EXHIBIT 10.6
LEASE AGREEMENT
BETWEEN
HUSKERS-RESEARCH, LTD.
as Landlord,
and
MOTIVE COMMUNICATIONS, INC.
as Tenant,
Covering approximately 117,314 square foot Building
known (or to be known)as
RESEARCH PARK
BUILDING 1
located in
Austin, Texas.
TABLE OF CONTENTS
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Page No.
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1. PREMISES, TERM, AND IMPROVEMENTS....................................... 1
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2. BASE RENT, LANDLORD'S SERVICES, ADDITIONAL RENT AND SECURITY DEPOSIT... 1
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3. TAXES.................................................................. 3
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4. LANDLORD'S MAINTENANCE................................................. 3
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5. TENANTS'S MAINTENANCE AND REPAIR OBLIGATIONS........................... 4
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6. ALTERATIONS............................................................ 4
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7. SIGNS.................................................................. 4
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8. UTILITIES.............................................................. 4
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9. INSURANCE.............................................................. 5
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10. CASUALTY DAMAGE........................................................ 5
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11. LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE....... 5
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12. USE.................................................................... 6
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13. INSPECTION............................................................. 6
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14. ASSIGNMENT AND SUBLETTING.............................................. 6
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15. CONDEMNATION........................................................... 7
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16. SURRENDER OF PREMISES; HOLDING OVER.................................... 7
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17. QUIET ENJOYMENT........................................................ 8
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18. EVENTS OF DEFAULT...................................................... 8
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19. REMEDIES............................................................... 8
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20. LANDLORD'S DEFAULT..................................................... 9
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21. MORTGAGES.............................................................. 9
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22. ENCUMBRANCES........................................................... 9
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23. MISCELLANEOUS.......................................................... 10
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24. NOTICES................................................................ 11
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25. HAZARDOUS WASTE........................................................ 11
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26. LANDLORD'S LIEN........................................................ 12
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27. SPECIAL PROVISIONS..................................................... 12
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LIST OF DEFINED TERMS
Affiliate......................................................... 8
Allowance......................................................... B-1
Base Rent......................................................... 1
Building.......................................................... 1
Building's Structure.............................................. 3
Claimant.......................................................... 8
Commencement Date................................................. 1
Construction Costs................................................ B-1
Design Professional............................................... B-1
Environmental Law................................................. 10
Event of Default.................................................. 7
Hazardous Substances.............................................. 10
HVAC System....................................................... 3
Including......................................................... 9
Land.............................................................. 1
Landlord.......................................................... 1
Landlord's Mortgagee.............................................. 8
Law............................................................... 8
Laws.............................................................. 8
Lease............................................................. 1
Loss.............................................................. 1
Mortgage.......................................................... 8
MSDS.............................................................. 10
Operating Expenses................................................ 1
Permitted Activities.............................................. 10
Permitted Materials............................................... 10
Premises.......................................................... 1
Primary Lease..................................................... 8
Proportionate Share............................................... 1
Rent.............................................................. 2
Repair Period..................................................... 4
Security Deposit.................................................. 2
Substantial completion............................................ B-1
Substantially completed........................................... B-1
Taking............................................................ 6
Taxes............................................................. 2
Tenant............................................................ 1
Tenant Improvements............................................... 1
Tenant Party...................................................... 9
Term.............................................................. 1
Transfer.......................................................... 5
Vacation Date..................................................... 5
Working Drawings.................................................. B-1
LEASE AGREEMENT
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This Lease Agreement (this "Lease") is entered into by Husker-Research,
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Ltd., ("Landlord"), and Motive Communications, Inc., ("Tenant").
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1. PREMISES, TERM, AND IMPROVEMENTS.
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(a) Landlord leases to Tenant, and Tenant leases from Landlord, the
building depicted as "Phase I" on the Site Plan (herein so called) attached as
Exhibit A-1 (referred to herein as the "Building" or the "Premises"), located
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on the real property described as Phase I on Exhibit A-1 (the "Land"), subject
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to the terms and conditions in this Lease. The Building is a part of that
multiple building project being a portion of Research Park as more particularly
shown on Exhibit A-1 hereto (the "Project").
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(b) The Lease term shall be one hundred twenty (120) months,
beginning on (the "Commencement Date") which shall be the later of: (i) the date
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of substantial completion (as defined on Exhibit B) or (ii) the Projected
Commencement Date (as defined below), and ending one hundred twenty (120) months
thereafter (the "Term", which defined term shall include all renewals and
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extensions of the Term, if any). Upon the Commencement Date, Landlord and Tenant
shall execute a Notice of Commencement in the form attached hereto as Exhibit
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"C" acknowledging the Commencement Date and the date the Lease will expire. As
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used herein, the term "Projected Commencement Date" shall mean either November
15, 2000 or January 15, 2001, and Landlord shall so designate in writing one of
those two dates on or before April 15, 2000 (i.e., in no event shall the
Commencement Date occur after November 15, 2000 but before January 1, 2001).
(c) Landlord shall construct the Shell Improvements, the Site
Improvements and the Tenant Improvements described on the applicable plans and
specifications referenced on Exhibit B, and, by occupying the Premises, Tenant
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shall have accepted the Premises in their condition, subject to completion of
any punch-list items relating to such improvements.
2. BASE RENT, LANDLORD'S SERVICES, ADDITIONAL RENT AND SECURITY DEPOSIT.
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(a) Tenant shall pay to Landlord "Base Rent", monthly in advance,
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without demand, deduction or set off, equal to the following amounts for the
following periods of time:
Time Period Annual Base Rent
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Months 1 through 24 $15.50 per square foot in the Premises ($151,530.58 per month)
Months 25 through 60 $16.25 per square foot in the Premises ($158,862.71 per month)
Months 61 through 84 $17.00 per square foot in the Premises ($166,194.83 per month)
Months 85 through 120 $17.85 per square foot in the Premises ($174,504.58 per month)
The first monthly installment, plus the other monthly charges set forth in
Section 2(c), shall be due on the date hereof; thereafter, monthly installments
of Base Rent shall be due on the first day of each calendar month following the
Commencement Date. If the Term begins on a day other than the first day of a
month or ends on a day other than the last day of a month, the Base Rent and
additional rent for such partial month shall be prorated. Notwithstanding the
foregoing, Tenant shall only occupy, and pay Base Rent on, 85,000 square feet of
the Premises during the first four (4) months of the Term. Therefore, the Base
Rent for months 1 through 4 shall be $109,791.67 (i.e., $15.50 per square foot,
based on 85,000 square feet); provided, however, that during the first 4 months
of the Term, Tenant shall pay additional Base Rent to Landlord for any space
occupied by Tenant over and above 85,000 square feet on a per diem basis at a
rate of $15.50 per rentable square foot/year.
(b) Services. Landlord shall furnish to Tenant: (1) water (hot and
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cold) and sewer service at those points of supply depicted on the Working
Drawings (as defined on Exhibit "B" hereto); (2) building standard janitorial
service to the Premises five (5) days a week (Landlord reserves the right to
xxxx Tenant separately for extra janitorial service requested or required by
Tenant) and such window washing as may from time to time in Landlord's judgment
be reasonably required; and (3) replacement of Building-standard light bulbs and
fluorescent tubes, provided that Landlord's standard charge for such bulbs and
tubes shall be paid by Tenant. Landlord shall maintain the common areas of the
Building, including but not limited to, any elevators, hallways, restrooms and
carpeting in good order and condition consistent with a first-class garden
office building, and shall promptly repair and/or replace any portions of the
Building which are defective, inoperative or inconsistent with a first-class
garden/office building, except for damage occasioned by Tenant, or its
employees, agents or invitees. Notwithstanding anything to the contrary
contained herein, Landlord shall not be responsible to provide security for the
Premises or the Building, and Tenant agrees that it shall be responsible to
contract for its own security service for its Premises. Landlord shall use
reasonable efforts to provide for the safety of the common areas, but shall not
be liable to Tenant, its employees or invitees in the event such efforts are
ineffective. Landlord shall use reasonable efforts to restore any of the
foregoing services that become unavailable; however, such unavailability shall
not render Landlord liable for any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty, or, except as
provided in the next sentence, entitle Tenant to any abatement of Tenant's
obligations hereunder. However, if Tenant is prevented from making reasonable
use of the Premises for more than 15 consecutive days (or 5 consecutive days if
the cause of such unavailability is within the reasonable control of Landlord to
cure) because of the unavailability of any such service, Tenant shall, as its
exclusive
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remedy therefor, be entitled to an equitable adjustment of Base Rent based on
the extent Tenant is prevented from using the Premises for each consecutive day
(after such 15-day, or 5-day period, as applicable) that Tenant is so prevented
from making reasonable use of the Premises. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to select any property
manager employed by Landlord.
(c) It is the intention of Landlord and Tenant that, except as
provided herein to the contrary, the Base Rent shall be absolutely net to
Landlord; that all costs, expenses, and obligations of every kind relating to
Tenant's use, occupancy, and possession of the Premises, which may arise or
become due during the Term shall be paid by Tenant. Tenant shall pay, as
additional rent all costs incurred in owning, operating, managing, and
maintaining the Land and the Building (collectively, "Operating Expenses"),
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including, without limitation, the following items: (1) Taxes (defined below)
and the cost of any tax consultant employed to assist Landlord in determining
the fair tax valuation of the Building and Land; (2) the cost of all utilities
used in the Building (including water and sewer) that are not billed directly to
Tenant by the utility provider; (3) the cost of insurance; (4) the reasonable
cost of repairs, replacement, management fees and expenses, landscape
maintenance and replacement, janitorial service, trash service (if provided),
and a replacement reserve; (5) the cost of dues, assessments, and other charges
applicable to the Land payable to any property or community owner association
under restrictive covenants or deed restrictions to which the Land is subject;
(6) maintenance of fire sprinkler systems; and (7) alterations, additions, and
improvements made by Landlord to comply with Law (defined below) or in order to
reduce Operating Expenses. On the same day that Base Rent is due, Tenant shall
pay to Landlord an amount equal to 1/12 of Landlord's estimate of annual
Operating Expenses. The initial monthly payments are based upon Landlord's
estimate of the Operating Expenses for the year in question, and shall be
increased or decreased annually to reflect the projected actual Operating
Expenses for that year. Within 90 days after each calendar year or as soon
thereafter as is reasonably practicable, Landlord shall deliver to Tenant a
statement setting forth the actual Operating Expenses for such year. If Tenant's
total payments in respect of estimated Operating Expenses for any year are less
than actual Operating Expenses for that year, Tenant shall pay the difference to
Landlord within ten (10) days after Landlord's request therefor; if such
payments of estimated Operating Expenses are more than actual Operating
Expenses, Landlord shall retain such excess and credit it against Tenant's
future monthly payments, except that any credit remaining at the expiration or
earlier termination of this Lease shall be paid to Tenant within thirty (30)
days after such expiration or termination. Operating Expenses shall not include
the following: (A) any costs for interest, amortization, or other payments on
loans to Landlord; (B) commissions or other expenses incurred in leasing or
procuring tenants; (C) legal expenses other than those incurred for the general
benefit of the tenants of the Building; (D) allowances, concessions, and other
costs of renovating or otherwise improving space for occupants of the Building
or vacant space in the Building; (E) federal income taxes imposed on or measured
by the income of Landlord from the operation of the Building; (F) rents under
ground leases; (G) costs incurred in selling, syndicating, financing,
mortgaging, or hypothecating any of Landlord's interests in the Building. There
shall be no duplication of costs for reimbursements in calculating Operating
Expenses; and (H) costs of capital improvements except for those provided in (7)
above and except that Landlord may include in Operating Expenses only such
portion of capital improvement costs as is necessary to amortize such
improvements over their useful life, as defined by the Internal Revenue Service.
The amounts of the initial monthly Base Rent (after month 4) and Tenant's
Proportionate Share of Operating Expenses (and the part thereof attributable to
Taxes) are as follows:
Base Rent (Section 2.(a))................................... $151,530.58
Operating Expenses, excluding Taxes (Section 2.(c))......... $ 26,688.93
Taxes (Sections 2.(c) and 3.(a))............................ $ 31,283.73
Total initial monthly payment............................... $209,503.24
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(d) In the event that the Building becomes a multi-tenant
building in the future, then Tenant shall only be required to pay its
proportionate share of Operating Expenses, such proportionate share being a
fraction the numerator of which is the number of square feet within the Premises
and the denominator of which is the number of square feet in the Building.
(e) If any payment required of Tenant under this Lease is not
paid within five (5) days after due, Landlord may charge Tenant a fee equal to
5% of the delinquent payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency.
(f) All payments and reimbursements required to be made by
Tenant under this Lease shall constitute "rent" (herein so called).
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(g) Tenant shall deposit with Landlord on the date hereof
$148,541.67 (the "Security Deposit"), which shall be held by Landlord to secure
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Tenant's obligations under this Lease; however, the Security Deposit is not an
advance rental deposit or a measure of Landlord's damages for an Event of
Default (defined below). Landlord may use any portion of the Security Deposit to
cure any Event of Default hereunder, without prejudice to any of Landlord's
other remedies. If so used, Tenant shall pay Landlord an amount that will
restore the Security Deposit to its original amount upon request. In connection
with any waiver of a Tenant default or modification of this Lease, Landlord may
require that Tenant provide Landlord with an additional amount to be held as
part of the Security Deposit. The unused portion of the Security Deposit will be
returned to Tenant within a reasonable time after the end of the Term, provided
that Tenant has fully and timely performed its obligations hereunder throughout
the Term.
In addition to the cash Security Deposit described above,
Tenant shall deposit with Landlord on or before April 15, 2000, an irrevocable
stand-by letter(s) of credit in the amount of $1,800,000.00 (whether one or
more, the "Letter of Credit"), which shall be held and/or applied by Landlord in
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accordance with this Section; however, the Letter of Credit is not an advance
rental deposit or a measure of Landlord's damages for an Event of
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3/22/00
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Default (defined below). The Letter of Credit shall be issued by a bank
acceptable to Landlord and shall otherwise be in such form and contain such
terms as are acceptable to Landlord, and shall be coterminous with the Term
hereof. If the Letter of Credit is to be a series of Letters of Credit, for a
one year term each, then each such Letter of Credit will contain a provision
whereby Landlord may draw on the Letter of Credit if it is not replaced or
renewed prior to its expiration date. Upon an event of Default, Landlord may, in
addition to all other rights and remedies afforded Landlord hereunder or by law,
cash the Letter of Credit (as the same may have been reduced in accordance
with the terms hereof) and use and hold the same as a cash security deposit,
which shall include the right to use any portion thereof to satisfy Tenant's
unperformed obligations hereunder, without prejudice to any of Landlord's
other remedies. If so used, Tenant shall pay Landlord an amount that will
restore the Letter of Credit to its original amount upon request. The Letter of
Credit (as the same may have been reduced in accordance with the terms hereof)
will be returned to Tenant within 30 days after the end of the Term, provided
that Tenant has fully and timely performed its obligations hereunder throughout
the Term. If Landlord sells its interest in the Building, the Letter of Credit
shall be transferred to such purchaser, and Tenant hereby agrees to cooperate in
effectuating any such transfer. Notwithstanding the foregoing, so long as no
Event of Default exists, at such time as Tenant has a public stock offering (or
other liquidity event), which raises at least: (i) $40,000,000.00 in equity for
Tenant (after deducting all costs of the transaction), the Letter of Credit
shall be reduced to $900,000.00, (ii) $60,000,000.00 in equity for the Tenant
(after deducting all costs of the transaction), the Letter of Credit shall be
reduced to $450,000.00, and (iii) $80,000,000.00 in equity for Tenant (after
deducting all costs of the transaction), Landlord shall return the Letter of
Credit to Tenant (as the same may have been reduced in accordance with the terms
hereof), and Tenant shall have no further obligations hereunder to supply
Landlord with a letter of credit.
(h) Tenant shall have a period of 60 days following receipt of
the statement of actual Operating Expenses, within which to request and obtain,
at Tenant's expense, a review of Landlord's records to determine if the expenses
in the statement are accurate, reasonable and comply with the Lease. Such
inspection may only be done by a generally recognized accounting firm. Should
errors found in the statement exceed five percent (5%) of the total of the
statement, Landlord shall be responsible for all reasonable fees incurred by
Tenant with respect to the review, otherwise Tenant pays for the review. If
Tenant shall not have availed itself of its audit rights, Tenant shall be deemed
to have accepted final and determinative the amount shown on the statement.
3. TAXES.
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(a) Landlord shall pay all taxes, assessments and governmental
charges whether federal, state, county, or municipal and whether they are
imposed by taxing or management districts or authorities presently existing or
hereafter created (collectively, "Taxes") that accrue against the Land and the
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building. If, during the Term, there is levied, assessed or imposed on Landlord
a capital levy or other tax directly on the rent or a franchise tax, assessment,
levy or charge measured by or based, in whole or in part, upon rent, then all
such taxes, assessments, levies or charges, or the part thereof so measured or
based, shall be included within the term "Taxes".
(b) Tenant shall (1) before delinquency pay all taxes levied or
assessed against any personal property, fixtures or alterations placed in the
Premises and (2) upon the request of Landlord, deliver to Landlord receipts from
the applicable taxing authority or other evidence acceptable to Landlord to
verify that such taxes have been paid. If any such taxes are levied or assessed
against Landlord or Landlord's property and (A) Landlord pays them or (B) the
assessed value of Landlord's property is increased thereby and Landlord pays the
increased taxes, then Tenant shall pay to Landlord such taxes within ten days
after Landlord's request therefor.
4. LANDLORD'S MAINTENANCE.
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(a) Landlord's shall maintain the Building, including the roof,
the foundation piers and structural members of the exterior walls (collectively
the "Building's Structure") and the plumbing, hot water equipment and the
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heating, air conditioning and ventilating equipment ("HVAC System"); however,
Landlord shall not be responsible for any such work until Tenant delivers to
Landlord written notice of the need therefor, except that in the case of an
emergency oral notice shall be considered adequate notice. Landlord's liability
for any defects, repairs, replacement or maintenance for which Landlord is
responsible hereunder shall be limited to the cost of performing such work. All
costs of performing the work described in this section 4(a) (other than repairs
of the Building's Structure) shall be included in Operating Expenses.
(b) Additionally, Landlord shall, maintain the parking areas,
driveways, alleys and grounds located on the Land in accordance with Law and in
a clean and sanitary condition, consistent with the operation of a first-class
garden office building, including prompt maintenance, repairs and replacements
of (1) any drill or spur tract servicing the Building, (2) the exterior of the
Building (including painting), (3) sprinkler systems and sewage lines, and (4)
any other items normally associated with the foregoing. Tenant shall promptly
notify Landlord of any work required to be performed under this Section 4.(b),
and Landlord shall not be responsible for performing such work until Tenant
delivers to Landlord such notice, except that in the case of an emergency oral
notice shall be adequate notice. All costs in performing the work described in
this Section 4.(b) shall be included in Operating Expenses.
(c) Landlord will not cause any waste related to the Building
or the land, nor will Landlord perform any activities which constitute a
nuisance to occur in, on or around the Building or Land. Landlord shall manage
and operate the Building and the Land in a prudent businesslike manner. Landlord
will not permit the Building or any part of it and the Land to be used for any
purpose which increases the insurance premiums of Tenant or Landlord. If such
increased cost are caused by Landlord, then such increase shall not be
considered an Operating Expense to be paid by Tenant.
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(d) Additionally, Landlord shall maintain any private entry drives,
the detention ponds, and other common areas for the Project as shown in the
cross-hatched area on Exhibit A-1, or otherwise added from time to time. The
Building's Proportionate Share of all costs in performing the work (and paying
taxes on some portions of the Project) described in this Section 4(d) shall be
included in Operating Expenses, subject to the applicable provisions of Section
2(b) hereof. As used herein, the term "Building's Proportionate Share" shall
mean a fraction which is determined by dividing the number of square feet
contained in the Building (117,314) by the number of square feet then contained
in the Project. Currently there are no other Buildings in the Project, and
therefore the initial Building's Proportionate Share is 100%. As Additional
square footage in the Project is completed and ready for occupancy, the number
of square feet in the Project will increase and the Building's Proportionate
Share will be adjusted accordingly.
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS. Tenant shall maintain the
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Premises in a clean, safe, operable and attractive condition and shall not
permit or allow to remain any waste or damage to any portion of the Premises,
excluding normal wear and tear and damage by casualty. Tenant shall repair and
pay for any damage caused by a Tenant Party (defined below) or caused to the
Building by Tenant's default hereunder.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
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improvements to the Premises without the prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall not be required to obtain Landlord's
consent with respect to any alteration which (i) does not affect the exterior of
the Building, the Building Structure or load bearing portions of the Building,
(ii) does not adversely affect the mechanical systems, plumbing systems, the
HVAC System or other systems in the Building, and (iii) the cost of which does
not exceed $25,000; provided that Tenant provides Landlord with a reasonable
description of the alteration at least seven (7) days prior to undertaking such
alteration. Landlord shall not be required to notify Tenant of whether it
consents to any alteration, addition or improvements until it (a) has received
plans and specifications therefor which are sufficiently detailed to allow
construction of the work depicted thereon to be performed in a good and
workmanlike manner, and (b) has had a reasonable opportunity to review them. If
the alteration, addition or improvement will affect the Building's Structure,
HVAC System, or mechanical, electrical, or plumbing systems, then the plans and
specifications therefor must be prepared by a licensed engineer reasonably
acceptable to Landlord. Landlord's approval of any plans and specifications
shall not be a representation that the plans or the work depicted thereon will
comply with law or be adequate for any purpose, but shall merely be Landlord's
consent to performance of the work. Upon completion of any alteration, addition,
or improvement, Tenant shall deliver to Landlord accurate, reproducible as-built
plans therefor. Tenant may erect shelves, bins, machinery and trade fixtures
provided that such items (1) do not alter the basic character of the Premises;
(2) do not overload or damage the same; and (3) may be removed without damage to
the Premises. Unless Landlord specifies in writing otherwise, all alterations,
additions, and improvements shall be Landlord's property when installed in the
Premises. All work performed by a Tenant Party in the Building (including that
relating to the installations, repair, replacement, or removal of any item)
shall be performed in accordance with Law and with Landlord's specifications and
requirements, in a good and workmanlike manner, and so as not to damage or alter
the Building's Structure. Any contractors used by Tenant must carry liability
insurance reasonably acceptable to Landlord, and Tenant shall deliver evidence
of such insurance to Landlord before any construction is commenced. In
connection with any such alteration, addition, or improvement managed or
supervised by Landlord, Tenant shall pay to Landlord an administration fee of 5%
of all costs incurred for such work. Tenant shall be responsible for compliance
with Americans With Disabilities Act of 1990 for the interior, non-structural
portions of the Building [other than the Tenant Improvements which will be
constructed in compliance with ADA and in accordance with Exhibit "B"], Landlord
shall be responsible for compliance with the American With Disabilities Act of
1990 relative to the Building's Structure, and all exterior common areas
including, but not limited to, parking areas, sidewalks, and access ways, unless
such compliance is required solely in connection with a Tenant alteration of the
Building, in which case such compliance shall be Tenant's responsibility.
7. SIGNS.
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(a) Tenant shall no place, install or attach any exterior signage,
decorations, advertising media, bars, or make any security installations to the
Building without Landlord's prior written approval. Tenant shall repair, paint,
and/or replace any portion of the Building damaged or altered as a result of its
signage when it is removed (including, without limitation, any discoloration of
the Building). Tenant shall not (a) make any changes to the exterior of the
Building, (b) install any exterior lights, decorations, balloons, flags,
pennants, banners or paintings, or (c) erect or install any signs, windows or
door lettering, decals, window or storefront stickers, placards, decorations, or
advertising media of any type that is visible from the exterior of the Building
without Landlord's prior written consent. Landlord shall not be required to
notify Tenant of whether it consents to any sign until it (1) has received
detailed, to-scale drawings thereof specifying design, material composition,
color scheme, and method of installation, and (2) has had a reasonable
opportunity to review them.
(b) Notwithstanding the foregoing, Landlord agrees that Tenant may,
at Tenant's expense, erect and maintain a sign bearing Tenant's name on the
Building in the approximate location shown on Exhibit A-2 attached hereto,
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(subject to Landlord's reasonable approval of the actual size, design, form,
content and location of such sign). Tenant shall be solely responsible for all
costs of designing, installing, repairing and removing such signage (subject to
reimbursement from the Allowance), diligently construct such building signage to
completion in a good and workmanlike manner and maintain such signage in an
attractive condition, and comply with all governmental codes and regulations.
(c) Notwithstanding anything to the contrary in subparagraph (a)
above, Landlord agrees that Tenant may, at Tenant's expense, erect and maintain
a monument sign bearing Tenant's name in the approximate location shown on
Exhibit A-1, (subject to Landlord's reasonable approval of the size, design,
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form, content and exact location of such sign). Tenant shall be solely
responsible for all costs of designing, installing and repairing such sign,
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shall diligently construct such sign to completion in a good and workmanlike
manner and shall maintain such sign in an attractive condition, and comply with
all governmental code and regulations.
8. UTILITIES. Tenant shall be responsible for (and pay directly to the
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provider) all electricity, HVAC, telephone, computer lines and other utilities
and services used at the Building (other than water and wastewater which shall
be provided by Landlord), together with any taxes, penalties, surcharges,
maintenance charges, and the like pertaining to the Tenant's use of the
Building. Tenant shall be responsible for obtaining telephone and computer line
service to the Building. Landlord shall provide, as part of the Shell
Improvements, all other utility service connections to the Building including
water, gas, electricity and sewer. Landlord shall not be liable for any
interruption or failure of any utility service for which Tenant is responsible.
9. INSURANCE.
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(a) Tenant shall maintain (b) workers' compensation insurance (with
a waiver of subrogation endorsement reasonably acceptable to Landlord) and
commercial general liability insurance (with contractual liability endorsement),
including personal injury and property damage in the amount of $1,000,000 per
occurrence combined single limit for personal injuries and death of persons and
property damage occurring in or about the Premises or the Land, plus umbrella
coverage of at least $5,000,000 per occurrence, (c) fire and extended coverage
insurance covering the replacement cost of all of Tenant's furniture, trade
fixtures, equipment and other personal property in the Premises, and (d) such
other insurance as Landlord may reasonably require. Such policies shall (A) name
Landlord, Landlord's agents, and their respective Affiliates (defined below), as
additional insureds (and as loss payees on the fire and extended coverage
insurance), (B) be issued by an insurance company acceptable to Landlord, (C)
provide that such insurance may not be cancelled unless 30-day's prior written
notice is first given to Landlord, (D) be delivered to Landlord by Tenant before
the Commencement Date and at least 15 days before each renewal thereof, and (E)
provide primary coverage to Landlord when any policy issued to Landlord is
similar or duplicate in coverage, in which case Landlord's policy shall be
excess over Tenant's policies.
(b) Landlord shall, during the term, maintain in full force All-
Risk Property insurance, issued by one or more insurance carriers covering the
Building to the extent of its full replacement value (exclusive of foundation
and excavation costs and other uninsurable parts). All costs in maintaining the
insurance described in this Section 9(b) (and any other insurance that Landlord
may elect to maintain) shall be included in Operating Expenses, subject to the
applicable provisions of Section 2(c) hereof.
10. CASUALTY DAMAGE.
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(a) Tenant immediately shall give written notice to Landlord of any
damage to the Building. If the Building is totally destroyed by an insured
peril, or so damaged by an insured peril that, in Landlord's reasonable
estimation, rebuilding or repairs cannot be substantially completed within 180
days after the date of Landlord's actual knowledge of such damage, then either
Landlord or (if a Tenant Party did not cause such damage) Tenant may terminate
this Lease by delivering to the other written notice thereof within 30 days
after such damage, in which case, the rent shall be abated from the date of
occurrence through the unexpired portion of this Lease, effective upon the date
such damage occurred. Time is of the essence with respect to the delivery of
such notices.
(b) Subject to Section 10.(c), if this Lease is not terminated
under Section 10.(a) then Landlord shall restore the Building to substantially
its previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the furniture, fixtures or personal property
required to be covered by Tenant's insurance under Section 9(a). If the Building
is untenantable, in whole or in part, during the period beginning on the date
such damage occurred and ending on the date of substantial completion of
Landlord's repair or restoration work (the "Repair Period"), then the rent for
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such period shall be reduced to such extent as may be fair and reasonable under
the circumstances and the Term shall be extended by the number of days in the
Repair Period.
(c) If the Building is destroyed or substantially damaged by any
peril not covered by the insurance maintained by Landlord or any Landlord's
Mortgagee (defined below) requires that insurance proceeds be applied to the
indebtedness secured by its Mortgage (defined below) or to the Primary Lease
(defined below) obligations, Landlord may terminate this Lease by delivering
written notice of termination to Tenant within 30 days after such destruction or
damage or such requirement is made known by any such Landlord's Mortgagee, as
applicable, whereupon all rights and obligations hereunder shall cease and
terminate, except for any liabilities of Tenant which accrued before this Lease
is terminated, provided that all Base Rent and any additional rent accruing
after the date of the casualty shall be abated.
11. LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE.
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(a) Landlord shall not be liable to Tenant or Tenant's agents,
employees or contractors, or those claiming by, through, or under any of them
for any injury to or death of any person or persons or any damage to or loss, or
loss of use of any real or personal property caused by casualty, theft, or any
criminal or tortious acts or omissions of any third party, unless caused by
Landlord's gross negligence or intentional misconduct. In addition, Landlord and
Tenant each waives any claims it might have against the other for any damage to
or theft, destruction, loss or loss of use of any property, to the extent the
same is insured against under any insurance policy that covers the Building,
Landlord's or Tenant's fixtures, personal property, leasehold improvements, or
business, or is required to be insured against by the party which might have
such claim under the terms of this Lease, regardless of whether the negligence
(of whatever type or nature, including, but not limited to, gross negligence) or
fault of the other party caused such loss. EACH PARTY SHALL CAUSE ITS INSURANCE
CARRIER TO ENDORSE APPLICABLE POLICIES
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5
WAIVING THE CARRIER'S RIGHT OF RECOVERY UNDER SUBROGATION OR OTHERWISE AGAINST
THE OTHER PARTY.
(b) Subject to paragraph 11 (a), Tenant shall defend, indemnify, and
hold harmless Landlord and its agents and employees from and against all claims,
demands, liabilities, causes of action, suits, judgements, attorney's fees and
expenses for any Loss arising from any occurrence within, on or about the
Building or the Land or arising from Tenant's failure to perform its
obligations under this Lease or arising from any act or omission (whether
negligent, intentional or otherwise) of Tenant or Tenant's agents, employees,
invitees or contractors EVEN IF CAUSED BY THE (SIMPLE) NEGLIGENCE OF LANDLORD,
ITS OFFICERS, AGENTS OR EMPLOYEES, except to the extent that a Loss is caused by
the gross negligence or intentional misconduct of Landlord. The term "Loss"
means any injury to or death of any person or persons or any damage to or theft,
destruction, loss, or loss of use of any real or personal property caused by
causualty, theft, fire, or any acts or omissions of any person or party, and any
injury or damage or inconvenience which may arise through repair or alteration
of any part of the Building, or failure to make repairs, or from any other
cause.
(c) Subject to paragraph 11 (a), Landlord shall defend, indemnify,
and hold harmless Tenant and its agents and employees from and against all
claims, demands, liabilities, causes of action, suits, judgments, attorney's
fees and expenses for any Loss arising from any occurrence within, on or about
the Land or the Building, to the extent, and only to the extent the Loss is
caused by the gross negligence or intentional misconduct of Landlord, or its
agents, employees, invitees or contractors.
THESE WAIVER AND INDEMNITY PROVISIONS IN THIS SECTION 11 SHALL SURVIVE
TERMINATION OR EXPIRATION OF THIS LEASE.
12. USE.
---
(a) The Premises shall be used only for office (including related and
incidental uses). Tenant shall not use the Premises to receive, store or handle
any product, material or merchandise that is explosive or highly inflammable or
hazardous. Outside storage is prohibited. Tenant shall be solely responsible for
complying Laws applicable to the use, occupancy, and condition of the Premises;
provided, however, that Landlord shall deliver the Premises to Tenant in a
condition which is in compliance with all Laws. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, light, noise or vibrations
to emanate from the Premises; nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any other person; nor permiot the premises to be used for any purpose or in any
manner that would (1) void the insurance thereon, (2) increase the Insurance on
risk, or (3) cause the disallowance of any spinkler credits. Tenant shall pay
to Landlord on demand any increase in the cost of any insurance on the Premises
incurred by Landlord, which is caused by tenant's use of the Premiises or
because Tenant vacates the Premises.
(b) Tenant and its employees and invitees shall the non-exclusive
right to use, at no additional cost, in common with others, any parking areas
associated with the Building which Landlord has designated for such use, subject
to (1) such reasonable rules and regulations as Landlord may promulgate from
time to time and (2) rights of ingress and egress of other tenants and their
employees, agents and invitees. Landlord agrees to provide at least 3.8 surface
parking space for every 1,00 square feet of space leased within the Building.
(c) Landlord shall have the right to establish and amend from timeto
time, rules and regulations governing all tenants' uses and occupancy of the
Building or Project (provided the same are reasonable, non-discriminatory and
uniformaly enforced), and provided further that in the event of a conflict
between those rules and this Lease, the Lease shall control.
13 INSPECTION. Upon reasonable notice, Landlord and Landlord;s agents
and representatives
remains the same as Tenant's primary business and the net worth of the new
entity is equal or greater to that of Tenant, (4) sublet any portion of the
Premises, (5) grant any license, concession, or other right of occupancy of any
portion of the Premises, or (6) permit the use of the Premises by any parties
other than Tenant (any of the events listed in Sections 14.(a)(2) through
14.(a)6 being a "Transfer"). If Tenant requests Landlord's consent to a
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Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee; name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Tenant shall reimburse
Landlord for its reasonable attorneys' fees and other expenses incurred in
connection with considering any request for its consent to a Transfer. If
Landlord consents to a proposed Transfer, then the proposed transferee shall
deliver to Landlord a written agreement whereby it expressly assumes the
Tenant's obligations hereunder (however, any transferee of less than all of the
space in the Premises shall be liable only for obligations under this Lease that
are properly allocable to the space subject to the Transfer, and only to the
extent of the rent it has agreed to pay Tenant therefor). Landlord's consent to
a Transfer shall not release Tenant from performing its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and severally
liable therefor. Landlord's consent to any Transfer shall not waive Landlord's
rights as to any subsequent Transfers. If an Event of Default occurs while the
Premises or any part thereof are subject to a Transfer, then Landlord, in
addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Tenant's rent
obligations. Tenant authorizes its transferees to make payments of rent directly
to Landlord upon receipt of notice from Landlord to do so.
(b) Landlord may, within 30 days after submission of Tenant's written
request for Landlord's consent to a Transfer, cancel this Lease (or, as to a
subletting or assignment, cancel as to the portion of the Premises proposed to
be sublet or assigned) as of the date the proposed Transfer was to be effective.
If Landlord cancels this Lease as to any portion of the Premises, then this
Lease shall cease for such portion of the Premises and Tenant shall pay to
Landlord all rent accrued through the cancellation date relating to the portion
of the Premises covered by the proposed Transfer. Thereafter, Landlord may lease
such portion of the Premises to the prospective transferee (or to any other
person) without liability to Tenant.
(c) Tenant hereby assigns, transfers and conveys all consideration
received by Tenant under any Transfer, which are in excess of the rents payable
by Tenant under this Lease plus reasonable costs incurred by Tenant in
connection with such reletting. Tenant shall hold such amounts in trust for
Landlord and pay them to Landlord within ten days after receipt.
15. CONDEMNATION. If any portion of the Building or 50% or more of the
------------
Land is taken for any public or quasi-public use by right of eminent domain or
private purchase in lieu thereof (a "Taking"), and the Taking prevents or
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materially interferes with the use of the Building for the purpose for which it
was leased to Tenant, either party may terminate this Lease by delivering to the
other written notice thereof within 30 days after the Taking, in which case rent
shall be abated during the unexpired portion of the Term, effective on the date
of such Taking. If (a) none of the Building and less than 50% of the Land are
subject to a Taking or (b) a portion of the Building or 50% or more of the Land
are subject to a Taking, but the Taking does not prevent or materially interfere
with the use of the Building for the purpose for which it was leased to Tenant,
then neither party may terminate this Lease, but the rent payable during the
unexpired portion of the Term shall be reduced to such extent as may be fair and
reasonable under the circumstances. All compensation awarded for any Taking
shall be the property of Landlord and Tenant assigns any interest it may have in
any such award to Landlord; however, Landlord shall have no interest in any
award made to Tenant for loss of business or goodwill or for the taking of
Tenant's trade fixtures, the cost of relocating Tenant and/or disruption of
Tenant's business, if a separate award for such items is made to Tenant.
16. SURRENDER OF PREMISES; HOLDING OVER.
-----------------------------------
(a) No act by Landlord shall be an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be valid
unless it is in writing and signed by Landlord. At the end of the Term or the
termination of Tenant's right to possess the Premises, Tenant shall (1) deliver
to Landlord the Premises with all improvements located thereon in good repair
and condition in accordance with the Tenant's maintenance obligations,
reasonable wear and tear expected, (2) deliver to Landlord all keys to the
Premises, and (3) remove all signage placed on the Premises, or the Land by or
at Tenant's request. All fixtures, alterations, additions, and improvements
(whether temporary or permanent) shall be Landlord's property and shall remain
on the Premises except as provided in the next two sentences. Provided that
Tenant has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Premises by Tenant (but Tenant shall not remove any such item which was paid
for, in whole or in part, by Landlord). Additionally, Tenant shall remove such
alterations, additions, improvements, fixtures, equipment, wiring, furniture,
and other property as Landlord may request, provided such request is made within
thirty (30) days after the end of the Term and provided that the installation or
construction of the applicable alteration, improvement, additions, fixture or
wiring was not consented to by Landlord in writing (unless at the time of
consent, Landlord informed Tenant that such item would need to be removed upon
expiration of the Lease). All items not so removed shall, at the option of
Landlord, be deemed abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant and
without any obligation to account for such items and Tenant shall pay for the
costs incurred by Landlord in connection therewith. Any such disposition shall
not be considered a strict foreclosure or other exercise of Landlord's rights in
respect of the security interest granted under Section 26. All work required of
Tenant under this Section 16.(a) shall be coordinated with Landlord and be done
in a good and workmanlike manner, in accordance with all Laws, and so as not to
damage
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7
the Building or unreasonably interfere with other tenants' use of their
premises. Tenant shall, at its expense, repair all damage caused by any work
performed by Tenant under this Section 16(a).
(b) If Tenant fails to vacate the Premises at the end of the Term,
then Tenant shall be a Tenant at will and Tenant shall pay, in addition to the
other rent due hereunder, a daily base rental equal to 200% of the daily Base
Rent payable during the last month of the Term. Additionally, Tenant shall
defend, indemnify, and hold harmless Landlord from any damage, liability and
expense (including attorneys' fees and expenses) incurred because of such
holding over. No payments of money by Tenant to Landlord after the Term shall
reinstate, continue or extend the Term, and no extension of this Term shall be
valid unless it is in writing and signed by Landlord and Tenant.
17. QUIET ENJOYMENT. Provided Tenant has fully performed its obligations
---------------
under this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises
for the Term, without hindrance from Landlord or any party claiming by, through,
or under Landlord, but not otherwise.
18. EVENTS OF DEFAULT. Each of the following events shall constitute an
-----------------
"Event of Default" under this Lease:
----------------
(a) Tenant fails to pay any rent when due or any payment or
reimbursement required under any other lease with Landlord when due, and in
either case failure continues for a period of ten (10) days from the date
Landlord notifies Tenant in writing of its failure to make such payment;
provided, however, that Landlord shall not be required to deliver written notice
more than two (2) times in any given 12 month period, and subsequent to any such
second notice any failure to pay rent or any other sum when due shall be an
immediate Event of Default without notice.
(b) The filing of a petition by or against Tenant or any guarantor of
Tenant's obligations hereunder (1) in any bankruptcy or other insolvency
proceeding; (2) seeking any relief under any debtor relief Law; (3) for the
appointment of a liquidator, receiver, trustee, custodian, or similar official
for all or substantially all of Tenant's property or for Tenant's interest in
this Lease, or (4) for reorganization or modification of Tenant's capital
structure (however, if any such petition is filed against Tenant, then the
filing of such petition shall not constitute an Event of Default, unless it is
not dismissed within sixty (60) days after the filing thereof).
(c) Tenant fails to discharge any lien placed upon the Premises in
violation of Section 22 within thirty (30) days after any such lien or
encumbrance is filed against the Premises.
(d) Tenant fails to comply with any term, provision or covenant of
this Lease (other than those listed in this Section 18), and such failure
continues for thirty (30) days after written notice thereof to Tenant.
All notices required by subparts (a) and (d) above shall be in writing and
delivered in accordance with Section 24 hereof.
19. REMEDIES.
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(a) Upon any Event of Default, Landlord may, in addition to all other
rights and remedies afforded Landlord hereunder or by Law, take any of the
following actions:
(1) Terminate this Lease by giving Tenant written notice thereof, in
which event, Tenant shall pay to Landlord the sum of (A) all rent accrued
hereunder through the date of termination, (B) all amounts due under
Section 19.(b), and (C) an amount equal to (i) the total rent that Tenant
would have been required to pay for the remainder of the Term discounted to
present value at a per annum rate equal to the rate of interest set forth
for 26-week U.S. governmental bills sold at a discount from face value in
units of $10,000 to $1,000,000 as published on the date this Lease is
terminated by The Wall Street Journal, Southwest Edition, in its listing of
"Money Rates" under the heading "Treasury Bills" (or, if no such rate is
published, the "Discount Rate" as published on such date under the "Money
Rates" listing), minus (ii) the then present fair rental value of the
Premises for such period, similarly discounted; or
(2) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (A) all rent and other amounts accrued
hereunder to the date of termination of possession, (B) all amounts due
from time to time under Section 19.(b), and (C) all rent and other sums
required hereunder to be paid by Tenant during the remainder of the Term,
diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period; however, Landlord shall not be
obligated to relet the Premises and shall not be liable for, nor shall
Tenant's obligations hereunder be diminished because of, Landlord's failure
to relet the Premises or to collect rent due for a reletting. Tenant shall
not be entitled to the excess of any consideration obtained by reletting
over the rent due hereunder. Reentry by Landlord in the Premises shall not
affect Tenant's obligations hereunder for the unexpired Term; rather,
Landlord may, from time to time, bring action against Tenant to collect
amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to
Tenant expressly stating that it has elected to terminate this Lease, all
actions taken by Landlord to exclude or dispossess Tenant of the Premises
shall be deemed to be taken under this Section 19.(a)(2). If Landlord
elects to proceed under this Section 19.(a)(2), it may at any time elect to
terminate this Lease under Section 19.(a)(1).
Initials LJH
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8
Additionally, without notice, Landlord may alter locks or other security devices
at the Premises to deprive Tenant of access thereto, and Landlord shall not be
required to provide a new key or right of access to Tenant.
(b) Tenant shall pay to Landlord all costs incurred by Landlord
(including court costs and reasonable attorneys' fees and expenses) in (1)
obtaining possession of the Premises, (2) removing and storing Tenant's or any
other occupant's property, (3) repairing, restoring, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a new tenant, (4) if
Tenant is dispossessed of the Premises and this Lease is not terminated,
reletting all or any part of the Premises (including brokerage commissions, cost
of tenant finish work, and other costs incidental to such reletting), (5)
performing Tenant's obligations which Tenant failed to perform, and (6)
enforcing, or advising Landlord of, its rights, remedies, and recourses.
Landlord's acceptance of rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. Landlord's receipt of rent
with knowledge of any default by Tenant hereunder shall not be a waiver of such
default, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless set forth in writing and signed by Landlord. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such term
or violation of any other term. If Landlord repossesses the Premises pursuant to
the authority herein granted, then Landlord shall have the right to (A) keep in
place and use or (B) remove and store, at Tenant's expense, all of the
furniture, fixtures, equipment and other property in the Premises, including
that which is owned by or leased to Tenant at all times before any foreclosure
thereon by Landlord or repossession thereof by any lessor thereof or third party
having a lien thereon. Landlord may relinquish possession of all or any portion
of such furniture, fixtures, equipment and other property to any person (a
"Claimant") who presents to Landlord a copy of any instrument represented by
--------
Claimant to have been executed by Tenant (or any predecessor of Tenant) granting
Claimant the right under various circumstances to take possession of such
furniture, fixtures, equipment or other property, without the necessity on the
part of Landlord to inquire into the authenticity or legality of the instrument.
Landlord may, at its option and without prejudice to or waiver of any rights it
may have, (i) escort Tenant to the Premises to retrieve any personal belongings
of Tenant and/or its employees not covered by the Landlord's statutory lien or
the security interest described in Section 26, or (ii) obtain a list from Tenant
of the personal property of Tenant and/or its employees that is not covered by
the Landlord's statutory lien or the security interest described in Section 26,
and make such property available to Tenant and/or Tenant's employees: however,
Tenant first shall pay in cash all costs and estimated expenses to be incurred
in connection with the removal of such property and making it available. The
rights of Landlord herein stated are in addition to any and all other rights
that Landlord has or may hereafter have at law or in equity, and Tenant agrees
that the rights herein granted Landlord are commercially reasonable.
20. LANDLORD'S DEFAULT. If Landlord fails to perform any of its
------------------
obligations hereunder within 30 days after written notice from Tenant specifying
such failure, Tenant's exclusive remedy shall be an action for damages. Unless
Landlord fails to so cure such default after such notice, Tenant shall not have
any remedy or cause of action by reason thereof. Liability of Landlord to Tenant
for any default by Landlord, shall be limited to actual, direct, but not
consequential, damages therefor and shall be recoverable only from the interest
of Landlord in the Building and the Land, and neither Landlord nor Landlord's
owners shall have personal liability therefor.
21. MORTGAGES.
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(a) This Lease shall be subordinate to any deed of trust, mortgage or
other security instrument (a "Mortgage"), and any ground lease, master lease, or
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primary lease (a "Primary Lease") that now or hereafter covers any portion of
-------------
the Premises (the mortgagee under any Mortgage or the lessor under any Primary
Lease is referred to herein as "Landlord's Mortgagee"), and to increases,
--------------------
renewals, modifications, consolidations, replacements, and extensions thereof.
However, any Landlord's Mortgagee may elect to subordinate its Mortgage or
Primary Lease (as the case may be) to this Lease by delivering written notice
thereof to Tenant. The provisions of this Section 21 shall be self-operative,
and no further instrument shall be required to effect such subordination;
however, Landlord shall deliver to Tenant, and Tenant shall execute from time to
time within ten days after delivery thereof to Tenant, an instrument from each
Landlord's Mortgagee evidencing the subordination of this Lease to any such
Mortgage or Primary Lease (which instrument shall include a non-disturbance
provision in favor of Tenant and shall be on Landlord's Mortgagee's standard
form).
(b) Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request. Tenant shall not seek to enforce any remedy
it may have for any default on the part of Landlord without first giving written
notice by certified mail, return receipt requested, specifying the default in
reasonable detail to any Landlord's Mortgagee whose address has been given to
Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
(c) Notwithstanding any such attornment or subordination of a
Mortgage or Primary Lease to this Lease, the Landlord's Mortgagee shall not be
liable for any acts of any previous landlord, shall not be obligated to install
any improvements, and shall not be bound by any amendment to which it did not
consent in writing nor any payment of rent made more than one month in advance.
22. ENCUMBRANCES. Tenant has no authority, express or implied, to
------------
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind Landlord's property or the interest of Landlord or
Tenant in the Building or the Land or to charge the rent for any claim in favor
of any person dealing Tenant, including those who may furnish materials or
perform labor for any construction or repairs. Tenant shall pay or cause to be
paid all sums due for any labor performed or materials furnished in connection
with any work performed
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9
on the Building or the Land by or at the request of Tenant. Tenant shall give
Landlord immediate written notice of the placing of any lien or encumbrance
against the Building or the Land.
23. MISCELLANEOUS.
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(a) Words of any gender used in this Lease shall include any other
gender, and words in the singular shall include the plural, unless the context
otherwise requires. The captions inserted in this Lease are for convenience only
and in no way affect the interpretation of this Lease. The following terms shall
have the following meanings; "Laws" shall mean all federal, state, and local
----
laws, rules, and regulations; all court orders, governmental directives, and
governmental orders; and all restrictive covenants affecting the Property, and
"Law" shall mean any of the foregoing; "affiliate" shall mean any person or
--- ---------
entity which, directly or indirectly, controls, is controlled by, or is under
common control with the party in question; "Tenant Party" shall include Tenant,
------------
any assignees claiming by, through, or under Tenant, any subtenants claiming by,
through, or under Tenant, and any of their respective agents, contractors,
employees, and invitees; and "including" shall mean including, without
---------
limitation. The normal rule of construction that any ambiguities be resolved
against the drafting party shall not apply to the interpretation of this Lease
or any exhibits or amendments hereto.
(b) The liability of Landlord to Tenant under the terms of this Lease
shall be limited to the interest of Landlord in the Building and the Land, and
Landlord shall not be personally liable for any deficiency, Landlord may
transfer and assign, in whole or in part, its rights and obligations in the
Building and property that are the subject to this Lease, in which case Landlord
shall have no further liability hereunder. Any succeeding landlord shall be
liable for such claims as Tenant may have had against the preceding landlord
whether or not such claims are expressly assumed by the succeeding landlord.
Each party shall furnish to the other, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of such party to enter into this
Lease.
(c) Whenever a period of time is herein prescribed for action to be
taken by a party (other than the payment of rent), the party shall not be liable
or responsible for, and there shall be excluded from the computation for any
such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of the party in
question.
(d) Tenant shall, from time to time, within ten days after request of
Landlord, deliver to Landlord, or Landlord's designee annual audited financial
statements for itself and any guarantor of its obligations hereunder, evidence
reasonably satisfactory to Landlord that Tenant has performed its obligations
under this Lease (including evidence of the payment of the Security Deposit),
and an estoppel certificate stating that this Lease is in full effect, the date
to which rent has been paid, the unexpired Term and such other factual matters
pertaining to this Lease as may be requested by Landlord. In no case will annual
audited financial statements be required to be provided sooner than 120 days
subsequent to year-end. All financial statements are strictly confidential any
may only be disclosed to Landlord's professional advisors, including, but not
limited to accountants, tax advisors, attorneys and lending institutions.
Tenant's obligation to furnish the above-described items in a timely fashion is
a material inducement for Landlord's execution of this Lease.
(e) This Lease constitutes the entire agreement of the Landlord and
Tenant with respect to the subject matter of this Lease, and contains all of the
covenants and agreements of Landlord and Tenant with respect thereto. Landlord
and Tenant each acknowledge that no representations, inducements, promises or
agreements, oral or written, have been made by Landlord or Tenant, or anyone
acting on behalf of Landlord or Tenant, which are not contained herein, and any
prior agreements, promises, negotiations, or representations not expressly set
forth in this Lease are of no effect. This Lease may not be altered, changed or
amended except by an instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed by the
end of the Term shall survive, including, without limitation, all payment
obligations with respect to Operating Expenses and all obligations concerning
the condition and repair of the Premises. Upon the end of the Term and before
Tenant vacates the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises in good condition and
repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating
the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for Operating Expenses through the end of the Term for the
year in which the Term ends. All such amounts shall be used and held by Landlord
for payment of such obligations of Tenant hereunder, with Tenant being liable
for any additional costs therefor upon demand by Landlord or with any excess to
be returned to Tenant after all such obligations have been determined and
satisfied as the case may be. Any Security Deposit (including the Letter of
Credit) held by Landlord may be credited against the amount due by Tenant under
this Section 23.(f).
(g) If any provision of this Lease is illegal, invalid or
unenforceable, then the remainder of this Lease shall not be affected thereby,
and in lieu of each such provision, there shall be added, as a part of this
Lease, a provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
(h) All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
Initials LJH
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Date 3/22/00
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10
(i) Landlord and Tenant each warrant to the other that it has not
dealt with any broker or agent in connection with this Lease, other than Hill
Partners, Inc. (the "Broker"). Tenant and Landlord shall each indemnify the
other against all costs, attorneys' fees, and other liabilities for commissions
or other compensation claimed by any broker or agent (other than the Broker)
claiming the same by, through, or under the indemnifying party.
(j) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying an individual at a specific address within the continental United
States for the receipt of notices and payments to Tenant. All parties included
within the terms "Landlord" and "Tenant," respectively, shall be bound by
notices given in accordance with the provisions of Section 24 to the same effect
as if each had received such notice.
(k) The terms and conditions of this Lease are confidential and
Tenant shall not disclose the terms of this Lease to any third party except as
may be required by law or to enforce its rights hereunder or to provide
information to its professional advisors, including without limitation,
accountants, tax advisors, attorneys and lending institutions.
(l) Tenant shall pay interest on all past-due rent from the date due
until paid at the maximum lawful rate. In no event, however, shall the charges
permitted under this Section 23.(1) or elsewhere in this Lease, to the extent
they are considered to be interest under applicable Law, exceed the maximum
lawful rate of interest.
(m) THIS LEASE WILL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
24. NOTICES. Each provision of this instrument or of any applicable Laws
-------
and other requirements with reference to the sending, mailing or delivering of
notice or the making of any payment hereunder shall be deemed to be complied
with when and if the following steps are taken:
(a) All rent shall be payable to Landlord at the address for Landlord
set forth below or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith. Tenant's obligation to
pay rent shall not be deemed satisfied until such rent has been actually
received by Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered upon the earlier to occur of
(1) tender of delivery (in the case of a hand-delivered notice), (2) deposit in
the United States Mail, postage prepaid, Certified Mail, or (3) receipt by
facsimile transmission, in each case, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith. If
Landlord has attempted to deliver notice to Tenant at Tenant's address reflected
on Landlord's books but such notice was returned or acceptance thereof was
refused, then Landlord may post such notice in or on the Premises, which notice
shall be deemed delivered to Tenant upon the posting thereof.
25. HAZARDOUS WASTE. The term "Hazardous Substances," as used in this
--------------- --------------------
Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law," which term shall
-----------------
mean any Law relating to health, pollution, or protection of the environment.
Tenant hereby agrees that (a) no activity will be conducted on the Premises that
will produce any Hazardous Substances, except for such activities that are part
of the ordinary course of Tenant's business activities (the "Permitted
---------
Activities") provided such Permitted Activities are conducted in accordance with
----------
all Environmental Laws and have been approved in advance in writing by Landlord;
(b) the Premises will not be used in any manner for the storage of any Hazardous
Substances except for any temporary storage of such materials that are used in
the ordinary course of Tenant's business (the "Permitted Materials") provided
-------------------
such Permitted Materials are properly stored in a manner and location satisfying
all Environmental Laws and approved in advance in writing by Landlord; (c) no
portion of the Building or the Land will be used as a landfill or a dump; (d)
Tenant will not install any underground tanks of any type; (e) Tenant will not
allow any surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute a public or private
nuisance; (f) Tenant will not permit any Hazardous Substances to be brought onto
the Building or the Land, except for the Permitted Materials, and if so brought
or found located thereon, the same shall be immediately removed by Tenant, with
proper disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws; (g) Tenant will maintain on the
Premises a list of all materials stored at the Premises for which a material
safety data sheet (an "MSDS") was issued by the producers or manufacturers
----
thereof, together with copies of the MSDS's for such materials, and shall
deliver such list and MSDS copies to Landlord upon Landlord's request therefor;
and (h) Tenant shall remove all Permitted Materials from the Premises in a
manner acceptable to Landlord before Tenant's right to possess the Premises is
terminated. If at any time during or after the Term, the Premises are found to
be so contaminated or subject to such conditions, Tenant shall defend, indemnify
and hold Landlord harmless from all claims, demands, actions, liabilities,
costs, expenses, damages and obligations of any nature arising from or as a
result of the use of the Premises by Tenant, except for any conditions or
contamination caused by Landlord. The foregoing indemnity shall survive
termination or expiration of this Lease. Unless expressly identified on an
addendum to this Lease, as of the date hereof there are no "Permitted
Activities" or "Permitted Materials" for purposes of the foregoing provision and
none shall exist unless and until approved in writing by the Landlord. Landlord
may enter the Premises
Initials LJH
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Date 3/22/00
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11
and conduct environmental inspections and tests therein as it may require from
time to time, provided that Landlord shall use reasonable efforts to minimize
the interference with Tenant's business. Such inspections and tests shall be
conducted at Landlord's expense, unless they reveal the presence of Hazardous
Substances (other than Permitted Materials) or that Tenant has not complied with
the requirements set forth in this Section 25, in which case Tenant shall
reimburse Landlord for the cost thereof within ten days after Landlord's request
therefor. Landlord shall not use or store any hazardous substance in or about
the Building and Land unless such hazardous substance is used or stored,
transported and handled in accordance with Law.
26. LANDLORD'S LIEN. In addition to the statutory landlord's lien, Tenant
---------------
grants to Landlord, to secure performance of Tenant's obligations hereunder, a
security interest in all goods, inventory, equipment, fixtures, furniture,
improvements, chattel paper, accounts, and general intangibles (other than
intellectual property), and other personal property of Tenant now or hereafter
situated on or relating to Tenant's use of the Premises, and all proceeds
therefrom (the "Collateral"), and the Collateral shall not be removed from the
----------
Premises without the consent of Landlord until all obligations of Tenant have
been fully performed. Upon the occurrence of an Event of Default, Landlord may,
in addition to all other remedies, without notice or demand except as provided
below, exercise the rights afforded a secured party under the Uniform Commercial
Code of the State in which the Building is located (the "UCC"). In connection
---
with any public or private sale under the UCC, Landlord shall give Tenant
five-days' prior written notice of the time and place of any public sale of the
Collateral or of the time after which any private sale or other intended
disposition thereof is to be made, which is agreed to be a reasonable notice of
such sale or other disposition. All proceeds of any such sale may be applied
first to the payment of expenses incurred by Landlord in enforcing this security
interest (including reasonable attorneys' fees and expenses). Landlord may also
file a copy of this Lease or this provision as a financing statement to perfect
its security interest in the Collateral. Notwithstanding the foregoing, the lien
granted hereby shall be subordinate to any purchase money financing or equipment
leases for such personal property.
27. SPECIAL PROVISIONS.
------------------
(a) So long as no Event of Default exists, Tenant shall have the
right to terminate this Lease effective on the last day of the eighty fourth
(84th) month of the Term (the "Early Termination Date"). In order to exercise
its option to terminate this Lease, Tenant must deliver written notice (Tenant's
Termination Notice") to Landlord on or before twelve (12) months prior to the
Early Termination Date; provided, however, that such notice must also contain a
request by Tenant for at least 40,000 square feet and no more than 200,000
square feet of additional office space comparable to the Premises. In the event
that Landlord can provide the requested additional space at a location within
one (1) mile of the Premises at then current market rates prior to the Early
Termination Date, then Landlord shall so notify Tenant within sixty (60) days
after receipt of Tenant's Termination Notice, in which event Tenant's
Termination Notice shall be deemed null and void, provided that Landlord and
Tenant can agree on the terms of a lease for such additional space at least six
months prior to the Early Termination Date, and Landlord delivers such
additional space on or before the Early Termination Date. Subject to the
foregoing rights of Landlord, Tenant's exercise of the foregoing early
termination right shall be irrevocable. If Tenant timely exercises its option
and the foregoing conditions to render such option null and void are not timely
met, then (i) this Lease shall terminate on the Early Termination Date, (ii)
Tenant shall surrender the Premises to Landlord on the Early Termination Date,
and (iii) Tenant shall not be required to pay any fee or other penalty in
connection with the exercise of such right, provided that Tenant shall remain
liable for all sums and obligations which may have accrued prior to the Early
Termination Date or which survive termination hereof.
(b) Tenant is currently leasing certain space from an affiliate of
Landlord in Building D of the Waterford Centre in Austin, Texas, pursuant to a
Lease Agreement dated October 19, 1998, by and between Waterford IV HP, Ltd.
("Waterford"), as landlord, and Tenant, as tenant (the "Existing Lease"). Upon
the Commencement Date, Landlord shall cause Waterford to execute and deliver to
Tenant, and Tenant shall execute and deliver to Waterford, an agreement
terminating the Existing Lease, which agreement shall provide that the parties
thereunder shall have no further duties or obligations under the Existing Lease
other than such duties and obligations which may have accrued prior to the
Commencement Date (i.e., the date of termination of the Existing Lease) or which
by their terms survive termination of the Existing Lease.
(c) Landlord hereby notifies Tenant and Tenant hereby acknowledges
that it has notice of the inclusion of the Land in an area designated as a
"single property" by Texas Natural Resource Conservation Commission ("TNRCC")
Order dated September 30, 1997, for the purpose of demonstration of compliance
with the Texas air quality requirements. The single property designation allows
the parties to a Single Property Agreement, dated August 29, 1997, (as amended
from time to time, the "Single Property Agreement" that generate air emissions
in connection with their operations (currently, Raytheon and Solectron) to use a
single site boundary established in the TRNCC Order as the boundary line for the
purpose of demonstrating compliance with Texas air quality requirements pursuant
to 30 Texas Administrative Code (S) 101.2(b). The single property boundary
established by the TRNCC Order includes the entire Research Park Site. The
parties to the Single Property Agreement and their successors have agreed,
pursuant to that certain Agreement (herein so called) dated December 12, 1999,
and subject to TRNCC approval, to reduce the single property boundary to the
area within the interior road in the Research Park Site that encircles the
buildings currently leased by Solectron, Raytheon, and Cisco, and commonly known
as the "ring road."
So long as Tenant does not generate any air emissions that would require
Tenant to make any property line air emission evaluations or demonstrations
under applicable Texas air quality regulations, Tenant is not required to join
in the Single Property Agreement. However, if the future, Tenant engages in any
manufacturing activity in the
Initials LGH
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Date 3/22/00
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12
Premises approved in writing by Landlord and which produces any air emissions,
requiring property line air emission evaluations or demonstrations under
applicable Texas air quality regulations, by joining in the Single Property
Agreement and the Agreement, as applicable, and with the concurrence of the
TNRCC, Tenant would be able to use the "ring road" as its single property
boundary for the purpose of compliance with Texas air quality requirements,
subject to the requirements if the Single Property Agreement, the Agreement, and
the TNRCC's Single Property Designation Order, as amended.
TENANT ACKNOWLEDGES THAT UPON OCCUPANCY OF THE PREMISES (1) IT HAS INSPECTED AND
ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION, (2) THE BUILDING'S
IMPROVEMENTS ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND
LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER,
REMODEL OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS AND EXCEPT AS
MAY BE SET FORTH IN EXHIBIT B ATTACHED TO THIS LEASE, OR AS IS OTHERWISE
---------
EXPRESSLY SET FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR
WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, EXCEPT AS PROVIDED HEREIN.
Executed by Landlord on the ______ day of _______________, 2000.
LANDLORD:
HUSKER - RESEARCH, LTD.
By: Research-Bison, Inc., general partner
By:__________________________________________
Name:________________________________________
Title:_______________________________________
Address: c/o Hill Partners, Inc.
0000 Xxxxxxxxxx Xxxxxxx
---------------------------------
Xxxxxx, Xxxxx 00000
---------------------------------
Telephone: (000) 000-0000
_________________________________
Fax: (000) 000-0000
--------------------------------
Executed by Tenant on the ______ day of__________, 2000.
TENANT:
MOTIVE COMMUNICATIONS., INC.
By:__________________________________________
Name: Xxxxx X. Xxxxxx
----------------------------------------
Title: President & CEO
---------------------------------------
Address:
0000 Xxxxxxxxx Xxxxxx Xxxx
---------------------------------
Xxxxxx, XX 00000
---------------------------------
Telephone: 000-000-0000
---------------------------------
Fax: 000-000-0000
---------------------------------
EXHIBIT "A-1 - Site Plan
EXHIBIT "A-2 - Floor Plans, Elevations and Renderings
EXHIBIT "B" - Landlord's Work
EXHIBIT "C" - Notice of Commencement
Initials LJH
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Date 3/22/00
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13
[PLAN APPEARS HERE]
[PLAN APPEARS HERE]
[PLAN APPEARS HERE]
[PLAN APPEARS HERE]
[PLAN APPEARS HERE]
[PICTURE APPEARS HERE]
EXHIBIT B
Construction Provisions
-----------------------
1. On or before March 10, 2000, Landlord, at its sole cost and expense,
shall provide to Tenant for its approval plans and specifications for the Shell
Improvements prepared by an architect selected by Landlord. Within five (5)
business days of Landlord's receipt of the proposed plans and specifications
Tenant shall review and (a) approve such plans and specifications in writing
[which approval (i) shall not be unreasonably withheld and (ii) must be given if
Landlord's proposed plans and specifications conform substantially to the floor
plans, elevations and renderings attached hereto as Exhibit A-2] or (b)
-----------
disapprove and, within the same 5-day period, provide Landlord written notice of
such disapproval, specifying, with reasonable particularity, the reason(s) for
disapproval. In the event Tenant fails to provide Landlord with any written
response during the aforesaid 5-day period, Landlord shall be deemed to have
approved the plans and specifications for the Shell Improvements as submitted by
Landlord. If Tenant has disapproved of Landlord's proposed plans and
specifications for the Shell Improvements and has specified the reasons why, and
Landlord agrees to such changes as may be necessary to obtain Landlord's
approval, Landlord shall revise such plans and specifications accordingly and
resubmit such revised plans and specifications to Tenant within twenty (20) days
following the date of Tenant's written notice of disapproval. Such procedure
for notice of disapproval with specific reasons shall be repeated with respect
to any revisions to the plans and specifications for the Shell Improvements
until such plans and specifications, with each of Landlord and Tenant acting
reasonably and in good faith, are approved (as approved by Landlord and Tenant,
the "Shell Plans and Specifications").
------------------------------
2. Landlord, at its sole cost and expense, shall complete construction of:
(i) the shell of the Building (including all interior improvements to the
restrooms, lobby, mechanical rooms, electrical rooms, building HVAC equipment
and elevators) substantially in accordance with the Shell Plans and
Specifications and (ii) the following components of the Premises; (a) perimeter
slot diffusers installed HVAC system with VAV's installed at 1 per 1,000
rentable square feet (provided that interior supply grills and flex duct are
part of the Tenant Improvements), (b) ceiling grid and acoustical 2 x 4 tile
inventory each stored on the floor of the Premises, (c) recessed fluorescent 2 x
4 light fixtures, up to a maximum of one fixture per 90 rentable square feet
contained within the Premises, stored on the floor of the Premises, and (d)
sprinkler heads installed in the ratio of one per 250 square feet in the
Premises (collectively, the "Shell Improvements"). Landlord, at its sole cost
------------------
and expense, shall also complete construction of the parking areas, sidewalks,
drive aisles, landscaping and other common area improvements generally in
accordance with the Site Plan (collectively, the "Site Improvements"). All such
-----------------
construction shall be completed by Landlord in a good and workmanlike manner and
in accordance with all applicable laws and regulations (including all handicap
accessibility laws).
3. On or before April 17, 2000, Landlord shall cause the Design
Professional (as hereinafter defined) to provide to Tenant and Landlord for
their approval, (which approval shall not be unreasonably withheld), and
Tenant's approval at its sole cost and expense, working drawings, of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the HVAC,
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the Tenant Improvements called for under
this Exhibit in accordance with all applicable governmental laws, codes, rules,
and regulations. Further, if any of Tenant's proposed construction work will
affect the Building's HVAC, electrical, mechanical, or plumbing systems, then
the working drawings pertaining thereto shall be approved by the Building's
engineer of record, whom Tenant shall at its cost engage for such purpose.
Landlord's approval of such working drawings shall not be unreasonably withheld
or delayed, provided that (a) they comply with all applicable governmental laws,
codes, rules and regulations, (b) such working drawings are sufficiently
detailed to allow construction of the improvements in a good and workmanlike
manner, (c) the improvements depicted thereon conform to the rules and
regulations promulgated from time to time by the Landlord for the construction
of tenant improvements (a copy of which has been delivered to Tenant), (d) the
materials used are building standard (including doors, ceiling tiles, lights and
occupancy sensors), and (e) the work will not affect the Building's HVAC,
electrical, mechanical, or plumbing systems. As used herein, "Working Drawings"
----------------
shall mean the final working drawings approved by Landlord, as amended from time
to time by any approved changes thereto, and "Tenant Improvements" shall mean
-------------------
all improvements to be constructed in accordance with and as indicated on the
Working Drawings. Approval by Landlord of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings are adequate for any
use, purpose, or condition, or that such drawings comply with any applicable law
or code, but shall merely be the consent of Landlord to the performance of the
Tenant Improvements. Tenant shall, at Landlord's request, sign the Working
Drawings to evidence its review and approval thereof.
4. Tenant may from time to time make changes to the Working Drawings with
Landlord's prior written consent, which shall not be unreasonably withheld.
Each subsequent request shall be set forth in a written notice delivered to
Landlord, specifying in detail the requested change. If Tenant requests any
such change, then (1) Tenant shall pay all additional costs in designing and
constructing the Tenant Improvements as a result of such changes, (2) all delays
in designing and constructing the Tenant Improvements caused by such changes
shall not delay the Commencement Date, and (3) Tenant shall pay to Landlord the
estimated additional costs in designing and constructing the Tenant Improvements
that will be caused by such changes before any such change shall be made.
5. Upon approval of the Working Drawings by Landlord and Tenant, Landlord
shall obtain competitive bids for the Tenant Improvements. Landlord shall enter
into a contract for the Tenant Improvements with the low bidder unless Tenant
and Landlord agree on another bidder. Upon execution of the construction
contract, Landlord shall cause the contractor to diligently construct the Tenant
Improvements described on the Working Drawings; however, if such
Initials LGH
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Date 3/22/00 ______
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B-1
construction is not substantially complete by the Projected Commencement Date,
(i) Landlord shall not be liable for damages therefor and Tenant shall accept
possession of the Premises when Landlord tenders possession thereof to Tenant in
a substantially completed condition, and (ii) Tenant's obligation to pay Base
Rent and additional rent shall be waived until Landlord tenders possession of
the Premises to Tenant in a substantially completed condition (which date will
then be the "Commencement Date").
6. Landlord shall provide to Tenant a construction allowance (the
"Allowance") equal to the lesser of (i) $20.00 per rentable square foot in the
---------
Premises or (ii) the Construction Costs, as adjusted for any approved changes to
the Tenant Improvements.
7. Tenant shall pay all costs incurred in designing and constructing the
Tenant Improvements (the "Construction Costs," which costs shall include
------------------
architectural fees, engineering fees, and a construction management fee payable
to Landlord equal to four percent (4%) of the Construction Costs. Upon selection
of the contractor for the Tenant Improvements, Tenant shall pay to Landlord 50%
of the amount, if any, by which the estimated Construction Costs exceed the
Allowance (as hereinafter defined). If the Tenant Improvements will not be
substantially completed before the expiration of the first full calendar month
after selection of the contractor, the remaining portion of such excess shall be
payable in equal monthly installments on the first day each month, beginning the
first day of the second full calendar month after the selection of the
contractor and ending on the substantial completion date. The monthly
installments due on the first day of each month shall equal the remaining
portion of such excess divided by the number of scheduled payment dates
(including the substantial completion date) from the date hereof through the
estimated substantial completion date for the Tenant Improvements. Upon
substantial completion of the Tenant Improvements and before Tenant occupies the
Premises to conduct business therein, Tenant shall pay to Landlord an amount
equal to the Construction Costs less (A) the amount of payments already made by
Tenant, and (B) the amount of the Allowance. Notwithstanding the foregoing, if
the Construction Costs exceed the Allowance by an amount up to (but not over)
$5.00 per rentable square foot (such excess up to $5.00 per rentable square foot
being referred to herein as the "Additional Allowance"), then Tenant shall not
--------------------
be required to pay the amount of such Additional Allowance to Landlord as
provided above, but rather, at Tenant's option, Tenant shall have the right to
require Landlord to fund the Additional Allowance. Any portion of the Additional
Allowance funded by Landlord shall be repaid to Landlord by Tenant in equal
monthly installments over the first seven (7) years of the Term, with interest
at the rate of ten percent (10%) per annum. Such monthly payments shall be made
on the first day of each month during the Term along with the payments of Base
Rent and additional rent otherwise due hereunder.
8. The term "substantial completion" or "substantially completed" shall
---------------------- -----------------------
mean that, in the opinion of an architect or space planner reasonably acceptable
to Landlord and Tenant (the "Design Professional"), the Shell Improvements, the
-------------------
Site Improvements and the Tenant Improvements have been completed substantially
in accordance with the applicable plans therefor, subject to completion of minor
punch list items. As soon as the Shell Improvements, the Site Improvements and
the Tenant Improvements have been substantially completed, Landlord shall notify
Tenant in writing that the Commencement Date has occurred. Within ten days
thereafter, Tenant shall submit to Landlord in writing a punch list of items
needing completions or correction. Landlord shall use commercially reasonable
efforts to complete such items within 30 days after it receives such notice. If
Tenant or its employees, agents or contractors delay completion of the Shell
Improvements, the Site Improvements or the Tenant Improvements, then the
Commencement Date shall be the date that, in the Design Professional's opinion,
substantial completion would have occurred had such delays not occurred.
B-2
EXHIBIT C
[Notice of Commencement]
This Notice of Commencement is delivered this _____ day of ________ 1999,
by and between ___________________, as Landlord, and ______________ as Tenant,
pursuant to the provisions of Paragraph 1(d) of that certain Lease Agreement
("Lease") dated ____________, 1999 covering that certain space in the Building
commonly known as Building __,________, ___________________. All terms used
herein with initial letter capitalized shall have the meaning assigned to such
terms in the Lease.
W I T N E S S E T H:
1. All improvements required to be constructed and furnished by Landlord in
accordance with the terms of the Lease have been satisfactorily completed by
Landlord and accepted by Tenant.
2. The Premises have been delivered to and accepted by the Tenant subject
to the completion of any punch list items.
3. The Commencement Date of the Lease is the ____day of _________, ____,
and the Expiration Date shall be the ___day of __________________, ______.
4. The Premises consist of _________ square feet of rentable area in the
Building.
5. The Base Rent and Operating Expenses are to be calculated, determined
and paid in the amounts and on the dates provided in Paragraph 2(a) and 2(c) of
the Lease.
6. Remittance of the foregoing payments shall be made on the first business
day of each calendar month in accordance with the terms and conditions of the
Lease to ____________, ____________________________________.
Agreed and accepted by the undersigned parties.
LANDLORD:
By:_________________________
Name:_______________________
Title:______________________
TENANT:
By:_________________________
Name:_______________________
Title:______________________
Initials LGH
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Date 3/22/00
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C-1
OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT ("Agreement") is entered into effective as of the ___
---------
day of ______________, 2000, by and between HILL PARTNERS, INC. ("Optionor") and
--------
MOTIVE COMMUNICATIONS, INC. ("Optionee").
--------
RECITALS
--------
WHEREAS, contemporaneously herewith, Husker-Research, Ltd. ("Landlord"), an
--------
affiliate of Optionor, has leased to Optionee an office building to be
constructed on that certain tract of land (the "Leased Tract") situated in
------------
Xxxxxx County, Texas, depicted as Phase I on Exhibit "A" attached hereto,
-----------
pursuant to a Lease Agreement of even date herewith (the "Lease Agreement");
---------------
WHEREAS, Optionor is the owner of that certain tract of Land adjacent to
the Leased Tract, depicted as Phase II on "Exhibit "A" attached hereto (the
-----------
"Option Tract");
------------
WHEREAS, Optionee desires the option to require Optionor to build (and
lease to Optionee) an additional building (or a portion thereof) on the Option
Tract, and subject to the terms and conditions contained herein, Optionor is
willing to grant such an option to Optionee.
NOW, THEREFORE, in consideration of the Option Payments (hereinafter
defined), and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Optionor and Optionee hereby agree as follows:
ARTICLE
I
GRANT OF OPTION
---------------
Upon the terms and conditions hereinafter set forth, Optionor hereby grants
to Optionee an exclusive option commencing on the "Commencement Date" under the
Lease Agreement (herein referred to as the "Commencement Date") and expiring two
-----------------
(2) years thereafter (such period being referred to herein as the "Option
------
Period") to lease from Optionor an additional building (or a portion thereof) to
------
be constructed on the Option Tract by Optionor (the "Option").
------
ARTICLE II
EXERCISE AND TERMS OF OPTION
----------------------------
2.1 Exercise of Option. Optionee may exercise the Option on the Option
------------------
Tract by delivering written notice (the "Option Notice") thereof to Optionor
-------------
during the Option Period. The Option Notice shall contain the following (i) the
number of square feet to rentable area that Optionee desires in the building to
be constructed on the Option Tract; provided, however, that in no event shall
such square footage include less than 40,000 square feet of rentable area nor
more than 115,000 square feet of rentable area; and (ii) the
date upon which Optionee requests that Optionor deliver the building with shell,
site and tenant improvements substantially completed, provided, however, that in
no event shall such delivery date be sooner than twelve (12) months after
delivery of the Option Notice nor later than eighteen (18) months after delivery
of the Option Notice. It is hereby acknowledged that Landlord expects to
construct a building of up to 115,000 square feet on the Option Tract.
Therefore, if Tenant exercises its Option, but requests less than 115,000 square
feet, then Landlord, at its option, may construct a building which is larger
than the square footage requested by Tenant. In which event, the building will
be a multi-tenant building. The Option Notice, if sent by registered or
certified mail, shall be considered delivered on the date when such notice is
deposited in the United States mail, postage prepaid, certified or registered
mail, return receipt requested. addressed to Optionor at the address set forth
in Section 7.5 of this Agreement. In addition, any such notice, if delivered
personally, shall be deemed delivered on the date of such personal delivery.
Optionee's delivery of an Option Notice shall be an irrevocable exercise of its
Option as to the Option Tract.
2.2 Terms of Option. Within thirty (30) days after Optionee delivers an
---------------
Option Notice to Optionor in accordance with Section 2.1 above (the "Negotiation
-----------
Period"), Optionor, as landlord, and Optionee, as tenant, shall negotiate in
------
good faith to reach agreement on the terms of a lease, whereby Optionee leases
from Optionor the building (or a portion thereof) to be constructed by Optionor
on the Option Tract. Such lease shall be on the same form as the Lease Agreement
(adjusted to reflect (x) the description of the new building, and (y) in the
event the Tenant is not leasing the entire building, the fact that the new
building is a multi-tenant building), except for the following:
(a) the term of the lease shall be reasonably acceptable to Optionor
and Optionee, but in any event such term shall be no less than eighty-four
(84) months and no longer than one hundred twenty (120) months;
(b) the base rent shall be reasonably acceptable to Optionor and
Optionee; provided, however, that the base rent under such lease shall not
be less than the base rent in the Lease Agreement nor exceed 5% of such
base rent in the Lease Agreement if the Option is exercised in the first
year of the Option Period or exceed 15% of such base rent in the Lease
Agreement if the Option is exercised in the second year of the Option
Period (including the same periodic rental increases as provided in the
Lease Agreement);
(c) the signage provisions may need to be adjusted depending on
whether the project is a multi-tenant or single tenant facility at the time
of the lease in question (i.e., if Optionee is the only tenant in the
project, it does not need a new monument sign for each building it occupies
or if the new building is to be a multi-tenant building, then Tenant may
not be entitled to building or monument signage on the new building);
(d) the security deposit (including the terms and amount of any
letter of credit) will be reasonably determined by Optionor based on
Optionee's financial condition at the time the new lease is entered into;
provided, however, in no event will the cash security deposit be less than
one months base rent;
(e) Optionor shall prepare shell plans and specifications for the new
building which shall be reasonably acceptable to Optionor and Optionee;
provided that such plans and specifications shall describe a building which
is architecturally compatible with, and of substantially similar
2
quality to, the building described in the shell plans and specifications
attached to the Lease Agreement; and
(f) it is hereby acknowledged that the tenant improvement allowance
shall remain $20.00 per rentable square foot (with an additional allowance
of $5.00 per rentable square foot which may be amortized over the term as
provided in the Lease Agreement).
In the event that Optionor and Optionee reach agreement on the terms of a lease
prior to expiration of the Negotiation Period with respect thereto, then
Optionor and Optionee shall enter into a binding lease agreement within thirty
(30) days after expiration of the Negotiation Period. If despite the good faith
diligent efforts of Optionor and Optionee, they are unable to reach agreement on
the terms of a lease prior to expiration of the Negotiation Period, then (unless
the parties otherwise agree in writing) the Option shall be deemed to have
lapsed. In which event, the Option Tract shall no longer be subject to this
Agreement and from and after the expiration of the Negotiation Period: (i)
Optionee shall no longer be required to pay Taxes on the Option Tract to
Optionee (as described in Article III below), and (ii) OPtionor shall be free to
sell, lease, or develop the Option Tract free of the terms of this Agreement.
2.3 Lease Documentation Costs. In the event that Optionee exercises its
-------------------------
option as to the Option Tract, but Optionor and Optionee are unable to reach
agreement on the terms of a lease during the Negotiation Period, then Optionee
shall reimburse Optionor for Optionor's actual out-of-pocket costs incurred in
connecting with the preparation of the shell plans and specifications as
provided in Section 2.2(e) above. Each party shall pay its own attorneys' fees
incurred in negotiating or preparing any lease.
ARTICLE III
OPTION PAYMENTS: TAXES
----------------------
3.1 Option Payments. As a portion of the consideration for this Option,
---------------
Optionee shall pay to Optionor the following non-refundable cash sums (the
"Option Payments"):
---------------
(1)on the Commencement Date, the sum of $185,000.00 shall be deemed to have
been earned by Optionor and owed by Optionee; provided, however, such sum
may at Optionee's option be paid either on the Commencement Date or in
monthly installments of $15,416.66 commencing on the Commencement Date and
continuing on the first day of each month thereafter during the first year
of the Option Period; and
(2)so long as Optionee has not exercised its Option on or before such date
and this Agreement has not been terminated prior thereto, on the first
anniversary date of the Commencement Date, the sum of equal to $322,000.00
shall be deemed to have been earned by Optionor and owed by Optionee;
provided, however, such sum may at Optionee's option be paid either on the
first anniversary date of the Commencement date or in monthly installments
of $26,833.33 commencing on the first anniversary date of the Commencement
date and continuing on the first day of each month thereafter during the
Option Period.
3
It is hereby acknowledged that the parties bargained for and agreed to the
Option Payments as consideration for Optionor's execution, delivery and
performance of this Agreement.
3.2 Taxes. Commencing on the Commencement and continuing until the first
-----
to occur of the end of the Negotiation Period or expiration of the Option
Period, Optionee will be responsible for all Taxes accruing against the Option
Tract. As used herein the term "Taxes" shall mean all taxes, assessments and
governmental charges whether federal, state, county, or municipal and whether
they are imposed by taxing or management districts or authorities presently
existing or hereafter created that accrue against the Option Tract. On or before
December 1 of each calendar year or as soon thereafter as is reasonably
practicable, Optionor shall deliver to Optionee a statement (including the
actual tax xxxx) setting forth the Taxes due by Optionee for such year (or
applicable portion thereof). Within thirty (30) days of receiving such
statement, Optionee shall pay to Optionor a sum equal to the amount of such
Taxes owed by Optionee for the year in question. Optionee may, in good faith, by
appropriate legal proceedings, contest the assessment of the Taxes or seek a
reduction in the assessed valuation of the Option Tract, provided that: (i)
Optionee, as its sole cost, satisfies all state law requirements which condition
any challenge to tax valuation or assessment, (ii) Optionee notifies Optionor in
writing within the above-referenced 30-day period of its decision to pursue such
contest and makes a deposit of funds with Optionor equal to all Taxes shown as
due by Optionee on the statement delivered by Optionor, and (iii) Optionor
obtains the consent of the Owner (as hereinafter defined) to such contest.
ARTICLE IV
DEFAULT: TERMINATION
--------------------
4.1 Optionee Termination Right. Optionee shall have the right to terminate
--------------------------
this Agreement at any time, for any reason (with or without cause) by delivering
written notice to Optionor, and thereafter, Optionee shall have no further
rights with respect to the Option Tract or continuing obligations hereunder.
Notwithstanding the foregoing, within thirty (30) days after any such
termination by Optionee, Optionee shall pay to Optionor all sums owed to
Optionor by Optionee pursuant to the terms hereof for the period prior to the
date of termination, including, without limitation, (i) any earned and unpaid
installments of the Option Payments and (ii) Optionee's pro rata share of the
Taxes (calculated in accordance with Section 3.2 above) accruing up to the date
of termination on the Option Tract for the year in question.
4.2 Optionor Termination Right. In the event that Optionee fails to pay
--------------------------
to Optionor an Option Payment or the Taxes on the date due (in accordance with
Article III above), and such failure continues for ten (10) days after written
notice of such failure is delivered to Optionee, then Optionor may terminate
this Agreement by delivering written notice thereof to Optionee. In which event,
this Agreement shall be null and void and Optionee shall have no further rights
with respect to the Option Tract; provided, that Optionee shall be required to
pay to Optionor any sums remaining due hereunder, as provided in Section 4.1
above.
4.3 General Defaults by Either Party. In addition to the rights described
--------------------------------
in Sections 4.1 and 4.2 above, in the event that either party defaults under its
obligations hereunder, then the non-defaulting party may pursue any remedy to
which it may be entitled at law or in equity.
4
ARTICLE V
NEGATIVE COVENANTS OF OPTIONOR
------------------------------
During the Option period, Optionor represents, warrants, covenants and
agrees that it shall not, without the prior written consent of Optionee, do any
of the following:
(a) Other Agreements. Enter into any contracts of sale, leases
----------------
or other agreements providing for the sale or occupancy of the Option Tract
or any portion thereof; which is not expressly subject to the terms of this
Option;
(b) Easements or Licenses. Enter into any easement or license
---------------------
agreement or other agreement permitting others to use the Option Tract in a
manner which would have a material adverse impact on Optionee's use
thereof; or
(c) Use of Option Tract. Perform any grading or excavation on
-------------------
the Option Tract or made any other change or improvement upon the Option
Tract which would have a material adverse impact on Optionee's use thereof.
ARTICLE VI
REZONING OR REGULATORY CHANGE
-----------------------------
In the event the City of Austin either rezones the Option Tract, or a
portion thereof, or passes a new ordinance or other regulation which either
prohibits further development of the Option Tract or renders further development
of office buildings on the Option Tract commercially unreasonable, then this
Agreement shall become null and void effective on the date of such new or
ordinance or regulation, in which event the terms of the second section of
Section 4.2 shall apply.
ARTICLE VII
MISCELLANEOUS
-------------
7.1 Memorandum of Agreement. On or about the Commencement date,
-----------------------
Optionor and Optionee agree to prepare, execute and file for record a memorandum
of this Agreement in the form of Exhibit "C" attached hereto.
7.2 Further Assurances. Optionor agrees that at any time, or from time
------------------
to time, after the execution of this Agreement and whether before or after the
exercise of the Option, Optionor will, upon request of Optionee, execute and
deliver such further documents and do such further acts and things as Optionee
may reasonably request in order to effect fully the purposes of this Agreement.
7.3 Survival of Terms. Unless expressly provided otherwise herein,
-----------------
all covenants, agreements, representations and warranties contained in this
Agreement shall survive termination or consummation hereof.
5
7.4 Binding Effect. This Agreement and each of the covenants, agreements,
--------------
representations and warranties contained herein shall be binding upon and shall
inure to the benefit of the respective parties hereto and their respective legal
representatives, successors and assigns. Neither party shall have the right to
assign this Agreement to any third party without the prior written consent of
the other party. Notwithstanding anything to the contrary contained herein, the
term "Optionor" as used herein shall be deemed to include affiliates of
Optionor.
7.5 Notices. Any notice or other written instrument required to be
-------
delivered pursuant to this Agreement shall be deemed to be delivered, whether
actually received or not, when deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
Optionor and Optionee, as the case may be, at the following addresses, as such
address may be changed from time to time by written notice to the other party:
If to Optionor: 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
If to Optionee: ___________________
___________________
___________________
7.6 Entirety and Amendments. This Agreement embodies the entire agreement
-----------------------
between the parties and supersedes all prior agreements and understandings, if
any, relating to the Option Tract, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
7.7 Governing Law. This Agreement shall be performed in the State of
-------------
Texas, and all of the terms and provisions hereof shall be governed by, and
construed in accordance with, the laws of the State of Texas.
7.8 Multiple Counterparts. This Agreement may be executed in a number of
---------------------
identical counterparts. If so executed, each of the counterparts is an original
for all purposes, and all the counterparts shall, collectively, constitute but
one agreement. In making proof of this Agreement it shall not be necessary to
produce or account for more than one counterparts.
7.9 Headings. All headings herein are inserted only for convenience and
--------
ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
7.10 Time of the Essence. Time is of the essence with respect to this
-------------------
Agreement. References to "days" shall mean calendar days; provided, however, in
the event the last date for performance of an obligation or delivery of any
notice hereunder falls on a Saturday, Sunday, or a federal holiday, the date for
such performance of delivery of such notice shall be postponed until the next
ensuing business day. Performance of an obligation or delivery of a notice must
be accomplished by 5:00 p.m. on a given date to be considered completed on such
date.
6
7.11 Brokers. Optionor represents and warrants to Optionee that it has not
-------
contacted or entered into any agreement with any real estate broker, agent,
finder, or any other party in connection with this transaction, and that it has
not taken any action which would result in any real estate broker's finder's, or
other fees or commissions being due or payable to any other party with respect
to the transaction contemplated hereby. optionee hereby represents and warrants
to Optionor that Optionee has not contacted or entered into any agreement with
any real estate broker, agent, finder, or any other party in connection with
this transaction, and that it has not taken any action which would result in any
real estate broker's, finders, or other fees or commissions being due or payable
to any other party with respect to the transaction contemplated hereby. Each
party hereby indemnifies and agrees to hold the other party harmless from any
loss, liability, damage, cost, or expense (including reasonable attorneys' fees)
resulting to the other party by reason of a breach of the representation and
warranty made by such party herein.
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
OPTIONOR:
--------
HILL PARTNERS, INC.
By:_________________________
Name:_______________________
Title:______________________
OPTIONEE:
--------
MOTIVE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
-----------------------
Title: President & CEO
----------------------
THE STATE OF TEXAS (S)
COUNTRY OF XXXXXX (S)
BEFORE ME, the undersigned authority, on this day personally appeared
________________________, ___________________ of HILL PARTNERS, INC., a Texas
corporation, and known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that they executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of
_______________, 2000.
________________________
Notary Public in and for
the State of Texas
8
THE STATE OF TEXAS (S)
COUNTY OF XXXXXX (S)
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx X. Xxxxxx, President & CEO of Motive Communications, Inc., and known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that they executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the act
and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 22nd day of March, 2000.
/s/ Xxxxx X. Xxxxxx
------------------------
Notary Public in and for
the State of Texas
[SEAL]
9
EXHIBIT B
MEMORANDUM OF OPTION AGREEMENT
------------------------------
THE STATE OF TEXAS (S)
COUNTY OF XXXXXX (S)
THIS MEMORANDUM OF OPTION AGREEMENT (this "Memorandum") is made and
----------
executed to be effective as of the ______ day of _____________, 2000, by and
between HILL PARTNERS, INC. ("Optionor") and MOTIVE COMMUNICATIONS, INC.
--------
("Optionee")
--------
W I T N E S S E T H:
-------------------
WHEREAS, Optionor an Optionee have entered into the Option Agreement (as
hereinafter defined) covering certain property as hereinafter set forth; and
WHEREAS, Optionor an Optionee desire to enter into and record this
Memorandum in order to impart notice to third parties of the existence of the
Option Agreement and of Optionee's rights and interests thereunder.
NOW, THEREFORE, Optionor and Optionee do hereby declare and publish the
following:
I. OPTION AGREEMENT
----------------
The Option Agreement (herein so called) consists of that certain Option
Agreement dated as of even date herewith, by and between Optionor and Optionee.
II. Land
----
The property (the "Land") covered by the Option Agreement includes the
----
certain tract of land situated in Xxxxxx County, Texas, more particularly
described in Exhibit A attached hereto and made a part hereof for all purposes.
---------
III. TERM OF OPTION
--------------
The term of the option shall commence on the date hereof and expire on
_____________________.
IV. DETAILED PROVISIONS AND CONDITIONS
----------------------------------
All the terms, conditions, provisions and covenants of the Option Agreement
are incorporated in this memorandum by reference as though written out in its
entirety herein. This Memorandum is
not intended, and shall not be construed, to define, limit, alter or amend the
Option Agreement, or to contain all provisions of the Option Agreement which may
be of interest to third parties. The Option Agreement may be modified or amended
subsequent to the date hereof. In the event of a conflict between this
Memorandum and the Option Agreement, the Option Agreement shall govern and
control.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum to be
effective as of the day and year first above written.
OPTIONOR:
--------
HILL PARTNERS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
OPTIONEE:
--------
MOTIVE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: President & CEO
----------------------------
THE STATE OF TEXAS (S)
COUNTY OF XXXXXX (S)
BEFORE ME, the undersigned authority, on this day personally appeared
____________________, __________________ of Hill Partners, Inc., to me well
known and known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated, and as the
act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of
___________________, 2000.
____________________________
Notary Public in and for
the State of Texas
THE STATE OF TEXAS (S)
COUNTY OF XXXXXX (S)
BEFORE ME, the undersigned authority, on this day personally appeared Xxxxx
X. Xxxxxx, President & CEO of Motive Communications, Inc., to me well known and
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated, and as the
act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 22nd, day of March, 2000.
/s/ Xxxxx X. Xxxxxx
----------------------------
Notary Public in and for
the State of Texas
