Exhibit 10.7
BASIC LEASE INFORMATION
The following Basic Information is incorporated into and made a part of this
lease. Each reference in this lease to any of the Basic Lease Information shall
mean the respective information set forth below and shall be construed to
incorporate all of the terms provided under the particular lease paragraph(s)
pertaining to such information. In the event of a conflict between any Basic
Lease Information and the lease, the lease shall control.
IDENTIFICATION DATE OF LEASE: 06/20/96 X New Renewal Expansion Other
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1. Name of Building: One Far West Plaza Address: 0000 Xxx Xxxx Xxxxxxxxx / Xxxxxx, XX 00000
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2. Owner/Lessor: Xxxxx X. Xxxxxx, Xx. Address: 0000 Xxxxx Xxxxx Xxxxx / Xxxxxx, XX 00000
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3. Suite Number: 300
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4. Usable SF: 10,886 Add-on Factor: 15% Rentable SF: 12,519
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5. Lessee Name: Vignette Corporation
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a) Lessee is X a corporation.
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Lessee Address for Notice:
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Lessee Contact Person: Xxxx Xxxxxx Phone: 000-000-0000(6) Fax: None
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Lessee Taxpayer ID#: 00-0000000 SS#: ###-##-#### DL#/State: 16940347 / Texas
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6. Xxxxx Xxxx: Thirty-Six (36) full calendar months
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Commencement Date: 07/11/96/1/ Expiration Date: 06/30/99
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Rent and Pass Thru Commencement Date: 07/11/96/1/ Expiration Date: 06/30/99
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7. Base Rent: Term Monthly Rent Annual Rent Annual Rent psf of NRA
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From 07/11/96 To 06/30/96 $17,735.25 $212,823.00 $17.00
From 07/01/97 To 06/30/98 $18,256.88 $219,082.56 $17.50
From 07/01/98 To 06/30/99 $18,778.50 $225,342.00 $18.00
Late Charge: 5 % of monthly base rent. Date assessed: Five (5) days after due date.
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8. Expense Stop: 1996 Base Year (estimated to be $5.75) per square foot per year
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Estimated Operating Expenses Per Budget $ 1996 Base Year /sq.ft./year
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Less Expense Stop $ 1996 Base Year /sq.ft./year
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Estimated Initial Pass-Thru $ 0.00 /sq.ft./year
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Estimated Monthly Pass-Thru (actual)/2/ $ 0.00 /mo.
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(Subject to annual adjustment for actual expenses)
9. Parking: Number of Spaces: Fifty (1:250 ratio) (unreserved) Rate Per Space $ 0.00 / month unreserved
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10. Security Deposit: a) Amount: $17,735.25 (first month's rent)
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b) Paid by Cash: X Yes No
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11. Tenant Finish Out Provisions:
As Is
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$3.50 /sq.ft. of net usable area allowance
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$38,101.00 allowance (actual amount)
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/1/ - See Exhibit J, Special Conditions, Paragraph #2 "Lease Commencement".
/2/ - After 1996 the controllable expenses will be capped at 6% (cumulative)
per year.
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Amount of coverage owed by Tenant $ Payment Schedule:
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Notes: See Exhibit E.
13. Guaranty Information:
This lease is X is not (check one) guaranteed by others. The name and
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title of each guarantor is shown below a and on the signature page(s) at
the end of this lease.
14. Lessee Signature Requirements:
Lessee is (X) a corporation (check one).
Such partnership, joint venture, unincorporated association, or corporation
is organized or chartered under the laws of the State of Delaware.
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Xxxxxx's name stated at the beginning of this lease ( ) is or (X) is not an assumed name. If so, has an
assumed name certificate been received? Yes No
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15. Broker Information:
a) Listing Broker: Xxxx Xxxxxx/The Xxxxxx Company
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b) Leasing Co-Broker and Company: Xxxxx Xxxxxxxxx
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c) Tenant Rep letter attached: Yes No %
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d) Written agreement for renewal commission: Yes No _____ %
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16. Signatures:
LESSOR LESSEE
Xxxxx X. Xxxxxx, Xx. Vignette Corporation
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Printed name of company or firm Printed name of company or firm
Xxxxx X. Xxxxxx, Xx. Xxxx Xxxxxx
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Printed name of person signing Printed name of person signing
/s/ Xxxxx X. Xxxxxx, Xx. /s/ Xxxx Xxxxxx
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Authorized Person's Signature Authorized Person's Signature
Owner President
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Title of person signing Title of person signing
7/1/96 6/26/96
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Date signed (must be filled in) Date signed (must be filled in)
GUARANTOR LESSEE
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Printed name of company or firm Printed name of company or firm
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Printed name of person signing Printed name of person signing
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Authorized Person's Signature Authorized Person's Signature
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Title of person signing Title of person signing
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Date signed (must be filled in) Date signed (must be filled in)
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INDEX TO OFFICE LEASE
XXXXX X. XXXXXX XX. (Lessor) and
VIGNETTE CORPORATION (Lessee)
SECTION TITLE Lease Page
1.1 The leased premises.................................................3
1.2 Use.................................................................3
1.3 Usable area.........................................................3
1.4 Rentable area.......................................................3
2.1 Base rent and additional rents......................................3
3.1 Date and place of payment...........................................3
3.2 Late payments.......................................................4
3.3 Security deposit....................................................4
4.1 Xxxx, possession, and anniversary...................................4
4.2 Acknowledgment of lease.............................................4
4.3 Delivery of possession..............................................4
5.1 Tenant finish-out...................................................4
6.1 Quiet possession....................................................4
7.1 Utilities and services by lessor....................................5
7.2 Utilities and services by lessee....................................5
7.3 Interruption of utilities or services...............................5
7.4 Extra electricity...................................................5
7.5 Extra heating or air conditioning...................................5
8.1 Maintenance and repairs by lessor...................................5
8.2 Maintenance and repairs by lessee...................................6
8.3 Telecommunications..................................................6
9.1 Access, keys, locks and security....................................6
9.2 Parking.............................................................6
10. Occupancy, nuisance, and hazards....................................7
11.1 Taxes...............................................................7
12.1 Insurance...........................................................7
12.2 Waiver of subrogation...............................................8
12.3 Hold harmless.......................................................8
13.1 Alterations by lessee...............................................8
13.2 Americans with disabilities act.....................................8
14.1 Removal of property by lessee.......................................9
15.1 Xxxxxxxxxx and assignments..........................................9
16.1 Destruction by fire or other casualty...............................9
17.1 Condemnation........................................................9
18.1 Default by lessor..................................................10
19.1 Default by lessee..................................................10
20.1 Lien for rent......................................................11
21.1 Attorney's fees, interest, and other expenses......................11
22.1 Nonwaiver..........................................................12
23.1 Building rules.....................................................12
24.1 Transfer of ownership by lessor....................................12
25.1 Mortgages..........................................................12
26.1 Surrender of premises..............................................12
27.1 Holding over.......................................................12
28.1 Signs and building name............................................13
28.2 Relocation of lessee...............................................13
29.1 Notices............................................................13
30.1 Estoppel certificate...............................................13
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31.1 Successors.........................................................13
31.2 Lease agent commissions............................................13
32.1 Building operating expense.........................................13
33.1 Representations and warranties by lessor...........................13
34.1 Representations and warranties by lessee...........................14
35.1 Place of performance...............................................14
36.1 Miscellaneous......................................................14
37.1 Special conditions.................................................14
38.1 Exhibit list.......................................................14
39.1 Xxxxx dates and authority to sign..................................15
Exhibit Page
Exhibit A Floor Plan of Lessee's Office Space (paragraph 1.1)...........16
Exhibit B Legal Description of Office Building (paragraph 1.1)..........17
Exhibit C Building Operating Expense Passthrough Calculations
(paragraphs 2.1 and 32.1).....................................18
Exhibit D Acknowledgment of Lease (paragraph 4.2).......................20
Exhibit E Construction by Lessor (paragraph 5.1)........................22
Exhibit F-1 Office Parking Rules (paragraph 9.2)..........................24
Exhibit F-2 Office Building Rules (paragraph 9.2 and 23.1)................29
Exhibit G Estoppel Certificate (paragraph 30.1).........................27
Exhibit H Office Lease Guaranty (paragraph 37.1)........................29
Exhibit I Certificate Of Corporate Resolution
Authorizing Lease or Guaranty (paragraphs 37.1 and 39.1)......31
Exhibit J Special Conditions (paragraph 37.2) Financial
Statement requirement.........................................33
Exhibit K Hazardous Materials Statements................................34
Exhibit L Acknowledgement of Receipt of Agency Disclosure...............35
Exhibit M Renewal Option................................................37
Exhibit N Right of First Refusal........................................38
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OFFICE LEASE
ONE FAR WEST PLAZA
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This is a Lease Agreement made and entered into between Lessor Name Specified in
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Basic Lease Information #2, as "Lessor", and Lessee Name Specified in Basic
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Lease Information #5, as "Lessee", whether one or more.
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1.1 THE LEASED PREMISES. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor the "Leased Premises" which consists of "Lessee's Office
Space" and "Common Areas" as defined below.
(a) LESSEE'S OFFICE SPACE. "Lessee's Office Space", to
which Lessee shall have exclusive use rights, consists of suite(s) Specified in
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Basic Lease Information #3, representing the office space outlined and shaded
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on the floor plan contained in Exhibit A. Such space is located in the building
on a tract of land, legally described by lot and block or metes and bounds in
Exhibit B. The street address of the building is Specified in Basic Lease
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Information #1.
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(b) COMMON AREAS. The "common area", to which Lessee
shall have non-exclusive use rights, consists of (1) the interior common area
located in the above described building, i.e., areas normally accessible to
tenants such as the hallways, stairwells, elevators, lobby, restrooms, and snack
bar areas, and (2) the exterior common area located outside the building on the
above described land, i.e., loading areas, sidewalks, driveways, parking garage,
parking areas, and other open areas (if any), subject to paragraph 9.2 on
parking.
1.2 USE. Lessee's office space may be used only for any legal purposes. The
name of Xxxxxx's business is Specified in Basic Lease Information #5.
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1.3 USABLE AREA. Lessee's approximate "usable area" is Specified in Basic
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Lease Information #4. It is the office space outlined and shaded in Exhibit A.
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Such areas is measured from the interior of the exterior walls and the exterior
glass lines of the building to the middle of the remaining perimeter walls of
the office space. This is in accordance with the BOMA International Standard of
Floor Measurement.
1.4 RENTABLE AREA. Lessee's approximate "rentable area" is Specified in Basic
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Lease Information #4. It consists of Lessee's "usable area" as defined above,
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plus Lessee's prorata share of the building common areas as set forth in Basic
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Lease Information #4. Building common areas are defined in all corridors,
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restrooms, snack bars, building equipment rooms, telephone closets, janitor
closets, enclosed lobby, entrance areas, and other public areas in the building,
excluding elevator shafts, stairwells, vertical chases, and enclosed parking
areas. This is in accordance with the BOMA International Standard of Floor
Measurement.
2.1 BASE RENT AND ADDITIONAL RENTS. Lessee shall pay to Lessor a "base rent"
Specified in Basic Lease Information #7 per calendar year, which amounts to the
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sum(s) Specified in Basic Lease Information #7 per calendar month. Such base
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rent is equivalent to the sums Specified in Basic Lease Information #7 per
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square foot per year for Lessee's rentable area. The base rent is subject to
adjustment as provided in paragraph 32.1. Additional rent (representing
Lessee's prorata share of building operating expenses over the expense stop
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Specified in Basic Lease Information #8 shall be paid in accordance with
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paragraph 32.1. Building operating expenses up to such expense stop amount
shall be paid by Lessor. After 1996, controllable expenses will be capped at 6%
(cumulative) per year.
3.1 DATE AND PLACE OF PAYMENT. The monthly rent and one-twelfth of Lessee's
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share of estimated building operating expenses under paragraph 32.1 shall be due
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on the first day of each calendar month without demand. Partial months shall be
prorated. All rent and other sums are due in the county where the building is
located at the address designated by Lessor from time to time. All sums due by
Lessee are without right of setoff or deduction. Monies mailed are considered
timely paid only if received by Lessor by the due date; however rents postmarked
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one or more days before due date and received after the due date shall be
considered as timely received by Xxxxxx. Rent and late payment charges shall be
paid without notice or demand. All other sums shall be due upon delivery of
written notice in accordance with paragraph 29.1.
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3.2 LATE PAYMENTS. If any rent payment or other sum due by Lessee to Lessor is
received and accepted by Lessor later than five (5) days after its due date,
Lessee shall pay a late charge of 5% of such rent payment or other sum plus 1%
thereof for each day thereafter (for up to 15 days) until such rent or other sum
is paid. Late charges shall be considered liquidated damages for Lessor's time
inconvenience and overhead (except for attorneys fees and litigation costs) in
collecting late rent. Lessor's acceptance of late rent or other sum shall not
constitute permission for Lessee to pay the rent or other sum late thereafter
and shall not constitute a waiver of Xxxxxx's remedies for subsequent late
payments. Late payment charges are due immediately upon notice or demand. All
payments shall be by check or money order on a local bank, not cash. For each
returned check, Lessee shall pay all applicable bank charges incurred by Lessor
plus $50.00. Payments of any kind received by Lessor on behalf of Lessee may be
applied at Lessor's option to nonrent items first, then to rent. Payment of
rent by Lessee shall be an independent covenant. If Lessee has not timely paid
rentals and other sums due on two or more occasions, or if a check from Lessee
is returned for insufficient funds or no account, Lessor may for the next 12
months require that all rent and other sums be due be paid by cashier's check,
certified check, or money order, without prior notice.
3.3 SECURITY DEPOSIT. At the time of execution of this lease, Lessee shall
deposit with Lessor cash in the sum Specified in Basic Lease Information #10 to
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secure performance of Lessee's obligations under this lease. Lessor shall have
a lien on the security deposit for that purpose. If Xxxxxx fails to pay rent or
other sums when due under this lease, Lessor may apply any cash security deposit
toward amounts due and unpaid by Lessee. Lessee shall immediately restore the
security deposit to its original amount after any portion of it is applied to
amounts due and unpaid by Lessee.
4.1 TERM, POSSESSION, AND ANNIVERSARY. The initial lease term shall be for the
number of full calendar months from commencement date, plus the remainder of the
last month. The commencement date of this lease shall be the later of (a) the
date Specified in Basic Lease Information #6, (b) the date Lessee opens for
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business in Lessee's office space, or (c) five (5) days after Lessor delivers
possession of Lessor's office space to Lessee and give Lessee written notice
that Xxxxxx's work (as described in Exhibit E) is substantially complete.
Xxxxxx's anticipated delivery date of possession is July 11, 1996. If Lessor
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delays in delivering possession of Xxxxxx's office space as shown on Exhibit A,
the commencement and anniversary dates shall be delayed in accordance with
Exhibit D. See Exhibit J, Special Conditions, Paragraph 2.
4.2 ACKNOWLEDGMENT OF LEASE. Upon commencement of this lease, Lessor and
Xxxxxx shall execute a recordable acknowledgement of this lease which is
attached as Exhibit D and which will confirm the commencement date, ending date,
annual anniversary date of the lease, and approximate square footage in Xxxxxx's
office space.
4.3 DELIVERY OF POSSESSION. Lessor shall deliver keys and/or access cards or
codes and possession of Xxxxxx's office space to Lessee on the lease
commencement date stated in paragraph 4.1 unless otherwise agreed in writing by
the parties. Lessee shall not be liable for rent until Xxxxxx delivers
possession of the leased premises to Lessee. If there is a delay in delivery of
possession, rent shall be abated until Xxxxxx's office space is ready for
occupancy; and neither Lessor nor Lessor's agents shall otherwise be liable for
any damages; and the lease shall not terminate. Internal construction shall, to
the extent "readily achievable", comply with the state and federal architectural
barrier standards.
5.1 TENANT FINISH-OUT. (Check one):
(a) Lessor shall provide no tenant finish-out or improvements since
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Lessee has taken Lessee's office space "as is".
X (b) Lessor shall perform any special construction described in
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Exhibit E. Costs of tenant finish-out or special construction shall be
paid for pursuant to such exhibit.
6.1 QUIET POSSESSION. If Lessee is current and in compliance with all of
Lessee's obligations under this lease, Lessee shall be entitled to peaceful and
quiet possession and enjoyment of Xxxxxx's office space, subject to the terms
and conditions of this lease. Lessee shall have access to the building parking
garage, if applicable and common parking areas at all times, subject to parking
fees and the rules referred to in paragraphs 9.2 and 23.1. Lessor shall make
diligent efforts to have all other tenants in the building comply with building
rules. Otherwise, failure of other
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tenants to comply with such rules shall not be considered a default by Lessor.
Construction noise or vibrations shall not be considered a default by Lessor.
7.1 UTILITIES AND SERVICES BY XXXXXX. Except where otherwise stated in
this lease, Lessor shall pay for and furnish in a timely and diligent manner to
Lessee the following utilities (subject to Lessee being required to pay for same
directly to the utility provider) and services and no others, subject to
paragraph 32.1 regarding Lessee's payment of Xxxxxx's prorata share of building
operating expenses.
(a) air conditioning and heating as reasonably required for
comfortable use and occupancy under normal office conditions from 7:00 a.m. to
7:00 p.m. on Monday through Friday, and from 8:00 a.m. to 1:00 p.m. on Saturday
upon request, but not on Sunday, New Year's Day, Memorial Day, July 4/th/, Labor
Day, Thanksgiving or Christmas and after 6:00 p.m. on Christmas Eve and New
Year's Eve so long as these times and dates comply with present and future
governmental laws or guidelines, including utilities such as electricity, gas,
and water necessary for operation of same;
(b) water and wastewater services for common area;
(c) janitorial and cleaning services for the building five days a
week;
(d) electricity for standard office equipment and lighting;
(e) trash collection services (dumpster or garbage cans);
(f) pest control services as needed in the reasonable judgment of
Lessor;
(g) landscaping and parking lot maintenance services;
(h) repair and maintenance services pursuant to paragraph 8.1;
(i) replacement of fluorescent light bulbs and ballasts in
building standard lighting fixtures (but not incandescent light bulbs for
nonstandard fixtures or for Lessee's lamps); and
(j) elevator service, if there is an elevator in the building.
7.2 UTILITIES AND SERVICES BY XXXXXX. If applicable, Lessee shall pay for all
utilities and services not expressly furnished by Lessor under paragraph 7.1.
7.3 INTERRUPTION OF UTILITIES OR SERVICES. Temporary interruption or
malfunction of utilities, services, and/or telephones shall not render Lessor
liable for damages, rent abatements, or release of any Lessee obligation.
Lessor shall use diligent efforts to have such utilities and services restored
as soon as reasonably possible. Lessee shall have the right to terminate this
Lease if an interruption in the utilities or services continues for five (5)
consecutive days, and such interruption is determined to be the result of the
negligence or willful misconduct of Lessor or its agents or employees.
7.4 EXTRA ELECTRICITY. There shall be no extra electricity charges for
typewriters, computers, servers, facsimile machines, word processors, dictating
equipment, adding machines, desk top calculators, lamps, or other standard 110
volt office equipment. However, Lessee shall pay Lessor monthly, as billed, for
charges which are separately metered or which Lessor may reasonably compute for
electricity utilized by Lessee for the following purposes: x-ray machines,
hotplates, electric heaters, 220 volt equipment, mainframe computers, or other
electrical service not standard for the building.
7.5 EXTRA HEATING OR AIR CONDITIONING. If Lessee requests air conditioning or
heating after the hours as set forth in paragraph 7.1(a), Lessor may charge
Lessee the lower of the same extra hourly fee charged by Lessor for after- hour
conditioning or heating to other tenants in the building or $5.00 per hour
during the term and any renewal.
8.1 MAINTENANCE AND REPAIRS BY XXXXXX. Lessor shall repair and/or replace, as
needed, the following items as a building expense under paragraph 32.1, so long
as they are building standard items: light bulbs, ballasts, and fixtures,
plumbing; hardware; appliances; doors; and wall and window coverings. Lessor
shall use diligence to provide for the reasonable cleaning, maintenance, repair,
reconnection of interrupted utilities or services, and landscaping of common
areas, subject to any reimbursement obligations of Lessee under paragraph 8.2.
Lessor may rekey at any time. Lessor may temporarily close any part of the
common facilities if reasonably necessary for repairs or construction. Repairs
and maintenance shall be in accordance with applicable governmental
requirements. Lessor shall not change the Common Areas in a manner which
materially or unreasonably interferes with the
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Lessee's use of the Premises or allow any person or entity other than tenants of
the building and Lessee and their respective agents, employees, customers,
licensees, and invitees, to use the Common Area.
8.2 MAINTENANCE AND REPAIRS BY XXXXXX. Lessee shall promptly reimburse Lessor
for the cost of repairing or replacing non-building standard items and the cost
of repairing or replacing damage which is caused inside Lessee's office space by
Lessee, Lessee's agents, employees, family, or licensees, invitees, visitors, or
customers or outside Lessee's office space by Lessee or Lessee's employee's,
agents, or contractors. Lessor may require advance payment therefor prior to
repair or replacement. Lessor shall have right of approval for all repairmen or
maintenance personnel. Lessee shall not damage or allow other persons listed
above to damage any portion of the leased premises. Lessee shall pay for
replacement of all non-building standard light bulbs and for unstopping any
drains or water closets in Lessee's office space. If Lessee or Xxxxxx's workmen
or contractors are permitted to repair, alter, or modify Lessee's office space,
Lessee shall warrant that no mechanic or materialmen's lien shall be filed
against the leases premises and that all such contractors shall provide evidence
of liability insurance as required by Lessor. All such work shall be in
accordance with applicable governmental requirements.
8.3 TELECOMMUNICATIONS. All telecommunications equipment necessary to serve
Lessee shall be located in Lessee's office space and paid for by Lessee, or, at
Lessor's option and at Lessee's expense, in a lockable enclosure in a common
area location designated by Lessor. Lessee may not require Lessor to install or
allow others to install telecommunication lines or equipment elsewhere in the
building. Lessee expressly waives any rights to require same under any
circumstances. Xxxxxx agrees to and acknowledges that Lessee will use the
existing telephone and computer system left by the previous tenant and that such
telecommunication equipment will continue to be located in the Common area.
9.1 ACCESS, KEYS, LOCKS AND SECURITY. (a) Access. Lessee shall have access to
Xxxxxx's office space at all times. Lessor shall have access to Xxxxxx's office
space at reasonable times for reasonable business purposes upon 24 hours prior
notice to Lessee except notice shall not be necessary in the event of an
emergency threatening life or property or the lawful exercise of Xxxxxx's
remedies in case of default by Xxxxxx. Lessor may show Lessee's office space
ninety (90) days before the lease expiration date or the date Lessee gives
notice to vacate, whichever is earlier. Lessee shall have the right to escort
prospective tenants through Xxxxxx's office space. Xxxxxx has the right to
refuse access to their space to a direct competitor.
(b) Keys. Lessor shall furnish Lessee up to five (5) keys or
access codes or cards for Xxxxxx's office space, up to five (5) keys or access
codes or cards for the main exterior entry doors of the building if such door is
locked after hours, and two (2) keys or access codes or cards to Lessee's
mailbox in the building. An initial deposit of $10.00 shall be charged for each
mailbox key and office key, or access card. Additional or replacement keys or
access codes or cards shall be furnished at the same deposit charged to all
other tenants in the building at the time of Xxxxxx's request. Lessor shall not
be liable for risk of loss resulting from Xxxxxx's keys, access codes, or cards
being stolen, lost or used by unauthorized persons. Lessor reserves the right to
rekey or charge locks for security reasons if new keys are timely furnished to
Lessee. Lessor shall re-key the space prior to Lessee occupancy.
(c) Locks. Lessee may not add locks, change locks, or rekey locks
without written permission of Lessor. Locks may be changed at Lessee's request
and expense. If locks to the office space are changed, Lessor may specify kind
and brand of locks, placement, installation, master key compatibility, etc. If
Lessee or any of Xxxxxx's employees lock themselves out of Xxxxxx's suite, said
person must call a fellow-employee to gain access. Neither Lessor nor the
management company personnel are authorized to unlock a door after hours except
for emergency or cleaning purposes.
(d) Security. Lessor shall have no duty to provide any security
services of any kind unless expressly provided in this lease. Lessor shall not
be liable to Lessee or Lessee's employees, family, customers, invitees,
contractors, or agents for injury, damage, or loss to person or property caused
by criminal conduct of other persons, including theft, burglary, assault,
vandalism or other crimes. Lessee shall lock its office space doors when the
last person leaves such office space for the day.
9.2 PARKING. (a) Lessor shall have sole control over parking. Lessor agrees
to provide Lessee with at least fifty (50) surface parking spaces (based on
1:250 sf ratio) to Lessee's employees. Parking rules, if applicable, are
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contained in attached Exhibit F-1. If vehicles are parked in violation of
Lessor parking rules or in violation of state statutes, Lessor may exercise
vehicle removal remedies under Article 6701g-2 of the Texas Civil Statutes upon
compliance with statutory notice. There shall be no reserved parking spaces
unless agreed in writing by Xxxxxx. If applicable, Lessee and Lessee's
employees and customers shall have exclusive right to park in Lessee's assigned
parking spaces which are shown on the map contained in Exhibit A.
(a)
(b) Lessee shall have the right to rent from Lessor, on a month-
to-month basis at rates in effect from time to time, one vehicle parking space
in the building's parking area (if applicable) for each 250 square feet of
Lessee's rentable area as set forth in paragraph 1.4. Such parking spaces shall
not be specified permanent spaces unless otherwise agreed in writing by Xxxxxx.
Lessor shall have sole control over the parking of all vehicles (including but
not limited to cars, trucks, recreational vehicles, trailers, bicycles, and
motorcycles) and shall designate parking areas and building service areas.
Parking rules are contained in attached Exhibit F-1.
10.
10.1 OCCUPANCY, NUISANCE, AND HAZARDS. Xxxxxx's office space
shall be occupied only by Lessee or Lessee's employees. Lessee and Xxxxxx's
agents, employees, family, licensees, invitees, visitors, and contractors shall
comply with all federal, state, and local laws relating to occupancy or to
criminal conduct while such persons are on the leased premises. Lessee and the
persons listed above shall not (1) use, occupy, or permit the use or occupancy
of the leased premises for any purpose which is directly or indirectly forbidden
by such laws or which may be dangerous to life or property, (2) permit any
public or private nuisance, (3) disturb the quiet enjoyment of other tenants,
(4) do anything which might emit offensive odors or fumes, (5) make undue noise
or vibrations, (6) permit anything which would cancel insurance coverage or
increase the insurance rate on the building or contents, or (7) otherwise damage
the leased premises.
11.1 TAXES. Lessor shall be responsible for payment of all taxes and assessments
against the building subject to Xxxxxx's obligation to pay Lessor for Xxxxxx's
share thereof, on a prorata square foot basis, as additional rent pursuant to
paragraph 32.1. Lessee shall timely pay all taxes assessed against Xxxxxx's
furniture, equipment, fixtures, or other personal property in Xxxxxx's office
space.
12.1 INSURANCE. Lessor and Lessee shall comply with the respective insurance
obligations as set forth below:
(a) Lessor. Lessor shall maintain (1) fire and extended coverage
insurance, including vandalism and malicious mischief, on the office building,
and (2) comprehensive general liability insurance. The amounts shall be as
required by Xxxxxx's mortgagee or as Lessor may deem reasonably appropriate,
whichever is greater. Lessor shall have no responsibility to maintain fire and
extended coverage insurance on Lessee's contents. The portion of Lessor's
insurance premiums reasonably due to Lessee's acts or omissions or Xxxxxx's
special use, improvements, or tenant finish-out (over and above Lessee's normal
use as contemplated in paragraph 1.1(a)) shall be paid for by Lessee.
(b) Lessee. Lessee shall provide Lessee's own public liability
insurance for its operations on the leased premises in an amount equal to the
minimum "primary coverage" amount required by Lessee's insurance carrier as a
condition for purchasing umbrella liability insurance by Lessee. In no event
shall such coverage be less than $1,000,000. Lessee is encouraged to maintain
fire and extended coverage insurance (including theft, vandalism and malicious
mischief) on the contents in Xxxxxx's office space, including fixtures,
furniture, equipment, supplies, inventory, and other personal property. Such
property is not covered by Lessor's insurance.
(c) Insurance certificates. Lessee shall provide Lessor with a
certificate of Lessee's insurance or a copy thereof as required above within 7
days after Lessee initially occupies Lessee's office space or any portion
thereof. Xxxxxx and Xxxxxx's managing agent (if any) shall be named as
additional insureds on Xxxxxx's liability insurance policy. Upon written request
by Xxxxxx, changes in the name of Lessor or Xxxxxx's managing agent shall be
reflected on such certificate.
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(d) Notice from Lessee's Insurance Carrier. All policies of
insurance to be provided by Lessee shall contain a provision (to the extent
legally permitted) that the insurance company shall give Lessor 10 days' written
notice to Lessor, in advance of (1) any cancellation or non-renewal of the
policy, (2) any reduction in the policy amount, and (3) any deletion of
additional insureds.
12.2 WAIVER OF SUBROGATION. (a) If waiver of subrogation is not contained
in the form language of the insurance policy, Lessor and Lessee may require that
the other party's fire, casualty, or liability insurance policy contain a waiver
of subrogation clause. FOR PURPOSES OF WAIVER OF SUBROGATION, XXXXXX AND AGENTS
FROM ANY CLAIMS FOR BASED ON NEGLIGENCE OR OTHERWISE, FOR LOSS, DAMAGE, OR
INJURY WHICH OCCUR HEREAFTER AND ARE INSURED AGAINST UNDER INSURANCE POLICIES
CARRIED BY XXXXXX AND/OR LESSEE. The foregoing shall not apply to losses,
damages, or injuries that are in excess of policy limits or that are not covered
due to a deductible clause in the policy.
(b) Upon written request, Lessor and Xxxxxx shall furnish to each
other copies of the policies of insurance referred to in this lease, including
any waiver of subrogation, or satisfactory evidence of same.
12.3 HOLD HARMLESS. Lessee shall indemnify Lessor for and shall hold
Lessor harmless from all fines, claims, liabilities, and suits (including costs
and expenses of defending against same) resulting from any breach of
nonperformance of the lease by Lessee or Xxxxxx's agents, employees, family,
licenses, or invitees. Lessor shall indemnify Lessee for and shall hold Lessee
harmless from all fines, claims, liabilities, and suits (including costs and
expenses of defending against same) resulting from any breach or nonperformance
of the lease by Lessor or Lessor's agents, employees, family, licensees, or
invitees. Lessor and Lessee shall not be liable to the other or the other's
agents, employees, family, licensees, or invitees. Lessor and Lessee shall not
be liable to the other or the other's agents, employees, or family for any
damage or personal property resulting from any act, omission, or negligence of
any other tenant, visitor, or occupant of the office building.
13.1 ALTERATIONS BY XXXXXX. Lessee may not make any alterations,
improvements, doorlock changes, or other modifications of any kind to the leased
premises without Lessor's written consent, which shall not be unreasonably
withheld. Consent for governmentally required changes may not be unreasonably
withheld. "Alterations" include but are not limited to improvements permanently
attached to the building, structural changes, roof and wall penetrations, and
all plumbing, electrical, and HVAC changes. Requests for Lessor's approval shall
be in writing and shall be detailed to Lessor's reasonable satisfaction. The
foregoing shall be done only by approval by Lessor in writing, which shall not
be unreasonably withheld. Lessee shall pay in advance for any requested
alterations, improvements, lock changes, or other modifications which are
approved and performed by Lessor. If same are performed by Lessee with Xxxxxx's
permission, Lessee shall not allow any liens to be placed against the buildings
as a result of such additions or alterations. Alterations, improvements, and
modifications done at Xxxxxx's request shall comply with all applicable laws.
Changes in Lessee's alterations or improvements in Lessee's space which may be
later required by governmental action shall also be paid for by Lessee if the
requirements of the government are unique to the Lessee. Lessee shall have no
obligation to restore the premises at the end of the lease term unless Lessor
specifies at the time that the plans are originally approved.
13.2 AMERICANS WITH DISABILITIES ACT. Lessor shall be responsible for any
requirements under the Americans with Disabilities Act or similar state or local
laws as relate to any common area entrance and exit doorways and elevators and
any doors into Lessee's office space and to structural building items that
Lessor is required to maintain under the terms of this lease. Xxxxxx agrees to
indemnify Lessee for any liability Lessee shall incur as a result of Xxxxxx's
failure to comply with the provisions of this paragraph. Xxxxxx agrees to
cooperate fully with Lessor to enable Lessor to timely comply with the
provisions of this paragraph and to immediately forward to Lessor any notice
Lessee receives regarding complaints, injuries, or claims by anyone claiming
that those items which are the responsibility of the Lessor do not comply with
the provisions of the Americans with Disabilities Act. Lessee shall be
responsible for any requirements under such architectural barrier laws as they
relate to Xxxxxx's use of Xxxxxx's office space, including, but not limited to,
the positioning of Xxxxxx's furnishings within the office space. Xxxxxx agrees
to indemnify Lessor for any liability Lessor shall incur as a result of Xxxxxx's
failure to comply with the provisions of this paragraph.
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14.1 REMOVAL OF PROPERTY BY XXXXXX. Lessee may remove its trade fixtures,
furniture, and equipment only if (1) such removal is made prior to the end of
the lease term, (2) Lessee is not in default under this lease at time of
removal. Lessee shall pay all costs of removal. Lessee shall have no rights to
property remaining on the leased premises after moveout. Lessee may not remove
any alterations as defined in paragraph 13.1 or improvements such as wall-to-
wall carpeting, book shelves, window coverings, drapes, cabinets, paneling,
counters, kitchen or breakdown built-ins, shelving, wall covering, and anything
else attached to the floor, walls, or ceilings. If Lessor requests in writing,
Lessee shall, immediately prior to moving out, remove any alterations, fixtures,
equipment, and other property installed by Lessee that are identified at the
time of Xxxxxx's plan approval must be removed. Lessee shall pay for cleaning or
repairing damage, normal wear and tear excepted, caused by Xxxxxx's removal of
any property.
15.1 SUBLETTING AND ASSIGNMENTS. Lessee may not sublet, assign, pledge, or
mortgage this lease and may not grant licenses, commissions, or other rights of
occupancy to all or any part of the leased premises without Lessor's prior
written approval which all not be unreasonably withheld or delayed. Sublessee's
financial strength, reputation, personnel, and length of sublease or assignment
shall be important factors in Lessor's approval. Sale, transfer, or merger of
the majority of the voting shares or voting partnership interests in Lessee (if
a corporation or partnership) shall be considered an assignment; likewise for
issuance of treasury stock or admission of a new general partner. Lessee shall
have the right with prior written notice to Lessor to sublease or assign any
portion or all of their premises to subsidiary or affiliated company or to any
corporate successor (upon merger or consolidation) without the consent of
Lessor, however, Lessee shall not be released from liability. Lessor shall be
entitled to (1) 50% of any excess between Xxxxxx's rental per square foot under
the lease and the rental per square foot under the sublease or assignment, and
(2) 50% of any other consideration flowing directly or indirectly from the
sublessee or assignee to Lessee or Lessee's agents. The forgoing is in
consideration of additional management performed or to be performed by Lessor
under such sublease or assignment. Violation of this lease by sublessees or
assignees shall be deemed a violation by Xxxxxx. Approval by Lessor of any
sublease or assignment shall not release Lessee from any obligation under this
lease for all of Lessee's obligations under this lease unless otherwise
specified in writing. Upon default by Xxxxxx, any Sublessee shall pay all
sublease rentals and other sums due Lessor, direct to Lessor, to be credited
against sums owed to Lessor by Lessee under this lease. Unless otherwise agreed
in writing, no sublease or assignment shall be valid unless (1) a copy of this
lease is attached thereto, (2) the sublessee or assignee agrees in writing to be
liable for all of Lessee's obligations under this lease, and (3) Lessor's
written approval is attached to the sublease or assignment.
16.1 DESTRUCTION BY FIRE OR OTHER CASUALTY. (a) Total destruction, rent
abatement, and restoration. If Xxxxxx's office space is totally damaged by fire
or other casualty so that it cannot reasonably be used by Xxxxxx and if this
lease is not terminated as provided in subparagraph (d) below, there shall be a
total abatement of Xxxxxx's rent and Lessee's obligation to pay office building
operating expenses until Xxxxxx's office space is restored by lessor and Lessee.
(b) Partial destruction, rent abatement, and restoration.
If Xxxxxx's office space is partially destroyed or damaged by fire or other
hazard so that it can be only partially used by Lessee for the purposes allowed
in this lease and if this lease is not terminated as provided in subparagraph
(d) below, there shall be a partial abatement of Lessee's rent and Xxxxxx's
obligation to pay office building operating expenses which fairly and reasonably
corresponds to the time and extent to which Xxxxxx's office space cannot
reasonably be used by Lessee.
(c) Restoration. Lessor' s obligations to restore shall
be limited to the condition of the leased premises existing prior to the
casualty. Lessor shall proceed with diligence to restore. During restoration,
Xxxxxx shall continue business to the extent practical in Lessee's reasonable
judgment.
(d) Lease termination. If Xxxxxx's office space or the
office center is so badly damaged that restoration and repairs cannot be
completed within three (3) months after the fire or casualty, then this lease
may be terminated as of the date of the destruction by either Lessor or Lessee
by serving written notice upon the other. Termination notice must be delivered
within 30 days after the casualty.
17.1 CONDEMNATION. If the leased premises or any material portion thereof,
including any portion of the parking lot is taken by condemnation and if the
leased premises is thereby reasonably rendered unusable for Lessee's business
use and activities, this lease shall automatically terminate as of the date
title vests in the
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condemning authority pursuant to such taking or acquisition; and Lessor and
Lessee shall be relieved of all further obligations under this lease. Lessor
shall be entitled to recover from the condemning authority the full amount of
Lessor's interest in this lease and in the property which is taken in
condemnation; provided, however, if Xxxxxx is not in default hereunder on the
day of taking or acquisition by the condemning authority, Lessee shall be
allowed to recover from the condemning authority, at Xxxxxx's own expense, the
value of Xxxxxx's remaining leasehold interest and Xxxxxx's trade fixtures, if
any, which are taken in condemnation; but not otherwise. Lessee shall be
responsible for Xxxxxx's own attorney's fees and for proving its own damages.
18.1 DEFAULT BY LESSOR. Lessee shall be entitled to recover actual damages
and terminate this lease if (1) Lessor fails to pay any sum due and owing to
Lessee within 7 days after written demand from Lessee, or (2) Lessor remains in
default on any other obligation for 7 days after Xxxxxx's written demand for
performance. However, Lessor shall not be in default if Lessor promptly
commences to cure such noncompliance and diligently proceeds in good faith to
cure same after receiving written notice of such default. If taxes and utilities
are not timely paid, Lessee may pay same to the extent that it is necessary to
avert foreclosure or cutoff. If Lessor fails to perform any covenant, term or
condition of this lease that Lessor is obligate to perform and, as a consequence
of such nonperformance, Xxxxxx shall recover a money judgment against Lessor,
such judgment shall be satisfied only out of Lessor's equity in the property.
Lessor shall have no liability whatsoever for any deficiency, and no other
property or assets of Lessor shall be subject to levy, execution or other
enforcement procedures as a result of such judgment.
19.1 DEFAULT BY XXXXXX. If Lessee defaults, Lessor shall have any or all
remedies set forth below.
(a) Definition of default. the occurrence of any of the
following shall constitute a default by Lessee: (1) failure to pay rent or any
other sum due by Lessee under this lease within 7 days after written demand
therefor by Lessor; (2) failure to vacate on or before the last day of the lease
term, renewal term, or extension period; (3) failure to pay rent in advance on a
daily basis in the event of unlawful holdover by Lessee; (4) acquisition of
Lessee's interest in the lease by a third party by judicial or non-judicial
process; or (5) failure to comply with any other provision of the lease
(including rules) if such failure to comply is not cured within 30 days after
receiving notice or, if compliance is not possible within 30 days, as soon as
possible after delivery of written notice by Lessor to Lessee. However, Lessee
shall not be in default under subclause (5) above if Lessee promptly commences
to cure such noncompliance and diligently proceeds in good faith to cure same
after receiving written notice of such default.
(b) Utilities and services. If Lessee is in default for
nonpayment of rent or other sums due and if Xxxxxx fails to pay same in full
within five (5) business days after Lessor hand delivers to Lessee or to
Lessee's representative written notice of Lessor's intent to terminate utilities
or services which are furnished by Lessor, then Lessor may terminate such
utilities or services after such five (5) business day notice period, without
further notice. Lessor's right to terminate such utilities or services shall
occur automatically and without notice if Xxxxxx's rent is accelerated under
subparagraph (d) below, relating to unlawful early move-out.
(c) Acceleration after notice of rental delinquency. If
Lessee is in default for nonpayment of rent or other sums due and if Xxxxxx
fails to pay same in full within five (5) business days after Lessor delivers to
Lessee or to Xxxxxx's office space a written notice of Xxxxxx's intent to
accelerate, then all rent for the remainder of the lease term shall be
accelerated, due, and delinquent at the end of five (5) business day notice
period without further demand or notice. Such acceleration rights are in
consideration of the rentals for the entire term being payable in monthly
installments rather than in one lump sum at the beginning of the lease term. If
Xxxxxx has already vacated the leased premises, notice of acceleration may be
delivered to Lessee pursuant to paragraph 29.1. Liability for additional rents
accruing in the future (over and above any base rents) shall not be waived by
such acceleration.
(d) Termination of possession. If Lessee is in default as
defined in subparagraph (a) above and if Lessee remains in default for 3 days
after Lessor gives notice of such default to Lessee, or if Lessee abandons the
leased premises, Lessor may (with or without demand for performance) terminate
Lessee's right of possession by giving five (5) business day's written notice to
vacate; and Lessor shall be entitled to immediate possession without termination
of Xxxxxx's obligations under the lease. Lessor's repossession shall not be
considered an election to terminate this lease unless written notice of such
intention to terminate is given to Lessee
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by Lessor. Repossession may be voluntary agreement or by eviction lawsuit.
Commencement of an eviction lawsuit shall not preclude other Lessor remedies
under this lease or other laws.
(e) Reletting costs. If Lessee is in default under this
lease and if Lessor terminates Lessee's rights of possession without terminating
this lease and Xxxxxx's space is released, Lessee shall pay upon Lessor's demand
the following: (1) all costs of reletting including, leasing commissions,
utilities during the vacancy, advertising costs, administrative overhead, and
all costs of repair, remodeling, or redecorating for replacement tenants in
Lessee's office space, (2) all rent and other indebtedness due from Lessee to
Lessor through the date of termination of Xxxxxx's right of possession, and (3)
all rent and other sums required to be paid by Xxxxxx during the remainder of
the entire lease term, subject to the acceleration paragraphs above.
(f) Mitigation by Xxxxxx. Upon eviction or voluntary
vacation of the leased premises by Xxxxxx without the lease being terminated by
Lessor, Lessor shall make reasonable efforts to relet the leased premises. After
deduction of reasonable expenses incurred by Lessor, Lessee shall receive credit
for any rentals received by Lessor through reletting the leased premises during
the remainder of the lease term or renewal or extension period. Such deductible
expenses may include real estate commissions, attorney's fees, and all other
expenses in connection with reletting. Lawsuit to collect amounts due by Lessee
under this lease may be brought from time to time on one or more occasions
without the necessity of Lessor's waiting until the expiration of the lease
term. If judgment for accelerated rents is recovered, Lessor shall give credit
against such judgment for subsequent payments made by Xxxxxx and subsequent
rentals receive by Lessor from other tenants of Xxxxxx's office space, less
lawful deductions and expenses of reletting.
(g) Termination of lease. Lessor may terminate this lease
(as contrasted to termination of possession rights only) upon default by Lessee
or at any time after Xxxxxx's lawful re-entry or repossession following default
by Lessee. Lessor's agents have authority to terminate the lease only by written
notice given pursuant to paragraph 29.1.
(h) Damages. In addition to other remedies, Lessor may
recover actual damages incurred.
20.1 LIEN FOR RENT. (a) Notwithstanding anything to the contrary in this
lease, Xxxxxx's landlord lien shall be subordinate to any existing security
interest and any future purchase money security interests on Xxxxxx's personal
property excepting all intellectual property, if such security interest is
properly perfected and timely recorded as required by the Texas Business Code.
Lessor shall cooperate in signing lien subordinations in accordance with the
forgoing. Any lien subordination shall be on forms reasonably acceptable to
Lessor.
(b) Subject to the limitations of subparagraph (a) above,
Xxxxxx gives to Lessor a contractual lien on all of Lessee's property which may
be found on the leased premises to secure payment of all monies and damages owed
by Xxxxxx under the lease. Such lien also covers all insurance proceeds on such
property. Lessee shall not remove such property while rent or other sums remain
due and unpaid to Lessor and such property shall not be removed until all
Lessee's obligations under the lease have been complied with. This lien is in
addition to Lessor's statutory lien under Section 54.021 of the Texas Property
Code. If Lessee is in default for nonpayment of rent or any other sums due by
Xxxxxx, Xxxxxx's representatives may peacefully enter the leased premises and
remove and store all property. If Lessor removes any property under this lien,
Lessor shall leave the following information in a conspicuous place inside
Xxxxxx's office space: (1) written notice of exercise of lien, (2) a list of
items removed, (3) the name of Xxxxxx's representative who removed such items,
and (4) the date of such removal. Lessor shall be entitled to reasonable charges
for packing, removing, or storing abandoned or seized property, and may sell
same at public or private sale (subject to any properly recorded chattel
mortgage or recorded financing statement) after 30 days written notice of tie
and place of sale is given to Lessee by certified mail, return receipt
requested. Upon request by Xxxxxx, Xxxxxx shall acknowledge the above lien
rights by executing a UCC-1 form or similar form reflecting same.
21.1 ATTORNEY'S FEES, INTEREST, AND OTHER EXPENSES. If Lessee or Lessor is
in default and if the nondefaulting party places the lease in the hands of an
attorney in order to enforce lease rights or remedies, the nondefaulting party
may recover reasonable attorney's fees from the defaulting party even if suit
has not been filed. In any lawsuit enforcing lease rights, the prevailing party
shall be entitled to recover reasonable attorney's fees from
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the nonprevailing party, plus all out-of-pocket expenses. Trial shall be to
court only; and all parties waive jury trial. All delinquent sums due by Lessor
or Lessee shall bear interest at the maximum lawful rate of interest, compounded
annually, from date of default until paid, plus any late payment fees. Late
payment fees as set forth in paragraph 3.2 shall be considered reasonable
liquidated damages for the time, trouble, inconvenience, and administrative
overhead expense incurred by Lessor in collecting late rentals, such elements of
damages being uncertain and difficult to ascertain. Late payment fees shall not
be liquidated damages for attorney's fees or for Xxxxxx's loss of use of such
funds during the time of delinquency.
22.1 NONWAIVER. The acceptance of monies past due or the failure to complain
of any action, nonaction, delayed payment, or default, whether singular or
repetitive, shall not constitute a waiver of rights or obligations under the
lease. Lessor's or Lessee's wavier of any right or any default shall not
constitute waiver of other rights, violations, defaults, or subsequent rights,
violations, or defaults under this lease. No act or omission by Lessor or
Xxxxxx's agents shall be deemed an acceptance or surrender of the leased
premises, and no agreement by Xxxxxx to accept a surrender of the leased
premises shall be valid unless it is in writing and signed by a duly authorized
agent of Xxxxxx.
23.1 BUILDING RULES. Lessor's rules for the office building are attached as
Exhibit F-2 and are subject to reasonable change if the changes are applicable
to all tenants of the office building. Separate parking rules are contained in
paragraph F-1. Xxxxxx agrees to provide a copy of the Office Building Rules
(Exhibit F-2) to each of Lessee's employees.
24.1 TRANSFER OF OWNERSHIP BY XXXXXX. If Lessor transfers ownership of the
office building (other than as security for a mortgage) and if Xxxxxx has
delivered to the transferee all of Lessee's security deposits and any prepaid
rents, Lessor shall be released from all liability under the lease; and such
transferee shall become liable as Lessor. Such right to be released of liability
shall accrue to subsequent owners only if such transfer is in good faith and for
consideration.
25.1 MORTGAGES. Unless otherwise provided in this lease, Xxxxxx shall
subordinate and attorn to mortgage liens how or hereafter on the office
building. Xxxxxx agrees to execute, from time to time, documentation therefor
which is necessary in the reasonable judgment of Xxxxxx. Other than the
provisions already set forth in this lease, there are no special lease
provisions which are required by lienholders of the office building. This lease
shall be subordinate to all existing and future mortgages. However, such
mortgagees may at any time subordinate their lien to this lease by filing a
subordination notice to the county real property records without necessity of
notice to Xxxxxx. Xxxxxx xxxxxx and holds any mortgagee or holder of a security
interest harmless from all claims of Xxxxxx against Lessor arising prior to such
mortgagee succeeding to the Lessor's ownership interest in the property. Since a
Mortgagee Nondisturbance Agreement is contemplated, any foreclosure of such
mortgagee's lien shall not terminate this lease even if such lien is superior to
the lease.
26.1 SURRENDER OF PREMISES. When Xxxxxx moves out, Xxxxxx shall surrender
Xxxxxx's office space in the same condition as on the date of lease commencement
by Xxxxxx (as changed or improved from time to time in accordance with this
lease), less ordinary wear. Removal of property from the leased premises is
subject to paragraph 14.1. Upon surrender, Lessee shall provide Lessor with all
of Xxxxxx's keys, access codes and cards to the Leased Premises and the
combination to all safes and vaults, if any in the Leased Premises.
27.1 HOLDING OVER. If Lessee remains in possession of the leased premises
after the expiration or mutually-agreed termination date of the lease, without
the execution by Lessor and Lessee of a new lease or a renewal or extension of
the lease, then (1) Lessee shall be deemed to be occupying the leased premises
as a tenant-at-sufferance on a daily basis subject to all obligations of the
lease, (2) Lessee shall pay rent for the entire holdover period at the rate of
125% of the then-current rental rate, (3) Lessee shall be subject to all other
remedies of Lessor as provided in paragraph 19.1, (4) Lessee shall indemnify
Lessor and/or prospective tenants for damages, including lost rentals, storage
expenses, and attorney's fees, and (5) at Lessor's sole option, Lessee may
extent the lease term for a period of one month at the then current rental rates
for the office building, as reasonably determined by Lessor, by hand delivering
written notice to Lessee or to Xxxxxx's office space while Lessee is holding
over. Holdover rents shall be immediately due on a daily basis and delinquent
without notice or demand; and the prior written notice and waiting period
requirements of this lease shall not be necessary in order for Lessor to
exercise remedies thereunder.
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28.1 SIGNS AND BUILDING NAME. Except for standard suite signage and building
directory listings, there shall be no signs, symbols, or identifying marks on or
in the building, halls, elevators, staircases, entrances, parking areas,
landscape areas, doors, walls, or windows without prior written approval of
Lessor. If the lease term is less than twelve (12) months, the cost of initial
suite signage for Xxxxxx's space and initial directory strips shall be at
Lessee's expense. All signs or lettering shall conform to the sign and lettering
criteria established by Lessor. Unless otherwise stated in the rules, suite
signage and building directory changes shall be done exclusively by Lessor.
Unless otherwise stated in the rules, suite signage and building directory
changes shall be done exclusively by Lessor and at Lessee's expense. Lessor may
remove all unapproved signs without prior notice to Lessee and at Xxxxxx's
expense. Lessor may change the name of the building upon six months' written
notice to Xxxxxx.
28.2 RELOCATION OF LESSEE.
29.1 NOTICES. Whenever written notice is required or permitted under
this lease, such notice shall be in writing and shall be either (a) hand
delivered personally to the party being notified, (b) hand delivered to or
inside such party's mailing address, or (c) delivered at such party's mailing
address by certified mail, return receipt requested, postage prepaid. The
mailing address of Lessor shall be the address to which Lessee normally mails or
delivers the monthly rent unless Lessor notifies Lessee of a different address
in writing. The mailing address of Lessee shall be Xxxxxx's office space under
this lease. However, if Xxxxxx moves out, it shall be Xxxxxx's last address
known by Xxxxxx. Hand delivered notice is required only when expressly required
in the lease. Notice by noncertified mail is sufficient if actually received by
the addressee or an employee or agent of addressee. The term "notice" shall be
inclusive of notices, xxxxxxxx, requests, and demands.
30.1 ESTOPPEL CERTIFICATE. From time to time, upon 7 days' prior written
request from Lessor, Lessee shall execute and deliver to Lessor the estoppel
certificate attached as Exhibit G. The form in Exhibit G may be changed as
reasonably required by a prospective purchaser or lender. If any statement in
the estoppel certificate form is contrary to the facts existing at the time of
execution of such form, Lessee may correct same before signing. Reasonable
modifications in the form may be made as requested by a prospective lienholder
or purchaser. The estoppel certificate may be conclusively relied upon by
Lessor and by any prospective lienholder or purchaser of the leased premises.
If Lessee fails to comply with the foregoing by the end of such 7-day period, it
shall be conclusively presumed that (1) this lease is in full force and effect
without any subleases or assignments and is unamended or modified except for
amendments verified by affidavit of Lessor to the prospective lienholder or
purchaser, (2) no rents, security deposits, or other charges have been prepaid,
(3) the statements contained in the estoppel certificate form (Exhibit G) are
correct, (4) there are no uncured defaults by Lessor, (5) Lessee has no right of
offset or rescission, and (6) any prospective purchaser or lienholder may
conclusively rely on such silence or noncompliance by Lessee and may
conclusively assume no Lessor defaults within the 120 days following Lessee's
receipt of Lessor's request for an estoppel certificate.
31.1 SUCCESSORS. This lease shall bind and inure to the benefit of the
parties, any guarantors of this lease, and their respective successor and
assigns.
31.2 LEASING AGENT COMMISSIONS. No leasing commission shall be due by
Lessor to any leasing agent unless in writing. Commission agreements executed by
Lessor shall be binding upon subsequent building owners if the tenant of the
lease in question is in possession at the time of transfer of building
ownership.
32.1 BUILDING OPERATING EXPENSE. In addition to the monthly base rent in
paragraph 2.1, Lessee shall pay additional rent on a monthly basis, equivalent
to Xxxxxx's prorata share of actual building operating expenses as per Exhibit
C. Lessee's responsibility for payment of building operating costs shall be
subject to the expense stop referred to in Basic Lease Information #8.
--------------------------
33.1 REPRESENTATIONS AND WARRANTIES BY XXXXXX. Lessor warrants that
Lessor is the sole owner of the land and improvements comprising the office
building and that Lessor has full right to enter into this lease. Lessor's
duties and warranties are limited to those expressly stated in this lease and
shall not include any implied duties or implied warranties, now or in the
future. No representations or warranties have been made by Lessor other than
those expressly contained in this lease.
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34.1 REPRESENTATIONS AND WARRANTIES BY XXXXXX. Lessee warrants to Lessor
that (1) the financial statements of Lessee heretofore furnished to Lessor are
true and correct to the best of Lessee's knowledge, (2) there has been no
significant adverse change in Lessee's financial condition since the date of the
financial statements, (3) the financial statements fairly represent the
financial condition of Lessee upon those dates and at the time of execution
hereof, (4) there are no delinquent taxes due and unpaid by Lessee, and (5)
Lessee and none of the officers or partners of Xxxxxx (if Lessee is a
corporation or partnership) have ever declared bankruptcy. Lessee warrants that
Xxxxxx has disclosed in writing to Lessor all lawsuits pending or threatened
against Lessee, and Xxxxxx has made no material misrepresentation or material
omission of facts regarding Xxxxxx's financial condition or business operations.
All financial statements must be dated and signed by Xxxxxx. Xxxxxx
acknowledges that Lessor has relied on the above information furnished by Lessee
to Lessor and that Lessor would not have entered into this lease otherwise.
35.1 PLACE OF PERFORMANCE. Unless otherwise expressly stated in this
lease, all obligations under this lease, including payment of rent and other
sums due, shall be performed in the country where the office building is
located, at the address designated from time to time by Lessor.
36.1 MISCELLANEOUS. This lease contains the entire agreement of the
parties. NO OTHER WRITTEN OR ORAL PROMISES OR REPRESENTATIONS HAVE BEEN MADE,
AND NONE SHALL BE BINDING. This lease supersedes and replaces any previous
lease between the parties on Xxxxxx's office space, including any renewals or
extensions thereunder. Except for reasonable changes in written rules, this
lease shall not be amended or changed except by written instrument, signed by
both Xxxxxx and Xxxxxx. LESSOR'S AND XXXXXX'S AGENTS DO NOT AND WILL NOT HAVE
------------
AUTHORITY TO (1) MAKE EXCEPTIONS, CHANGES OR AMENDMENTS TO THIS LEASE, OR
FACTUAL REPRESENTATIONS NOT EXPRESSLY CONTAINED IN THIS LEASE, (2) WAIVE ANY
RIGHT, REQUIREMENT, OR PROVISION OF THIS LEASE, OR (3) RELEASE LESSEE FROM ALL
OR PART OF THIS LEASE, UNLESS SUCH ACTION IS IN WRITING AND SIGNED BY BOTH
PARTIES TO THIS LEASE. Multiple lessees shall be jointly and severally liable
under this lease. Notices, requests, or agreements to, from, or with one of
multiple lessees shall be deemed to be to, from, or with all such Lessees.
Under no circumstances shall Lessor or Lessee be considered an agent of the
other. Nonsubstantial errors in space footage calculations shall entitle the
parties to correct the rental figures in the lease and adjust rentals previously
paid to present Owner accordingly, but not to terminate the lease. The lease
shall not be construed against either party more or less favorably by reason of
who drafted the lease or changes in the lease. Texas law applies. If any date
of performance or exercise of a right ends on a Saturday, Sunday, or state
holiday, such date shall be automatically extended through the next business
day. Time is of the essence; and all performance dates, time schedules, and
conditions precedent to exercising a right shall be strictly adhered to without
delay except where otherwise expressly provided. If any provisions of this
lease is invalid under present or future laws, the remainder of this lease shall
not be affected.
37.1 SPECIAL CONDITIONS. Additional provisions of this lease are set
forth in Exhibit J.
38.1 EXHIBIT LIST. The exhibits attached to this lease are listed below.
All exhibits are a part of this lease except for those which have been lined out
or which have been shown below as omitted.
Exhibit A Floor Plan of Lessee's Office Space (paragraph 1.1)
Exhibit B Legal Description of Office Building (paragraph 1.1)
Exhibit C Building Operating Expense Passthrough Calculations
(paragraphs 2.1 and 32.1)]
Exhibit D Acknowledgements of Lease (paragraph 4.2)
Exhibit E Construction by Lessor (paragraph 5.1)
Exhibit F-1 Parking Rules (paragraphs 9.2 and 23.1)
Exhibit F-2 Building Rules (paragraph 23.1)
Exhibit G Estoppel Certificate (paragraph 30.1)
Exhibit H Lease Guaranty (paragraph 37.1)
Exhibit I Corporate Resolution Authorizing Lease or Guaranty
(paragraphs 37.1 and 39.1)
Exhibit J Special Conditions (paragraph 37.2)
Exhibit K Hazardous Materials Statement
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Exhibit L Acknowledgment of Receipt of Agency Disclosure
Exhibit M Renewal Option
Exhibit N Right of First Refusal
39.1 LEASE DATES AND AUTHORITY TO SIGN. The "identification" date of
this lease is the 20/th/ day of June 1996 (the same date as at the top of Basic
------ ---------
Lease Information). The "effective date" on which this lease becomes binding is
the date on which the lease has been signed by Xxxxxx, Lessee, and any
guarantors. The names and signatures of all parties are shown below; and all
persons signing have been duly authorized to sign. IF LESSEE IS A CORPORATION,
--
A CORPORATE RESOLUTION AUTHORIZING LESSEE TO EXECUTE THIS LEASE IS ATTACHED AS
EXHIBIT I. Corporate seals are unnecessary under Texas law.
LESSOR LESSEE
XXXXX X. XXXXXX, XX. VIGNETTE CORPORATION
--------------------------------------------------------- ---------------------------------------------------
Printed name of company or firm (if applicable) Printed name of company or firm (if applicable)
XXXXX X. XXXXXX, XX. XXXX XXXXXX
--------------------------------------------------------- ---------------------------------------------------
Printed name of person signing Printed name of person signing
/s/ Xxxxx X. Xxxxxx, Xx. /s/ Xxxx Xxxxxx
--------------------------------------------------------- ---------------------------------------------------
Signature Signature
OWNER PRESIDENT
--------------------------------------------------------- ---------------------------------------------------
Title of person signing (if applicable) Title of person signing (if applicable)
7/1/96 6/26/96
--------------------------------------------------------- ---------------------------------------------------
Date signed (Please initial all pages and exhibits) Date signed (Please initial all pages and exhibits)
LEASING AGENT
THE XXXXXX COMPANY
---------------------------------------------------------
Printed name of company or firm (if applicable)
XXXXXX X. XXXXXXXX
---------------------------------------------------------
Printed name of person signing
---------------------------------------------------------
Signature
SENIOR VICE PRESIDENT
---------------------------------------------------------
Title of person signing (if applicable)
---------------------------------------------------------
Date signed
Page 15
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EXHIBIT A
FLOOR PLAN OF LESSEE'S OFFICE SPACE
(see paragraph 1.1 of lease)
The parties agree that the floor plan below is a true and correct diagram of
Xxxxxx's office space referred to in paragraph 1.1
Xxx Xxx Xxxx Xxxxx, Xxxxx 000
00,000 usable square feet / 12,519 rentable square feet
[INSERT DIAGRAM HERE]
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EXHIBIT B
LEGAL DESCRIPTION OF OFFICE BUILDING
by lot, block, subdivision, and county or
by metes and bounds description
(see paragraph 1.1 of lease)
Lot 1, Northwest Hills, Far West Section, City of Xxxxxx, Xxxxxx County, Texas
Page 17 Lessor /s/ DB
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EXHIBIT C
Page One of Two
BUILDING OPERATING EXPENSE PASSTHROUGH CALCULATIONS
(see paragraphs 2.1 and 32.1 of lease)
(a) "ESTIMATED" PRORATA BUILDING OPERATING EXPENSES. On or before the
beginning of each calendar year, Lessor shall calculate the
estimated building operating expenses for that calendar year,
according to the criteria in subparagraph (c) below. One-twelfth
of Lessee's prorata share of estimated building operating
expenses which are in excess of any expense stop shall be due on
the first of each month as additional rent.
(b) YEAR-END ADJUSTMENT FOR OVERPAYMENT OR UNDERPAYMENT BY XXXXXX
BECAUSE OF DIFFERENCES BETWEEN "ESTIMATED" AND "ACTUAL" BUILDING
OPERATING EXPENSES. After each calendar year of the lease term
and renewal or extension periods, Lessor shall determine the
actual building operating expenses for that calendar year (1996
Operating Expenses are estimated to be $5.75/sf/yr). If it is
then determined that actual building operating expenses were less
than estimated expenses and that Xxxxxx's monthly payments of
estimated expenses over Xxxxxx's expense stop figure were too
much, Lessor shall promptly credit to Lessee the excess amount
paid by Xxxxxx. If it is determined that actual building
operating expenses were more than estimated expenses and that
Xxxxxx's monthly payments of estimated expenses over Xxxxxx's
expense stop figure were insufficient, Lessor shall invoice
Lessee for the amount of Lessee's underpayment. Payment thereof
shall be due within thirty (30) days upon delivery of invoice to
Lessee. Payment may be made prior to or with the next scheduled
rental payment, but not later. The foregoing calculations and
adjustments may also be made one or more times during the
calendar year, at Lessor's option. After 1996, the controllable
expense increases will be capped at six percent (6%) (cumulative)
per year.
(c) DEFINITION OF BUILDING OPERATING EXPENSES. Building operating
expenses for each calendar year shall include: all ad valorem
taxes, assessments and related government charges becoming due on
the building and on-site personal property used in operation of
the building in such period; utilities; insurance premiums for
fire, extended coverage, vandalism, and liability on the building
and personal property used in building management; landscape
expenses; janitorial expenses; window cleaning; supplies
painting, roof repairs, window replacement, and other maintenance
expenses; licenses; permits; advertising; maintenance salaries
and bonuses; payroll taxes; management office overhead and
management fees; and all other managerial, administrative and
operating expenses which are reasonably related to the operation
of the building and utilities serving same. No such category
shall include more than 12 months' worth of expenses. Building
operating expenses shall also include the following improvements
if amortized over the useful life of such improvements for IRS
purposes together with interest at 12% per annum on the
unamortized cost: (i) improvements to reduce operating expenses,
(ii) improvements required by governmental agencies following
completion of the building, and (iii) carpeting, floor covering,
draperies, and wall coverings for the common areas of the
building. Building operating expenses shall be calculated on an
accrual basis in accordance with generally accepted accounting
principles, consistently applied. The word "building" as referred
to above shall include the building, parking areas, parking
garage (if any), and common areas.
Building operating expenses shall not include: principal and interest payments
on mortgages; depreciation or improvements which IRS requires to be depreciated
(except as provided above); expenses of repairing damage of the type normally
covered by fire, vandalism, flood, and EC insurance; any expense paid or
reimbursed from insurance proceeds; costs of repairing damage for which Lessor
is entitled to reimbursement from others;
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EXHIBIT C (cont'd)
Page Two of Two
remodeling costs for new or existing tenants; common area improvements or
personal property required by other tenants to be made, purchased, or furnished
to such tenants; utility and air conditioning or heating costs or other expenses
which are separately billed to specific tenants; franchise and income taxes if
of Lessor; leasing commissions; expenses of marketing vacant space in the
building; legal fees; structural repairs to roof, foundation, and walls;
asbestos removal; and installation of sprinklers, fire alarms, and smoke
detector systems.
If utilities and taxes included in "Building Operating Expense" are not payable,
billed or otherwise due so as to allow an accurate calculation of said factors
annually, then Lessor, in its reasonable discretion, may estimate and prorate
said expenses on an annual basis, and said factors shall be properly adjusted by
Lessor when they actually become due and payable. Otherwise, expenses must be
supported by invoices and actually paid.
(d) DEFINITION OF PRORATA SHARE. Xxxxxx's prorate share of estimated
and actual building operating expenses is the percentage result
of dividing "Lessee's rentable area" (which is set forth in Basic
-----
Lease Information #4) by the total rentable area in the entire
--------------------
building.
(e) DELAY IN IMPLEMENTATION. At Lessor's option, adjustments may be
delayed. Lessor's delay in implementing such adjustments shall
not waive Lessor's right thereto, and the most recent monthly
rental figures shall continue to be paid during such delay. If
Lessor delays in timely calculating adjustments, such adjustments
shall be retroactive to the respective date on which Lessor had a
right to make such adjustment; and such delayed rent adjustments
shall become due upon written notice to Lessee.
(f) EXAMINATION OF RECORDS. Upon reasonable notice to lessor in
writing, xxxxxx may examine or audit Xxxxxx's accounting records
for building operating expenses for the year immediately
preceding and other data used in calculating additional rents or
rent adjustments. Examination or audit of building operating
expenses for a particular year may be conducted no later than 120
days after Xxxxxx's receipt of a reconciliation notice or
statement of building operating expenses for that year. If not
examined or audited within the 120 day period, such
reconciliation shall be deemed as accepted and agreed to by all
parties.
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EXHIBIT D
Page One of Two
ACKNOWLEDGMENT OF LEASE
(TO BE SIGNED AT MOVE-IN)
The undersigned parties acknowledge that the lease described below is in full
force and effect and that Xxxxxx has taken possession of the space.
Date of lease: June 20, 1996
-------------------------------------------------------------
Lessor: Xxxxx X. Xxxxxx, Xx.
--------------------------------------------------------------------
Lessee: Vignette Corporation
--------------------------------------------------------------------
Guarantor, if any (not Lessee's name):
-------------------------------------
Building name: One Far West Plaza
-------------------------------------------------------------
Suite No. 300
------------------------------------------------------------------
Building address: 0000 Xxx Xxxx Xxxxxxxxx
----------------------------------------------------------
City/County/State Zip: Austin / Xxxxxx / Texas / 78731
-----------------------------------------------------
Legal description of property: See Exhibit B of Lease
---------------------------------------------
The commencement date, annual anniversary date, and ending date of the initial
lease term as defined in paragraph 4.1 of above lease are as follows:
Commencement date (month, day, year): July 1, 1996
--------------------------------------
Annual Anniversary date (month, day): July 1
--------------------------------------
Ending date (month, day, year): June 30, 1999
--------------------------------------------
The parties acknowledge that the lease has not been amended or modified and that
this acknowledgment may be filed of record with the Texas Secretary of State or
the county where the building is located in order to record (1) Xxxxxx's
possession rights to the leased premises, and (2) Lessor's contractual landlord
lien rights over all personal property therein and any security deposit posted
by Xxxxxx. The entire lease is hereby affirmed and incorporated herein. The
lease will cease to be an encumbrance to Xxxxxx's title if lessor files an
affidavit of record, stating that Xxxxxx no longer occupies the premises and
that Xxxxxx's right of possession has been lawfully terminated.
XXXXXX XXXXXX
(To be signed at move-in) (To be signed at move-in)
XXXXX X. XXXXXX, XX. VIGNETTE CORPORATION
------------------------------------------------------ ---------------------------------------------------
Printed name of company or firm (if applicable) Printed name of company or firm (if applicable)
XXXXX X. XXXXXX, XX. XXXX XXXXXX
------------------------------------------------------ ---------------------------------------------------
Printed name of person signing Printed name of person signing
------------------------------------------------------ ---------------------------------------------------
Signature Signature
OWNER PRESIDENT
------------------------------------------------------ ---------------------------------------------------
Title of person signing (if applicable) Title of person signing (if applicable)
------------------------------------------------------ ---------------------------------------------------
Date signed (Please initial all pages and exhibits) Date signed (Please initial all pages and exhibits)
Page 20 Lessor /s/ DB
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EXHIBIT D (cont'd)
Page Two of Two
STATE OF TEXAS
COUNTY OF
-----------------------------
This instrument was acknowledged before me on ____________________ by ________
_________________________________ on behalf of the above stated XXXXXX and in
the above stated capacity.
---------------------------------------------
Notary Public for the State of Texas)
Printed name of notary
----------------------
My commission expires
-----------------------
STATE OF TEXAS
COUNTY OF
------------------------------
This instrument was acknowledged before me on _____________________ by _______
___________________________________ on behalf of the above stated XXXXXX and in
the above stated capacity.
---------------------------------------------
Notary Public for the State of Texas)
Printed name of notary
-----------------------
My commission expires
------------------------
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EXHIBIT E
CONSTRUCTION BY XXXXXX
(see paragraph 5.1 of lease)
Xxxxxx Xxxxx X. Xxxxxx, Xx.
--------------------------------------------------------------------------
Lessee Vignette Corporation
--------------------------------------------------------------------------
Date of lease June 20, 1996
-------------------------------------------------------------------
Office space Suite 300
--------------------------------------------------------------------
Building name / address One Far West Plaza / 0000 Xxx Xxxx Xxxxxxxxx
---------------------------------------------------------
/ Austin, Texas 78731
---------------------------------------------------------
Lessee agrees to lease Suite 300 with the following improvements listed (below)
---
or (on the attached floor plan). The cost for said improvements, including
space planning fees, and construction management fees, shall not exceed
$38,101.00 ($3.50/usf).
---------- ---------
Any modification to the existing improvements shall be applied against the
dollar allowance and improvement costs that exceed the above-referenced
allowance shall be payable by Lessor and repaid by Lessee with the payment
-------------------
amortized over the term of the lease at nine percent (9%) interest.
If actual costs for capital improvements based on signed construction documents
by Lessee are less than the above-referenced allowance, including space
planning, and construction management fees, the Lessee will not receive a credit
---
for the unspent portion of the allowance.
Improvements: Lessor will remove all of the wallpaper and then recarpet and
paint the entire space, demo up to seven walls, install a shower,
re-key the locks and install a fixed object to lock one
motorcycle, or more if within the dollar allowance. Lessee shall
not be required to pay for (through Operating Expenses or
otherwise) or make any structural changes or capital expenditures
in or on the premises in order to comply with any law, ordinance,
rule or regulation unless the charges or expenditures are
required by Xxxxxx's particular use of the Premises. Lessee shall
have no obligation to restore the premises at the end of the
lease term unless Lessor specifies at the time that the plans are
originally approved.
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EXHIBIT F-1
OFFICE BUILDING PARKING RULES
(see paragraph 9.2 of lease)
It is the desire of Lessor to maintain and operate the parking garage and
parking areas in an orderly manner. The following rules apply to all tenants in
the building and their agents, employees, family, licensees, invitees, visitors,
and contractors unless otherwise stated. Lessor reserves the right to rescind
these rules, make reasonable changes, or make other reasonable rules and
regulations for the safety, care, and cleanliness of the parking garage, if
applicable, and parking areas and for the preservation of good order.
1. TRAFFIC SIGNS. All persons parking in the parking areas and parking
garage shall observe posted signs and markings regarding speed, stop
signs, traffic lanes, reserved parking, no parking, parking stripes,
etc.
2. LESSEE EMPLOYEE AND CUSTOMER PARKING. Lessees and their employees and
customers X may or ____ may not parking without charge.
---
3. TRASH. All persons parking in the parking garage or parking areas
shall refrain from throwing trash, ashtray contents, or other debris
on the garage floor or parking areas.
4. FLAT TIRES. All vehicle owners and all persons parking in the parking
garage or parking areas shall be responsible for promptly repairing
flat tires or other conditions of the vehicle which cause
unsightliness in the reasonable judgment of lessor.
5. REMOVAL OF UNAUTHORIZED VEHICLES. If vehicles are blocking driveways
or passageways or parked in violation of these rules and regulations
or state statutes, Lessor may exercise vehicle removal remedies under
Article 6701g-1 and 6701g-2 upon compliance with statutory notice.
6. SECURITY. Lessor shall use reasonable diligence in maintenance of
existing lighting in the parking garage or parking areas. Lessor shall
have no duty for additional lighting or any security measures in the
parking areas, including the parking garage.
7. PARKING OF EMPLOYEE VEHICLES. Lessor may from time to time designate
specific areas in wich vehicles owned by Lessee and Lessee's
employees, sublessees, assigneees, licensees, and concessionaires
shall be parked. Lessee shall use best efforts to see that such
vehicles are parking in such areas. Upon request by Lessor, Lessee
shall furnish Lessor with a complete list of license numbers of all
vehicles operated by Lessee and the above listed persons. Lessor may
charge reasonable parking fees for such vehicles not parked in the
designated areas.
8. PARKING OF TRUCKS AND DELIVERY VEHICLES. Without Lessor's prior
written approval, no trailers or large trucks may be parked in the
parking areas except for temporary loading and unloading. Service and
delivery vehicles may be parked in loading zones only when necessary.
9. TIMELY PAYMENT OF PARKING RENT. If applicable, Lessee shall be
entitled to monthly parking rights in the parking garage only upon
timely payment of the then current monthly parking rent, in advance.
Lessee may rent less than the allowed number of spaces. Lessee may
rent more than the allowed number of spaces if available in the
reasonable judgment of Xxxxxx.
10. CONTROL DEVICES. Lessor reserves the right to install or utilize any
reasonable system of entry and exit control devices in marked loading
areas.
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EXHIBIT F-2
Page One of Three
OFFICE BUILDING RULES
(see paragraphs 9.2 and 23.1 of lease)
XXXXXX AGREES TO PROVIDE A COPY OF THESE RULES TO EVERY EMPLOYEE
It is the desire of lessor to maintain in the building the highest standard of
dignity and good taste consistent with comfort and convenience for all tenants.
Any action or condition not meeting this high standard should be reported
directly to the building manager. Cooperation by all tenants will be sincerely
appreciated. The following rules and regulations apply to all tenants in the
building and their agents, employees, family, licensees, invitees, visitors, and
contractors unless otherwise stated. Pursuant to paragraph 23.1 of the lease,
Lessor reserves the right to rescind these rules, make reasonable modification
thereto, and make other reasonable rules and regulations for the safety, care,
and cleanliness of the building and for the preservation of good order.
1. DELIVERIES AND MOVEMENT OF FURNITURE. Movement into or out of the building
of furniture, equipment shall be restricted to hours, stairways, and
elevators designated by Lessor. Unless Lessor notifies Lessee otherwise,
only the freight elevator may be used for such purposes, and such elevator
may be used only during regular business hours without prior approval of
Lessor. All such movement and delivery shall be under the supervision of
the building manager and carried out in a manner agreed between Xxxxxx and
the building manger, by prearrangement. Prearrangement shall include time,
method, routing, and any limitations imposed for reasons of safety or
nondisturbance of others. The hold harmless and indemnification provisions
of paragraph 12.2 shall apply to the foregoing. Lessor may require that
movement of furniture or equipment which interferes with normal building
traffic shall be made at hours other than normal business hours.
2. OBSTRUCTION OF PASSAGEWAYS. None of the passageways, outside entries,
exterior doors, elevators, hallways, or stairway shall be locked or
obstructed. No rubbish, trash, litter, or materials of any nature may be
emptied or thrown into these areas. These areas may be used only for
ingress and egress.
3. DOORS AND DOORLOCKS. When Xxxxxx's corridor doors are not in use, Lessee
shall use its best efforts to keep them closed on all floors where Lessee
is a partial tenant on the floor. No additional locks shall be placed on
any doors in Xxxxxx's office space without written consent of Xxxxxx.
Lessee shall not change, alter, or replace locks provided by Lessor on
doors in the building, except with written permission of the building
manger. All necessary keys shall be furnished by lessor, and lessor shall
be entitled to have a key for every door in Xxxxxx's office space. Lessee
shall surrender all keys upon termination of xxxxxx's right of occupancy;
and at such time, Lessee shall give Lessor the combination to all vaults or
combination locks remaining in lessee's office space after surrender by
Xxxxxx.
4. SAFES. Safes and other heavy articles shall be carried onto the leased
premises only at such items and in such manner as prescribed by Lessor.
Lessor shall have the right to specify weight limitations and positioning
of safes or other heavy articles. Any damage done to the building by
installation, presence, or removal of a safe or other article owned or
controlled by Xxxxxx on the leased premises, shall be paid for by Lessee.
6. installation and repair work. Lessee shall refer all contractors,
contractors' representatives, and installation technicians who render any
service on or to Xxxxxx's office space, to the building manager for
approval and supervision before performance of any service. This provision
shall apply to all work performed in the building, including installation
of telephones, electrical lines, and other electrical devices where such
installation affects the floors, walls, woodwork, trim, windows, ceilings,
mechanical equipment, or any other part o the building. If Lessee desires
telephone or other electronic connections, Lessee shall notify Lessor; and
lessor shall then direct installation servicemen as to where and how wires
may be introduced. Without such directions, no such installation shall be
permitted.
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EXHIBIT F-2
Page Three of Three
7. hazardous materials. Lessee shall not place or install, on the leased
premises or any part of the building, any explosive, gasoline, kerosene,
oil, acids, caustics, or any other inflammable, explosive, or hazardous
materials without written consent of the building manager. Lessee shall not
operate electric space heaters, stoves, engines, or other equipment no
typical of an office building without written consent of the building
manager.
8. PAGE 27 OMITTED
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21. NOTICE OF PERSONAL INJURIES OR UTILITY OR MECHANICAL PROBLEMS. Lessee
shall give prompt notice to the building manager, to the best of xxxxxx's
knowledge, of any significant accidents involving injury to persons or
property, including plumbing, electrical, heating, air conditioning,
stairwell, corridor, and elevator problems and/or personal injury and
property damage caused thereby.
22. request by xxxxxx. Except in emergencies, requests by Xxxxxx shall be
attended to only after written request by Xxxxxx to the building
management. Lessor's employees are not allowed to perform or do anything
outside their regular duties unless pursuant to special orders from lessor.
Lessee may not contract with Lessor's employees for the performance of paid
or free services to Lessee. If, at the request of Lessee, lessor or
Lessor's agents furnish services, goods, labor, or material to Lessee which
are not required to be furnished by lessor under this lease, Lessee shall
pay for same upon delivery of a written statement therefor to Lessee.
23. BUILDING ACCESS. Anyone who does not reasonably satisfy a building security
guard (if any) that he has a right to enter the building may be excluded by
the guard. Lessor shall not be liable for damages for any good faith error
with regard to admission or exclusion from the building of any person. In
case of fire, destruction, invasion, mob, riot, or other commotion, Lessor
reserves the right to prevent access to the building by closing the doors
or otherwise.
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EXHIBIT F-2
Page Three of Three
25. ELEVATORS. Lessor shall not be liable for damages from stoppage of
elevators for repair, service, or improvements. Nor shall Lessor be liable
for delays of any duration in connection with elevator repair, service, or
improvements.
26. SMOKING. This is non-smoking building; smoking is not permitted anywhere
inside the building.
27. ICE, SLEET, SNOW, OR WATER. Lessor shall have no duty to remove, in whole
or in part, ice, sleet, snow, or water from parking lots, walkways,
sidewalks, or stairs, regardless whether they are covered, uncovered,
inside, or outside of buildings. At Lessor's option, lessor may remove such
ice, sleet, snow, or water at any time, in whole or in part, with or
without notice to anyone.
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EXHIBIT G
Page One of Two
This form is not to be executed at time of lease execution.
ESTOPPEL CERTIFICATE
(see paragraph 30.1 of lease)
The purpose of this certificate is to confirm the current status of matters
relating to the lease described below. It is for the benefit of the owner or
prospective purchaser or mortgagee of the building in which the leased premises
are located.
1. The undersigned is the Lessee under a lease between__________________,
as Lessor, and _____________________, as Lessee, dated ___________________
on leased premises locally known as the __________________________________
building and located at _______________________, in ______________________,
Texas. A copy of the fully executed lease and any amendments or
modifications thereto are attached. There are no other modifications or
amendments to the above described lease. The dates of any amendments or
modifications are: (put "none" if inapplicable)
---------------------------
.
--------------------------------------
2. There are no unfulfilled written or verbal promises, representations, or
warranties by Xxxxxx.
3. There are no subleases of the leased premises or any portions thereof.
4. The lease (together with any amendments or modifications referred to above)
is in good standing and in full force and effect. Lessor is not in default.
Xxxxxx agrees to give notice of any lessor default to any purchaser or
lender making written requests to Lessee for same.
5. Except for rents (if any) which may be due under the lease for the current
month, there are no rents or other charges which have been prepaid by the
undersigned Lessee to lessor under the lease other than the following:
6. The amount of security deposit currently posted by lessee with lessor is
$_________ in the form of ( ) cash or ( ) an irrevocable, unconditional
letter of credit issued by ____________________ in favor of Lessor which
is still valid.
7. Lessee acknowledges that the space being leased consists of __ rentalable
square feet according to the lease, that the improvements to be constructed
by Lessor have been satisfactorily completed, that the lease space has been
accepted by lessee, that Lessee now occupies the lease space, and that the
commencement date for the lease term was _________________________________.
8. There are no rentals which are due and unpaid. Rentals are fully paid (if
required by the lease) through the last day of the month in which this
estoppel certificate has been executed.
9. There are no known offsets or credits against rentals except as expressly
provided by the terms of the lease. There is no known right of rescission
and no known defense to Xxxxxx's future obligations to pay the specified
rentals at the times and in accordance with the lease terms. Lessee has not
received any concession (rental or otherwise) or similar compensation not
expressed in the lease which is presently in effect.
10. Lessee has no options or rights of refusal regarding the leased premises or
additional rental space other than as set out in the lease.
11. Lessee has not: (a) made a general assignment for the benefit of creditors;
and (b) commenced any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution, or
composition of its or its debts under any law relating to bankruptcy,
insolvency, reorganization, or relief of debtors; or (e) had any
involuntary case, proceeding, or other action commenced against it which
seeks to have an order for relief entered against it, as debtor, or seeks
reorganization, arrangements, adjustment, liquidation, dissolution, or
composition of its or its debts under any law relating to bankruptcy,
insolvency, reorganization, or relief of debtors;
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EXHIBIT G (cont.)
Page Two of Two
or (d) concealed, removed, or permitted to be concealed or removed, any
part of its property, with intent to hinder, delay, or defraud its
creditors or any of them, or made or suffered a transfer of any of its
property which may be fraudulent under any bankruptcy, fraudulent
conveyance, or similar law; or made any transfer of its property to or for
the benefit of a creditor at a time when other creditors similarly situated
have not been paid; or (e) had a trustee, receiver, custodian or other
similar official appointed for or take possession of all or any part of its
property or had any court take jurisdiction of any other of its property.
12. Xxxxxx agrees to furnish Lessor with estoppel letters on this form within
10 days (stating the then-current facts) after written request by Lessor or
subsequent owners of the building.
13. Lessee acknowledges that, upon 10 days' prior written request of xxxxxx's
mortgagee at any time after foreclosure proceedings or a deed in lieu of
foreclosure, Lessee shall attorn to the mortgage or foreclosure purchaser
by recognizing such new owner as Lessor under the lease provided that such
purchaser shall recognize the rights of tenant under the lease as long as
tenant is not in default. The agreement of Lessee to attorn shall survive
any foreclosure sale or deed in lieu of foreclosure. Lessee shall, upon 10
days' written notice from xxxxxx's mortgagee anytime before or after
foreclosure sale, execute, acknowledge, and deliver to xxxxxx's mortgagee
all instruments and certificates that in the reasonable judgment of
Xxxxxx's mortgages may be necessary or proper to confirm such attornment.
14. Xxxxxx acknowledges that this estoppel certificates and the statements
therein may be conclusively relied upon by lessor and by any prospective
purchaser or lien holder of the leased premises.
15. The form of this estoppel certificate may vary, depending on lender or
purchaser requirements. It is agreed that this certificate may be modified
to conform to reasonable requests by lenders or purchaser.
16. This agreement shall be binding upon and shall inure to the benefit of the
Lessor, any present or future mortgagee, any prospective buyer or master
Xxxxxx of the property, and their successors and assigns.
Dated this _______________________ day of , 19 .
-------------------- --
LESSEE
------------------------------------------
By
----------------------------------------------
Printed name of signatory
----------------------
Title
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EXHIBIT H
Page One of Two
OFFICE LEASE GUARANTY
(see paragraph 37.1 of lease)
[REDACTED]
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EXHIBIT H (cont.)
Page Two of Two
[REDACTED]
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EXHIBIT I
CERTIFICATE OF CORPORATE RESOLUTION
AUTHORIZING LEASE OR GUARANTY
(see paragraphs 37.1 and 39.1 of lease)
The undersigned, as secretary of the corporation named below, certifies that at
a special meeting of the board of directors of the corporation, duly called and
held on the 26 day of June, 1996, at which a quorum of the directors were
present and acting throughout, the following resolutions were unanimously
adopted and are still in force and effect:
RESOLVED that the president or the vice president of the corporation shall be
authorized to execute a lease for office space on behalf of the corporation
described below:
Date of lease: June 20, 1996
------------------------------------------------------------------
Lessor: Xxxxx X. Xxxxxx, Xx.
-------------------------------------------------------------------------
Lessee: Vignette Corporation
-------------------------------------------------------------------------
Guarantor, if any (not Lessee's name):
------------------------------------------
Building name: One Far West Plaza
------------------------------------------------------------------
Suite No. 300
-----------------------------------------------------------------------
Building address: 0000 Xxx Xxxx Xxxxxxxxx
---------------------------------------------------------------
City/County/State Zip: Austin / Xxxxxx / Texas / 78731
----------------------------------------------------------
RESOLVED FURTHER, that the president or vice president is authorized on behalf
of the Corporation to execute and deliver to the Lessor all instruments
reasonably necessary for the lease. Lessor is entitled to rely upon the above
resolutions until the board of directors of the corporation revokes or alters
same in written form, certified by the secretary of the corporation, and
delivers same, certified mail, return receipt requested, to the Lessor. The
corporation is duly organized and is in good standing under the laws of the
State of Delaware, and there are no proceedings pending to forfeit the
corporation's charter or right to do business in Texas. The undersigned further
certifies that on the meeting date referred to above, the names and respective
titles of the officers of the corporation were as follows:
/s/ Xxxx Xxxxxx President
------------------------------------------------ ----------------------------
/s/ Xxxx Xxxxxx Vice President
------------------------------------------------ ----------------------------
/s/ Xxxx Xxxxxx Secretary
------------------------------------------------ ----------------------------
Treasurer
------------------------------------------------ ----------------------------
WITNESS MY HAND this 26th day of June, 1996
Vignette Corporation
-------------------------------------
Typed name of corporation
-------------------------------------
Signature of secretary of corporation
-------------------------------------
Printed name of secretary
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EXHIBIT I (cont.)
Page Two of Two
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on June 26, 1996 by Xxxx Xxxxxx on
behalf of the above stated XXXXXX and in the above stated capacity.
-------------------------------------------
Notary Public for the State of Texas)
Printed name of notary
---------------------
My commission expires
----------------------
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EXHIBIT J
SPECIAL CONDITIONS
(see special conditions paragraph 37.2 of lease)
The following special conditions shall apply to this lease and shall prevail on
any other provisions to the contrary.
1. FINANCIAL STATEMENTS. Prior to the execution of this lease, Lessee shall,
upon written request, furnish to Lessor a financial statement of Xxxxxx's
condition in a reasonably satisfactory form. All financial statements shall
be originally signed and dated by Xxxxxx or xxxxxx's agent and be current
within 90 days.
2. LEASE COMMENCEMENT. The commencement date of the lease, base rent and pass-
thru shall be July 11, 1996 or the date that tenant improvements are
completed and the Premises are ready for occupancy. Xxxxxx agrees to use best
efforts ensure that the commencement date will be no later than July 16,
1996.
The terms "completed" and "ready for occupancy " shall mean the date:
(1) selected contractor has completed the tenant improvements and other work
that it is obligated to perform pursuant to the Work Letter Agreement,
notwithstanding "punch list" items which do not interfere with use of the
premises;
(2) the building elevators, HVAC, utilities, plumbing service and doors and
hardware for the Premises are sufficiently completed so as to enable
Lessee to move in and install its furniture, fixtures, machinery and
equipment in the premises and conduct normal business operations in the
Premises.
Xxxxxx will also be allowed to install their wiring during the time that
Lessor is completing Lessee improvements through coordination with the
general contractor.
3. RIGHT TO TERMINATE. lessee shall have the right to terminate this Lease
Agreement anytime after the twenty-fourth month with ninety (90) days written
notice to Xxxxxx and a penalty payment equal to all unamortized leasing
commissions and tenant finish-out costs.
4. LESSOR'S RIGHT OF ACCESS. Lessor shall not have access to one (1) file room
and one (1) computer room. Access to all other areas of Lessee's leased
premises shall be as set forth in Paragraph 9.1(a).
5. EMERGENCY GENERATOR. Lessee shall have the right to construct and operate,
at its expense, and in compliance with all regulations then in effect, an
emergency generator within the Property. The generator shall be at a
location acceptable to Lessor and Lessee, with Lessor and Xxxxxx to use best
efforts to agree on the location.
6. This lease is contingent upon Xxxxxx's receipt of release of space from
current tenant upon terms and conditions mutually agreeable to Lessor and
current tenants.
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EXHIBIT K
HAZARDOUS MATERIALS STATEMENTS
Various materials utilized in the construction of any improvements to the
property or in the use thereof, past or present, may contain materials that have
been or may in the future be determined to be hazardous. For example, some
electrical transformers and other electrical components can contain PCBs, and
asbestos may have been used in a wide variety of building components such as
fire-proofing, air duct insulation, acoustical tiles, spray-on acoustical
materials, linoleum floor tiles and plaster. Such substances may be present on
or in soils, underground water, building components or other portions of the
leased premises in areas that may or may not be accessible or noticeable.
Current federal, state and local laws and regulations may require the clean-up
of such hazardous or undesirable materials.
Lessor, real estate brokers, and leasing agents in this transaction have no
expertise with respect to hazardous materials and have not made, nor will any of
their statements constitute representations, either express or implied,
regarding the existence or nonexistence of hazardous materials in or on the
leased premises.
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EXHIBIT L
Page One of Two
Approved by the Texas Real Estate Commission for Voluntary Use
Texas law requires all real estate licensees to give the following information
about brokerage services to prospective buyers, tenants, sellers and landlords
--------------------------------------------------------------------------------
Information About Brokerage Services
-------------------------------------------------------------------------------
Before working with a real estate broker, you should know that the duties of a
broker depend on whom the broker represents. If you are a prospective seller or
landlord (owner) or a prospective buyer or tenant (buyer), you should know that
the broker who lists the property for sale or lease is the owner's agent. A
broker who acts as a subagent represents the owner in cooperation with the
listing broker. A broker who acts as a buyer's agent represents the buyer. A
broker may act as an immediary between the parties if the parties consent in
writing. A broker can assist you in locating a property, preparing a contract or
lease, or obtaining financing without representing you, a broker is obligated by
law to treat you honestly.
IF THE BROKER REPRESENTS THE OWNER: The broker becomes the owner's agent by
entering into an agreement with the owner, usually through a written listing
agreement, or by agreeing to act as an subagent by accepting an offer of
subagency from the listing broker. A subagent may work in a different real
estate office. A listing broker or subagent can assist the buyer but does not
represent the buyer and must place the interests of the owner first. The buyer
should not tell the owner's agent anything the buyer would not want the owner to
know because an owner's agent must disclose to the owner any material
information known to the agent.
IF THE BROKER REPRESENTS THE BUYER: The broker becomes the buyer's agent by
entering into an agreement to represent the buyer, usually through a written
buyer representation agreement. A buyer's agent can assist the owner but does
not represent the owner and must place the interests of the buyer first. The
owner should not tell a buyer's agent anything the owner would not want the
buyer to know because a buyer's agent must disclose to the buyer any material
information known to the agent.
IF THE BROKER ACTS AS AN INTERMEDIARY: A broker may act as an intermediary
between the parties if the broker complies with The Texas Real Estate License
Act. The broker must obtain the written consent of each party to the transaction
to act as an intermediary. The written consent must state who will pay the
broker and, in conspicuous bold or underlined print, set forth the broker's
obligations as a intermediary. The broker is required to treat each party
honestly and fairly and comply with The Texas Real Estate License Act. A broker
who cast as an intermediary in a transaction:
(1) shall treat all parties honestly;
(2) may not disclose that the owner will accept a price less than the asking
price unless authorized in writing to do so by the owner;
(3) may not disclose that the buyer will pay a price greater than the price
submitted in a written offer unless authorized in writing to do so by the
buyer; and
(4) may not disclose any confidential information or any information that a
party specifically instructs the broker in writing not to disclose unless
authorized in writing to disclose the information or required to do so by The
Texas Real Estate License Act or a court order or if the information
materially relates to the condition of the property.
With the parties' consent, a broker acting as an intermediary between the
parties may appoint a person who is licensed under The Texas Real Estate License
Act and associated with the broker to communicate with and carry out instruction
so one party and another person who is licensed under that Act and associated
with the broker to communicate with an carry out instruction of the other party.
If you choose to have a broker represent you, you should enter into a written
agreement with the broker that clearly establishes the broker's obligations and
your obligations. The agreement should state how and by whom the broker will be
paid. You have the right to choose the type of representation, if any, you wish
to receive. Your payment of a fee to a broker does not necessarily
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EXHIBIT L (cont.)
Page Two of Two
establish that the broker represents you. If you have any questions regarding
the duties and responsibilities of the broker, you should resolve those
questions before proceeding.
--------------------------------------------------------------------------------
Real estate license asks that you acknowledge receipt of this Information
about brokerage services for the licensee's records.
--------------------------------------------------------------------------------
Tenant Date
--------------------------------------------------------------------------------
Texas Real Estate Brokers and Salesmen are licensed and regulated by the Texas
Real Estate Commission (TREC). If you have a question or complaint regarding
a real estate licensee, you should contact TREC at P.O. Box 12188, Austin,
Texas 78711-2188 or 000-000-0000.
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EXHIBIT M
RENEWAL OPTION
At the end of the original lease term, Lessee shall have the right to renew this
lease for a period of thirty-six (36) months provided that Xxxxxx delivers to
Lessor written notice of Xxxxxx's intent to renew at least three (3) months
prior to the end of the lease term. However, Lessee shall not have such right
of renewal if Lessee is in default as defined in paragraph 19.1 (a) either at
the time of such notice of renewal or at the end of the lease term. The terms
of this lease during such renewal term shall continue except as follows:
Lessee's base rate shall adjust to the then current market rate and conditions
for like and similar space.
"Then current market terms and conditions" shall mean those terms and conditions
prevailing on the renewal deadline date for comparable space in One Far West
Plaza to tenants or prospective tenants of comparable creditworthiness. If on
or before thirty (30) days after the delivery of the renewal notice Lessor and
Xxxxxx cannot agree in writing to the "current market terms and conditions" to
be applicable during a renewal term, then the question of what the "then current
market terms and conditions" is shall be settled by arbitration. Such
arbitration shall be before one (1) disinterested arbitrator if one can be
agreed upon, otherwise before three (3) disinterested arbitrators, one named by
the Lessor, one by the Lessee, and one by the two thus chosen. The arbitrator
or arbitrators shall determine the controversy in accordance with the
arbitration rules under the American Arbitration Association as applied to the
facts found by him, her or them. The cost of the arbitrators shall be paid 50%
by lessee and 50% by Xxxxxx.
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EXHIBIT N
RIGHT OF FIRST REFUSAL
So long as Lessee is not in default under the lease, as set forth in paragraph
19.1, Lessee will have a reoccurring "Right of First Refusal" on all of the
rentable square feet located on the third floor. In cases where an existing
tenant already has a right of first refusal or other options at the time of
lease execution, Xxxxxx will have the second right. Lessee will have five (5)
business days upon xxxxxx's receipt of written notice of a firm offer (with copy
of the offer included) to accept or reject the space on the same terms and
conditions as lessor is prepared to enter into by a lease with a third party,
except that the space will be coterminous with xxxxxx's primary space. The
finish-out allowance will be modified on a pro rata basis based on the length of
the lease that lessee has remaining. Lessee has the right to amortize the
entire amount of the tenant finish-out allowance offered to the prospect by
amortizing at a nine percent (9%) discount rate the difference in the total
amount and the pro rata portion.
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