EXHIBIT 10.3
OFFICE LEASE
ECHELON BUILDINGS I & II
This is a Lease Agreement made and entered into between ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ DBA: Echelon Buildings I & II, as "Lessor", and Deja News, Inc., as
"Lessee", whether one or more.
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) 350, representing the office space
outlined and shaded 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 ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(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 10.1 on parking.
1.2. USE. Lessee's office space may be used only for general office. The name of
Lessee's business will be Deja News, Inc. and Global Track.
1.3. USABLE AREA. Lessee's "usable area" is approximately 5,777 square feet. It
is the office space outlined and shaded in Exhibit A. Such area 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 "rentable area" is approximately 6,701 square feet,
that being 7% of the building's total rentable area. It consists of Lessee's
"usable area" as defined above, plus Lessee's pro rata share of the building
common areas as set forth below. The common area "add on" factor is 16% of
Lessee's usable area. Building common areas are defined as all corridors,
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.
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2.1. BASE RENT AND ADDITIONAL RENTS WITH EXPENSE STOP. Lessee shall pay to
Lessor a "base rent" of $123,968.50 per calendar year, which amounts to
$10,330.71 per calendar month. Such base rent is equivalent to $18.50 per square
foot per year for Lessee's rentable area. The base rent is subject to adjustment
as provided in paragraph 32.1. Commencing January 1, 1998 additional rent
(representing Lessee's pro rata share of building operating expenses over the
Base Year 1997 expense stop) shall be paid in accordance with paragraph 32.1.
Building operating expenses up to such expense stop amount shall be paid by
Lessor. Base rent is subject to the annual base rent increase referred to in
paragraph 32.2.
3.1. DATE AND PLACE OF PAYMENT. The monthly rent and, at Lessor's option,
one-twelfth of Lessee's share of estimated building operating expenses under
paragraph 32.1 (i.e., expenses in excess of the expense stop) shall be due 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
one or more days before due date and received after the due date shall be
considered as timely received by Lessor. 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.
3.2. LATE PAYMENTS. If any rent payment or other sum due by Lessee to Lessor is
received and accepted by Lessor later than 10 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. 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 Lessor'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 $25.00.
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 due be paid by cashier's check, certified check, or
money order, without prior notice.
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3.3. SECURITY DEPOSIT. At the time of execution of this lease, Lessee shall
deposit with Lessor $20,661.42 cash to secure performance of Lessee's
obligations under this lease. If Lessee 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, COMMENCEMENT, AND ANNIVERSARY. The initial lease term shall be for 60
full calendar months from commencement date, plus the remainder of the last
month. The lease commencement date shall be the 1st day of March, 1997 or the
date Lessee occupies all or any part of Lessee's office space, whichever occurs
first. The annual anniversary date of this lease shall be the first day of the
first full month following commencement of the lease, unless the lease
commencement date is the first day of the month. The date rent commences shall
be the same day as the above lease commencement date, subject to paragraph 4.3
and Exhibit E.
4.2. ACKNOWLEDGMENT OF LEASE. Upon commencement of this lease, Lessor and Lessee
shall execute a recordable acknowledgment 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 square footage in Lessee's office space.
4.3. DELIVERY OF POSSESSION. Lessor shall deliver keys and possession of
Lessee'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 Lessor delivers possession of the leased premises
to Lessee. If there is a delay in delivery of possession, rent shall be abated
until Lessee'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, subject to Exhibit E.
5.1. TENANT FINISH-OUT. Lessor shall provide building finish-out allowance of
$10.00 per rentable square foot of leased premises. Terms and conditions shall
be as set out in Exhibit E.
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 Lessee's office space, subject to the terms
and conditions of this lease. Lessee shall have access to the common parking
areas at all times, subject to 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 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.
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7.1. UTILITIES AND SERVICES BY LESSOR. Except where otherwise stated in this
lease, Lessor shall pay for and furnish in a timely and diligent manner to
Lessee the following utilities and services and no others, subject to paragraph
32.1 regarding Lessee's payment of Lessee's pro rata share of building operating
expenses.
(a) air conditioning and heating as reasonably required for comfortable use
and occupancy under normal office conditions from 8:00 a.m. to 6:00 p.m.
on Monday through Friday and from 9:00 a.m. to 1:00 p.m. on Saturday (but
not on New Year's Day, President's Day, Memorial Day, July 4th, Veteran's
Day, Labor Day, Thanksgiving or Christmas and after 12:00 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 waste water services for common areas;
(c) janitorial and cleaning services, as needed, for the building;
(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) elevator service.
7.2. UTILITIES AND SERVICES BY LESSEE. Lessee shall pay for all utilities and
services not expressly furnished by Lessor under paragraph 7.1. Lessor reserves
the right to submeter electricity and/or water to monitor consumption by Lessee.
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.
7.4. EXTRA ELECTRICITY. There shall be no extra electricity charges for
typewriters, 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
for electricity utilized by
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Lessee for the following purposes: x-ray machines, hot plates, electric heaters,
220 volt equipment, computers (other than desktop, servers or word processor
computers used during the normal course of business by onsite employees), or
other electrical service not standard for the building. Lessee shall pay Lessor,
as billed, for utilties which are sub-metered for electrical power supplied to
serve equipment located in the machine room, as shown in Exhibit A and seperate
air conditioning unit servicing such room.
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 an
hourly fee equal to estimated electrical consumption and reasonable wear and
tear as agreed upon by the parties, but in no event to exceed $5.00 per hour. Or
such amount, not to exceed $5.00 per hour, shall be calculated, at Lessee's
discretion by a qualified licensed engineer agreeable to the parties and paid by
Lessee for such services.
8.1. MAINTENANCE AND REPAIRS. 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. Lessor may rekey at any time and shall supply Lessee with
replacement keys at such 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.
8.2. REPAIRS. Except for customary cleaning and trash removal provided by Lessor
under paragraph 7.1, and light bulbs, ballasts, and plumbing repairs to Lessor
supplied fixtures, and damage covered under paragraph 16.1, Lessee shall keep
its Leased Premises in good and sanitary condition, working order and repair
(including without limitation, carpet, wall-covering, doors, alterations and
improvements whether installed by Lessor or Lessee). In the event that any
repairs, maintenance or replacements are required of Lessee hereunder, Lessee
shall promptly arrange for the same either through Lessor for such reasonable
charges as Lessor may from time to time establish, or such contractors as Lessor
generally uses at the Property or such other contractors as Lessor shall first
approve in writing, and in a first class, workmanlike manner approved by Lessor
in advance in writing. If Lessee does not promptly make such arrangements,
Lessor may, but need not, make such repairs, maintenance and replacements, and
the costs paid or incurred by Lessor therefor shall be reimbursed by Lessee
promptly after request by Lessor. Lessee shall indemnify Lessor and pay for any
repairs, maintenance
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and replacements to areas of the Property outside the Premises, caused, in whole
or in part, as a result of moving any furniture, fixtures, or other property to
or from the Premises, by Lessee or its employees, agents, contractors, or
visitors, but not to include Lessor's employees, agents or contractors
(notwithstanding anything to the contrary contained in this Lease). If Lessee's
workmen or contractors are permitted to repair, alter, or modify Lessee's office
space, Lessee shall warrant that no mechanic or materialman's lien shall be
filed against the leased premises. All such work shall be in accordance with
applicable governmental requirements.
8.3. TELECOMMUNICATIONS EQUIPMENT. 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.
9.1. ACCESS, KEYS, LOCKS, AND SECURITY. (a) Access. Lessee shall have access to
Lessee's office space at all times. Lessor shall have access to Lessee's office
space at reasonable times for reasonable business purposes.
(b) Keys/cards. Lessor shall furnish Lessee 10 keys for Lessee's office space,
10 keys for the main exterior entry doors of the building if such door is locked
after hours, and 1 keys to Lessee's mailbox in the building. A deposit of $ -0-
shall be charged for each key. Additional keys/cards shall be furnished at the
same deposit charged to all other tenants in the building at the time of
Lessee's request. Lessor shall not be liable for risk of loss resulting from
Lessee's keys being lost or used by unauthorized persons. Lessor reserves the
right to rekey or change locks for security reasons if new keys are timely
furnished to Lessee.
(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.
(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. Lessor shall have sole control over parking. If vehicles are
parked in violation of Lessor parking rules or in violation of state statutes,
Lessor may exercise vehicle removal remedies under Articles of the Texas Civil
Statutes upon compliance with statutory notice. There shall be no reserved
parking spaces unless agreed in writing by Lessor. Parking is available at a
ratio of 1:300 rentable square feet.
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10.1. OCCUPANCY, NUISANCE, AND HAZARDS. Lessee's office space shall be occupied
only by Lessee or Lessee's employees and shall not be left entirely vacant or
used exclusively for storage. Lessee and Lessee'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 Lessee's obligation to pay Lessor
for Lessee's share thereof, on a pro rata square foot basis, as additional rent
pursuant to paragraph 32.1. Lessee shall timely pay all taxes assessed against
Lessee's furniture, equipment, fixtures, or other personal property in Lessee'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
Lessor's mortgagee or as Lessor may deem reasonably appropriate, whichever is
greater but in no event will comprehensive liability coverage be less than
$1,000,000.00 per occurrence. Lessor shall have no responsibility to maintain
fire and extended coverage insurance on Lessee's contents. The portion of
Lessors's insurance premiums reasonably due to Lessee'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, if applicable.
(b) Lessee. Lessee shall provide Lessee's own public liability insurance for its
operations on the leased premises in the minimum amount of $1,000,000 per
occurrence. Upon written notice by Lessor to Lessee, such dollar amount of
Lessee's liability policy shall be increased by the amount of any increase
required under Texas law for "primary coverage" under an umbrella liability
policy, but in no event to more than $2,000,000 per occurrence. Lessee is
encouraged to maintain fire and extended coverage insurance (including vandalism
and malicious mischief) on the contents in Lessee's office space, including
fixtures, furniture, equipment, supplies, inventory, and other personal
property. Such property is not covered by Lessor's insurance.
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(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. Lessor
and Lessor's managing agent (if any) shall be named as additional insureds on
Lessee's liability insurance policy. Upon written request by Lessor, changes in
the name of Lessor or Lessor's managing agent shall be reflected on such
certificate.
(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. MUTUAL RELEASES AND WAIVER OF SUBROGATION. (a) To the extent that the
coverage of their respective insurance policies are not adversely affected,
Lessor and Lessee release each other and their respective officers, directors,
employees, and agents from any claims for loss or damage to any person or
property on the leased premises which is caused by or which results from risks
insured against under insurance policies carried by Lessor or Lessee and in
force at the time of any such loss or damage. The foregoing release shall not
apply to property losses or damages in excess of policy limits or to losses or
damages not covered by insurance due to a deductible clause in the policy.
(b) Upon written request after signing this lease, but before any loss or damage
occurs, Lessor or Lessee may request that the other party's respective
fire/casualty and liability insurance policy provide a waiver for all right of
recovery by way of subrogation in connection with any loss or damage covered by
such insurance policies.
(c) Notwithstanding the foregoing, if such waiver of subrogation is not
incorporated into the policy and cannot be procured or if it can be procured
only with an additional premium charge, such party shall furnish to the other
party written evidence from the insurance company or insurance agent, verifying
that such waiver is (1) not obtainable, or (2) not obtainable without extra
charge. Thereafter, within a reasonable time after receiving such notice, the
party for whose benefit the waiver is sought may (1) agree to pay any additional
charge necessary to obtain the waiver of subrogation, or (2) place the insurance
with a company which is reasonably satisfactory to the other party and to such
party's mortgagees with a policy of the same terms and coverage, the extra cost
of which will be entirely borne by the party for whose benefit the waiver of
subrogation is sought.
(d) Upon written request, Lessor and Lessee shall furnish to each other copies
of the policies of insurance referred to in this lease, including any waivers of
subrogation, or satisfactory evidence of same.
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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 or nonperformance
of the lease by Lessee or Lessee's agents, employees, family, licensees, 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, or
family for any damage to personal property resulting from any act, omission, or
negligence of any other tenant or occupant of the office building.
13.1. ALTERATIONS BY LESSEE. Lessee may not make any alterations, improvements,
door lock changes, or other modifications of any kind to the leased premises
without Lessor's written consent. "Alterations" include but are not limited to
improvements glued, screwed, nailed, or otherwise 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 Lessor's contractors or employees or by third parties approved
by Lessor in writing. 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 Lessor'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 Lessee's request shall comply with all applicable laws. Changes in
Lessee's alterations or improvements which may be later required by governmental
action shall also be paid for by Lessee.
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 they 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. Lessor agrees to
indemnify Lessee for any liability Lessee shall incur as a result of Lessor's
failure to comply with the provisions of this paragraph. Lessee 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 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
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to Lessee's use of Lessee's office space, including, but not limited to, the
positioning of Lessee's furnishings within the office space. Lessee agrees to
indemnify Lessor for any liability Lessor shall incur as a result of Lessee's
failure to comply with the provisions of this paragraph.
14.1. REMOVAL OF PROPERTY BY LESSEE. Lessee may remove its trade fixtures,
furniture, and equipment only in the normal course of Lesee's business or if (1)
such removal is made at the end of the lease term, (2) Lessee is not in default
under this lease at time of removal, and (3) such removal is not in anticipation
of an early moveout prior to the end of the lease term unless provided for
herein. 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 break room built-ins, shelving, wall covering,
and anything else permanently 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. Lessee shall pay for cleaning or repairing damage caused by Lessee's
removal of any property.
15.1. SUBLETTING AND ASSIGNMENT. Lessee shall not, without the prior written
consent of Lessor, which consent shall not be unreasonably withheld or delayed,
as further described below: (i) assign, mortgage, pledge, hypothecate, encumber,
or permit any lien to attach to, or otherwise transfer, this Lease or any
interest hereunder, by operation of law or otherwise, (ii) sublet the Premises
or any part thereof, or (iii) permit the use of the Premises by any Persons
other than Lessee, its employees, and subsidiaries (all of the foregoing are
hereinafter sometimes referred to collectively as "Transfers" and any Person to
whom any Transfer is made or sought to be made is hereinafter sometimes referred
to as a "Transferee"). If Lessee shall desire Lessor's consent to any Transfer,
Lessee shall notify Lessor in writing, which notice shall include: (a) the
proposed effective date (which shall not be less than 30 nor more than 180 days
after Lessee's notice), (b) the portion of the Premises to be Transferred
(herein called the "Subject Space"), (c) the terms of the proposed Transfer and
the consideration therefor, the name and address of the proposed Transferee, and
a copy of all documentation pertaining to the proposed Transfer, and (d) current
financial statements of the proposed Transferee certified by an officer,
partner, or owner thereof, and any other information to enable Lessor to
determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee's business and proposed use of
the Subject Space, and such other information as Lessor may reasonably require.
Any Transfer made without complying with this paragraph shall, at Lessor's
option, be null, void and of no effect, or shall
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constitute a Default under this Lease. Lessee shall pay reasonable legal fees
incurred by Lessor, within thirty (30) days after written request by Lessor.
15.2. APPROVAL. Lessor will not unreasonably withhold or delay its consent
(as provided in paragraph 36.2) to any proposed Transfer of the Subject Space to
the Transferee on the terms specified in Lessee's notice. The parties hereby
agree that it shall be reasonable under this Lease and under any applicable Law
for Lessor to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less reputable occupant of the Property than Lessee,
(ii) the Transferee intends to use the Subject Space for purposes which are not
permitted under this Lease, (iii) the Subject Space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes,
(iv) the Transferee is a government (or agency instrumentality thereof), (v) the
proposed Transferee does not have a reasonable financial condition in relation
to the obligations to be assumed in connection with the Transfer, or (vi) Lessee
has committed and failed to cure a Default at the time Lessee requests consent
to the proposed Transfer.
15.3. TRANSFER PREMIUM. If Lessor consents to a Transfer, and as a condition
thereto which the parties hereby agree is reasonable, Lessee shall pay Lessor
one hundred percent (100%) of any Transfer Premium derived by Lessee from such
Transfer. "Transfer Premium" shall mean any consideration over and above the
amount then payable by Lessee under this Lease (on a monthly basis during the
Term, and on a per rentable square foot basis, if less than all of the Premises
is transferred), after deducting the reasonable expenses incurred by Lessee for
any changes, alterations and improvements to the Premises, any other economic
concessions or services provided to the Transferee, and any customary brokerage
commissions paid in connection with the Transfer. If part of the consideration
for such Transfer shall be payable other than in cash, Lessor's share of such
non-cash consideration shall be in such form as is reasonably satisfactory to
Lessor. The percentage of the Transfer Premium due Lessor hereunder shall be
paid within ten (10) days after Lessee receives any Transfer Premium from the
Transferee.
15.4. RECAPTURE. Notwithstanding anything to the contrary contained in this
paragraph, Lessor shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of Lessee's notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of the date stated in
Lessee's notice as the effective date of the
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proposed Transfer (or at Lessor's option shall cause the Transfer to be made to
Lessor or its agent, in which case the parties shall execute the Transfer
documentation promptly thereafter). If this Lease shall be canceled with respect
to less than the entire Premises, the Rent reserved herein shall be prorated on
the basis of the number of rentable square feet retained by Lessee in proportion
to the number of rentable square feet contained in the Premises, this Lease as
so amended shall continue thereafter in full force and effect, and upon request
of either party, the parties shall execute written confirmation of the same.
15.5. TERMS OF CONSENT. If Lessor consents to a Transfer: (a) the terms and
conditions of this Lease, including among other things, Lessee's liability for
the Subject Space, shall in no way be deemed to have been waived or modified,
(b) such consent shall not be deemed consent to any further Transfer by either
Lessee or a Transferee, (c) no Transferee shall succeed to any rights provided
in this Lease or any amendment hereto to extend the Term of this Lease, expand
the Premises, or lease additional space, any such rights being deemed personal
to Lessee, (d) Lessee shall deliver to Lessor promptly after execution, an
original executed copy of all documentation pertaining to the Transfer in form
reasonably acceptable to Lessor, and (e) Lessee shall furnish upon Lessor's
request a complete statement, certified by an independent certified public
accountant, or Lessee's chief financial officer, setting forth in detail the
computation of any Transfer Premium Lessee has derived and shall derive from
such Transfer. Lessor or its authorized representatives shall have the right at
all reasonable times to audit the books, records and papers of Lessee relating
to any Transfer, and shall have the right to make copies thereof. If the
Transfer Premium respecting any Transfer shall be found understated, Lessee
shall within thirty (30) days after demand pay the deficiency, and if
understated by more than 2%, Lessee shall pay Lessor's costs of such audit. Any
sublease hereunder shall be subordinate and subject to the provisions of this
Lease, and if this Lease shall be terminated during the term of any sublease,
Lessor shall have the right to: (i) treat such sublease as canceled and
repossess the Subject Space by any lawful means, or (ii) require that such
subtenant attorn to and recognize Lessor as its landlord under any such
sublease. If Lessee shall Default and fail to cure within the time permitted for
cure, Lessor is hereby irrevocably authorized, as Tenant's agent and
attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Lessor (which Lessor shall apply
towards Lessee's obligations under this Lease) until such Default is cured.
15.6. CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer" shall
also include (a) if Lessee is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of a majority of the partners, or
a transfer of a majority of partnership interests, within a twelve month period,
or the dissolution of the partnership, and (b) if Lessee is a closely
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held corporation (i.e., whose stock is not publicly held and not traded through
an exchange or over the counter), the dissolution, merger, consolidation or
other reorganization of Lessee except for merger or consolidation with, or
acquisition by, a publicly held corporation, or within a twelve month period;
(i) the sale or other transfer of more than an aggregate of 50% of the voting
shares of Lessee (other than to immediate family members by reason of gift or
death or pursuant to an initial or secondary public offering of Lessee's stock
or its acquisition by a publicly held corporation) or (ii) the sale mortgage
hypothecation or pledge of more than an aggregate of 50% of Tenant's net assets.
16.1. DESTRUCTION BY FIRE OR OTHER CASUALTY. (a) Total destruction, rent
abatement, and restoration. If Lessee's office space is totally damaged by fire
or other casualty so that it cannot reasonably be used by Lessee and if this
lease is not terminated as provided in subparagraph (d) below, there shall be a
total abatement of Lessee's rent and Lessee's obligation to pay office building
operating expenses until Lessee's office space is restored by Lessor.
(b) Partial destruction, rent abatement, and restoration. If Lessee'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 Lessee's obligation to pay office
building operating expenses which fairly and reasonably corresponds to the time
and extent to which Lessee's office space cannot reasonably be used by Lessee.
(c) Restoration. Lessor's obligation 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, Lessee shall continue
business to the extent practical in Lessee's reasonable judgment.
(d) Lease termination. If Lessee's office space or the office center is so badly
damaged that restoration and repairs cannot be completed within 3 months after
the fire or casualty or that Lessee cannot reasonably conduct its business
during the pendency of repairs, 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 any part of Lessee's office space is taken by
condemnation or by deed in lieu of condemnation by any governmental authority,
this lease shall terminate one day prior to such taking. If any part of the
office building's parking lot is so taken, Lessee's right to use such portion
shall terminate one day prior to such taking; and Lessee's rent shall be reduced
only to the extent that such partial taking reduces the fair market rental value
of Lessee's office space. Lessor shall pay
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all costs associated with construction reasonably necessary to render the leased
premises usable for Lessee's permitted purposes after such partial taking. All
compensation awarded for any partial or total taking of the office building
shall be the property of Lessor. If Lessor has received written notice of intent
to condemn, Lessee shall upon 10 days written request by Lessor execute an
acknowledgment that the lease terminates one day prior to the condemnation of
deed in lieu of condemnation and that Lessee claims no interest in the
condemnation award. Lessor shall have no interest in any monies paid by the
condemning authorities to Lessee for moving costs or for the other personal
property within the leased premises (excluding leasehold improvements) if a
separate award for such items is made to Lessee.
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 Lessee'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.
19.1. DEFAULT BY LESSEE. 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 10 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) unauthorized early move-out or notice
of same as set forth below; (5) acquisition of Lessee's interest in the lease by
a third party by judicial or non-judicial process; or (6) failure to comply with
any other provision of the lease (including rules) if such failure to comply is
not cured as soon as possible after delivery of written notice by Lessor to
Lessee. However, Lessee shall not be in default under subclause (6) 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. Lessee's
election to move out prior to the end of the lease term or renewal or extension
period shall not constitute an unauthorized early move out or abandonment,
provided that Lessee has paid in full the rent for the remainder of the
applicable term.
(b) Door Locks. If Lessee is in default for nonpayment of rent or other sums due
and if Lessee fails to pay same in full within 10 days after Lessor hand
delivers to Lessee or to Lessee's office space written demand or notice of
nonpayment, then Lessor shall be
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entitled to change or modify door locks on all entry doors of Lessee's office
space until all such sums are paid in full; provided, however, Lessor shall
immediately thereafter post a notice on the primary entry door to Lessee's
office space, stating that Lessor has expressed such lockout rights. No other
notice requirements or lockout laws shall apply. Lessor's right to modify or
change locks shall occur automatically and without notice if Lessee's rent is
accelerated under subparagraph (e) below, relating to unlawful early move-out.
If Lessee moves out or abandons Lessee's office space, Lessor may permanently
change the locks without notice to Lessee, and Lessee shall not be entitled to a
key or to reentry.
(c) Utilities and services. If Lessee is in default for nonpayment of rent or
other sums due and if Lessee fails to pay same in full within 10 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 10-day
notice period, without further notice. Lessor's right to terminate such
utilities or services shall occur automatically and without notice if Lessee's
rent is accelerated under subparagraph (e) below, relating to unlawful early
move-out.
(d) Acceleration after notice of rental delinquency. If Lessee is in default for
nonpayment of rent or other sums due and if Lessee fails to pay same in full
within 10 days after Lessor delivers to Lessee or to Lessee's office space a
written notice of Lessor's intent to accelerate, then all rent for the remainder
of the lease term shall be accelerated, due, and delinquent at the end of such
10-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
Lessee 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.
(e) Acceleration upon early move-out. If Lessee is lawfully evicted, or if
Lessee moves out or gives verbal or written notice (in person or by an
authorized employee or agent) of intent to move-out prior to the end of the
lease term without the rent being paid in full for the entire remainder of the
lease term or renewal or extension period or without prior written consent of
Lessor, all remaining rents for the remainder of the lease term shall be
accelerated immediately and automatically, without demand or notice. Such
accelerated rents shall be due and delinquent without notice before or after
such acceleration. Such acceleration shall occur even if the rent for the
current month has been paid in full.
(f) Termination of possession. If Lessee is in default as defined in
subparagraph (a) above and if Lessee remains in default for 10 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
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possession by giving one day's written notice to vacate; and Lessor shall be
entitled to immediate possession without termination of Lessee'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 by Lessor. Repossession may be by voluntary agreement or by
eviction lawsuit. Commencement of an eviction lawsuit shall not preclude other
Lessor remedies under this lease or other laws.
(g) Reletting costs. If Lessee is in default as defined in subparagraph (a)
above and if Lessor terminates Lessee's right of possession without terminating
this lease, Lessee shall pay upon Lessor's demand the following: (1) all costs
of reletting (which in no event shall be less than one month's rent), including
leasing commissions, rent concessions (whether in the form of assuming or buying
out lease remainders elsewhere, free rent for a period of time, or reduced
rental rates), 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 Lessee's right of
possession, and (3) all rent and other sums required to be paid by Lessee during
the remainder of the entire lease term, subject to the acceleration paragraphs
above.
(h) Mitigation by Lessor. Upon eviction or voluntary vacation of the leased
premises by Lessee 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 Lessee and subsequent
rentals received by Lessor from other tenants of Lessee's office space, less
lawful deductions and expenses of reletting.
(i) 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 Lessor's lawful re-entry or repossession following default by Lessee.
Lessor's agents have authority to terminate the lease only by written notice
given by owner.
(j) 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,
Lessor's landlord lien shall be subordinate to any existing security interest
and any future purchase money security
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interests on Lessee's personal 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 foregoing.
Any lien subordination shall be on forms reasonably acceptable to Lessor.
(b) Subject to the limitations of subparagraph (a) above, Lessee 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 Lessee 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 Lessee, after
aforementioned 10 day notice of such default, Lessor'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 Lessee's office space: (1) written
notice of exercise of lien, (2) a list of items removed, (3) the name of
Lessor'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 time and place of sale is given to
Lessee by certified mail, return receipt requested. Upon request by Lessor,
Lessee 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 non defaulting party places the lease in the hands of an
attorney in order to enforce lease rights or remedies, the non defaulting 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 the non prevailing
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 10%, 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
Lessor's loss of use of such funds during the time of delinquency.
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22.1. NON WAIVER. 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 waiver 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
Lessor's agents shall be deemed an acceptance or surrender of the leased
premises, and no agreement by Lessor to accept a surrender of the leased
premises shall be valid unless it is in writing and signed by a duly authorized
agent of Lessor.
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
Exhibit F-1.
24.1. TRANSFER OF OWNERSHIP BY LESSOR. If Lessor transfers ownership of the
office building (other than as security for a mortgage) and if Lessor 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, provided
such transferee shall become liable as Lessor in writing at the time of such
transfer. 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, Lessee shall
subordinate and attorn to mortgage liens now or hereafter on the office
building. Lessee agrees to execute, from time to time, documentation therefor
which is necessary in the reasonable judgment of Lessor. Other than the
provisions already set forth in this lease, there are no special lease
provisions which are required by lien holders 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 in the county real property records without necessity of
notice to Lessee.
26.1. SURRENDER OF PREMISES. When Lessee moves out, Lessee shall surrender
Lessee's office space in the same condition as on the date of lease commencement
by Lessee (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.
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-
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at-sufferance on a daily basis, subject to all obligations of the lease, (2)
Lessee shall pay 200% of the amount of rent then applicable for the entire
holdover period, (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 extend 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 Lessee's office space while Lessee is holding over. Holdover rents shall be
immediately due on the first day of each month to which they apply 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.
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. 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 and at Lessee's
expense. Lessor may remove all unapproved signs without prior notice to Lessee
and at Lessee's expense. Lessor may change the name of the building upon six
months' written notice to Lessee.
28.2. RELOCATION OF LESSEE. Upon at least 60 days' notice to Lessee, Lessor
shall have the right to relocate Lessee within the building in lease space which
is the same size or larger and reasonably configured and suited to Lessee's use.
Such relocation shall be made at Lessor's sole expense to include costs of
reprinting as applicable and moving of furniture, fixtures and reinstallation of
such. Rent shall not be increased if the relocation office space is larger or
better quality. Relocation date shall be contained in the relocation notice
referred to above. Lessor shall not be liable to Lessee in connection with such
relocation except for undue delay or property damages caused by Lessor or
Lessor's employees, agents, or contractors. If within 30 days following receipt
of abovementioned notice from Lessor, Lessee so notifies Lessor in writing,
Lessee may instead terminate this Lease without penalty or obligation to pay
rent for any period beyond the relocation date specified, provided Lessee moves
out by such date.
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
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(c) delivered at such party's mailing address by nationally recognized express
delivery service or 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 Lessee's office space
under this lease. However, if Lessee moves out, it shall be Lessee's last
address known by Lessor. Hand delivered notice is required only when expressly
required in the lease. Notice by non certified mail is sufficient if actually
received by the addressee or an employee or agent of addressee. The term
"notice" shall be inclusive of notices, ▇▇▇▇▇▇▇▇, requests, and demands.
30.1. ESTOPPEL CERTIFICATES. 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 lien holder
or purchaser. The estoppel certificate may be conclusively relied upon by Lessor
and by any prospective lien holder 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 lien holder 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 lien holder 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 successors 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 on subsequent building owners if the tenant of the lease in
question is in possession at the time of transfer of building ownership. KVA,
Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇, as exclusive agent for Lessor, shall be paid in accordance
to commission agreement attached as Exhibit L-1. Prudential ▇▇▇▇▇ Realty, as
exclusive agent for Lessee, shall be paid in accordance to commission agreement
attached as Exhibit L-2.
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32.1. BUILDING OPERATING EXPENSE. In addition to the monthly base rent in
paragraph 2.1, Lessee shall pay, commencing January 1, 1998 additional rent on a
monthly basis, equivalent to Lessee's pro rata 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
paragraph 2.1.
32.2. BASE RENT ADJUSTMENT. At each annual anniversary date of this lease, the
annual base rent shall increase as follows:
1998 $19.00 per rentable square foot
1999 $19.50 per rentable square foot
2000 $20.00 per rentable square foot
2001 $20.50 per rentable square foot
33.1. REPRESENTATIONS AND WARRANTIES BY LESSOR. 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.
34.1. REPRESENTATIONS AND WARRANTIES BY LESSEE. 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 Lessee (if Lessee is a corporation or
partnership) have ever declared bankruptcy. Lessee warrants that Lessee has
disclosed in writing to Lessor all lawsuits pending or threatened against
Lessee, and Lessee has made no material misrepresentation or material omission
of facts regarding Lessee's financial condition or business operations. All
financial statements must be dated and signed by Lessee. Lessee 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 county 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
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have been made, and none shall be binding. This lease supersedes and replaces
any previous lease between the parties on Lessee'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 Lessor and Lessee. Lessor'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. 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. Non substantial errors in space footage
calculations shall entitle the parties to correct the rental figures in the
lease and adjust previously paid rentals accordingly, but not to terminate the
lease. The lease shall not be construed against either party more or less
favorably by reason of authorship or origin of language. 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 provision of
this lease is invalid under present or future laws, the remainder of this lease
shall not be affected.
36.2. REASONABLE APPROVALS. Whenever Lessor's approval or consent is expressly
required under this Lease or any other agreement between the parties, Lessor
shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Lessor's enforcement of such consent or
approval requirement, and not a covenant), Lessor has total discretion in
matters affecting the structural safety or security of the Property, or the
appearance of the Property from any common or public areas.
37.1. GUARANTY. This lease is not guaranteed by others. The names and titles of
any guarantors are shown on the signature page(s) at the end of this lease. The
specific obligations of such guarantors, if any, shall be pursuant to attached
Exhibit H entitled "Lease Guaranty". Such guaranty shall continue and shall be
unaffected by any modification or amendment to this lease or any renewal or
extension thereof. The signature requirements and corporate resolution
requirements for any guarantors shall conform to the requirements for Lessees in
paragraph 39.1 below.
37.2. SPECIAL CONDITIONS. Additional provisions of this lease are set forth in
Exhibit J.
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--------------- ---------------
37.3. ENVIRONMENTAL MATTERS. (a) Compliance with Environmental Laws. Lessee
shall at all times and in all respects comply with all federal, state and local
laws, ordinances and regulations ("Hazardous Materials Laws") relating to
industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, disposal or transportation of any oil, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste, or
other hazardous, toxic, contaminated or polluting materials, substances or
wastes, including, without limitation, any "hazardous substances", "hazardous
wastes", "hazardous materials" or "toxic substances" under any such laws,
ordinances or regulations (collectively, "Hazardous Materials").
(b) Hazardous Materials Handling. Lessee shall at its own expense procure,
maintain in effect and comply with all conditions of any and all permits,
licenses and other governmental and regulatory approvals required for Lessee's
use of the premises, including, without limitation, discharge of (appropriately
treated) materials or wastes into or through any sanitary sewer serving the
premises. Except as discharged into the sanitary sewer in strict accordance and
conformity with all applicable Hazardous Materials Laws, Lessee shall cause any
and all hazardous materials removed from the premises to be removed and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such materials and wastes. Lessee shall in all respects
handle, treat, deal with and manage any and all hazardous materials in, on,
under or about the premises in total conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding management of such
hazardous materials. Upon expiration or earlier termination of the term of the
lease, Lessee shall cause all hazardous materials to be removed from the
premises and transported for use, storage or disposal in accordance and
compliance with all applicable Hazardous Materials Laws. Lessee shall not take
any remedial action in response to the presence of any hazardous materials in or
about the premises or any building, nor enter into any settlement agreement,
consent decree or other compromise in respect to any claims relating to any
hazardous materials in any way connected with the premises or either building,
without first notifying Lessor of Lessee's intention to do so and affording
Lessor ample opportunity to appear, intervene or otherwise appropriately assert
and protect Lessor's interest with respect thereto.
(c) Notices. Lessee shall immediately notify Lessor in writing of: (i) any
enforcement, cleanup, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(ii) any claim made or threatened by any person against Lessee, the premises or
either building relating to damage, contribution, cost recovery compensation,
loss or injury resulting from or claimed to result from any hazardous materials;
and (iii) any reports made to any environmental agency arising out of or in
connection with any hazardous materials in or removed from the premises or
either building, including any complaints, notices, warnings or asserted
violations in connection
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Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
therewith. Lessee shall also supply to Lessor as promptly as possible, and in
any event within five (5) business days after Lessee first receives or sends the
same, with copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the premises, either building or
Lessee's use thereof. Lessee shall promptly deliver to Lessor copies of
hazardous waste manifests reflecting the legal and proper disposal of all
hazardous materials removed from the premises.
37.4 INDEMNIFICATION OF LESSOR. Lessee shall indemnify, defend (by counsel
reasonably acceptable to Lessor), protect, and hold Lessor, and each of Lessor's
partners, employees, agents, attorneys, successors and assigns, free and
harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including attorneys' fees) or death of or
injury to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by (1) the presence in, on,
under or about the Leased Premises or discharge in or from the Leased Premises
or the land building is situated on any hazardous materials caused directly by
Lessee's use, analysis, storage, transportation, disposal, release, threatened
release, discharge or generation of hazardous materials to, in, on, under, about
or from the premises or either building, or (2) Lessee's failure to comply with
any Hazardous Materials Laws. Lessee's obligations hereunder shall include,
without limitation, and whether foreseeable or unforeseeable, all costs of any
required or necessary repair, cleanup or detoxification or decontamination of
the premises or land under building, and the preparation and implementation of
any closure, remedial action or other required plans in connection therewith,
and shall survive the expiration or earlier termination of the term of the
lease. For purposes of the release and indemnity provisions hereof, any acts or
omissions of Lessee, or by employees, agents, assignees, contractors or
subcontractors of Lessee or others acting for or on behalf of Lessee (whether or
not they are negligent, intentional, willful or unlawful) shall be strictly
attributable to Lessee.
37.5 ADDITIONAL INSURANCE. If at any time it reasonably appears to Lessor that
Lessee is not maintaining sufficient insurance to enable Lessee to fulfill its
obligations to Lessor hereunder, whether or not then accrued, liquidated,
conditional or contingent, Lessee, with 10 days prior written notice by Lessor,
shall procure and thereafter maintain in full force and effect such insurance as
provided for in paragraph 12.1 with or from companies or persons and in forms
reasonably acceptable to Lessor, as Lessor may from time to time reasonably
request.
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
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--------------- ---------------
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 Acknowledgment 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 I Corporate Resolution Authorizing Lease or Guaranty
(paragraphs 37.1 and 39.1)
Exhibit J Special Conditions (paragraph 37.2)
Exhibit L-1 Commission Agreement (paragraph 31.2)
Exhibit L-2 Commission Agreement (paragraph 31.2)
Exhibit M Renewal Option
Exhibit N Limited Right of First Refusal
39.1. LESSEE SIGNATURE REQUIREMENTS. Lessee is a corporation. Such corporation
is organized or chartered under the laws of the State of Texas. Lessee's name
stated at the beginning of this lease is not an assumed name. If Lessee is a
corporation, corporate resolutions shall be executed on the form in Exhibit I.
39.2. LEASE DATES AND AUTHORITY TO SIGN. The "identification" date of this lease
is the 1st day of March, 1997. The "effective date" on which this lease becomes
binding is the date on which the lease has been signed by Lessor, 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.
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Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
LESSOR:
▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DBA: Echelon Buildings I & II
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
12/21/96
----------------------------------------
Date signed
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
12/21/96
----------------------------------------
Date signed
LESSEE:
Deja News, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
12/12/96
----------------------------------------
Date signed
LESSOR's AGENT
KVA, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
12/10/96
----------------------------------------
Date signed
LESSEE'S AGENT
Pudential ▇▇▇▇▇ Realty
/s/ [ILLEGIBLE]
----------------------------------------
By:
------------------------------------
12/10/96
----------------------------------------
Date signed
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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
Lessee's office space referred to in paragraph 1.1.
[FLOOR PLAN]
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--------------- ---------------
EXHIBIT B
LEGAL DESCRIPTION OF OFFICE BUILDING
(See paragraph 1.1 of Lease)
The Echelon, ▇▇▇ ▇, ▇▇▇▇ ▇.▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
Being an 8.31 tract of land out of the ▇. ▇. ▇▇▇▇▇▇▇ Survey No. 18 as conveyed
by a Deed recorded in Volumes 7557, Page 153; 7386, Page 218; 7384, Page 421,
and 7619, Page 713 of the Deed Records of ▇▇▇▇▇▇ County, Texas; said tracts also
being a part of Lot 1 and all of ▇▇▇ ▇ ▇▇ ▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Subdivision,
Plat Book 4, Page 14, and also being all of ▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇'▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Book 48, Page 9, said subdivision having been duly vacated by
the City of Austin and recorded in Volume 7737, Pages 627 and 630, respectively,
of the Deed Records of ▇▇▇▇▇▇ County, Texas; and that ▇. ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
owner of 0.797 acres in the ▇. ▇. ▇▇▇▇▇▇▇ Survey No. 18 as conveyed by a Deed
recorded in Volume 3773, Page 1116 of the Deed Records of ▇▇▇▇▇▇ County, Texas;
and that the Grace Covenant Church, a non-profit Association, working through
▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee, owners of 7.207 acres of land out of the ▇. ▇. ▇▇▇▇▇▇▇
Survey No. 18 as conveyed to it by deeds recorded in Volume 5761, Pages 1731 and
1734 of the Deed Records of ▇▇▇▇▇▇ County, Texas, and having been subdivided
said tracts, totaling 16.341 acres to land to be known as The Echelon, a
subdivision, said building being located on tract of land containing 4.698 acres
and being know as Lot 4.
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--------------- ---------------
EXHIBIT C
BUILDING OPERATING EXPENSE PASS THROUGH CALCULATIONS
(See paragraphs 2.1 and 32.1 of Lease)
(a) "ESTIMATED" PRO RATA 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 pro rata 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 LESSEE BECAUSE OF
DIFFERENCES BETWEEN "ESTIMATED AND "ACTUAL" BUILDING OPERATING EXPENSES.
Within 120 days following the end of each calendar year of the lease term and
renewal or extension periods, Lessor shall determine the actual building
operating expenses for that calendar year. If it is then determined that actual
building operating expenses paid or incurred were less than estimated expenses
and that Lessee's monthly payments of estimated expenses over Lessee's expense
stop figure were too much, Lessor shall promptly refund to Lessee the excess
amount paid by Lessee. If it is determined that actual building operating
expenses were more than estimated expenses and that Lessee's monthly payments of
estimated expenses over Lessee's expense stop figure were insufficient, Lessor
shall invoice Lessee for the amount of Lessee's underpayment. Payment thereof
shall be due upon delivery of invoice to Lessee. The foregoing calculations and
adjustments may also be made one or more times during the calendar year, at
Lessor's option.
(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 office building; and on-site personal
property used in operation of the office 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 and other maintenance
expenses; licenses; permits; advertising; maintenance salaries and bonuses;
payroll taxes; management office overhead and management fees; and all other
managerial 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 amortization of the following improvements if amortized over the useful
life of such improvements for IRS purposes together with interest at 12% per
annum on the non amortized 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
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--------------- ---------------
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 of 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 or other third party sources; costs of
repairing damage for which Lessor is entitled to reimbursement from others;
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; 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 of Lessor; leasing commissions;
expenses of marketing 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 pro rata
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 invoice and actually paid.
(d) DEFINITION OF PRO RATA SHARE. Lessee's pro rata share of estimated and
actual building operating expenses is the percentage result of dividing
"Lessee's rentable area" (which is set forth in paragraph 1.4) by the total
rentable area in the entire building.
(e) DELAY IN IMPLEMENTATION. At Lessor's option, adjustments benefiting Lessor
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, Lessee
may examine Lessor's accounting records for building operating expenses and
other data used in calculating additional rents or rent adjustments. Such
examination shall be during normal business hours.
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--------------- ---------------
EXHIBIT D
ACKNOWLEDGMENT OF LEASE
(See paragraph 4.2 of Lease)
The undersigned parties acknowledge that the lease described below is in full
force and effect and that Lessee has taken possession of the space.
Date of lease: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
DBA: Echelon Buildings I & II
Lessee: Deja News, Inc.
Guarantor: N/A
Building name: Echelon Buildings I & II
Suite No.: 350
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
City/County/State/Zip: ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Legal description of property: The Echelon, ▇▇▇ ▇, ▇▇▇▇
▇.▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
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: March 8, 1997
Annual Anniversary date: March 1
Ending date: February 28, 2001
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) Lessee's
possession rights to the leased premises, and (2) Lessor's contractual landlord
lien rights over all personal property therein. The entire lease is hereby
affirmed and incorporated herein. The lease will cease to be an encumbrance to
Lessor's title if Lessor files an affidavit of record, stating that Lessee no
longer occupies the premises and that Lessee's right of possession has been
lawfully terminated.
LESSEE LESSOR
(To be signed at move-in) (To be signed at move-in)
Deja News, Inc. ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DBA: Echelon Buildings I & II
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ---------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Property Manager
3/20/97 3/10/97
---------------------------------- ---------------------------------------
Date Signed Date Signed
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--------------- ---------------
EXHIBIT E
CONSTRUCTION BY LESSOR
(See paragraph 5.1 of Lease)
Date of lease: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
DBA: Echelon Buildings I & II
Lessee: Deja News, Inc.
Guarantor: N/A
Building name: Echelon Buildings I & II
Suite No.: 350
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
City/County/State/Zip: ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Legal description of property: The Echelon, ▇▇▇ ▇, ▇▇▇▇
▇.▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
1. PLANS FOR LESSEE'S OFFICE SPACE. Final plans and specifications for Lessee's
office space are attached to this lease. If such plans and specifications are
not attached hereto, Lessee agrees to deliver to Lessor not later than December
20, 1996, a complete set of plans and specifications of finish work,
including partitions, electrical and telephone outlets, and other improvements
which Lessee desires to be made in or to such office space. Such plans shall be
prepared by Lessor's architect and associated cost shall be included in
finish-out allowance.
2. CHANGE ORDERS. Change orders are permitted if they are provided in a timely
manner and are agreed to in writing. Lessor shall not be responsible for delays
resulting from change orders unless the change order states otherwise.
3. CREDIT/PAYMENT FOR ADDITIONAL OR NON-STANDARD FINISH WORK. Payment for
additional or non-standard finish work which is known at time of lease signing
shall be as follows: Lessee agrees to pay for Lessee's portion of additional
finish work over and above the $10.00 per rentable square foot allowance
provided by Lessor. Such allowance may include the cost of computer and/or
telephone cabling at the Lessee's discretion. Lessor shall provide Lessee with a
copy of the proposed cost of construction within 10 days after receipt of
aforementioned plans and specifications. Lessee shall approve any additional
finish work, over and above the $10.00 allowance or make alterations to decrease
costs prior to commencement of construction; provided, however, that if Lesee's
share of such costs will exceed $2.50 per square foot, Lessee may elect to
terminate this Lease without liability or penalty, other than the cost of space
planning and drafting of plans not to exceed 15(cents) per rentable square
foot, and Lessee's remaining deposit shall be promptly returned. Such approval,
alterations, or notice of termination shall be made within 5 business days after
receipt of proposed cost. Final billing shall be
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--------------- ---------------
rendered and promptly payable upon acceptance of the Premises or portions
thereof by Lessee in accordance with the terms of the Lease. In the event
acceptance of the Premises by Lessee is subject to punchlist items provided in
the Lease, 10% retainage for punchlist items shall be payable upon completion of
such punchlist items.
Payment for change orders or for additional or non-standard finish work in
initial plans which may be approved by Lessor after lease signing, shall be as
follows: Final billing shall be rendered and promptly payable upon acceptance of
the Premises or portions thereof by Lessee in accordance with the terms of the
Lease. In the event acceptance of the Premises by Lessee is subject to punchlist
items provided in the Lease, 10% retainage for punchlist items shall be payable
upon completion of such punchlist items.
4. ESTIMATED COMPLETION DATE. Lessor's estimated completion date for finishing
Lessor's standard construction and any additional or non-standard finish work
for Lessee shall be February 28, 1996. If construction pursuant to initial plans
or change orders for Lessee's office space will cause delay in such estimated
completion date and if Lessor and Lessee mutually note on such initial plans or
change orders that same will cause a specified number of days of delay, the
estimated completion date above shall be extended by such specified number of
days. Also, in the event of such mutually agreed construction delay periods
pursuant to change orders requested by Lessee, Lessee shall pay additional rent
which shall be prorated on a daily basis for such periods and payable when the
leased premises are ready for occupancy by Lessee.
5. DELAY. If the leased premises are not ready for occupancy within 30 days
following the above estimated completion date, Lessee may terminate this lease
by written notice to Lessor prior to the date the leased premises are ready for
occupancy by Lessee. In such event, neither party shall have any further
liability or obligations under the lease; and Lessor shall refund to Lessee any
prepaid rent, security deposits, and any amounts paid by Lessee in excess of the
construction allowance. Otherwise, if the leased premises are not ready on or
before such estimated completion date, then (a) Lessor shall not be deemed to be
in default or liable in damages to Lessee, (b) rent and lease term shall begin
when the leased premises are ready for occupancy, and (c) this lease shall not
be further affected.
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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 and regulations 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 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 may park 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 the maintenance of
existing lighting in the parking garage or parking areas. Lessor shall have no
duty for additional lighting or further security measures in the parking areas.
7. PARKING OF EMPLOYEE VEHICLES. Lessor may from time to time designate specific
areas in which vehicles owned by Lessee and Lessee's employees, sublessees,
assignees, licensees, and concessionaires shall be parked. Lessee shall use best
efforts to see that such vehicles are parked in such areas. Upon request by
Lessor, Lessee shall furnish Lessor 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.
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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 or unloading. Service and delivery vehicles may be parked
in loading zones only when necessary.
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EXHIBIT F-2
OFFICE BUILDING RULES
(See paragraphs 9.2 and 23.1 of Lease)
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 Lessee and the building manager, by
pre-arrangement. Pre-arrangement shall include time, method, routing, and any
limitations imposed for reasons of safety or non disturbance 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 stairways 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 DOOR LOCKS. When Lessee'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
Lessee's office space without written consent of Lessor. Lessee shall not
change, alter, or replace locks provided by Lessor on doors in the building,
except with written permission of the building manager. All necessary keys shall
be furnished by Lessor, and Lessor shall be entitled to have a key for every
door in Lessee's office space. Lessee shall surrender all keys upon termination
of Lessee's right of occupancy; and at such time, Lessee shall give Lessor the
combination to all vaults or combination locks remaining in
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Lessee's office space after surrender by Lessee.
4. SAFES. Safes and other heavy articles shall be carried onto the leased
premises only at such times 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 Lessee on the
leased premises, shall be paid for by Lessee.
5. REMOVAL OF FURNITURE Removal of furniture or equipment from Lessee's office
space shall require presentation of written authorization by an authorized
representative of Lessor. Security guards, watchmen, janitors, and other
building employees will have the right to challenge all persons leaving the
building with such items.
6. INSTALLATION AND REPAIR WORK. Lessee shall refer all contractors,
contractors' representatives, and installation technicians who render any
service on or to Lessee'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 of 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 installations shall be permitted.
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 not typical of an
office building without written consent of the building manager.
8. ENTRY BY LESSOR. Lessor shall have the right to enter for the purposes set
forth in paragraph 9.1 of the lease at all times.
9. PLUMBING. Plumbing fixtures and appliances shall be used only for the
purposes for which they were constructed. No sweeping, rubbish, rags, or other
unsuitable materials may be thrown or placed in plumbing fixtures or appliances.
The cost of any stoppage or damage resulting from negligence or improper use of
these fixtures and appliances by Lessee or Lessee's agents, employees, family,
invitees, licensees, or visitors shall be paid for by the Lessee.
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10. WINDOWS. Lessee shall not allow windows within Lessee's office space to be
opened at any time, except in emergencies. Nothing shall be thrown out of the
windows of the building or down the stairwells or other passages. Lessor
reserves the right to cause any or all windows of the building to be locked,
sealed, closed, or otherwise made inoperable, or to install permanent or
temporary screens thereon, and to include the cost thereof with the operating
expenses of the building.
11. THEFT AND DAMAGES. Lessor shall not be responsible for lost or stolen
personal property, equipment, money, or jewelry from Lessee's office space or
from the public areas of the building, regardless of whether such loss occurs
when the area is locked against entry. Lessor will not be liable to Lessee, or
Lessee's employees, customers, or invitees for any damages or losses to persons
or property caused by other Lessees in the building or for damages or losses
caused by theft, burglary, assault, vandalism, or other crimes. Owner shall not
be liable for personal injury or loss of Lessee's property from fire, flood,
water leaks, rain, hail, ice, snow, smoke, lightning, wind, explosions, or
interruption of utilities unless such injury or damage is caused by negligence
of Lessor. Lessor strongly recommends that Lessee secure Lessee's own insurance
to protect against the above occurrences.
12. ANIMALS. No birds, fowl, or animals (except guide dogs for handicapped
persons) shall be brought into or kept in or about the building or common areas.
13. BICYCLES AND OTHER VEHICLES. No bicycles, motorcycles, or similar vehicles
shall be allowed in the building. No trailers or large trucks may be parked in
the building parking areas except for temporary loading or unloading.
14. RESIDENTIAL USE. No sleeping, cooking, clothes cleaning, or laundering is
permitted on the leased premises without written consent of Lessor.
15. INTOXICATION. Lessor reserves the right to exclude or expel from the
building any person who in the reasonable judgment of Lessor, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any act in
violation of any rules of the building.
16. DISTURBANCES. Lessee shall not obstruct, disturb, or interfere with the
rights of other Lessees or occupants or in any way injure or annoy them. Lessee
shall not make any noises by any means which, in the reasonable judgment of
Lessor, are likely to disturb other Lessees or occupants of the building.
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17. COMPLIANCE WITH SAFETY AND SANITATION LAWS. Lessee shall comply with all
laws relating to fire, safety, and sanitation, and shall comply with any
requirements of Lessor's insurance company with respect to fire prevention,
safety standards, and sanitation.
18. CLEANING. Lessee shall not employ any person or persons without written
consent of Lessor, for the purpose of cleaning or maintaining of the leased
premises. Lessee shall cooperate with Lessor's employees, agents, and cleaning
personnel in keeping Lessee's premises neat and clean. Any special cleaning
requested by Lessee and performed by Lessor or Lessor's employees, agents, or
contractors shall be paid for by Lessee.
19. SOLICITING. Canvassing, soliciting, or peddling in the building is
prohibited without written permission of Lessor, and Lessee shall cooperate to
prevent same.
20. SIGNS. No signs, fixtures, or notices of any kind may be displayed except by
written consent of Lessor. All signs shall conform to the requirements of
paragraph 28.1 of the lease.
21. NOTICE OF PERSONAL INJURIES OR UTILITY OR MECHANICAL PROBLEMS. Lessee shall
give prompt notice to the building manager, to the best of Lessee'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. REQUESTS BY LESSEE. Except in emergencies, requests by Lessee shall be
attended to only after written request by Lessee 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.
24. REQUEST FOR EXTRA AIR CONDITIONING. Requests for heating or air conditioning
before or after the hours of operation stated in paragraph 7.1 of the lease must
be received at the management
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--------------- ---------------
office at least 24 hours in advance.
25. LEASE PROVISIONS REGARDING LESSEE'S CONDUCT. Lessee shall comply with all
the provisions of paragraph 9.2 regarding parking and paragraph 10.1 regarding
occupancy, nuisance, and hazards.
26. 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.
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--------------- ---------------
EXHIBIT G
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 ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, DBA: Echelon Buildings I & II, as Lessor, and Deja News, Inc., as
Lessee, dated March 1, 1997 on leased premises locally known as the Echelon
Buildings I & II and located at 9430 Research Blvd., in Austin, 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 Lessor.
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.
Lessee 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 _________________
rentable 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 ______________.
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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 Lessee'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 it or its
debts under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors; or (c) 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, arrangement, adjustment, liquidation,
dissolution, or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization, or relief of debtors; 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. Lessee 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 Lessor'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 Lessor's mortgagee anytime before or after foreclosure sale,
execute, acknowledge, and deliver to Lessor's mortgagee all instruments and
certificates
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that in the reasonable judgment of Lessor's mortgagee may be necessary or proper
to confirm such attornment.
14. Lessee acknowledges that this estoppel certificate 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 purchasers.
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 Lessee
of the property, and their successors and assigns.
Dated this _______________________day of _________________, 19__.
LESSEE:
Deja News, Inc.
-------------------------------------
By:
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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 by
unanimous written consent of the board of directors of the corporation, on the
2nd day of January, 1997, 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
and/or to guarantee performance of a lease for office space, described below:
Date of lease: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
DBA: Echelon Buildings I & II
Lessee: Deja News, Inc.
Guarantor: N/A
Building name: Echelon Buildings I & II
Suite No.: 350
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
City/County/State/Zip: ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Legal description of property: The Echelon, ▇▇▇ ▇, ▇▇▇▇
▇.▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
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 Texas. The undersigned further certifies that by unanimous written
consent as described above, the names and respective titles of the officers of
the corporation were as follows:
President: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President & Treasurer: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President & Secretary: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WITNESS MY HAND this 2nd day of January, 1997
Deja News, Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Signature of secretary of corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT J
SPECIAL CONDITIONS
(See paragraph 37.2 of Lease)
The following special conditions shall apply to this lease and shall prevail on
any other provisions to the contrary.
FINANCIAL STATEMENTS. Prior to execution of this lease and thereafter from time
to time, but in no event more than twice in any calendar year, Lessee shall,
upon written request, furnish to Lessor a financial statement of Lessee's
condition in a reasonably satisfactory form. All financial statements shall be
originally signed and dated by Lessee or Lessee's agent.
MANDATORY MEDIATION. Prior to the initiation or commencement of any legal
proceedings based upon, or any "self help" remedies for, any alleged breach of
this lease by either Lessee or Lessor which is disputed by the other party, both
Lessee and Lessor hereby agree to submit the dispute to non-binding mediation
before a mutually agreeable mediator generally in accordance with the provisions
of Chapter 154 of the Texas Civil Practice and Remedies Code. In the event that
the parties cannot agree upon a mediator, after a reasonable period of time, the
parties agree to request the appointment of a qualified mediator by the duly
qualified and acting Judge of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
Unless otherwise agreed by the parties, the mediation provided for hereunder
shall be conducted within thirty (30) days after the delivery by either Lessor
or Lessee to the other party by a written request or demand therefore.
EARLY TERMINATION. Lessee shall have the option to terminate this Lease by
giving Lessor sixty (60) days written notice, at any time after the second
anniversary of the commencement date, during the initial lease term, along with
payment of termination penalty and unamortized costs set out below.
TERMINATION PENALTY/UNAMORTIZED COSTS RECAPTURE. Lessor shall amortize finish
work, as described in Exhibit E, and commissions over a sixty (60) month term at
9% interest. Lessee shall reimburse Lessor for any unamortized finish work and
commissions if Lessee elects to exercise aforementioned early move out
provision. In addition Lessee shall pay Lessor a termination penalty in the
amount of four (4) months rent if exercised prior to the expiration of forty
eight (48) months of the lease term, and two (2) months rent if exercised after
the expiration of forty eight (48) months of the lease term.
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DEFAULT BY LESSEE. Notwithstanding paragraph 19.1 or other provisions of this
Lease: (1) Lessee shall be entitled to ten (10) days written notice of default
and opportunity to cure prior to exercise of Lessor's rights to (a) change door
locks, (b) terminate utilities, or (c) accelerate rent; (2) total damages
payable by Lessee in the event of default (other than as late payment penalty
under paragraph 3.2, reasonable attorneys fees and out-of-pocket expenses under
paragraph 21.1, or interest under paragraph 21.1) will not exceed the remaining
rent due under this Lease; (3) any obligation of Lessee to pay rent upon or
following eviction or voluntary vacation of the Leased Premises is subject to a
credit for rentals received or to be received by Lessor through reletting of the
Leased Premises and allocable to the remainder of the Lease term, after
deducting from such rentals reasonable reletting expenses of Lessor (including
real estate commissions, attorney's fees, and all other expenses in connection
with reletting) to the extent such expenses are allocable to the Leased Premises
and to the remainder of the Lease term and are not otherwise included in damages
payable by Lessee.
EXPENSE STOP. For purposes of paragraph (a) of Exhibit C the expense stop
applicable to Lessee equals 1997 building operating expenses per rentable square
foot times Lessee's rentable area.
EXCLUDED LANGUAGE. Lined-through language in this Lease is excluded.
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EXHIBIT L-1
KVA, Inc.
Standard Commission Agreement
This document will confirm the agreement between KVA, Inc. ("Agent") and ▇▇▇▇▇
▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("LESSOR) that in the event a lease is consummated between
LESSOR and Deja News, Inc. ("LESSEE"), at the Echelon Buildings I & II located
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇, LESSOR shall pay to KVA, Inc. in
consideration for brokerage services rendered, a brokerage commission calculated
in accordance with the terms below:
1) Amount: LESSOR agrees to pay Agent a cash commission equal to two percent
(2%) of the monthly rental payable to LESSOR during the term of the lease,
including renewals, extensions and/or expansions for additional space.
Agent agrees to assist LESSOR in expansions and/or renewals where LESSOR
deems necessary.
2) Time of Payment: Commission shall be payable monthly in cash to agent
beginning the commencement of the term under the lease. All commissions
due under renewals, extensions, and/or expansions shall be due and payable
monthly in cash on the efective date of the renewal, extension and/or
expansion agreement.
3) Computation of Rental: Commission due Agent shall be based on the monthly
rental set forth in the lease between LESSOR and LESSEE including payments
made to LESSOR from LESSEE for parking charges set forth in the lease.
4) Assignment/Sale of Property: If LESSOR assigns, sells or otherwise
transfers the lease on property for which commissions are payable, LESSOR
shall remain liable for commissions due Agent as stated above unless
LESSOR obtains a written recordable agreement under which the assignee,
purchaser or grantee of the property agrees to assume payment to Agent for
commissions stated above on the same terms as provided in this schedule or
balance of commission due is paid at the time of transfer. Agent is to be
named in the lease as the Agent entitled to a commission and the
obligation to pay and the right to receive any commissions stated above
shall inure to the benefit of the respective heirs, successor and/or
assigns of LESSOR or Broker.
If the above accurately sets forth the agreement between LESSOR and Agent,
sign and date below.
LESSOR: Agent:
KVA, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------- -------------------------------------------
Signature Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------- -------------------------------------------
Printed Name Printed Name
12/12/96 12/10/96
-------------------- -------------------------------------------
Date Date
Texas Broker #: 286962
(KVA, Inc.)
Federal Tax ID #: ▇▇-▇▇▇▇▇▇▇ (Incorporated)
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EXHIBIT L-2
ATTACHED
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[Letterhead of The Prudential ▇▇▇▇▇ Realty Commercial/Investment Service]
Commission Agreement/Office Lease
This document will confirm the agreement between Prudential ▇▇▇▇▇ Realty
Commercial Investment Services (Agent) and ▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Landlord") that in the event a lease is consummated between Landlord and DEJA
NEWS ("Tenant"), at Echelon Buildings I & II office buildings located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇ legal description is: The Echelon, Lot 4, less
E.336ACR, ▇▇▇▇▇▇ County, Texas, Austin, Texas: Landlord shall pay to Prudential
▇▇▇▇▇ Realty Commercial/Investment Services in consideration for brokerage
services rendered, a brokerage commission calculated in accordance with the
terms below:
1) Amount: Landlord agrees to pay Agent a cash commission equal to four
percent (4%) of the aggregate rental payable to Landlord during the
term of the lease, including renewals, extensions, and/or expansions
for additional space. Agent agrees to assist Landlord in expansions
and/or renewals where Landlord deems necessary.
2) Time of Payment: Fifty percent (50%) of the commission shall be
payable in cash to agent on the date the lease is signed and
executed between Landlord and Tenant, and the balance of the
commission shall be paid in cash to Agent on the earlier to occur
(a) the first day that Tenant occupies all or any portion of the
space covered by the lease, or (b) commencement of the term under
the lease. All commissions due under renewals, extensions, and/or
expansions shall be due and payable in cash on the date of execution
of the renewal, extension and/or expansion agreement.
3) Computation of Aggregate Rental: Commission due Agent shall be based
on the aggregate rental set forth in the lease between Landlord and
Tenant including payments made to Landlord from Tenant for parking
charges set forth in the Lease.
4) Assignment/Sale of Property: If Landlord assigns, sells or otherwise
transfers the lease on property for which commissions are payable,
Landlord shall remain liable for commissions due Agent as stated
above unless Landlord obtains a written recordable agreement under
which the assignee, purchaser or grantee of the property agrees to
assume payment to Agent for commissions state above on the same
terms as provided in this schedule. Agent is to be named in the
lease as the Agent entitled to a commission and the obligation to
pay and the right to receive any commissions state above shall inure
to the benefit of the respective heirs, successors and/or assigns of
Landlord or Broker.
If the above accurately sets for the agreement between Landlord and Agent, sign
and date below.
LANDLORD:
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Prinetd Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Owners
------------------------------------------
Date: 12/21/96
-------------------------------------------
AGENT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CPM, CCIM
The Prudential ▇▇▇▇▇ Realty
Commercial/Investment Services
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Vice President
----------------------------
Date: 11/22/96
-----------------------------
license #0378178
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 60 months provided that Lessee delivers to Lessor written
notice of Lessee's intent to renew at least 90 days 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:
Rent to adjust to the then prevailing market rate for similar space or as
mutually agreed upon.
Page 49
Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
EXHIBIT N
LIMITED RIGHT OF FIRST REFUSAL
Lessee shall have a limited right to lease additional office space within the
building according to the terms and conditions set forth below. If the space
outlined on floor plan attached to this Exhibit (comprising of approximately
4,500 square feet of usable area in Suite 300 and 1,700 square feet of usable
area in Suite ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇) becomes available for lease during
the original lease term or renewal term(s) of this lease, Lessor shall not enter
into a lease of such space except upon compliance with the following procedures.
1. Notice to Lessee. The first time the foregoing space or portion thereof
becomes available for lease, Lessor shall give written notice to Lessee of such
fact 20 days before such space becomes available. Such notice shall set out the
square footage, rental rate, location of the space and the date of availability.
2. Election by Lessee. Lessee shall then have a period of 5 working days after
receipt of such notice from Lessor within which to give Lessor notice of
Lessee's election to lease such additional space. If Lessee does not elect to
lease such space within such time period, the right of first refusal granted
herein shall terminate automatically and without further notice from Lessor.
3. Amendment to Lease. If Lessee elects to lease such space, Lessor shall submit
a lease amendment to Lessee within 5 days after receiving Lessee's notice of
such election. Lessee shall have 5 days after receipt of the amendment to
execute and return same to Lessor. If the amendment is not executed and returned
to Lessor within such time period, the right of first refusal granted herein
shall terminate automatically and without further notice. The amendment shall
only amend the particular lease paragraphs or provisions which are affected.
4. Terms of Lease Amendment. The rental rate for such additional space shall be
at the prevailing building rental rate (established from time to time by Lessor)
which is then being charged by Lessor to new tenants in the building for space
of comparable size and location. The lease term for such additional space shall
commence on the date such space is available for lease, and such term shall
continue for the then unexpired current term of this lease, whether it be the
original lease term or a renewal term. The lease terms and conditions for such
additional space shall be the same as for the original lease space except for
commencement date and rental rates.
Page 50
Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
5. Subject to Outstanding Commitments. The right of first refusal granted herein
shall be subject to the renewal options, expansion options, and/or preferential
rights to lease, if any, held by the then current Lessee, if any, of such
additional space or portion thereof.
6. Termination Upon Default. The right of first refusal granted herein shall
terminate automatically and without notice if Lessee is in default under
paragraph 19.1 of this lease or if Lessee vacates the office space described in
paragraph 1.1 of this lease prior to the exercise of the right of first refusal
granted herein.
7. Part of Larger Space. If the space outlined on page 3 of this Exhibit is or
becomes adjacent to other space becoming available for lease at the same time,
then the larger space (including the space outlined on page 3 of this Exhibit)
shall be considered the space subject to the limited right of first refusal for
all purposes.
Page 51
Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
[FLOOR PLAN]
THIRD FLOOR PLAN
ECHELON 2
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
================================================================================
Agency
An agent is an individual or organization which represents the interest of
another person. The State of Texas licenses real estate brokers and salespeople
to represent clients in the sale or leasing of real property.
In real estate transactions, the Broker (usually a company) and the client
establish an agency relationship. The client, either as buyer or seller,
generally works with an agent associated with the Broker. To assure that clients
may rely on agents placing client interests first, state and federal laws firmly
define agent responsibilities.
Before working with a real estate broker, you should know that the duties of a
broker depend on whom the broker represents.
o 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.
o A broker who acts as a subagent represents the owner in cooperation
with the listing broker.
o A broker who acts as a buyer's agent represents the buyer.
o A broker may act as an intermediary 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 a
subagent by accepting an offer of subagency from the listing broker.
o A subagent may work in a different real estate office.
o A listing broker or subagent can assist the buyer but does not
represent the buyer and must place the interests of the owner first.
o 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
interest 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 an intermediary. The
broker is required to treat each party honestly and fairly and to comply with
the Texas Real Estate License Act. A broker who acts as an intermediary in a
transaction:
1) shall treat all parties honestly.
2) shall not disclose that the owner will accept a price less than the asking
price unless authorized in writing to do so by 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.
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.
(Continued on back panel)
--------------------------------------------------------------------------------
================================================================================
(Continued)
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
instructions of one party and another person who is licensed under that Act and
associated with the broker to communicate with and carry out instructions of the
other party.
If you chose 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 establish
that the broker represents you. If you have any questions regarding the duties
and responsibilities of the broker, you should resolve those questions.
In those circumstances which dictate it, The Prudential ▇▇▇▇▇ Realty will act as
an Intermediary. If two sales associates from the company are involved (one with
the Seller and a different one with the Buyer), The Prudential ▇▇▇▇▇ Realty will
appoint one sales associate to work with and offer opinions and advice to the
Seller, and one sales associate to work with and offer opinions and advice to
the Buyer. Both parties will be notified in writing of the appointments.
/s/ [ILLEGIBLE] 12/21/96
Please acknowledge our receipt of this information for your Sales Associate's
record.
/s/ [ILLEGIBLE] 12-21-96
/s/ [ILLEGIBLE] 12/21/96
--------------------------------------------------------------------------------
Name Date
--------------------------------------------------------------------------------
For more information, contact
The Prudential [LOGO] ▇▇▇▇▇ Realty
Central ▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 328-1110
Round Rock 255-3727
Georgetown 869-0905
Relocation 478-6400
Toll Free # (▇▇▇) ▇▇▇-▇▇▇▇
[GRAPHIC]
EQUAL HOUSING
OPPORTUNITY
SIGN
HERE
The Prudential [LOGO]
▇▇▇▇▇ Realty
Rock solid in real estate.(sm)
What you should
know about
BUYER AGENCY
SELLER AGENCY
and a Broker
acting as an
INTERMEDIARY
The Prudential [LOGO]
▇▇▇▇▇ Realty
Rock solid in real estate.(sm)
[GRAPHIC]
THIRD FLOOR PLAN
ECHELON 2
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[ILLEGIBLE] [ILLEGIBLE]
[GRAPHIC]
THIRD FLOOR PLAN
ECHELON 2
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[ILLEGIBLE] [ILLEGIBLE]
SCHEDULE 2 TO EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
To: ______________________________________________________
______________________________________________________
ALLSTATE INSURANCE COMPANY
------------------------------------------------------
("Lender")
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Commercial Mortgage Division Servicing Manager
Re:
Lease Agreement dated March 1, 1997 and amended __________ ("Lease")
between ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as "Landlord," and Deja News, Inc., as
"Tenant," guaranteed by _______ ("Guarantor") for leased premises known as
▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇ & ▇▇▇ ▇▇▇▇, ▇▇
(the "Premises") of the property (suite or separate Tenant address)
commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Property").
(address)
1. Tenant hereby certifies that the following representations with respect to
the Lease are accurate and complete as of the date hereof:
a. Dates of all amendments, letter 3/4/97, 4/14/97, 8/13/97
agreements, modifications and
waivers related to the Lease 9/22/97
b. Commencement Date March 1, 1997
c. Expiration Date Ste. 150 - mo. to mo. ▇▇▇. ▇▇▇ &
▇▇▇ - ▇▇▇. ▇▇▇ - 9/30/99
2/28/2002
d. Current Annual Base Rent $19.00 per R.S.F.
Adjustment Date Rental Amount
--------------- -------------
e. Fixed or CPI Rent Increases 1999 $19.50
2000 $20.00
2001 $20.50
f. Square Footage of Premises Ste. 150 - 1,414/RSF; Ste. 300 -
4,432/RSF Ste. 240 - 3,210/RSF;
Ste. 350 - 6,701/RSF
g. Security Deposit Paid to
Landlord $20,661.42
h. Renewal Options 1 Additional Terms for 60 months
years at $ Market per year
i. Termination Options Termination Date March 1, 1999
or later
Fees Payable Unamortized costs
and 4 mos. rent prior to 48 mos.
into term 2 mos. rent after 48
mos. into term.
5
2. Tenant further certifies to Lender that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been
sublet by Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits
or abatements required to be given by Landlord to Tenant have been
given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to
pay interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in
paragraph 1(i).;
j. Tenant has not been granted any options or rights of first refusal
to purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or
directives relating to the use or condition of the Premises or the
Property; and
l. no hazardous wastes or toxic substances, as defined by all
applicable federal, state or local statutes, rules or regulations
have been disposed, stored or treated on or about the Premises or
the Property by Tenant.
m. the Lease does not give the Tenant any operating exclusives for the
Property.
3. This certification is made with the knowledge that Lender is about to provide
Landlord with financing which shall be secured by a Deed of Trust (or Mortgage),
Security Agreement and Assignment of Rents, Leases and Contracts ("Mortgage")
upon the Property. Tenant acknowledges that Landlord's interest in the Lease is
being duly assigned to Lender as security for Lender's loan to Landlord. All
rent payments under the Lease shall continue to be paid to Landlord in
accordance with the terms of the Lease until Tenant is notified otherwise in
writing by Lender or its successors and assigns. In the event that Lender
succeeds to Landlord's interest under the Lease, Tenant agrees to attorn to
Lender at Lender's request and Lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant further
acknowledges and agrees that Lender and Lender's respective successors and
assigns holding the Mortgage at any time after the date of this Certificate
shall have the right to rely on the information contained in this Certificate.
The undersigned is authorized to execute this Tenant Estoppel Certificate on
behalf of Tenant.
[TENANT]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Its: Director of Finance
----------------------
Date: April 6, 1998
5
EXHIBIT A
LEGAL DESCRIPTION
The Echelon, ▇▇▇ ▇, ▇▇▇▇ ▇.▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
Being an 8.31 tract of land out of the ▇.▇. ▇▇▇▇▇▇▇ Survey No. 18 an conveyed by
a Deed recorded in Volumes 7557, page 153; 7386, Page 218; 7384, Page 421; and
7619, Page 713 of the Deed Records of ▇▇▇▇▇▇ County, Texas; said tracts also
being a part of Lot 1 and all of ▇▇▇ ▇ ▇▇ ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ Book 4, Page 14, and also being all of ▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇'▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Book 48, Page 9, said subdivision having been duly vacated by
the City of Austin and recorded in Volume 7737, Pages 627 and 630, respectively,
of the Deed Records of ▇▇▇▇▇▇ County, Texas; and that ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
owner of 0.797 acres in the ▇.▇. ▇▇▇▇▇▇▇ Survey No. 18 as conveyed by a Deed
recorded in Volume 3773, Page 1116 of the Deed Records of ▇▇▇▇▇▇ County, Texas;
and that the Grace Covenant Church, a non-profit Association, working through
▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee, owners of 7.207 acres of land out of the ▇.▇. ▇▇▇▇▇▇▇
Survey No. 18 as conveyed to it by deeds recorded in Volume 5761, Pages 1731 and
1734 of the Deed Records of ▇▇▇▇▇▇ County, Texas, and having been subdivided
said tracts, totaling 16.341 acres to land to be known as The Echelon, a
subdivision, said building being located on tract of land containing 4.698 acres
and being known as Lot 4.
9
3.3. SECURITY DEPOSIT. At the time of execution of this lease, Lessee shall
deposit with Lessor $20,661.42 cash to secure performance of Lessee's
obligations under this lease. If Lessee 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, COMMENCEMENT, AND ANNIVERSARY. The initial lease term shall be for 60
full calendar months from commencement date, plus the remainder of the last
month. The lease commencement date shall be the 1st day of March, 1996 or the
date Lessee occupies [ILLEGIBLE]
--------------------------------------------------------------------------------
DEJA NEWS, INC. 1640
▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dec. 17 1996
------------------------
Pay To
The Order Of Echelon Buildings I & II $20,661.42
----------------------------------------------------------- -------------------
Twenty Thousand Six hundred Sixty one 42/100 Dollars
-----------------------------------------------------------
[LOGO OF TEXAS TEXAS COMMERCE BANK NATIONAL ASSOCIATION
COMMERCE BANK] NORTHCROSS OFFICE 0895
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Memo Deposit Echelon II MP
-------------------------------------- ----------------------------------------
11100 50 640 16900032029
--------------------------------------------------------------------------------
until Lessor delivers possession of the leased premises to Lessee. If there is a
delay in delivery of possession, rent shall be abated until Lessee'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, subject
to Exhibit E.
5.1. TENANT FINISH-OUT. Lessor shall provide building finish-out allowance of
$10.00 per rentable square foot of leased premises. Terms and conditions shall
be as set out in Exhibit E.
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 Lessee's office space, subject to the terms
and conditions of this lease. Lessee shall have access to the common parking
areas at all times, subject to 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 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.
Page 3
Lessor /s/ [ILLEGIBLE] Lessee /s/ [ILLEGIBLE]
--------------- ---------------
BUO125C-01 03/08/97
CERTIFICATE OF OCCUPANCY
BUILDING PERMIT NO. 9700208
DEPARTMENT OF PLANNING AND DEVELOPMENT
CITY OF AUSTIN, TEXAS
SUBDV: THE ECHELON.............................. ZONING: LO
BLOCK: PLAT: 0910
LOT: 4
THIS IS TO CERTIFY THAT, THE BUILDING OR STRUCTURE AT THE ADDRESS LISTED
BELOW HAS BEEN INSPECTED FOR COMPLIANCE WITH THE REQUIREMENTS OF THE
AUSTIN CITY CODE FOR THE GROUP AND DIVISION OF OCCUPANCY AND USE LISTED
BELOW.
ADDRESS: 9430 2 RESEARCH BV 350 A
USE: REMODEL OFFICES
GROUP AND DIVISION:
LAND OWNER: ▇▇▇▇ ▇▇▇▇▇▇▇ ADDRESS: _________________________
MAILING RANSERVE, INC CONTRACTOR: RANSERVE, INC
ADDRESS: ▇.▇. ▇▇▇ ▇▇▇▇▇▇ ______________________
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ______________________
______________________
PLUMBER: _____________________________ NO. OF GAS METERS: ______________
REMARKS: ___________________________________________________________________
___________________________________________________________________
DATE: 970306 /s/ [ILLEGIBLE] BY: /s/ ABS
----------------- ------------------
BUILDING OFFICIAL
PLEASE NOTICE
"NEITHER THE ISSUANCE OF THIS CERTIFICATE NOR THE INSPECTIONS MADE SHALL
LESSEN THE RESPONSIBILITY OR LIABILITY OF ANY PERSON, FIRM OR CORPORATION,
OWNING, OPERATING. CONTROLLING OR INSTALLING ANY APPLIANCE OR MATERIAL
UPON THE PREMISES, OR DOING ANY WORK WHATSOEVER ON SUCH PREMISES.
THE CITY OF AUSTIN DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY BY
REASON OF THE INSPECTION, OR REINSPECTION OF THE PREMISES; OR THE ISSUANCE
OF THIS "CERTIFICATE OF OCCUPANCY", BY REASON OF ANY APPROVAL OR
DISAPPROVAL."
SCHEDULE 4 TO EXHIBIT E
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO;
[RETURN TO ALLSTATE'S OUTSIDE COUNSEL]
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
AGREEMENT OF SUBORDINATION.
NONDISTURBANCE AND ATTORNMENT
THIS AGREEMENT is dated the 29th day of April, 1998, between
ALLSTATE INSURANCE COMPANY ("Lender") and Deja News, Inc., a Texas Corporation
("Tenant").
RECITALS:
A. Tenant has executed that certain lease dated March 1, 1997 (the
"Lease") with ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as lessor ("Landlord") covering the
premises described in the Lease ("Premises") in that certain building located at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Property") and more particularly
described in Exhibit A attached hereto and made a part hereof, by this
reference; and
B. Lender has made or has agreed to make a mortgage loan to Landlord
secured by a mortgage or deed of trust encumbering the Property which includes
an assignment of Landlord's interest in the Lease (the "Mortgage"); and
C. Tenant and Lender desire to confirm their understanding with
respect to the Lease and the Mortgage.
NOW, THEREFORE, in consideration of the covenants, terms,
conditions, agreements contained herein, the parties hereto agree as follows:
1. The Lease and any extensions, modifications or renewals thereof, including
but not limited to any option to purchase or right of first refusal to purchase
the Property or any portion thereof, if any, is and shall continue to be subject
and subordinate in all respects to the Mortgage and the lien created thereby,
and to any advancements made thereunder and to any consolidations, extensions
modifications or renewals thereof.
2. Tenant agrees to deliver to Lender, in the manner set forth in paragraph 7, a
copy of any notice of default sent to Landlord by Tenant. If Landlord fails to
cure such default within the time provided in the Lease, Lender shall have the
right, but not the obligation to cure such default on behalf of Landlord within
thirty (30) calendar days after the time provided for Landlord to cure such
default in the Lease or within a reasonable period (Rider 2(i)) if such default
cannot be cured within that time, provided Lender is proceeding with due
diligence to cure such default. In such event Tenant shall not terminate the
Lease (Rider 2(ii)) while such remedies are being diligently pursued by Lender.
Further, Tenant shall not terminate the Lease on the basis of any default by
Landlord which is incurable by Lender (such as, for example, the bankruptcy of
Landlord or breach of any representation by Landlord), provided Lender is
proceeding with due diligence to commence an action to appoint a receiver or to
obtain the right to possession of the Property by foreclosure, deed in lieu of
foreclosure, or otherwise ("Foreclosure") (Rider 2(iii)). Tenant hereby agrees
that no action taken by Lender to enforce any rights under the Mortgage or
related security documents, by reason of any default thereunder (including,
without limitation, the appointment of a receiver, any Foreclosure or any demand
for rent under any assignment of rents or leases) shall give rise to any right
of Tenant to terminate the Lease nor shall such action invalidate or constitute
a breach of any of the terms of the Lease. (Rider 2(iv)
3. So long as Tenant is not in default under the Lease, Tenant's possession and
occupancy of the Premises shall not be disturbed by Lender during the term of
the Lease or any extension thereof.
7
4. If Lender succeeds to the interest of Landlord under the Lease, subject to
Tenant's performance of its obligations under the Lease, the Lease will continue
in full force and effect. Thereupon, Lender shall recognize the Lease and
Tenant's rights thereunder and Tenant shall make full and complete attornment to
Lender as substitute Landlord upon the same terms, covenants and conditions as
provided in the Lease, except for any option to purchase or right of first
refusal to purchase the Property as may be provided in the Lease. Further,
Tenant agrees that any such option or right of first refusal to purchase the
Property or any portion thereof, as may be provided in the Lease shall not apply
to and shall not in any way impair or delay any Foreclosure, as defined herein.
5. Tenant agrees that, if Lender shall succeed to the interest of Landlord under
the Lease, Lender, its successors and assigns, shall not be:
(a) liable for any prior act or omission of Landlord or any prior
landlord or consequential damages arising therefrom; or
(Rider 5)
(d) bound by any material amendments or modifications of the Lease
such as those affecting rent, term or permitted use made
without Lender's prior written consent; or
6. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. The
words, "Lender," "Landlord" and "Tenant" shall include their respective heirs,
legatees, executors, administrators, beneficiaries, successors and assigns.
7. All notices, and all other communication with respect to this Agreement,
shall be directed as follows: if to Lender, c/o Commercial Mortgage Division,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Servicing
Manager or such other address as Lender may designate in writing to Tenant and,
if to Tenant, at the address set forth in the Lease or at such other address as
Tenant may designate in writing to Lender. All notices shall be in writing and
shall be (a) hand-delivered, (b) sent by United States express mail or by
private overnight courier, or (c) served by certified mail postage prepaid,
return receipt requested, to the appropriate address set forth above. Notices
served as provided in (a) and (b) shall be deemed to be effective upon delivery.
Any notice served by certified mail shall be deposited in the United States mail
with postage thereon fully prepaid and shall be deemed effective on the day of
actual delivery as shown by the addressee's return receipt or the expiration of
three business days after the date of mailing, whichever is earlier in time.
8. This Agreement contains the entire agreement between the parties and no
modifications (Rider 8) shall be binding upon any party hereto unless set forth
in a document duly executed by or on behalf of such party.
9. This Agreement may be executed in multiple counterparts, all of which shall
be deemed originals and with the same effect as if all parties had signed the
same document. All of such counterparts shall be construed together and shall
constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
LENDER: TENANT:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------
By: By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------- --------------------
Its: Director of Finance
--------------------
By:
--------------------------
Its Authorized Signatories
8
RIDERS TO SCHEDULE 4 TO EXHIBIT E
AGREEMENT OF SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT REGARDING
DEJA NEWS LEASE AGREEMENT
Rider 2(i): "(not to exceed 60 days)"
Rider 2(ii): "during such 30-day period or other reasonable period (not to
exceed 60 days) if such default cannot be cured in such 30-day period"
Rider 2(iii) "unless Tenant's rights would be materially prejudiced by any such
delay"
Rider 2(iv): "unless Tenant's rights would be materially prejudiced by any
failure to take such actions"
Rider 5: Section 5 (b), (c), and (e) is deleted
Rider 8: ", including any waiver of any rights,"
By signing in the space below, each of the undersigned agrees that the
foregoing Riders are incorporated in and made a part of Schedule 4 to Exhibit E
of the Agreement of Subordination, Nondisturbance and Attornment to Allstate
Insurance Company regarding Deja News' lease agreement dated April 29, 1998.
IN WITNESS WHEREOF, each of the undersigned has caused this document to be
executed as of April 29, 1998.
DEJA NEWS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director of Finance
LENDER:
By:
--------------------------
Name:
Title:
STATE OF TEXAS )
)SS:
COUNTY OF ▇▇▇▇▇▇ )
On April 29, 1998, before me, ▇▇▇▇▇ ▇▇▇▇▇▇, a Notary Public in and
for the State of Texas, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and acknowledged to me
that he or she executed the same in his or her authorized capacity and that, by
his or her signature on the instrument, the person or the entity upon behalf of
which he or she acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
[NOTARIAL SEAL]
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of Texas
[SEAL] My Commission Expires
FEB. 12, 2000
-----------------------------
State of Illinois )
) ss.
County of ▇▇▇▇ )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that _______________________ and
_____________________________, authorized signatories for
_______________________________, a corporation, personally known to me to be the
same persons who executed the within instrument, appeared before me on
_____________, 19__, in person, and acknowledged that they executed the within
instrument as their free and voluntary act, for the uses and purposes therein
set forth.
-----------------------------------
Notary Public
10
AMENDMENT V
Whereas ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, subsequently assigned to 183 Echelon
L.P., DBA: Echelon Buildings I & II (as Lessor) and Deja News, Inc. (as Lessee)
entered into a lease dated March 1, 1997 along with prior amendments (referred
to as the "Lease").
Whereas 183 Echelon L.P. and Deja News, Inc. have agreed to further amend
the Lease.
Now, therefore, Lessor and Lessee agree as follows:
LEASED PREMISES. The leased Premises shall be increased by approximately 1,744
usable square feet and 2,023 rentable square feet that being Suite 330 (referred
to as "Expansion Space") outlined and shaded in attached Exhibit A-1
BASE RENT. Effective July 10, 1998 the base rent shall be increased by
$38,437.00 per calendar year, which amounts to $3,203.08 per calendar month.
Such base rent is equivalent to $19.00 per square foot per year for Lessee's
rentable area.
Except as otherwise provided for in this Amendment, all other terms and
conditions of the Lease shall remain in full force and effect as originally set
forth.
Executed by Lessee on Lessor on July 10, 1998, and by Lessor on July 10, 1998,
to be effective on the first day written herein.
Lessor: Lessee:
183 Echelon L.P., Deja News, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: President /CEO
▇▇▇▇▇▇▇ Investments, Inc.
Exhibit A-1
[GRAPHIC]
AMENDMENT IV
Whereas ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DBA: Echelon Buildings I & II (as
Lessor) and Deja News, Inc. (as Lessee) entered into a lease dated March 1, 1997
(referred to as the "Lease").
Whereas ▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Deja News, Inc. have agreed to
amend the Lease.
Now, therefore, Lessor and Lessee agree as follows:
LEASED PREMISES. The leased Premises shall be increased by approximately 3,821
usable square feet and 4,432 rentable square feet that being Suite 300 (referred
to as "Expansion Space") outlined and shaded in attached Exhibit A-1.
BASE RENT. Effective October 1, 1997 the base rent shall be increased by
$81,992.00 per calendar year, which amounts to $6,832.67 per calendar month.
Such base rent is equivalent to $18.50 per square foot per year for Lessee's
rentable area.
CONSTRUCTION BY LESSOR. Lessor shall provide an allowance of $5.00 per square
foot of rentable area of the abovementioned additional space. All construction
work will be scheduled through and coordinated by KVA, Inc. or it's authorized
representatives. Any damage caused by Lessee's employees or subcontractors under
the direction of Lessee will be deducted from the finish work allowance All
other terms and conditions of construction shall be as stated in attached
Amendment Exhibit E-I.
ADDITIONAL FINISH-OUT. Notwithstanding Exhibit E-I of the Lease, Lessee at
Lessee's option may amortize finish-out, over and above the allowance provided,
at 8% annual interest rate with minimum payments of $500.00 per month until paid
in full.
Except as otherwise provided for in this Amendment, all other terms and
conditions of the Lease shall remain in full force and effect as originally set
forth.
Executed by Lessee on September 22, 1997, and by Lessor on October 2, 1997, to
be effective on the first day written herein.
Lessor: Lessee:
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Deja News, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Owner Title: President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Owner
EXHIBIT E-1
CONSTRUCTION BY LESSOR
1. PLANS FOR LESSEE'S OFFICE SPACE. Final plans and specifications for Lessee's
office space are attached to this Amendment IV.
Such plans shall be prepared by Lessor's architect and associated cost shall be
included in finish-out allowance.
2. CHANGE ORDERS. Change orders are permitted if they are provided in a timely
manner and are agreed to in writing. Lessor shall not be responsible for delays
resulting unless the change order states otherwise.
[ILLEGIBLE]
Exhibits D & I will be forwarded D. Acknowledgement of Lease (signed at move-in)
I. Corp. Resolution ▇▇▇▇▇ ▇▇▇▇▇▇ will sign and return
▇▇▇▇▇ & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. ESTIMATED COMPLETION DATE. Lessor's estimated completion date for finishing
Lessor's standard construction and any additional or non-standard finish work
for Lessee shall be September 19, 1997. If construction pursuant to initial
plans or change orders for Lessee's office space will cause delay in such
estimated completion date and if Lessor and Lessee mutually note on such initial
plans or change orders that same will cause a specified number of days of delay,
the estimated completion date above shall be extended by such specified number
of days. Also,
in the event of such mutually agreed construction delay periods, Lessee shall
pay additional rent which shall be prorated on a daily basis for such periods
and payable when the leased premises are ready for occupancy by Lessee.
5. DELAY. If the leased premises are not ready for occupancy within 30 days
following the above estimated completion date, Lessee may terminate this
Amendment IV by written notice to Lessor prior to the date the leased premises
are ready for occupancy by Lessee. In such event, neither party shall have any
further liability or obligations under this Amendment IV; and Lessor shall
refund to Lessee any prepaid amounts paid by Lessee in excess of the
construction allowance. Otherwise, if the leased premises are not ready on or
before such estimated completion date, then (a) Lessor shall not be deemed to be
in default or liable in damages to Lessee, (b) rent shall begin when the leased
premises are ready for occupancy, and (c) this Amendment IV shall not be further
affected.
AMENDMENT III
Whereas ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DBA: Echelon Buildings I & II (as
Lessor) and Deja News, Inc. (as Lessee) entered into a lease dated March 1, 1997
(referred to as the "Lease").
Whereas ▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Deja News, Inc. have agreed to
amend the Lease.
Now, therefore, Lessor and Lessee agree as follows:
LEASED PREMISES. The leased Premises shall be increased by approximately 2,767
usable square feet and 3,210 rentable square feet that being Suite 240 (referred
to as "Expansion Space") outlined and shaded in attached Exhibits A-1 and A-1a.
BASE RENT. Effective August 16, 1997 the base rent shall be increased by
$59,385.00 per calendar year, which amounts to $4,948.75 per calendar month.
Such base rent is equivalent to $18.50 per square foot per year for Lessee's
rentable area. Effective date may vary subject to current Tenant vacating the
Premises prior to or after such date. In the event effective date varies, the
increased base rent shall be prorated accordingly. Should the current Tenant not
vacate prior to August 30, 1997 Lessee, at Lessee's option, may terminate this
Amendment III upon three (3) days written notice to Lessor.
TERM. The term for the Expansion Space shall end September 30, 1999. Lessee
shall have the option to extend the term for the Expansion Space through the
ending term stated in the Lease subject to conditions, other than term, set out
in Exhibit M of the Lease.
Except as otherwise provided for in this Amendment, all other terms and
conditions of the Lease shall remain in full force and effect as originally set
forth.
Executed by Lessee on August 13, 1997, and by Lessor on August 18, 1997, to be
effective on the first day written herein.
Lessor: Lessee:
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Deja News, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Owner Title: President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Owner
Exhibit A-1
[GRAPHIC]
SECOND FLOOR PLAN
ECHELON 2
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Exhibit A-1a
[GRAPHIC]
ECHELON II
SUITE 240
"DEJA NEWS
7/21/97
AMENDMENT II
Whereas ▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DBA: Echelon Buildings I & II (as
Lessor) and Deja News, Inc. (as Lessee) entered into a lease dated March 1, 1997
(referred to as the "Lease").
Whereas ▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Deja News, Inc. have agreed to
amend the Lease.
Now, therefore, Lessor and Lessee agree as follows;
LEASED PREMISES. The leased Premises shall be increased by approximately 1,219
usable square feet and 1,414 rentable square feet that being Suite 150 (referred
to as "Temporary Space") outlined and shaded in attached Exhibit A-1
BASE RENT. Effective May 1, 1997 the base rent shall be increased by $26,159.00
per calendar year, which amounts to $2,179.92 per calendar month. Such base rent
is equivalent to $18.50 per square foot per year for Lessee's rentable area. The
base rent is subject to adjustment as provided in paragraph 32.1 of the Lease.
Commencing January 1, 1998 additional rent (representing Lessee's pro rata share
of building operating expenses over the Base Year 1997 expense stop) shall be
paid in accordance with paragraph 32.1 of the Lease. Building operating expenses
up to such expense stop amount shall be paid by Lessor. Base rent is subject to
the annual base rent increase referred to in paragraph 32.2 of the Lease.
TERM. The term for the Temporary Space shall be month to month.
Except as otherwise provided for in this Amendment, all other terms and
conditions of the Lease shall remain in full force and effect as originally set
forth.
Executed by Lessee on 4/14/97, 1997, and by Lessor on 4/20/97, 1997, to be
effective on the first day written herein.
Lessor: Lessee:
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Deja News, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Owner Title: President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Owner
Exhibit A-1
[GRAPHIC]
FIRST FLOOR PLAN
ECHELON 2
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇