall be held and construed to include the plural and words in the plural
number shall be held and construed to included the singular, unless the context
otherwise requires.
18. Applicable Law. This Agreement and the rights and duties of the
parties hereunder shall be governed by all purposes by the law of the state
where the Mortgaged Premises is located and the law of the United States
applicable to transactions within such state.
6
104
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
----------------------------,
a
---------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
LACERTE SOFTWARE CORPORATION,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
7
000
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on _____, 2000
by_____________of ______________, a_____________, on behalf of said___________.
-------------------------------------------
Notary Public, State of Texas
-------------------------------------------
(printed name)
My commission expires:
.
----------------------
THE STATE OF____________)
COUNTY OF_______________)
This instrument was acknowledged before me on_________, 2000 by
________________of Lacerte Software Corporation, a__________corporation, on
behalf of said corporation. Notary Public, State of (printed name)
-------------------------------------------
Notary Public, State of______________
-------------------------------------------
(printed name)
My commission expires:
----------------------.
8
000
XXXXXXX XX XXXXXXXX
XXX-XX I INVESTMENT LIMITED PARTNERSHIP, a Texas limited partnership,
as the current Landlord under the Lease, joins in the execution of this
Agreement to evidence its consent to the terms and provisions set out herein.
KCD-TX I INVESTMENT LIMITED
PARTNERSHIP, a Texas limited partnership
By: KCD-TX Investments, Inc.
a Texas corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on _________, 2000 by
________, _____________of ____________________, a Delaware corporation, on
behalf of said corporation, in its capacity as General Partner of KCD-TX I
INVESTMENT LIMITED PARTNERSHIP, a Texas limited partnership, on behalf of said
partnership.
-------------------------------------------
Notary Public, State of Texas
-------------------------------------------
(printed name)
My commission expires:
.
----------------------
9
107
EXHIBIT "G"
COMMISSION AGREEMENT
(see attached)
108
THE STAUBACH COMPANY
Corporate Services Division
COMMISSION AGREEMENT
This Commission Agreement ("Agreement") is entered into as of this 1st day of
November 1999, by and between Xxxx Development Company ("Owner) and The Staubach
Company, ("Broker"). The following provisions are true and correct and are the
basis for this Agreement:
A) Owner will have legal title to a tract of property in Dallas County on which
tract Owner will construct an office building commonly known as Lacerte
Software Corporation - Build-To-Suit ("Building"), which tract of land is
more particularly described h Exhibit "A" attached hereto and incorporated
herein by reference (or as described next to the Owner's signature hereon)
(the "Property").
B) Broker has presented the office space needs of "LACERTE SOFTWARE/INTUIT" to
Owner and has and will render services in connection with the leasing of
office space to the Tenant.
C) Owner has agreed to pay Broker a real estate commission in consideration for
services rendered and to be rendered in consummating a Lease (herein so
called) pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises act forth herein and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO PAY COMMISSION. Owner hereby agrees to pay a real estate
commission to broker in a sum equal to four and one-half percent (4.5%) of the
Gross Rental to be received by the Owner during the Lease term as shown in the
Lease, including four and one-half percent (4.5%) of the Gross Rental paid in
connection with any expansion of Tenants space a renewals of the Lease.
2. DEFINITION OF TOTAL GROSS RENTALS. Total gross rentals shall include all
rental proceeds obligated for payment by the Tenant including operating
expenses, (inclusive of common area maintenance and insurance). For the purpose
of calculating the real estate commission hereunder there shall be no deduction
from Gross Rental shown in the Lease for any sum (except free rent), including
but not limited to any concessions made to Tenant by Owner or any costs or
expenses paid by Owner an behalf of Tenant. There shall be no deductions from
the gross rental for equity options, purchase options, allowance or other
benefits provided to the Tenant. Variable escalations in the rental, or
increases in operating expenses above the base shall not be included in the
calculation of total gross rentals.
3. PAYMENT OF COMMISSION. The commission shall be due and payable to Broker in
cash (i) one half (1/2) upon the latter to occur of at the time the Lease is
signed or the initial construction loan is funded and (ii) the balance an the
earlier to occur of (a) the that day that Tenant occupies all or any portion of
the space covered by the Lease, or (b) commencement of the term under the Lease,
whichever is earlier.
4. EXPANSIONS AND RENEWALS. In the event the Tenant executes any expansion
and/or renewal that is substantially in accordance with an option or right
provided for within the initial lease document, a commission shall be due as
provided herein. in the event the Tenant executes any expansion and/or renewal
that is not substantially provided for within the initial lease document, a
commission fee shall be due to Broker unless another Broker is appointed to
assist the Tenant in such negotiations.
5. PURCHASE BY TENANT (OR TENANT'S ASSIGNS). In the event of the Tenant
purchases the premises prior lease commencement and in lieu of a lease agreement
(in whole or in part) through a right a option provided for in the lease, the
Broker shall be due a fee as follows:
- an imputed lease commission of 4.5% of what the Gross Rental would have been
in the event of a Lease payable by Owner to Broker at closing.
6. SUCCESSORS AND ASSIGNS. Broker is to be named in the Lease as the broker
entitled to a commission and the obligation to pay and the right to receive any
of the commissions described above shall inure to the benefit and obligation of
the respective heirs, successors and/or assigns of Owner or Broker. In the event
of a sale or an assignment of the Property which includes Tenant's demised
premises, Owner agrees to secure from the purchaser or assignee a written,
recordable agreement under which the new owner or assignee assumes payment to
the Broker of all commissions payable hereunder, or the Landlord shall remain
liable for all terms and conditions of this agreement unless and until the
purchaser or assign(s) assumes all obligations contained herein.
7. NOTICES
If to Broker: The Staubach Company
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 (972) 381-5000
If to Owner: Xxxx Development Company
----------------------------------
0000 Xxxxxxx Xxxx. Xxxxx 000
----------------------------------
Xxxxxx, Xxxxx 00000 (214) 696-1700
----------------------------------
LEGAL DESCRIPTION (IF NOT ATTACHED AS
EXHIBIT "A") APPROVED this 1st day of Nov., 1999
[SIGNATURE ILLEGIBLE]
---------------------------------- ----------------------------------
Owner
----------------------------------
Accepted this 1st day of Nov., 1999
----------------------------------
[SIGNATURE ILLEGIBLE]
APPROVED BY: -----------------------------------
AGENT
The Staubach Company
---------------------------------- (Tax I.D. #00-0000000)
----------------------------------
109
EXHIBIT "I"
PERMITTED EXCEPTIONS
(to be attached)
1
110
EXHIBIT "H"
*Base Rent Example
PHASE I
Year 1 $14.81 NNN
Year 2 $14.81 NNN
Year 3 $14.81 NNN
Year 4 $14.81 NNN
Year 5 $14.81 NNN
Year 6 $16.29 NNN
Year 7 $16.29 NNN
Year 8 $16.29 NNN
Year 9 $16.29 NNN
Year 10 $16.29 NNN
Year 11 $17.92 NNN
Year 12 $17.92 NNN
Year 13 517.92 NNN
Year 14 517.92 NNN
Year 15 $17.92 NNN
Year 16 $19.71 NNN
Year 17 519.71 NNN
Year 18 $19.71 NNN
Year 19 $19.71 NNN
Year 20 $19.71 NNN
Year 21 520.11 NNN
Year 22 520.51 NNN
Year 23 520.92 NNN
Year 24 $21.34 NNN
Year 25 521.77 NNN
Year 26 522.21 NNN
Year 27 $22.65 NNN
EXPANSION PHASES (IF APPLICABLE)
Years 1-5 Cost x Yield per Section 25.03(d) of Lease Agreement
Years 6-10 Previous NNN Rental Rate x 110%
Years 11-15 Previous NNN Rental Rate x 110%
Years 16-20 Previous NNN Rental Rate x 110%
Year 21 Previous NNN Rental Rate x 102%
Year 22 Previous NNN Rental Rate x 102%
Year 23 Previous NNN Rental Rate x 102%
Year 24 Previous NNN Rental Rate x 102%
Year 25 Previous NNN Rental Rate x 102%
Year 26 Previous NNN Rental Rate x 102%
Year 27 Previous NNN Rental Rate x 102%
*Note: Rental rates may increase or decrease in accordance with the provisions
of Section 5.01(c) and Article 25.
1
