EXHIBIT 10.5
LEASE
THIS LEASE ("Lease") is entered into as of the 22 day of October 1996, by
and between SOARING EAGLES ORCHARD, INC., a Washington Corporation ("Landlord")
and MISSION CRITICAL SOFTWARE, INC. ("Tenant"), whose address prior to the
Commencement Date (hereinafter defined) is 00000 Xxxxxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000.
WITNESSETH:
ARTICLE 1
1.01. INTRODUCTORY PROVISIONS AND DEFINITIONS.
The Lease provisions set forth in this Section 1.01 in summary form are solely
to facilitate convenient reference by the parties. If there is any conflict
between this Section and any other provisions of this Lease, the latter shall
control. For purposes of this lease the following terms shall have the meanings
set forth opposite the term.
(a) Project Name and Address: 000 Xxxxx Xxxx Xxx Xxxxxx Building
000 Xxxxx Xxxx Xxx Xxxx
Xxxxxxx, Xxxxx 00000
(b) Building: Approximately 93,165 square feet of Net Rentable Area
(c) Premises: Approximately 7,067 square feet of Rentable
Area on the fifth (5th) floor as shown on Exhibit "B"
(d) Primary Term: Sixty-four (64) months
(e) Commencement Date: December 1, 1996
(f) Expiration Date: March 31, 2002
(g) Base Rent: $6,874.18 per month*
(h) Base Operating Expense
For the Building: 1997 base year per square foot of Rentable Area
(i) Tenant's Initial Pro Rata
Share: 7.6%
(j) Security Deposit: $6,874.18
(k) Supplements: $10,000.00 due upon lease execution
(l) Permitted Use: General office use consistent with software development and marketing
(m) Guarantor: N/A
(n) Broker: Transwestern Property Company
(o) Addresses for Notices: TO: Tenant
Mission Critical Software
000 X. Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
TO: Landlord
Transwestern Property Company (Building Manager)
000 X. Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
c/o Property Manager
* Base Rent for months 1-4 shall be abated.
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ARTICLE 2
2.01. PREMISES.
Landlord hereby does lease, let and demise unto Tenant, and Tenant hereby does
lease and rent from Landlord, upon and subject to the provisions of this Lease,
the Rentable Area of the Premises located in the Building located on the tract
of land ("Land") situated in Xxxxxx County, Texas and more particularly
described on EXHIBIT "A" attached hereto and incorporated herein for all
purposes (the Building, the Land, the parking areas and garages, and any present
or future associated underground or elevated pedestrian tunnels or walkways
being hereinafter collectively referred to as the "Project"), TO HAVE AND TO
HOLD said Premises for the Term, subject to the provisions of this Lease. Such
space so leased to Tenant is herein called the "Premises" and is reflected on
the floor plans ("Floor Plans") of the Building attached hereto as EXHIBIT "B".
2.02. IMPROVEMENTS BY LANDLORD.
Before the Commencement Date and subject to delays caused by Tenant, Landlord
shall substantially complete any leasehold improvements ("Leasehold
Improvements") to be constructed or installed by Landlord pursuant to EXHIBIT
"C" attached hereto and incorporated herein for all purposes. All installations
hereafter placed on the Premises in excess of Building Standard items as
determined by Landlord and as set forth in EXHIBIT "C" shall be for Tenant's
account and at Tenant's cost (and Tenant shall pay ad valorem taxes and
increased insurance thereon), which costs shall be payable by Tenant to Landlord
as additional rent hereunder promptly upon being invoiced therefore, and failure
by Tenant to pay same in full within thirty (30) days shall constitute an event
of default by Tenant hereunder giving rise to all remedies available to Landlord
under this Lease and at law for non-payment of rent.
ARTICLE 3
3.01. TERM.
Subject to the other provisions hereof, this Lease shall be and continue in full
force and effect for a primary term commencing on the Commencement Date, and
expiring on the Expiration Date. Such term, as it may be modified, is herein
called the "Term".
3.02. COMMENCEMENT.
Subject to Section 3.04 hereof, if on the Commencement Date any of the work
described in EXHIBIT "C" hereto that is required to be performed by Landlord at
Landlord's expense has not been substantially completed, or if Landlord is
unable to tender possession of the Premises to Tenant on the Commencement Date
due to any other reason beyond the reasonable control of Landlord, then the
Commencement Date shall be postponed until such work is substantially completed,
the Expiration Date shall be extended so that the Term shall continue for the
full number of years set forth in Section 3.01 and Landlord shall not be liable
for any claims or damages in connection with such failure to complete
construction or tender possession. Notwithstanding the preceding provided Tenant
has executed and delivered the Lease to Landlord for full execution by October
18, 1996 and Tenant has complied with the terms and conditions of Exhibit "C"
attached hereto, if the Landlord does not substantially complete all of the
leasehold improvements and Tenant has not occupied the Lease Premises, through
no fault or delay of Tenant, by January 1, 1997, then Tenant shall have the
option to terminate this Lease effective thirty (30) days following written
notice and to receive the return of the first month's rent and security deposit
within thirty (30) days of written notice.
3.03. LATE POSSESSION.
No delay in the completion of the Premises resulting from delay or failure on
the part of Tenant in furnishing information, work or other matters required in
EXHIBIT "C" shall delay the Commencement Date, the Expiration Date or the
commencement of installments of Rent.
3.04. EARLY POSSESSION.
If prior to the Commencement Date, Tenant shall enter into possession of all or
any part of the Premises, such possession shall be subject to all of the
provisions of this Lease, and the Term and the payment of all Rent shall
commence, with respect to all or such part of the premises as are so occupied by
Tenant, on the date of such entry, and the total amount of all Rent due
hereunder shall be increased accordingly, on a per diem basis, provided that no
such early entry shall be permitted without Landlord's prior written consent or
operate to change the Expiration Date provided for herein.
3.05. CERTIFICATE OF COMMENCEMENT DATE AND EXPIRATION DATE.
If the Commencement Date or Expiration Date is other than as set forth in
Section 3.01 hereof, then upon request by either Landlord or Tenant, both
parties shall execute and deliver a certificate setting forth the actual
Commencement Date and Expiration Date.
3.06. ACCEPTANCE LETTER.
Before the entry into possession of the Premises by Tenant, Tenant shall furnish
to Landlord a letter accepting the condition of the Premises or specifying any
area that is not acceptable. If Tenant enters and accepts possession, Tenant
shall be deemed to have accepted the condition of the Premises without Landlord
having any obligation to do further work other than these items specified by
Tenant required in previous sentence in Tenant's letter.
ARTICLE 4
4.01. BASE RENT.
Tenant, in consideration for this Lease and the leasing of the Premises for the
Term, agrees to pay to Landlord without deduction or set-off as rent, the Base
Rent, in equal monthly installments for each calendar month during the Term.
Base Rent is payable in advance and without demand, on the first day of each
calendar month during the Term. If the Commencement Date is other than the first
day of a month, Tenant shall be required to pay only a pro rate portion of the
monthly installment of Base Rent for the first partial month of the Term for
which Base Rent is payable hereunder on the Commencement Date.
4.02. PAYMENT OF RENT.
As used in this Lease, "Rent" shall mean the Base Rent, the Operating Expense
reimbursements pursuant to Section 5.01, the parking rent, and all other amounts
provided for in this Lease to be paid by Tenant, all of which shall constitute
rental in consideration for this Lease and the Leasing of the Premises. The Rent
shall be paid at the times and in the amounts provided for herein in Legal
tender of the United States of America to Landlord at the address specified
above or to such other person or at such other address as Landlord may from time
to time designate in writing. The Rent shall be paid without notice, demand,
abatement, deduction, or offset except as may be expressly set forth in this
Lease. Landlord shall, at its option, have the right to collect from Tenant,
five cents ($.05) for each dollar ($1.00) of each installment of Rent which is
not received within ten (10) days after its due date for any reason whatsoever
(notwithstanding any notice requirement hereunder, if any) and Tenant agrees to
pay such amount immediately on demand as liquidated damages to cover the
additional costs of collecting and processing such late payments. Any payment
which is less than the amount of Rent then due shall constitute a payment made
on account thereof, the parties hereto agreeing that the Landlord's acceptance
of that
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payment shall not alter or impair the Landlord's rights under this Lease to be
paid all of such amounts then due, or in other respect. Tenant acknowledges that
the late payment by Tenant to Landlord of Rent due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of the late
payment by Tenant.
ARTICLE 5
5.01. OPERATING EXPENSE REIMBURSEMENT.
In the event that Operating Expenses (defined in Section 5.02 hereof) of the
Building during any calendar year of the Term shall exceed the Base Operating
Expense for the Building, Tenant shall pay to Landlord its proportionate share
of the increase in such Operating Expenses over the Base Operating Expense.
Tenant's proportionate share of such increase is agreed to be Tenant's Pro Rata
Share. Thereafter, from time to time, Landlord shall provide to Tenant the
Estimated Operating Expense Increase (or an amendment thereto) for any year. In
addition to the Base Rent, Tenant shall pay in advance on the first day of each
calendar month during the Term, installments equal to 1/12th of Tenant's Pro
Rate Share of the Estimated Operating Expense Increase, except that the first
such monthly installment is due upon the Commencement Date. As soon as possible
after the comparison year, Landlord shall furnish to Tenant a statement
certified by Landlord of the Actual Operating Expense Increase (hereinafter
defined) for the immediately preceding calendar year, which statement shall
specify the various types of Operating Expenses and set forth Landlord's
calculations of Tenant's Pro Rata Share of the Actual Operating Expense
Increase. If Tenant's Pro Rata Share of the Estimated Operating Expense Increase
paid to Landlord during the previous calendar year exceeds Tenant's Pro Rata
Share of the Actual Operating Expense Increase, then Landlord shall refund the
difference to Tenant at the time Landlord furnishes the statement of the Actual
Operating Expense Increase. Otherwise, within fifteen (15) days after Landlord
furnishes such statement to Tenant, Tenant shall make a lump sum payment to
Landlord equal to Tenant's Pro Rata Share of the positive difference between the
Actual Operating Expense Increase and the Estimated Operating Expense Increase
theretofore paid by Tenant.
The "Estimated Operating Expense Increase" shall equal Landlord's estimate of
Operating Expenses for the applicable calendar year, less the Base Operating
Expense. Landlord's statement of the Estimated Operating Expense Increase shall
control for the year specified in such statement and for each succeeding year
during the Term until Landlord provides a new statement of the Estimated
Operating Expense Increase. The "Actual Operating Expense Increase" shall equal
the actual Operating Expenses for the applicable calendar year, less the Base
Operating Expense.
5.02. OPERATING EXPENSES.
The term "Operating Expenses" shall mean and include those reasonable amounts,
expenses, and costs of whatsoever nature that Landlord incurs because of or in
connection with the ownership, operation, management, repair, or maintenance of
the Project and Landlord's personal property used in connection therewith.
Operating Expenses shall be determined on an accrual basis in accordance with
generally accepted accounting principles consistently applied and shall include,
without limitation, the following:
(a) Wages, salaries, fees, related taxes, insurance, benefits, and
reimbursable expenses of all personnel engaged in operating, repairing, and
maintaining the Project and providing traffic control about the Project;
provided, however, that if during the Term such personnel are also working on
other projects being operated by Landlord, their wages, salaries, fees and
related expenses shall be allocated by Landlord in good faith among all of such
projects and only that portion of such expenses allocable to the Project shall
be included as an "Operating Expense."
(b) Cost of all supplies and materials used in operating, repairing,
and maintaining the Project.
(c) Cost of all utilities for the Project, including, without
limitation, water, electricity, gas, fuel oil, heating, lighting, air
conditioning, and ventilating.
(d) Cost of all maintenance, security, window cleaning, elevator
maintenance, landscaping, repair, Janitorial, and other similar service
agreements for the Project and the equipment and other personal property of
Landlord therein and thereon used in connection with the operation, management,
repair or maintenance of the Project.
(e) Cost of all insurance relating to the Project and its occupancy
or operations, including but not limited to (i) the cost of rent loss and
casualty and
liability insurance applicable to the Project or Landlord's personal
property used in connection with the operation of the Project, (ii) the cost of
business interruption insurance in such amounts as will reimburse Landlord for
all losses of earnings and other income attributable to the ownership and
operation of the Project, and (iii) the cost of insurance against such perils
and occurrences as are commonly insured against by prudent Landlords.
(f) All taxes, assessments, and governmental charges and fees of
whatsoever nature, whether now existing or subsequently created, attributable to
the Project or its occupancy or operation, excluding only franchise and income
taxes of Landlord (but not excluding such taxes if imposed in the future wholly
or partially in lieu of present real estate, ad valorem, or similar taxes), and
including all such taxes whether assessed to or paid by Landlord or third
parties, but excluding such taxes to the extent, if any, that Tenant, any other
tenant of the Project, or any other party specifically reimburses Landlord
therefore (other than through the payment of Operating Expense reimbursements).
(g) Costs of repairs to and maintenance of the Project, excluding any
such costs as are paid by the proceeds of insurance, by Tenant, or by other
third parties.
(h) A management fee not to exceed four percent (4%) for management
services rendered in connection with the Project.
(i) Amortization of the cost of capital investment items which are
installed primarily to reduce Operating Expenses for the benefit of all of the
Project's tenants or which may be required by any governmental authority. All
such costs, including interest costs, shall be amortized over the reasonable
life of the capital investment items, with the reasonable life and amortization
schedule being determined by Landlord according to generally accepted accounting
principles, but in no event to extend beyond the reasonable life of the
Building.
(j) Landlord's central accounting costs, and legal, appraisal, and
other such third party fees relating to the operation of the Project.
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(k) The fair market rental value of Landlord's and the property
manager's offices, if any, in the Building not to exceed fair market value.
Notwithstanding the foregoing provisions of this Section 5.02, "Operating
Expenses" shall not include any of the following:
(1) Costs incurred by Landlord for alterations, additions and replacements
which are considered capital expenditures under generally accepted accounting
principles, consistently applied, except to the extent provided in Section
5.02(1).
(2) Any costs or expenditures for which (and to the extent) Landlord is
entitled to reimbursement by Tenant (other than pursuant to this Article 5), any
other tenant of the Project (other than through the payment of Operating Expense
reimbursements), insurance, or condemnation proceeds.
(3) The cost of preparing, renovating, painting, decorating, or otherwise
modifying any part of the Building other than Building Common Areas and Floor
Common Areas.
(4) Leasing commissions, ground rentals (except to the extent the same may
be made to pay insurance or taxes), non-cash items (including, without
limitation, depreciation, except to the extent provided in Section 5.02(1), and
obsolescence), debt service (principal and interest) and other debt costs, and
advertising and promotional expenditures.
(5) One (1) time annually Tenant shall have the right during normal
business hours to audit the previous year's Operating Expenses of the Building
by giving Landlord fifteen (15) days notice of such intent to audit.
5.03. PRORATION AND ADJUSTMENT OF OPERATING EXPENSES.
If this Lease commences on other than the first day of a calendar year, or if
this Lease expires on other than the last day of a calendar year, then the
Operating Expenses for all of such calendar year shall be prorated according to
the portion of the Term that occurs during such calendar year. If at any time
the Building is not fully occupied or Landlord is not supplying all services to
all portions of the Building during an entire calendar year, then Operating
Expenses shall be adjusted as though the Building had been fully occupied and
Landlord were supplying all services to all portions of the Building during the
entire calendar year.
ARTICLE 6
6.01. USE.
Tenant shall use and occupy the Premises only for the purpose set forth in
Article 1.01 (k), and for no other purposes. Tenant shall not use or permit the
Premises to be used for any unlawful purpose or in any unlawful manner, and
shall comply with all federal, state, and local governmental laws, ordinances,
orders, rules and regulations applicable to the Premises, the Project, and the
occupancy thereof and Tenant shall give prompt written notice to Landlord of any
notification to Tenant of any claimed violation thereof. Tenant shall not do or
permit anything to be done in or about the Premises, nor bring or keep anything
therein which will in any way increase the existing rate of or affect any fire
or other insurance upon the Project or any of its contents, or cause
cancellation of any insurance policy covering the Project or any part thereof or
any of its contents. Tenant shall not do or permit anything to be done in or
about the Premises and/or Project which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Project or injure or annoy
them. Tenant shall not permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.
ARTICLE 7
7.01. LANDLORD'S SERVICES.
Provided Tenant is not in default hereunder, Landlord shall, at Landlord's
expense except as provided to the contrary in this Lease, furnish to Tenant the
following services:
(a) Air conditioning and central heat at such temperatures and in
such amounts as are reasonably considered by Landlord to be standard for the
Building, during normal business hours for the Building as set forth in the
Rules and Regulations as hereinafter defined.
(b) Janitorial services in the Premises and public and exterior
portions of
the Building for all days, except Saturdays, Sundays and holidays; provided,
however, if Tenant's floor covering or other improvements is other than Building
Standard, as hereinafter defined, Tenant shall pay the additional cleaning cost
attributable thereto as additional rent upon presentation of a statement
therefore by Landlord.
(c) Hot and cold water at those points of supply provided for
general use of other tenants in the Building.
(d) Normal and customary routine maintenance for all public,
structural, and exterior portions of the Project according to Landlord's
standards.
(e) Electric lighting service for all public portions of the
Project.
(f) Automatic passenger elevator service at all times for access to
and egress from the Premises. Freight elevator service, in common with other
tenants, shall be provided during reasonable business hours as prescribed by
Landlord, exclusive of Saturdays, Sundays, and holidays.
(g) All Building Standard fluorescent bulb replacement in all areas
and all incandescent bulb replacement in public areas, toilet and rest room
areas and stairwells.
(h) Electrical facilities to furnish sufficient power for
typewriters, calculating machines, personal computers and other machines of
similar low electrical consumption (total electrical power requirement not to
exceed one watt per square foot of Rentable Area); but not including electricity
required for electronic data processing equipment, special lighting in excess of
Building Standard, and any other item of electrical equipment, or that requires
a voltage other than 120 volts single phase; and provided that if the
installation of said electrical equipment requires additional air conditioning
capacity above that provided by the Building Standard system, then the
additional air conditioning installation and operating costs will be the
obligation of Tenant. Landlord, at its option, may cause a water meter, electric
current meter or such similar device to be installed on the Premises so as to
measure the amount of water and electric current consumed by Tenant. The cost of
any such meters and of the installation, maintenance and repair thereof shall be
paid for by Tenant and Tenant agrees to pay to Landlord, promptly upon demand by
Landlord, for all such excess water and electric expense incurred. If a separate
meter is not installed or Landlord is prevented from installing a separate meter
by operation of law
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or other cause beyond Landlord's control, such excess costs for such water and
electric current will be established by an estimate made by the utility company,
electrical engineer, or an independent consultant, which estimate shall be
binding on Tenant.
7.02. ADDITIONAL SERVICE COST.
Tenant shall pay Landlord, upon demand, such additional amounts as are
reasonably necessary to recover additional costs incurred by Landlord in
performing or providing non-standard janitorial maintenance, security, or other
services or requirements of Tenant or in performing any services (and in paying
additional taxes) as to any Non-Building Standard installations in the Premises.
Tenant shall pay Landlord, upon demand, reasonable charges for providing off-
hour and non-standard air conditioning, heating and electricity; provided,
however, that Tenant's excessive use or consumption of heating, air conditioning
and/or electrical services in violation of Section 7.01 above, without
Landlord's prior written consent, shall constitute a default under this Lease.
7.03. INTERRUPTION OF SERVICES.
Any failure or defect in Landlord's hereinabove described services shall not be
construed as an eviction of Tenant, nor entitle Tenant to any reduction,
abatement, offset, or refund of Rent or to any damages from Landlord. Landlord
shall not be in breach or default under this Lease, provided Landlord uses
reasonable diligence to restore any such failure or defect after Landlord
receives written notice thereof.
7.04. KEYS AND LOCKS.
Landlord shall furnish to Tenant two (2) keys for each corridor door entering
the Premises. Additional keys will be furnished at a charge by Landlord on an
order signed by Tenant or Tenant's authorized representative. All such keys
shall remain the property of Landlord. No additional locks shall be allowed on
any door of the Premises without Landlord's permission, and Tenant shall not
make, or permit to be made any duplicate keys, except those furnished by
Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord all
keys to the Premises, and give to Landlord an explanation of the combination of
all locks for safes, safe cabinets and vault doors, if any, in the Premises.
7.05. SIGNS.
Landlord shall provide and install all letters and numerals on entrance doors in
or at the Premises. All such letters and numerals are to be Building Standard
graphics, and no other letters, numbers, or signage shall be used or permitted
on the Premises without the prior written consent of Landlord.
ARTICLE 8
8.01. ALTERATIONS.
Tenant shall make no alterations, installations, additions, or improvements in
or to the Premises or place signs on the Premises which are visible from outside
the Premises, without Landlord's prior written consent. All alterations,
installations, additions or improvements, other than moveable furniture and
moveable trade fixtures, made by Tenant to the Premises shall remain upon and be
surrendered with the Premises and become the property of Landlord at the
expiration or termination of this Lease or the termination of Tenant's right to
possession of the Premises; provided, however, that Landlord may require Tenant,
at Tenant's cost, to remove any or all of such items that are not Building
Standard upon the expiration or termination of this Lease or the termination of
Tenant's right to possession of the Premises. All work performed by Tenant with
respect to the Premises shall (a) be performed so as not to alter the exterior
appearance of the Building, (b) be preformed by a contractor approved in writing
by Landlord, (c) be performed so as not to adversely affect the structure or
safety of the Building, (d) comply with all building, safety, fire, and other
codes and governmental and insurance requirements, (e) be performed so as not to
result in any usage in excess of Building Standard of water, electricity, gas,
heating, ventilating, or air conditioning (either during or after such work)
unless prior written arrangements reasonably satisfactory to Landlord are made
with respect thereto, (f) be completed promptly and in a good and workmanlike
manner, and (g) be performed in such a manner that no valid mechanic's,
materialman's, or other similar liens attached to Tenant's leasehold estate and
in no event shall Tenant permit, or be authorized to permit, any such liens
(valid or alleged) or other claims to be asserted against Landlord or Landlord's
rights, estates, and interests with respect to the Project or this Lease. In all
events, Tenant shall not be entitled to perform any work unless and until Tenant
has obtained and furnished to Landlord an appropriate xxxxxxx'x compensation
policy covering all workmen and a general liability policy naming Landlord as a
co-insured with policy limits not less than $1,000,000. Landlord may require, at
Tenant's sole cost and expense, a lien and completion bond in an amount equal to
the estimated cost of any improvements, additions or alterations in the Premises
which have been approved by Landlord.
8.02. REMOVAL OF TRADE FIXTURES AND PERSONAL PROPERTY.
Tenant agrees to remove all of its trade fixtures, personal property and, at
Landlord's request pursuant to Section 8.01, Non-Building Standard items, on or
before the date of expiration or termination of the Term, and shall promptly
reimburse Landlord for the cost of repairing all damage done to the Premises or
the Project by such removal and the cost of restoring the Premises to their
original condition, reasonable wear and tear excepted, after such removal.
Tenant shall not be responsible for the removal of telephone network cabling
installed in the Premises.
8.03. REPAIRS BY LANDLORD.
Landlord shall repair and maintain the structural portions of the Project,
including the Building Standard plumbing (exclusive of tenant kitchens and
coffee bars), air conditioning, heating and electrical systems installed or
furnished by Landlord, and all areas of the Project for the common non-exclusive
use of all tenants in the Project, unless such maintenance and repairs are
caused in part or in whole by the act, neglect, or omission of any duty by the
Tenant, its agents, servants, employees or invitees, or unless such maintenance
or repairs are otherwise herein provided to be made by Tenant. Landlord shall
not be liable for any failure to make such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Landlord by Tenant and
then, only if, after ten (10) days have elapsed, Landlord has failed to commence
to make such repairs or maintenance. Landlord shall not be liable for any
damages, compensation or claim for loss of the use of the whole or any part of
the Premises or Tenant's personal property, or any inconvenience, loss of
business, or annoyance arising from any such repair and/or maintenance performed
by Landlord hereunder, except for damage resulting from Landlord's gross
negligence or willful misconduct. Landlord reserves the right to make such
repairs, changes, alterations, additions, or improvements in or to any portion
of the Project and the fixtures and equipment thereof as it may deem necessary
or desirable.
8.04. REPAIRS BY TENANT.
By taking possession of the Premises, Tenant shall be deemed to have accepted
the Premises as being in good, sanitary order, condition and repair. Tenant
shall, at Tenant's sole cost and expense, keep the Premises in good condition
and repair, damage thereto from causes beyond the reasonable control of Tenant
and ordinary wear and tear excepted. Tenant shall, upon the expiration or sooner
termination of this Lease, surrender the Premises to the Landlord in good
condition, ordinary wear and tear and damage from causes beyond the reasonable
control of Tenant excepted. Any injury or
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damage to the Premises or Project, or the appurtenances or fixtures thereof,
caused by or resulting from the act, omission or neglect of Tenant or Tenant's
employees, servants, agents, invitees, assignees, or subtenants shall be
repaired or replaced by Tenant, or at Landlord's option by Landlord, at the
expense of Tenant. If Tenant fails to maintain the Premises or fails to repair
or replace any damage to the Premises or Project resulting from the negligence
or intentional act of Tenant, its employees, servants, agents, invitees,
assignees or subtenants, Landlord may, but shall not be obligated to cause such
maintenance, repair or replacement to be done, as Landlord deems necessary, and
Tenant shall immediately pay to Landlord all costs related thereto, plus a
charge for Landlord's overhead of fifteen percent (15%) of such cost.
ARTICLE 9
9.01. LANDLORD'S INSURANCE.
Landlord shall fully insure the Project and shall maintain liability and other
insurance in such amounts as may be required by Landlord's mortgagee for the
Project or in such greater amounts as Landlord, in its discretion, may deem
appropriate. Such insurance shall be for the sole benefit of Landlord and, if
required, Landlord's mortgagee.
9.02. TENANT'S INSURANCE.
Tenant shall, at Tenant's expense, fully insure its property located in the
Premises against fire and other casualty and shall maintain public liability
insurance with combined limits of at least $1,000,000. The limits or amounts of
said insurance coverage shall not, however, limit the liability of the Tenant
hereunder. Tenant shall cause Landlord to be named as an additional insured
under such public liability insurance policy and the fire and casualty insurance
policy which Tenant is required to maintain with respect to Tenant's property
located in the Premises. If Tenant shall fail to procure and maintain said
insurance, Landlord may, but shall not be required to, procure and maintain
same, and in such event, premiums and costs thereof shall be reimbursed and paid
by Tenant to Landlord on demand by Landlord. Insurance required hereunder shall
be with companies rated AAA or better in "Best's Insurance Guide." Tenant shall
deliver to Landlord prior to occupancy of the Premises copies of policies of
liability insurance required herein or certificates evidencing the existence and
amounts of such insurance. No policy shall be cancelable or subject to reduction
of coverage except after thirty (30) days prior written notice to Landlord.
9.03. WAIVER OF SUBROGATION.
Whenever (a) any loss, cost, damage or expense resulting from fire, explosion or
any other casualty or occurrence is incurred by either of the parties to this
Lease in connection with the Premises or the Project, and (b) such party is then
covered (or is required to be covered under the foregoing provisions of this
Article 9) in whole or in part by insurance with respect to such loss, cost,
damage or expense, then the party so insured (or required to be insured) hereby
releases the other party from any liability it may have on account of such loss,
cost, damage or expense to the extent of such insurance coverage in place or
required to be in place, and waives any right of subrogation which might
otherwise exist in or accrue to any person on account thereof; provided,
however, that such release of liability shall not be operative in any case where
the effect thereof is to invalidate such insurance coverage or increase the cost
thereof; provided that in the case of increased cost, the other party shall have
the right, within thirty (30) days following written notice, to pay such
increased cost, thereupon keeping such release and waiver in full force and
effect. Landlord and Tenant shall use their respective best efforts to obtain
such a release and waiver of subrogation from their respective insurance
carriers and shall immediately notify the other of any failure to obtain or
maintain the same.
9.04. WAIVER OF LIABILITY AND INDEMNITY.
Landlord, its agents and employees, shall not be liable for any injury to or
death of persons or for any loss of or damage to property of Tenant or of
others, regardless of whether such property is entrusted to employees of the
Project, or such loss or damage is occasioned by casualty, theft, or any other
cause of whatsoever nature, unless caused solely by the willful misconduct or
gross negligence of Landlord. In no event shall Landlord be liable as the result
of the acts or omissions of Tenant or any other tenant of the Project. All
personal property upon the Premises shall be at the risk of Tenant only and
Landlord shall not be liable for any damage thereto or theft thereof. Except in
the event of willful misconduct or gross negligence Tenant hereby indemnifies
and holds Landlord harmless from and against any and all claims arising from
Tenant's use of the
Premises for the conduct of its business or from any activity, work or other
thing done, permitted or suffered by Tenant on or about the Project and shall
further indemnify and hold harmless Landlord from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, or arising from any
act or omission of, or due to the negligence of, the Tenant, or any officer,
agent, employee, guest or invitee of Tenant and from and against all costs,
attorneys' fees, expenses and liabilities incurred in or related to any such
claim or any action or proceeding brought thereon.
Except for any injury or damage to persons or property on the Project that is
caused by or results from the negligent act of Tenant, or Tenant's agents,
employees, invitees, or contractors, and except as otherwise expressly stated in
this Lease, Landlord shall indemnify and hold Tenant harmless from and against
any and all claims arising from any breach or default in the performance of any
obligation on Landlord's part to be performed under the terms of this Lease, or
arising from any act or omission of, or due to the negligence of, the Landlord,
or any officer, employee, representative, invitee or contractor of Landlord, and
from and against all costs, attorneys fees, expenses and liabilities incurred ir
or related to any such claim or any action or proceeding brought thereon.
ARTICLE 10
10.01 CASUALTY.
If the Premises or Project, or any portion of either, shall be damaged by fire
or other casualty covered by the insurance carried or required to be carried by
Landlord hereunder, and the cost of repairing such damage shall not be greater
than ten percent (10%) of the then full replacement cost thereof, then, subject
to the following provisions of this Article, Landlord shall repair the Premises
and/or Project. If the Premises or Project shall be damaged (a) by fire or other
casualty not covered by insurance carried by Landlord hereunder, (b) by fire or
other casualty covered by insurance carried by Landlord hereunder and Landlord's
mortgagee requires that such insurance proceeds be used to retire the mortgage
debt, or to an extent greater than ten percent (10%) of the then full
replacement cost thereof, then Landlord shall have the option to either (I)
repair or reconstruct the same to substantially the same condition as
immediately prior to such fire or other casualty, or (ii) terminate this Lease
by so notifying Tenant within ninety (90) days after the date of such fire or
other casualty, such termination to be effective as of the date of such notice.
The Rent required to be paid hereunder shall be abated in proportion to the
portions of the Premises, if any, which are rendered untenantable by fire or
other casualty hereunder until repairs of the Premises are completed, or if the
Premises are not repaired, until the termination date hereunder. Other than such
Rent abatement, no damages, compensation or claim shall be payable by Landlord
for loss of the use of the whole or any part of the Premises, Tenant's personal
property, or any inconvenience, loss of business, or annoyance arising from any
such repair and reconstruction.
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If this Lease is terminated as provided in (c)(ii) above, all Rent shall be
apportioned and paid up to the termination date. Landlord shall not be required
to repair or replace any furniture, furnishings or other personal property which
Tenant may be entitled to remove from the Premises or any property constructed
and installed by or for Tenant pursuant to Section 8.01 hereof or any
installations in excess of Building Standard.
10.02. END OF TERM CASUALTY.
Notwithstanding anything to the contrary in this Article, Landlord shall not
have any obligation whatsoever to repair, reconstruct or restore the Premises or
the Project when the damage resulting from any casualty covered under this
Article occurs during the last twelve (12) months of the Term or any extension
thereof.
ARTICLE 11
11.01. CONDEMNATION.
If all or substantially all of the Premises be taken by virtue of eminent domain
or for any public or quasi-public use or purpose, this Lease and the estate
hereby granted shall terminate on the date the condemning authority takes
possession and Tenant shall be free to terminate this Lease and vacate the
Premises.
11.02. CONDEMNATION AWARD.
Landlord shall be entitled to the whole of any and all awards which may be paid
or made in connection with any such taking, except that Tenant shall be entitled
to make a separate claim with the condemning authority for (a) any moving
expenses incurred by Tenant as a result of such condemnation, and (b) any
relocation costs incurred by Tenant. Tenant shall be granted the right to pursue
its own award in the event of a condemnation.
ARTICLE 12
12.01. ENTRY.
Landlord, its agents, employees, and representatives, shall have the right to
enter the Premises at any time upon reasonable notice to Tenant under the
circumstances (such notice may be oral and not in compliance with Section 17.05
hereof, but no notice shall be required in the case of routine maintenance or
any emergency) for any purpose which Landlord may reasonably deem necessary for
the operation and maintenance of the Project, including, without limitation, the
exhibiting of the Premises to prospective purchasers, mortgagees, or tenants.
ARTICLE 13
13.01. SUBORDINATION.
This Lease is and shall be subject and subordinate to any and all ground or
similar leases affecting the Project, all mortgages which may now or hereafter
encumber or affect the Project and to all renewals, modifications,
consolidations, replacements and extensions of any such leases and/or mortgages;
provided, however, that at the option of any Underlying Party (hereinafter
defined), this Lease shall be superior to the lease or mortgage of such
Underlying Party. The provisions of this Section 13.01 shall be self-operative
and shall require no further consent or agreement requested by any such lessor
or mortgagee in connection with this Section 13.01. Tenant shall, however,
execute promptly any appropriate certificate or instrument that Landlord may
request. As used in this Lease, the term "Underlying Party" shall mean the
holder of the lessor's interest under any ground or similar lease of all or part
of the Building and/or the mortgagee or purchaser at foreclosure with respect to
any mortgage of all or part of the Building. Tenant agrees that any Underlying
Party may unilaterally subordinate its mortgage or lease to this Lease at any
time by filing a notice of such subordination in the Official Public Records of
Real Property of the county where the Building is located. In the event Landlord
places a mortgage on the property that exceeds 80% of value. Landlord shall use
its best efforts to procure a non-disturbance agreement benefiting Tenant.
13.02. ATTORNMENT.
In the event of the termination of any ground or similar lease affecting the
Project or the enforcement by the trustee or the beneficiary under any mortgage
or deed of trust of remedies provided by law or by such mortgage or deed of
trust, Tenant will, upon request of any person or party succeeding to the
interest of Landlord as the result of such termination or enforcement,
automatically become the Tenant of such successor in interest
without change in the terms or other provisions of this Lease; provided,
however, that such successor in interest shall not be bound by (a) any payment
of Rent for more than one month in advance, or (b) any amendment or modification
of this Lease made without the written consent of such trustee or such
beneficiary or such successor in interest. Upon request by any such successor in
interest, Tenant shall execute and deliver an instrument or instruments
confirming the attornment provided for herein.
13.03. QUIET ENJOYMENT.
Tenant, on paying the Rent and keeping and performing the conditions and
covenants herein contained, shall and may peaceably and quietly enjoy the
Premises for the Term, subject to all applicable laws and ordinances, applicable
insurance requirements and regulations, and the provisions of this Lease.
ARTICLE 14
14.01. ASSIGNMENT.
Tenant shall not assign or in any manner transfer this Lease or any estate or
interest herein, or sublet the Premises or any part thereof, or grant any
license, concession or other right of occupancy of any portion of the Premises
without the prior written consent of Landlord which shall not be unreasonably
withheld. Landlord shall have the option, upon receipt from Tenant of a written
request for Landlord's consent to a subletting or assignment, to cancel this
Lease as of the date which is thirty (30) days following the receipt by Landlord
of the request from Tenant to sublet or assign. The option of Landlord to cancel
this Lease, as provided for above, shall be exercised, if at all, within fifteen
(15) days following Landlord's receipt of such written notice, by delivering to
Tenant written notice of Landlord's intention to exercise the option to so
cancel this Lease. If Tenant desires at any time to enter into an assignment of
this Lease or a sublease of the Premises or any portion thereof, Tenant shall
give written notice to Landlord of its desire to do so, which notice shall
contain (a) the name of the proposed assignee or subtenant, (b) the nature of
the proposed assignee's or subtenant's business to be carried on in the
Premises, the terms and provisions of the proposed assignment or sublease, and
(d) resumes, business plans, references, financial information, and other
information as Landlord may reasonably request concerning the proposed assignee
or subtenant. If Tenant is a corporation, partnership or other entity, and if at
any time during the term of this Lease or any renewal or extension hereof, the
person or persons who own a majority of either the outstanding voting interest
or all outstanding ownership interests of Tenant at the time of execution of
this Lease cease to own a majority of such interest (except as a result of
transfers by devise or
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descent), the loss of a majority of such interest shall be deemed an assignment
of this Lease by Tenant and therefore subject in all respects to the provisions
of this Section 14.01. The previous sentence shall not apply, however, if Tenant
is a corporation and at the time of the execution of this Lease the outstanding
voting shares of capital stock of Tenant are listed on a recognized security
exchange or over the counter market.
14.02. CONTINUED LIABILITY.
Tenant shall, despite any permitted assignment or sublease, remain directly and
primarily liable for the performance of all of the covenants, duties, and
obligations of Tenant hereunder and Landlord shall be permitted to enforce the
provisions of this Lease against Tenant or any assignee or sublease without
demand upon or proceeding in any way against any other person. over, in the
event that the rental due and payable by a sublessee (or a combination of the
rental payable under such sublease, plus any bonus or other consideration
thereof incident thereto) exceeds the Rent payable under this Lease, or if with
respect to a permitted assignment, permitted license, or other transfer by
Tenant permitted by Landlord, the consideration payable to Tenant by the
assignee, licensee or other transferee exceeds Rent payable under this Lease,
then Tenant shall be bound and obligated to pay Landlord all such excess rental
and other excess consideration within ten (10) days following receipt thereof by
Tenant from such sublessee, assignee, licensee or other transferee, as the case
may be.
14.03. CONSENT.
If this Lease is assigned or if the Premises are subleased, then Landlord may
collect rent from the assignee or sublessee and apply the net amount collected
to the Rent payable hereunder, but no such transaction or collection of rent or
application thereof by Landlord shall be deemed a waiver of any provision hereof
or a release of Tenant from the performance by Tenant of its obligations
hereunder.
14.04. TRANSFER BY LANDLORD.
In the event of the transfer and assignment by Landlord of its interest in this
Lease and in the Project to a person expressly assuming Landlord's obligations
under this Lease, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to such successor in
interest of the Landlord for performance of such obligations. Any security given
by Tenant to secure performance of Tenant's obligations hereunder may be
assigned and transferred by Landlord to such successor in interest, and Landlord
shall thereby be discharged of any further obligation relating thereto.
ARTICLE 15
15.01. DEFAULT BY TENANT.
Each of the following shall constitute a "Default" by Tenant:
(a) The failure of Tenant to pay the Base Rent, any other
installment of Rent, or any part thereof when due; or
(b) Tenant shall fail to fulfill or perform, in whole or in part,
any of its obligations under this Lease (other than the payment of Rent) and
such failure or non-performance shall continue for a period of fifteen (15) days
after written notice thereof has been given by Landlord to Tenant; or
(c) The entry of a decree or order by a court having jurisdiction
adjudging Tenant to be bankrupt or insolvent or approving as properly filed a
petition seeking reorganization of Tenant under the National Bankruptcy Act, or
any other similar applicable Federal or State Law, or a decree or order of a
court having jurisdiction for the appointment of a receiver or liquidator or a
trustee or assignee in bankruptcy or insolvency of Tenant or its property or for
the winding up or liquidation of its affairs; or Tenant shall institute
proceedings to be adjudicated a voluntary bankrupt or shall consent to the
filing of any bankruptcy, reorganization, receivership or other proceeding
against Tenant, or any such proceedings shall be instituted against Tenant and
the same shall not be vacated within ninety (90) days after the same are
commenced; or Tenant shall make an assignment for the benefit of Tenant's
creditors or admit in writing Tenant's inability to pay the debts of Tenant
generally as they may become due; or
(e) Tenant shall do or permit to be done anything which creates a
lien upon the Premises or any portion of the Project; or
15.02. RIGHTS UPON DEFAULT BY TENANT.
(a) This Lease and the term and estate hereby granted and the
demise hereby made are subject to the limitation that if and whenever there
shall occur any event of Default, as enumerated above, Landlord may, at
Landlord's option, without any notice or demand whatsoever in addition to any
other remedy or right given hereunder or by law or equity do any one or more of
the following:
(1) Terminate this Lease by written notice to Tenant, in which event
Tenant shall immediately surrender possession of the Premises to
Landlord;
(2) Terminate Tenant's right to possession of the Premises under this
Lease without terminating the Lease itself, by written notice to
Tenant, in which event Tenant shall immediately surrender possession
of the Premises to Landlord;
(3) Enter upon and take possession of the Premises and expel or remove
Tenant and any other occupant therefrom, with or without having
terminated this Lease;
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(4) Alter locks and other security devices at the Premises with or without
having terminated this Lease or Tenant's right to possession under the
Lease;
(5) In the event of any default described in subsection (b) of Section
15.01, Landlord shall have the right to enter upon the Premises
without being liable for prosecution or any claim for damages
therefore, and do whatever Tenant is obligated to do under the terms
of this Lease; and Tenant agrees to reimburse Landlord on demand for
the reasonable any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action.
(b) Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the Premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of Default, to the
aforesaid exercise of dominion over Tenant's property within the Premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks except for gross negligence or willful misconduct by
Landlord or other security devices are hereby waived, as are all claims for
damages by reason of any distress warrant, forcible detainer proceedings,
sequestration proceedings or other legal process. Tenant agrees that any re-
entry by Landlord may be pursuant to a judgment obtained in forcible detainer
proceedings or other legal proceedings or without the necessity for any legal
proceedings, as Landlord may elect, and Landlord shall not be liable in trespass
or otherwise.
(c) (i) In the event Landlord elects to terminate this Lease by
reason of an event of Default, then notwithstanding such termination, the Tenant
shall be liable for and shall pay to the Landlord, at the address specified in
Section 1.01(a) above, the sum of all Rent accrued to the date of such
termination, plus, as damages, (1) an amount equal to the total of the Rent
provided in this Lease for the remaining portion of the Term of the Lease (had
such Term not been terminated by Landlord prior to the Expiration Date stated in
Section 3.01), less the reasonable rental value of the Premises for such period,
such amount to be discounted to present value at the rate of six percent (6%)
per annum (the undersigned parties here stipulating that such reasonable rental
shall in no event be deemed to exceed 60% of the present value of the Rent for
such period).
(ii) In the event Landlord elects to terminate this Lease by
reason of an event of Default, in lieu of exercising the right of Landlord under
the preceding subparagraph (I), Landlord may instead hold Tenant liable for all
Rent accrued to the date of such termination, plus such Rent as would otherwise
have been required to be paid by Tenant to Landlord during the period following
termination of the Term measured from the date of such termination by Landlord
until the Expiration Date stated in Section 3.01 (had Landlord not elected to
terminate the Lease on account of such event of Default) diminished by any net
sums thereafter received by Landlord through reletting the Premises during said
period (after deducting expenses incurred by Landlord as provided in Section
15.03 hereof). Actions to collect amounts due by Tenant as provided for in this
paragraph may be brought from time to time by Landlord during the aforesaid
period, on one or more occasions, without the necessity of Landlord's waiting
until expiration of such period; If Landlord elects to exercise the remedy
prescribed in this subparagraph (ii), this election shall in no way prejudice
Landlord's right at any time thereafter to cancel said election in favor of the
remedy prescribed in the foregoing subparagraph (I).
(f) In the event of a Default, Tenant shall in addition to all other
sums owed to Landlord, pay to Landlord an amount equal to the dollar amount of
all "concessions" provided to Tenant in connection with this Lease, including,
but not limited to, rental concessions, above standard tenant improvements,
relocation allowances, cash payments, any other unamortized tenant improvements,
and the like. The foregoing shall not, however, act to limit in any manner the
damages or remedies to which Landlord may be entitled under this Lease or by
law, but shall act only as a reimbursement of such concessions as may have been
provided to Tenant as an incentive to enter into this Lease.
15.03. EXPENSE OF REPOSSESSION.
15.04. CUMULATIVE REMEDIES.
The remedies of Landlord hereunder shall be deemed cumulative and not exclusive
of each other.
15.05. ATTORNEY'S FEES.
If on account of any breach or default by Tenant in its obligations hereunder,
Landlord shall employ an attorney to present, enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable
attorney's fees incurred by Landlord in such connection and assessed by a court
of competent jurisdiction.
15.06. INTEREST.
All late payments of Rent, costs or other amounts due from Tenant under this
Lease shall bear interest from the date due until paid at the maximum non-
usurious rate of interest at which Tenant may legally contract in Texas.
9
15.07. SECURITY DEPOSIT
Tenant shall deposit with Landlord prior to on the date Tenant occupies the
Premises, the Security Deposit to be held by Landlord without interest as
security for the performance by Tenant of Tenant's covenants and obligations
under this Lease, it being expressly understood that such deposit may be
commingled with Landlord's other funds and is not an advance payment of rental
or a measure of Landlord's damages in case of Default by Tenant. If the Premises
are conveyed by Landlord, the security deposit or any balance thereof may be
turned over to Landlord's grantee or assignee, and if the same is turned over,
Tenant hereby releases Landlord from any and all liability with respect to the
security deposit and its application and Tenant agrees to look solely to such
grantee or assignee for such application or return. Upon the occurrence of any
event of Default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, use such fund to the
extent necessary to make good any arrears of Rents and any other damage, injury,
expense or liability caused to Landlord by such event of Default, and Tenant
shall pay to Landlord on demand the amount so applied in order to restore the
security deposit to its original amount. If Tenant is not then in Default
hereunder, any remaining balance of such deposit shall be returned by Landlord
to Tenant within thirty (30) days following expiration of this Lease (subject to
the provisions of Section 14.04 above).
15.08. LANDLORD'S CONTRACTUAL SECURITY INTEREST.
15.09. USE AND STORAGE OF PERSONAL PROPERTY.
15.10. DEFAULT BY LANDLORD.
In the event of a default or breach by Landlord under this Lease, then Tenant
shall be entitled to the same rights and remedies as may be available to
Landlord under this Lease.
ARTICLE 16
16.01. HAZARDOUS WASTE.
To the best of Landlord's knowledge there are no pending condemnation projects
affecting the Building and that there are no hazardous materials in, on or under
the Building. Tenant hereby represents and warrants to Landlord the following:
Tenant shall not cause or permit the release, discharge, or disposal nor the
presence, use, transportation, generation, or storage of any Hazardous Material
(as hereafter defined) in, on, under, about, to, or from the Premises by either
Tenant, Tenant's employees, agents, contractors, or invitees (collectively the
"Tenant") other than the use of such materials in de minimus quantities
reasonably necessitated by the Tenant's regular business activities.
Tenant further agrees and covenants to Landlord, its agents, employees,
affiliates and shareholders (collectively the "Landlord") the following:
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1. To comply with all Environmental Laws in effect, or may come into
effect, applicable to the Tenant or Tenant's use and occupancy of the
Premises;
2. To immediately notify Landlord, in writing, of any existing, pending,
or threatened (a) investigation, inquiry, claim or action by any
governmental authority in connection with any Environmental Laws; (b)
third party claims; (c) regulatory actions; and/or (d) contamination
of the Premises;
3. Tenant shall, at Tenant's expense, investigate, monitor, remediate,
and/or clean up any Hazardous Material or other environmental
condition on, about, or under the Premises required as a result of
Tenant's use or occupancy of the Premises;
4. To keep the Premises free of any lien imposed pursuant to any
Environmental Laws; and
5. To indemnify, defend, and save Landlord harmless from and against any
and all claims (including personal injury, real, or personal property
damage), actions, judgments, damages, penalties, fines, costs,
liabilities, interests, or attorney's fees that arise, directly or
indirectly, from Tenant's violation of any Environmental Laws or the
presence of any Hazardous Materials on, under or about the Premises.
The Tenant's obligations, responsibilities, and liabilities under this Section
shall survive the expiration of this Lease.
For purposes of this Section the following definitions apply:
"Hazardous Materials" shall mean: (1) any "hazardous waste" and/or "hazardous
substance" defined pursuant to any Environmental Laws; (2) asbestos or any
substance containing asbestos; (3) polychlorinated biphenyls; (4) lead; (5)
radon; (6) pesticides; (7) petroleum or any other substance containing
hydrocarbons; (8) any substance which, when on the Premises, is prohibited by
any Environmental Laws; and (9) any other substance, material, or waste which,
(i) by any Environmental Laws requires special handling or notification of any
governmental authority in its collection, storage, treatment, or disposal or
(ii) is defined or classified as hazardous, dangerous or toxic pursuant to any
legal requirement.
"Environmental Laws" shall mean: any and all federal, state, and local laws,
statutes, codes, ordinances, regulations, rules, or other requirements, relating
to human health or safety or to the environment, including, but not limited to,
those applicable to storage, treatment, disposal, handling and release of any
Hazardous Materials, all as amended or modified from time to time.
ARTICLE 17
17.01. SUBSTITUTE PREMISES.
17.02. ESTOPPEL LETTERS.
Tenant will, at such time or times as Landlord may request, execute and
acknowledge a certificate stating whether this Lease is in full force and
effect, whether any amendments or modifications exist, whether there are any
defaults hereunder, and containing such other related information as may be
reasonably requested.
17.03. HOLDOVER.
If Tenant shall remain in possession of the Premises after the expiration or
earlier termination of this Lease, Tenant shall pay as rent an amount equal to
one hundred fifty percent (150%) of the daily rental rate prevailing on the date
of such termination or expiration (computed on the basis of a thirty (30) day
month). The remaining in possession by Tenant or the acceptance by Landlord of
the payment of said rent shall not be construed as an extension or renewal of
this Lease. The rental payable to Landlord under this Section shall not be
deemed to be in lieu of any damages or other remedy to which Landlord may be
entitled by virtue of Tenant's holding over.
17.04. SURRENDER.
Upon the expiration or earlier termination of the Lease, Tenant shall peacefully
quit and surrender the Premises in broom clean condition and in good order and
condition, excepting ordinary wear and tear, but subject to Sections 8.01 and
8.02 hereof. Tenant shall also cause all exposed electrical wires, plumbing, and
utilities to be capped.
17.05. NOTICE.
Except as otherwise herein provided, any statement, notice, or other
communication which Landlord or Tenant may desire or be required to give to the
other shall be in writing and shall be deemed properly given if mailed by first
class United States mail, postage prepaid, registered or certified with return
receipt requested, or by delivering same in person or by courier to the intended
addressee. Notice so mailed shall be effective upon the expiration of three (3)
business days after its deposit. Notice given in any other manner shall be
effective only if and when received by the addressee. For purposes of notice,
the addresses of the parties shall be as set forth in the opening provisions of
this Lease and/or Section 1.01 hereof. Either party shall have the right to
change its address for notice hereunder to any other location within the United
States by the giving of thirty (30) days' notice to the other party in the
manner set forth hereinabove.
17.06. RULES AND REGULATIONS.
Tenant, as well as any assignee or sublessee approved by Landlord, will comply
with the rules of the Project adopted by Landlord, which are set forth in
EXHIBIT "E" attached hereto and made a part hereof for all purposes. Landlord
shall have the right to change such Rules and Regulations or to amend them in
any reasonable manner for the safety, care and cleanliness of the Project, and
the Premises, and for preservation of good order therein, all of which changes
and amendments will be sent by Landlord to Tenant in writing and shall be
thereafter binding upon,
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carried out and observed by Tenant. Tenant shall further be responsible for the
compliance with such Rules and Regulations by the employees, servants, agents
and invitees of Tenant.
17.07. LANDLORD'S LIABILITY.
Tenant specifically agrees to look solely to Landlord's and Landlord's assignees
interest in the Project for the recovery of any judgment from Landlord, it being
agreed that Landlord shall never be personally liable for any such judgment. The
provision contained in the foregoing sentence is not intended to, and shall not,
limit any right that Tenant might otherwise have to obtain injunctive relief
against Landlord or Landlord's successors in interest, or any other action not
involving the personal liability of Landlord to respond in monetary damages from
assets other than Landlord's interest in the Project or any suit or action in
connection with enforcement or collection of amounts which may become owing or
payable under or on account of insurance maintained by Landlord.
17.08. INABILITY TO PERFORM.
If, by reason of inability reasonably to obtain and utilize labor, materials,
equipment, or supplies, or by reason of circumstances directly or indirectly the
result of any state of war or national or local emergency, or by reason of any
laws, rules, orders, regulations, action, non-action, or requirements of any
governmental authority now or hereafter in force, or by reason of strikes or
riots, or by reason of accidents in, damage to, or the making of repairs,
replacements, or improvements to the Project or the Premises, or any of the
equipment of either, or by the reason of any other cause beyond the reasonable
control of Landlord, Landlord shall be unable to perform or shall be delayed in
the performance of any obligation hereunder, then this Lease and the obligation
of Tenant to pay the Base Rent or additional items of Rent and to perform and
comply with all of the other covenants and agreements hereunder shall in no way
be affected or impaired except as otherwise expressly provided for in this
Lease, and such non-performance or delay in performance by landlord shall not
give rise to any claim against Landlord for damages or constitute a total or
partial eviction, constructive or otherwise. Landlord shall exercise due
diligence in undertaking to remedy such inability to perform or delay in
performance with all reasonable dispatch, but shall not be required to adjust a
labor dispute against its will.
17.09. TENANT AUTHORIZATION.
If Tenant signs as a corporation, each of the persons executing this Lease on
behalf of Tenant represents and warrants that Tenant is a duly organized and
existing corporation, that Tenant has and is qualified to do business in Texas,
that the corporation has full right and authority to enter into this Lease, and
that all persons signing on behalf of the corporation were authorized to do so
by appropriate corporate actions. If Tenant is a general partnership, limited
partnership, trust, or other legal entity, each individual executing this Lease
on behalf of said entity represents and warrants that he or she is duly
authorized to execute this Lease on behalf of such entity and in accordance with
such entity's governing instruments, and that this Lease is binding upon such
entity. Upon the Landlord's request, Tenant shall furnish Landlord with proper
proof of due authorization for Tenant's execution of this Lease as Landlord
shall require.
17.10. BROKER.
Tenant and Landlord each represents and warrants to the other that Tenant and
Landlord, respectively, have dealt with, and only with, Broker as real estate
broker in connection with this Lease, and that, insofar as Tenant and Landlord,
respectively, knows, no other broker negotiated this Lease or is entitled to any
commission in connection herewith and Tenant and Landlord, respectively, shall
indemnify and hold harmless the other from and against all claims (and costs of
defending against and such claims) of any broker or similar parties claiming by,
through, or under Tenant and Landlord, respectively, in connection with this
Lease.
17.11. MEMORANDUM OF LEASE.
Without the prior written consent of Landlord (which may be granted of withheld
in Landlord's sole discretion), Tenant shall not record this Lease or a
memorandum or other instrument with respect to this Lease.
17.12. PARKING.
Tenant shall be permitted to use, on a non-exclusive basis certain parking
spaces during the Term as more fully provided for in EXHIBIT "D" hereto. Use of
the parking spaces is subject to such rules and regulations governing the use as
Landlord may from time to time prescribe, including the designation of specific
areas in which automobiles owned by Tenant, its employees, agents and invitees
shall be part. Tenant shall furnish to Landlord upon request a complete list of
license numbers and physical description of all automobiles operated by Tenant,
its employees and agents.
17.13. TAXES ON TENANT'S PROPERTY.
Tenant shall be liable for all taxes levied or assessed against personal
property and
furniture placed by Tenant on the Premises if such taxes for which Tenant is
liable are levied or assessed against Landlord or Landlord's property and if
Landlord elects to pay the same, or if the assessed value of the Project is
increased by the inclusion of personal property, furniture placed by Tenant on
the Premises, and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord upon demand, that part of such taxes for which
Tenant is primarily liable hereunder, together with interest thereon until paid
at the rate set forth in Section 15.06 hereof.
17.14. LANDLORD'S RIGHTS IN EVENT OF NON-RENEWAL.
During the last ninety days of the original term, or of any renewal term, should
Tenant not elect to renew the term as provided herein, Landlord or any person
authorized by Landlord may during normal business hours, exhibit the same to
prospective tenants, Such entry or actions permitted herein shall not constitute
eviction of Tenant.
17.15. JOINT AND SEVERAL LIABILITY.
If there is more than one tenant, the obligations hereunder imposed upon Tenant
shall be Joint and several. If there is a guarantor of the obligations hereunder
imposed upon Tenant, there shall be a joint and several obligation of Tenant and
such guarantor, and Landlord may not first proceed against Tenant before
proceeding against such guarantor, nor shall any such guarantor be released from
its guaranty for any reason whatsoever.
17.16. ACCEPTANCE BY LANDLORD.
17.17. TIME OF ESSENCE.
Time is of the essence of this Lease and all of its provisions in which
performance is a factor.
12
17.18. ENTIRE AGREEMENT.
This Lease, including EXHIBITS "A" through "E" and Supplements, if any, attached
hereto (which Exhibits are hereby incorporated herein and shall constitute a
portion hereof), contains the entire agreement between Landlord and Tenant with
respect to the subject matter hereof.
17.19. AMENDMENT.
Any agreement hereafter made between Landlord and Tenant shall be ineffective to
modify, release or otherwise affect this Lease, in whole or in part, unless such
agreement is in writing and signed by the party to be bound thereby.
17.20. SEVERABILITY.
If any term or provision of this Lease shall, to any extent, be held invalid or
unenforceable by a final judgment of a court of competent jurisdiction, the
remainder of this Lease shall not be affected thereby.
17.21. SUCCESSORS.
Subject to the limitations and conditions set forth elsewhere herein, this Lease
shall bind and inure to the benefit of the respective heirs, legal
representatives, successors, and assigns of the parties hereto. All rights,
powers, privileges, immunities, and duties either Party under this Lease,
including, but not limited to, any notices required or permitted to be delivered
by Landlord to Tenant hereunder, may, be exercised or performed by that Party's
agent or attorney.
17.22. CAPTIONS.
The captions in this Lease are inserted only as a matter of convenience and for
reference only and they in no way define, limit, or describe the scope of this
Lease or the intent of any provisions hereof.
17.23. NUMBER AND GENDER.
All genders used in this Lease shall include the other genders, the singular
shall include the plural, and the plural shall include the singular, whenever
and as often as may be appropriate.
17.24. GOVERNING LAW.
This Lease shall be governed by and construed in accordance with the laws of the
State of Texas.
18.00 The submission of this Lease to Tenant shall not be construed as an
offer, reservation or option.
Tenant has no rights under this lease unless Tenant and Landlord execute this
Lease, and Landlord delivers the executed Lease to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD TENANT
SOARING EAGLES ORCHARD, INC., MISSION CRITICAL SOFTWARE, INC.
a Washington corporation
By: Xxxxxxxx-Xxxxxx Interests,
its authorized agent
By: /s/ Signature Illegible By: /s/ Signature Illegible
Name: X. Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxxx, Xx.
Its: Vice President Its: Chief Financial Officer
13
LIST OF EXHIBITS
Exhibit "A" - Land
Exhibit "B" - Floor Plans
Exhibit "C" - Leasehold Improvements
Exhibit "D" - Parking
Exhibit "E" - Rules and Regulations
Exhibit "F" - Special Provisions
EXHIBIT "A"
Land
Being a tract of land containing 1.9146 Acres (83,401 square feet) of land
located in the Xxxx Xxxxxxxxx Survey, Abstract No. 647 in the City of Houston,
Xxxxxx County, Texas, and being a part of land described in deed from Xxxxxxx
Xxxxxxx to Xxxxx Xxx, dated October 22, 1885, recorded in Volume 33, Page 24 of
the Xxxxxx County Deed Records, said tract being more particularly described by
metes and bounds as follows: all bearings are referenced to the deed of record;
BEGINNING at a 1-inch iron pipe found at the common West corner of said tract
and that certain tract conveyed to "710 Post Oak, L.C." and recorded under
Xxxxxx County Clerk's File No. N980973;
THENCE North 01 deg. 39 min. 00 sec. West, coincident with the Easterly right-
of-way line of North Post Oak Road (based on 120.00 foot right-of-way), a
distance of 382.30 feet to a found 5\8-inch iron rod with aluminum cap stamped
"Cotton" for the Northwest corner of the herein described tract;
THENCE North 88 deg. 22 min. 54 sec. East, with the common line of said tract
and that certain tract conveyed to Fit Properties, L.C. and Bear Properties,
Inc. under Film Code No. 115-480250 Xxxxxx County, Texas, a distance of 219.20
feet to a found 5\18-inch iron rod with aluminum cap stamped "Cotton" for the
Northwest corner of the herein described tract;
THENCE coincident with the Westerly right-of-way line of Interstate Highway 610
Freeway and along the arc of a curve to the right, said curve having a central
angle of 10 deg. 31 min. 45 sec., a radius of 805.50 feet, an arc length of
148.02 feet and a chord which bears South 03 deg. 20 min. 41 sec. East, 147.82
feet, to a 1\2-inch iron rod set for corner and end of said curve;
THENCE South 02 deg. 43 min. 12 sec. West, continuing with the said westerly
right-of-way line of Interstate Highway 610, a distance of 235,42 feet to a 5\8-
inch iron rod found for the Southwest corner of the herein described tract;
THENCE South 88 deg. 26 min. 11 sec. West with the common line of this tract and
said "710 Post Oak, L.C. tract", a distance of 205.63 feet to the POINT OF
BEGINNING and containing 1.9146 Acres (83,401 square feet) of land.
[EXHIBIT OMITTED]
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 B-1
EXHIBIT "C"
LEASEHOLD IMPROVEMENTS
ARTICLE 1
LANDLORD'S WORK
Tenant Improvements shall be substantially similar to the plan attached hereto
as Exhibit "C-1", Tenant Improvements shall be defined as all construction to
the Premises, architectural fees of $.55 per square foot and construction
management fee of five percent (5%) of the total costs, as outlined below,
Landlord and Tenant agree to share in the cost of the Tenant Improvements as
outlined below:
1. Landlord shall provide an allowance of $84,189.44 for the sole purpose of
Tenant Improvements to the Premises.
Should costs exceed the estimate of $118,924.00 any additional costs shall be
paid for by Tenant upon move-in or amortized into the rental rate over the first
year of the Lease, however, in no event shall Landlord be obligated to amortize
more than $7,067.00. Should the cost of construction be less than $118,924.00
Tenant shall receive a credit towards rent for such savings.
ARTICLE 2
TENANT'S WORK
2.01 Any additional Leasehold Improvements than those shown on Exhibit "C-
1" to be constructed in the Premises shall be constructed by Tenant at Tenant's
cost, provided, however, all such improvements shall be expressly subject to
review and approval by Landlord.
2.02 Under no circumstances whatsoever will Tenant, or Tenant's authorized
representative, ever alter or modify or in any disturb any central system or
installation of the Building, including, but not limited to, exterior building,
central plumbing system, central fire protection and fire alert systems, central
building maintenance systems, central structural systems, elevators, and
anything located within the central core of the Building. Only with Landlord's
express written permission and under direct supervision of Landlord or
Landlord's authorized representative shall Tenant or Tenant's authorized
representative alter or modify or in any manner disturb any branch of any system
or installation of the Building which is located within the Premises, including,
but not limited to, branch electrical, heating, ventilating and air conditioning
systems, and branch fire protection and alert systems. For the purposes of this
Section 2.04, "central" shall be defined as that portion of any Building System
or component which is within the core and\or common to and\or serves or exists
for the benefit of other tenants in the Building; and "branch" shall be defined
as that portion of any Building System or component which serves to connect or
extend control systems into the Premises.
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 c-1
[EXHIBIT OMITTED]
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 c-1-1
EXHIBIT "D"
PARKING
1. At the beginning of the original Term of this Lease, Landlord
shall make available to Tenant six (6) covered reserved parking permits in the
area designated for parking on the Land.
2. Tenant shall indemnify and hold harmless Landlord from and against
all claims, losses, liabilities, damages, costs and expenses (including, but not
limited to, attorneys' fees and court costs) arising or alleged to arise out of
Tenant's use of any such parking spaces. Tenant shall have no further rights to
(a) any parking permit not taken at the beginning of the original Term or (b)
any parking permit taken at the beginning of the original Term and thereafter
released by Tenant or terminated by Landlord for failure to pay parking rent or
to comply with the other terms and conditions for the leasing of such parking
permit imposed by Landlord. Upon the termination of this Lease, Tenant's rights
to the parking permit then being leased to Tenant hereunder shall terminate. In
the event any of the above parking spaces are or become unavailable at any time
or from time to time throughout the Term, whether due to casualty or any other
cause, the Lease shall continue in full force and effect, and Tenant's sole
remedy shall be an abatement of Parking Rent for those parking spaces rendered
unavailable, which abatement shall continue until such time as said parking
spaces, or substitutes therefore, again become available, it being expressly
agreed and understood that Landlord shall have no duty to provide substitute
parking spaces for those spaces rendered unavailable.
3. Tenant agrees to comply with all reasonable rules and regulations
now or hereafter established by Landlord relating to the use of the garage by
contract parking patrons. A condition of any parking shall be compliance by the
parking patron with garage rules and regulations, including any sticker or other
identification system established by Landlord. The following rules and
regulations are in effect until notice is given to Tenant of any change.
Landlord reserves the right to modify and/or adopt such other reasonable and
non-discriminatory rules and regulations for the garage as it deems necessary
for the operation of the garage. Landlord may refuse to permit any person who
violates the rules to park in the garage, and any violation of the rules shall
subject the car to removal.
RULES AND REGULATIONS
1. Cars must be parked entirely within the stall lines painted
on the floor.
2. All directional signs and arrows must be observed.
3. The speed limit shall be 5 miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking
(b) in aisles
(c) where "no parking" signs are posted
(d) in cross hatched areas
(e) in such other areas as may be designated by Landlord or
Landlord's agent(s).
5. Parking stickers or any other device or form of identification
supplied by Landlord shall remain the property of the Landlord and
shall not be transferable. There will be a replacement charge
payable by Tenant equal to the amount posted from time to time by
Landlord for loss of any magnetic parking card or parking sticker.
6. Garage managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations.
7. Every xxxxxx is required to park and lock his own car. All
responsibility for damage to cars or persons is assumed by the
xxxxxx.
8. No intermediate or full size cars shall be parked in parking
spaces limited to compact cars.
9. All motorcycles/motorized bicycles are to be parked in the
designated motorcycle area, and will be removed from the property
if not in the designated area.
Failure to promptly pay the rent required hereunder or persistent failure
on the part of Tenant or Tenant's designated parkers to observe the rules and
regulations above shall give Landlord the right to terminate Lessee's right to
use the parking structure. No such termination shall create any liability on
Landlord or be deemed to interfere with Tenant's right to quiet possession of
the Premises.
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 D-1
EXHIBIT "E"
RULES AND REGULATIONS
1. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators and elevators of the Project shall not be obstructed or
used by Tenant, or the employees, agents, servants, visitors or licensees of
Tenant for any purpose other than ingress and egress to and from the Premises.
No bicycle or motorcycle shall be brought into the Building or kept on the
Premises without the prior written consent of Landlord.
2. No freight, furniture or bulky matter of any description will be
received into the Project or carried into the elevators except in such a manner,
during such hours and using such elevators and passageways as may be approved by
Landlord, and then only upon having been scheduled in advance. Any hand trucks,
carryalls, or similar equipment used for the delivery or receipt of merchandise
or equipment shall be equipped with rubber tires, side guards and such other
safeguards as Landlord shall require.
3. Landlord shall have the right to prescribe the weight, position and
manner of installation of safes or other heavy equipment which shall, if
considered necessary by Landlord, be installed in a manner which shall insure
satisfactory weight distribution. All damage done to the Project by reason of a
safe or any other article of Tenant's office equipment being on the Premises
shall be repaired at the expense of Tenant. The time, routing and manner of
moving safes or other heavy equipment shall be subject to prior approval by
Landlord.
4. Only persons authorized by Landlord will be permitted to furnish
newspapers, ice, drinking water, towels, barbering, shoe shining, janitorial
services, floor polishing and other similar services and concessions to Tenant,
and only at hours and under regulations fixed by Landlord. Tenant shall use no
other method of heating or cooling than that supplied by Landlord other than
fans.
5. Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles or objects of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Project. No animals or birds shall be
brought or kept in or about the Project.
6. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Project or
its desirability for offices and, upon written notice from Landlord, Tenant will
refrain from or discontinue such advertising.
7. Tenant shall not place, or cause or allow to be placed, any sign,
placard, picture, advertisement, notice or lettering whatsoever, in, about or on
the exterior of the Premises, Building or Project except in and at such places
as may be designated by Landlord and consented to by Landlord in writing. Any
such sign, placard, advertisement, picture, notice or lettering so placed may be
removed by Landlord without notice to and at the expense of Tenant. All
lettering and graphics on corridor doors shall conform to the Building Standard
prescribed by Landlord. No trademark shall be displayed in any event.
8. Canvassing, soliciting or peddling in the Building and/or Project is
prohibited and Tenant shall cooperate to prevent same.
9. Landlord shall have the right to exclude any person from the Project
other than during customary business hours as set forth in the Lease, and any
person in the Project will be subject to identification by employees and agents
of Landlord. All persons in or entering the Project shall be required to comply
with the security policies of the Project. If Tenant desires any additional
security service for the Premises, Tenant shall have the right (with the advance
written consent of Landlord) to obtain such additional service at Tenant's sole
cost and expense. Tenant shall keep doors to unattended areas locked and shall
otherwise exercise reasonable precautions to protect property from theft, loss
or damage. Landlord shall not be responsible for the theft, loss or damage of
any property or for any error with regard to the exclusion from or admission to
the Project of any person. In case of invasion, mob, riot or public excitement,
the Landlord reserves the right to prevent access to the Project during the
continuance of same by closing the doors or taking other measures for the safety
of the tenants and protection of the Project and property or persons therein.
10. Only xxxxxxx employed, designated or approved by Landlord may be
employed for repairs, installations, alterations, painting, material moving and
other similar work that may be done in or on the Premises.
11. Tenant shall not do any cooking or conduct any restaurant,
luncheonette, automat or cafeteria for the sale or service of food or beverages
to its employees or to others, or permit the delivery of any food or beverage to
the Premises, except by such persons delivering the same as shall be approved by
Landlord and only under regulations fixed by Landlord. Tenant may, however,
operate a coffee bar by and for its employees.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises or Project any inflammable, combustible, corrosive, caustic, poisonous,
or explosive substance, or cause or permit any odors to permeate in or emanate
from the Premises, or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Project
by reason of light, radiation, magnetism, noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business in the Project.
13. Tenant shall not xxxx, paint, drill into, or in any way deface any
part of the Project or the Premises. No boring, driving of nails or screws,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. Tenant shall not install any
resilient tile or similar floor covering in the Premises except with the prior
approval of Landlord. The use of cement or other similar adhesive material is
expressly prohibited.
14. No additional locks or bolts of any kind shall be placed on any door
in the Project or the Premises and no lock on any door therein shall be changed
or altered in any respect. Landlord shall furnish two keys for each lock on
exterior doors to the Premises and shall, on Tenant's request and at Tenant's
expense, provide additional duplicate keys. Tenant shall not make duplicate
keys. All keys shall be returned to Landlord upon the termination of this Lease
and Tenant shall give to Landlord the explanations of the combinations of all
safes, vaults and combination locks remaining with the Premises. Landlord may at
all times keep a pass key to the Premises. All entrance doors to the Premises
shall be left closed at all times and left locked when the Premises are not in
use.
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 E-1
EXHIBIT "E" (Continued)
15. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation or accident in the Premises or in the Project or of
defects therein or in any fixtures or equipment, or of any known emergency in
the Project.
16. Tenant shall not use the Premises or permit the Premises to be used
for photographic, multilith or multigraph reproductions, except in connection
with its own business and not as a service for others without Landlord's prior
permission.
17. Tenant shall not use or permit any portion of the Premises to be used
as an office for a public stenographer or typist, offset printing, the sale of
liquor or tobacco, a xxxxxx or manicure shop, an employment bureau, a labor
union office, a doctor's or dentist's office, a dance or music studio, any type
of school, or for any use other than those specifically granted in this Lease.
18. Tenant shall not advertise for laborers giving the Premises as an
address, nor pay such laborers at a location in the Premises.
19. The requirements of Tenant will be attended to only upon application
at the office of Landlord in the Building or at such other address as may be
designated by Landlord in the Lease. Employees of Landlord shall not perform any
work or do anything outside of their regular duties, unless under special
instructions from the office of Landlord.
20. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Business machines and mechanical and electrical
equipment belonging to Tenant which cause noise, vibration, electrical or
magnetic interference, or any other nuisance that may be transmitted to the
structure or other portions of the Project or to the Premises to such a degree
as to be objectionable to Landlord or which interfere with the use or enjoyment
by other tenants of their premises or the public portions of the Project shall
be placed and maintained by Tenant, at Tenant's expense in settings of cork,
rubber, spring type, or other vibration eliminators sufficient to eliminate
noise or vibration.
21. No awnings, draperies, shutters or other interior or exterior window
coverings that are visible from the exterior of the Building or from the
exterior of the Premises within the Building may be installed by Tenant.
22. Tenant shall not place, install or operate within the Premises or any
other part of the Project any engine, stove, or machinery, or conduct mechanical
operations therein, without the written consent of Landlord.
23. No portion of the Premises or any other part of the Project shall at
any time be used or occupied as sleeping or lodging quarters.
24. Tenant shall at all times keep the Premises neat and orderly.
25. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who or whose employees or invitees shall have
caused it.
26. Landlord reserves the right to exclude or expel from the Project any
person who, in the Judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the Rules and Regulations of the Project.
27. Normal business hours shall be deemed to be 8:00 a.m. through 6:00
p.m. on weekdays and 8:00 a.m. through 12:00 p.m. on Saturdays, exclusive of
holidays. Holidays shall, for purposes of this Lease, be deemed to be New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas
Day.
28. Landlord reserves the right, without the approval of Tenant, to
rescind, add to and amend any rules or regulations, to add new rules or
regulations, and to waive any rules or regulations with respect to any tenant or
tenants.
29. All tenants will refer all contractor's representatives and
installation technicians who are to perform any work within the Building,
grounds, and Parking Area to Landlord for Landlord's supervision, approval and
control before the performance of any such work. This provision shall apply to
all work performed in the Building, grounds and
Parking Area including, but not limited to, installations of telephones,
telegraph equipment, electrical devices and attachments, and any and all
installations of every nature effecting floors, walls, woodwork, trim, window,
ceilings, equipment and any other physical portion of the Building, grounds, and
Parking Area. Tenant shall not xxxx, paint, drill into, or in any way deface any
part of the Building without Landlord's written consent. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, and as the Landlord may direct. All Christmas and other decorations in
the Building must be flame retardant.
30. Any services which Tenant requests Landlord to perform which Landlord
is not required to perform under this Lease shall, if performed by Landlord, be
billed to Tenant at Landlord's cost plus a ten percent (10%) fee to cover
Landlord's overhead costs. Landlord shall have the right to reasonably refuse to
perform any such services.
31. The Building and all Leased Premises are designated as no smoking
areas. Tenants, their employees, agents, invitees and guest shall not be allowed
to smoke in any area of the Building or Leased Premises. Smoking shall only be
allowed in an area so designated by the Landlord or Landlord's agent and such
area may be changed from time-to-time upon prior written notice from Landlord to
Tenant.
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 E-2
EXHIBIT "F"
SPECIAL PROVISIONS
1. Option to Extend Lease: If Tenant is not in default under this Lease at the
time of the exercise of this option or at the commencement of the extended
Lease Term, Tenant may extend the Lease Term for one (1) extension term of
five (5) years commencing on the next day after the initial Expiration Date
by giving Landlord an extension notice at least nine (9) months, but not
more than twelve (12) months, prior to the initial Expiration Date. If
Tenant timely gives a valid extension notice, the Lease Term is extended
for five (5) years upon the same terms as in the Lease, except that the
Rent and other applicable terms adjust based on the Market Rate and Tenant
has no further option to extend the Lease Term after this option is
exercised.
Within thirty (30) days after Landlord receives Tenant's extension notice,
Landlord shall deliver a notice to Tenant specifying the Market Rate. If
Tenant does not approve Landlord's designation of Market Rate, then Tenant,
as its sole remedy, may revoke its exercise notice by delivering a
revocation notice to Landlord within fifteen (15) and delivers to Landlord
an Arbitration Notice (herein so called) within sixty (60) days after
Tenant's receipt of Landlord's notice specifying the Market Rate, but
otherwise Tenant may not revoke its extension notice. If Tenant gives a
revocation notice, the Lease Term ends on the initial Expiration Date and
Tenant has not further rights under this Section.
2. Expansion Option: Provided Tenant is not in default hereunder, Tenant shall
have the option (the "Expansion") through March 31, 1997 to expand into
such Suites 510, 520 and 530 as noted on the attached Exhibit "F-1"
(Expansion Area"). The terms and conditions of such expansion area shall be
mutually agreed upon by Landlord and Tenant. Landlord shall not sign a new
lease on Suites 510, 520 and 530 until March 1, 1997, however, in the event
Tenant and Landlord cannot mutually agree to the terms and conditions under
which Tenant shall take the Expansion Area by said date, the Expansion
Option shall become null and void.
3. Right of First Refusal: Provided Tenant is not in default, Tenant shall
have the Right of First Refusal on all spaces on the fifth (5th) floor (the
"Refusal Space") which might become available for lease throughout the
Primary Term. Upon Landlord delivering written notice to Tenant that
Landlord has a bona fide offer from a third party, Tenant shall have three
(3) business days to either accept or reject such Right of First Refusal
Space. The terms and conditions of such Right of First Refusal Space shall
be the same as those in the offer to the third party, which will be
outlined on the Landlord's written notice to Tenant. In the event Tenant
either gives written notice that it declines the Refusal Space or does not
provide notice within the established time frame Tenant's Right of First
Refusal shall be aware of such space and Landlord shall be unencumbered to
lease such Refusal Space.
4. Prepaid Rent. Tenant shall pay to Landlord $24,734.50 prior to taking
occupancy of the Premises.
5. Cap on Controllable Operating Expense: Tenant shall not be liable for any
controllable operating expense escalations which are in excess of 10% in
any given year.
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 F-1
[EXHIBIT OMITTED]
Landlord (Initials) Tenant (Initials)
STD TX LEASE FORM CBI 6\95 F-1-1
