EXHIBIT 99.1
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
THIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT (this "Second
Amendment") is made and entered into the 10th day of February, 2004, by and
between TRIZECHAHN TOWER THREE GALLERIA MANAGEMENT, L.P. (hereinafter called
"Landlord"), and THE VIALINK COMPANY, a Delaware corporation (hereinafter called
"Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office Lease
Agreement dated May 31, 2001 (the "Lease"), with respect to the lease of
approximately 43,412 square feet of Net Rentable Area located on Floors 7 and 8
(the "Leased Premises") of the office building commonly known as Three Galleria
Tower located at 00000 Xxxx Xxxx, Xxxxxx, Xxxxx (the "Building"); and
WHEREAS, Landlord and Tenant entered into that certain First Amendment
to Office Lease Agreement dated December 1, 2001 (the "First Amendment") which
provided, among other things, for a reduction in the size of the Premises by
21,696 square feet of Net Rentable Area, all as more particularly set forth
therein; and
WHEREAS, Landlord and Tenant now desire to amend the Lease to provide
for a relocation of the Premises, to further decrease the size of the Premises
and adjust the Basic Rent, Allowance other terms in accordance with the terms of
this Second Amendment.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree that the Lease is amended as follows:
1. DEFINED TERMS. All capitalized terms utilized herein and not defined
herein shall have the meaning ascribed thereto in the Lease.
2. PREMISES. Effective as of January 1, 2004 (the "Relocation Date"),
the Premises shall be relocated to Suite 300 consisting of approximately 12,052
square feet of Net Rentable Area as set forth on the attached Exhibit A (the
"Relocated Premises"), which shall be substituted for the Premises for all
purposes under the Lease. Tenant shall surrender all space formerly including
the Premises on the seventh (7th) floor to Landlord on or before April 1, 2004,
with all furniture (except as otherwise agreed by Landlord), fixtures and
equipment removed and in broom clean condition. It is further agreed that in
connection with the relocation of the Premises, (i) the Building shall be
comprised of 519,675 square feet of Net Rentable Area and (ii) all other amounts
calculated based on the number of square feet of Net Rentable Area of the
Premises shall be adjusted to reflect the Relocated Premises. All references to
the Leased Premises and Building shall mean such area and all provisions of the
Lease based on the number of Net Rentable Area of the Premises shall be adjusted
to reflect the Leased Premises as described above.
3. PAYMENT OF PAST DUE RENT. Tenant shall deliver to Landlord, upon
execution of this Second Amendment, One Hundred Thousand Dollars ($100,000.00)
which shall be in full settlement of all outstanding chargers under the Lease
accruing on or before December 31, 2003.
4. BASIC RENT. Effective as of the Relocation Date, Paragraph 3 of the
Basic Lease Provisions, as amended shall be further amended as follows:
RATE PER
SQUARE FOOT
OF AGREED BASIC ANNUAL BASIC MONTHLY
PERIOD RENTABLE AREA RENT RENT
--------------------------------- --------------- --------------- ---------------
Relocation Date - Expiration Date $ 22.50 $ 271,170.00 $ 22,597.50*
*Tenant shall pay the monthly installments of Base Rent accruing from the
Relocation Date through March, 2004 upon execution of this Second Amendment.
5. TENANT'S PRO RATA SHARE PERCENTAGE. As of the Relocation Date,
Paragraph 4 of the Basic Lease Provisions, as amended shall be deleted in its
entirety and replaced with the following:
"4. "Tenant's Pro Rate Share Percentage": 2.3191% (the Agreed Rentable
Area of the Premises divided by the Agreed Rentable Area of the
Building, expressed in a percentage)."
6. TENANT'S OPERATING EXPENSE STOP. As of the Relocation Date,
Paragraph 5 of the Basic Lease Provisions shall be amended by deleting "2001 or
2002" and inserting in its place "2004".
7. TENANT'S REAL ESTATE TAXES STOP. As of the Relocation Date,
Paragraph 7 of the Basic Lease Provisions shall be amended by deleting "2001 or
2002" and inserting in its place "2004".
8. CONDITION OF THE RELOCATED PREMISES. Landlord agrees to furnish the
Relocated Premises to Tenant upon execution of this Second Amendment in its
current "AS IS" condition and "WITH ALL FAULTS". Tenant agrees that it shall
submit to Landlord all plans and specifications for any improvements to be
constructed in the Relocated Premises and Tenant's intended use thereof, for
Landlord's approval, which must be granted before Tenant commences any
alterations of the Relocated Premises. TENANT FURTHER ACKNOWLEDGES AND AGREES
THAT LANDLORD DOES HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THE RELOCATED PREMISES AND/OR THE IMPROVEMENTS LOCATED THEREIN.
9. PARKING. Exhibit "F" to the Lease, as amended, shall be further
amended such that within the Permit Allotment the number of Executive Permits
shall be reduced from three (3) to one (1) and the number of General Permits
shall be decreased from
sixty-two (62) permits to thirty-eight (38) permits. In addition thereto,
Landlord shall provide one Executive Availability Permit and three (3) General
Availability Permits, with the Parking Permit Fees associated therewith abated
for the remainder of the Term.
10. RENEWAL OPTION. The Renewal Option attached to the Lease as Exhibit
"I" is hereby deleted and of no further force and effect.
11. TERMINATION OPTION. Effective as of the Relocation Date, Landlord
shall have the right to terminate this Lease upon ninety (90) days written
notice to Tenant, which date shall become the expiration date of the Lease and
Tenant agrees to surrender the Premises on or before such date in accordance
with the terms and conditions of the Lease setting forth the rights, duties and
obligations of Landlord and Tenant upon the expiration of the Lease.
12. FURNITURE. Landlord and Tenant agree that Tenant will abandon at
least eighteen (18) of the currently existing wood desk units (each comprised of
a desk, return and credenza) on the seventh (7th) floor of the Building and that
Landlord shall provide (and convey to) Tenant seven (7) similar wood desk units
which are currently located on the 3rd floor.
13. BROKERS. Tenant hereby represents that it has dealt with no broker,
agent or other person, other than NAI Stoneleigh Xxxx Xxxxx XxXxxxxx in
connection with this First Amendment and that no other broker, agent or other
person brought about this First Amendment, and that Tenant shall indemnify and
hold Landlord harmless from and against all loss, damage, cost and expense
(including reasonable attorneys' fees) suffered by Landlord as a result of a
breach of the foregoing representation and warranty.
14. CALCULATION OF CHARGES. Tenant (i) understands and accepts the
methods of calculation for determining charges, amounts and additional rent
payable by Tenant under the Lease, as modified hereby, and (ii) waives (to the
fullest extent permitted by applicable law) all rights and benefits of Tenant
under Section 93.004 (Assessment of Charges) of the Texas Property Code, as such
section now exists or as it may be hereafter amended or succeeded.
15. NOTICES. Item 16 of the Basic Lease Provisions is amended to
substitute the following notice addresses applicable to Landlord and Tenant:
Landlord: Tenant:
TrizecHahn Tower Three Galleria Management, L.P. The
viaLink Company
One Galleria Tower 00000 Xxxx Xxxx, Xxxxx 000
00000 Xxxx Xxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000
Xxxxxx, Xxxxx 00000 Attn: Chief Financial Officer
Attn: Property Manager
With a copy to:
TrizecHahn Tower Three Galleria Management, L.P
% Trizec Holdings, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Senior Vice President
16. MISCELLANEOUS.
A. Amendment to Lease. Tenant and Landlord acknowledge and agree that
the Lease, as amended by the Letter Agreement, has not been amended or modified
in any respect other than as set forth in this Second Amendment, and there are
no other agreements of any kind currently in force and effect between Landlord
and Tenant with respect to the Premises or the Building.
B. Counterparts. This Second Amendment may be executed in multiple
counterparts, and each counterpart when fully executed and delivered shall
constitute an original instrument, and all such multiple counterparts shall
constitute but one and the same instrument.
C. Entire Agreement. This Second Amendment sets forth all covenants,
agreements and understandings between Landlord and Tenant with respect to the
subject matter hereof and there are no other covenants, conditions or
understandings, either written or oral, between the parties hereto except as set
forth in this Second Amendment.
D. Full Force and Effect. Except as expressly amended hereby, all other
items and provisions of the Lease, as amended, remain unchanged and continue to
be in full force and effect .
E. Conflicts. The terms of this Second Amendment shall control over any
conflicts between the terms of the Lease and the terms of this Second Amendment.
F. Authority. Each party to this Second Amendment warrants and
represents unto the other that (i) it is a duly organized and existing legal
entity, in good standing in the State of Texas, (ii) it has full right and
authority to execute, deliver and perform this Second Amendment; (iii) the
person executing this Second Amendment was authorized to do so and (iv) upon
request of the other party hereto, such person will deliver to Landlord
satisfactory evidence of his or her own authority to execute this Second
Amendment on behalf of such party.
G. Capitalized Terms. Capitalized terms not defined herein shall have
the same meanings attached to such terms under the Lease.
H. Successors and Assigns. This Second Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
This Second Amendment is executed on the date indicated above.
LANDLORD: TENANT:
TRIZECHAHN TOWER THREE GALLERIA THE
VIALINK COMPANY,
MANAGEMENT, L.P., a limited partnership a Delaware corporation
By: Trizec Realty, Inc., a California
corporation, as general partner By: /s/Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx, Vice President
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx, Assistant Secretary
EXHIBIT A
THREE GALLERIA TOWER
FLOORPLAN OF THE RELOCATED PREMISES
