EXHIBIT 10.17
OFFICE LEASE
AUSTIN BUILDING
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This is a Lease Agreement made and entered into between 360 Austin Building LP
DBA: Austin Building, as "Lessor", and MISSION CRITICAL SOFTWARE, 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) 250, 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 MISSION CRITICAL SOFTWARE, INC.
1.3. USABLE AREA. Lessee's "usable area" is approximately 1,057 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 1,226 square
feet, that being 3% 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 $26,972.00 per calendar year, which amounts to $2,247.67
per calendar month. Such base rent is equivalent to $22.00 per square foot per
year for Lessee's rentable area. The base rent is subject to adjustment as
provided in paragraph 32.1. Additional rent (representing Lessee's pro rata
share of building operating expenses over the N/A 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 $4,035.60 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
12 full calendar months from commencement date, plus the remainder of the last
month. The lease commencement date shall be JUNE 1, 1998 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.
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.
5.1. TENANT FINISH-OUT. N/A
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.
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
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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. Lessee shall
pay for all electricity consumed through any individual electrical meter(s) or
submeter(s), serving Lessee's office space, if any. Costs of such utilities are
considered building operating expenses to be allocated among all tenants under
paragraph 32.1. Service through individual electrical meters, if any, which
exclusively serve Lessee's office space shall be in the name of Lessee. 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 or which Lessor may reasonably compute for electricity utilized by
Lessee for the following purposes: x-ray machines, hot plates, electric heaters,
220 volt equipment, computers (other than desktop or word processor computers),
or other electrical service not standard for the building.
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7.5. EXTRA HEATING OR AIR CONDITIONING. If Lessee requests air conditioning or
heating after the hours as set forth in paragraph 7.1(a), Lessor may charge
Lessee the same extra hourly fee charged by Lessor for after-hour air
conditioning or heating to other tenants in the building.
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. 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 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, plumbing and
other fixtures, equipment, alterations and improvements whether installed by
Lessor or Lessee). In the event that any repairs, maintenance or replacements
are required, 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 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, or by
Lessee or its employees, agents, contractors, or visitors (notwithstanding
anything to the contrary contained in this Lease). If Lessor or 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.
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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 4 keys for Lessee's office space,
4 cards 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 $ 10.00 shall be charged for each additionsl card. 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.
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.
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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. Lessor shall have no responsibility to
maintain fire and extended coverage insurance on Lessee's contents. The
portion of Lessor's insurance premiums reasonably due to Lessee's acts or
omissions or 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. 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. (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
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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.
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
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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 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 it's trade fixtures,
furniture, and equipment only 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. 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 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.
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15.1. SUBLETTING AND ASSIGNMENT. Lessee shall not, without the prior written
consent of Lessor, which consent shall not be unreasonably withheld, 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 and its employees (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 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 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 prestigious 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 either a government (or agency or
instrumentality thereof) or an occupant of the Property, (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.
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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 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
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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 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, 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 (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.
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(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, 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 value of
Lessee's office space. Lessor shall pay 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 7 days
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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 7 days after Lessor hand delivers
to Lessee or to Lessee's office space written demand or notice of nonpayment,
then Lessor shall be 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 3 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 3-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 3 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
3-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
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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 3 days after Lessor
gives notice of such default to Lessee, or if Lessee abandons the leased
premises, Lessor may (with or without demand for performance) terminate Lessee's
right of possession by giving 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.
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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 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,
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.
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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 the maximum lawful rate of interest, compounded annually, from
date of default until paid, plus any late payment fees. Late payment fees as
set forth in paragraph 3.2 shall be considered reasonable liquidated damages for
the time, trouble, inconvenience, and administrative overhead expense incurred
by Lessor in collecting late rentals, such elements of damages being uncertain
and difficult to ascertain. Late payment fees shall not be liquidated damages
for attorney's fees or for Lessor's loss of use of such funds during the time of
delinquency.
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; and such
transferee shall become liable as Lessor. Such right to be released of
liability shall accrue to subsequent owners only if such transfer is in good
faith and for consideration.
25.1. MORTGAGES. Unless otherwise provided in this lease, 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
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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-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 a daily basis and delinquent without notice or
demand; and the prior written notice and waiting period requirements of this
lease shall not be necessary in order for Lessor to exercise remedies
thereunder.
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. Rent shall not be
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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.
29.1. NOTICES. Whenever written notice is required or permitted under this
lease, such notice shall be in writing and shall be either (a) hand delivered
personally to the party being notified, (b) hand delivered to or inside such
party's mailing address, or (c) delivered at such party's mailing address by
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.
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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.
32.1. BUILDING OPERATING EXPENSE. In addition to the monthly base rent in
paragraph 2.1, Lessee shall pay additional rent on a monthly basis, equivalent
to 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:__
N/A
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.
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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 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 structure, 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
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_______ _______
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.
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
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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 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 OR FINANCIAL CAPACITY. If at any time it reasonably
appears to Lessor that Lessee is not maintaining sufficient insurance or other
means of financial capacity to enable Lessee to fulfill its obligations to
Lessor hereunder, whether or not then accrued, liquidated, conditional or
contingent, Lessee, with 5 days prior written notice by Lessor, shall procure
and thereafter maintain in full force and effect such insurance or other form of
financial assurance, with or from
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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 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 DELETED
Exhibit D Acknowledgment of Lease (paragraph 4.2)
Exhibit E DELETED
Exhibit F-1 Parking Rules (paragraphs 9.2 and 23.1)
Exhibit F-2 Building Rules (paragraph 23.1)
Exhibit G Estoppel Certificate (paragraph 30.1)
Exhibit H DELETED
Exhibit I Corporate Resolution Authorizing Lease or Guaranty (paragraphs
37.1 and 39.1)
Exhibit J Special Conditions (paragraph 37.2)
Exhibit K DELETED
Exhibit L-1 Commission Agreement (paragraph 31.2)
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 June 1, 1998. 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/ GKJ Lessee /s/ MSB
_______ _______
LESSOR:
360 Austin Building LP
DBA: Austin Building
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4-16-98
_________________________________
Date signed
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4-16-98
_________________________________
Date signed
LESSEE:
MISSSION CRITICAL
SOFTWARE, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: _____________________________
4-14-98
_________________________________
Date signed
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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.
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EXHIBIT B
LEGAL DESCRIPTION OF OFFICE BUILDING
(See paragraph 1.1 of Lease)
▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
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EXHIBIT C
DELETED
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Lessor /s/ GKJ Lessee /s/ MSB
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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: JUNE 1, 1998
Lessor: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇: Austin Building
Lessee: MISSION CRITICAL SOFTWARE, INC.
Guarantor: N/A
Building name: Austin Building
Suite No.: 250
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇, ▇▇▇▇▇▇, Texas, 78759
Legal description of property: ▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
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: JUNE 1, 1998
Annual Anniversary date: JUNE 1
Ending date: MAY 31, 1999
The parties acknowledge that the lease has not been amended or modified and that
this acknowledgment may be filed of record with the Texas Secretary of State or
the county where the building is located in order to record (1) 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)
MISSION CRITICAL 360 Austin Building LP
SOFTWARE, INC. DBA: Austin Building
____________________________ __________________________
By: By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Property Manager
____________________________ ___________________________
Date Signed Date Signed
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
EXHIBIT E
DELETED
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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 Lessee's office space after surrender by Lessee.
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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.
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_______ _______
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 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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇: Austin Building, as Lessor, and MISSION CRITICAL SOFTWARE, INC., as
Lessee, dated JUNE 1, 1998 on leased premises locally known as the Austin
Building and located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. 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 ___________.
8. There are no rentals which are due and unpaid. Rentals are
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
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 that in the reasonable judgment of Lessor's mortgagee may be
necessary or proper to confirm such attornment.
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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:
MISSION CRITICAL SOFTWARE, INC.
______________________________
By:
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Lessor /s/ GKJ Lessee /s/ MSB
_______ _______
EXHIBIT H
DELETED
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Lessor /s/ GKJ Lessee /s/ MSB
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EXHIBIT I
CERTIFICATE OF CORPORATE RESOLUTION
AUTHORIZING LEASE OR GUARANTY
(See paragraphs 37.1 and 39.1 of Lease)
The undersigned, as secretary of the corporation named below, certifies that at
a special meeting of the board of directors of the corporation, duly called and
held on the 13th day of April, 1998, at which a quorum of the directors were
present and acting throughout, the following resolutions were unanimously
adopted and are still in force and effect:
RESOLVED that the president or the vice president of the corporation shall be
authorized to execute a lease for office space on behalf of the corporation
and/or to guarantee performance of a lease for office space, described below:
Date of lease: JUNE 1, 1998
Lessor: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇: Austin Building
Lessee: MISSION CRITICAL SOFTWARE, INC.
Guarantor: N/A
Building name: Austin Building
Suite No.: 250
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇, ▇▇▇▇▇▇, Texas, 78759
Legal description of property: ▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
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 on the meeting date
referred to above, the names and respective titles of the officers of the
corporation were as follows:
WITNESS MY HAND this _________ day of ________________, 19_______
Mission Critical Software, Inc.
__________________________________
Typed name of corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Signature of secretary of corporation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Printed name of secretary
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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, 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 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.
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Lessor /s/ GKJ Lessee /s/ MSB
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EXHIBIT K
DELETED
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EXHIBIT L-1
KVA, INC.
STANDARD COMMISSION AGREEMENT
This document will confirm the agreement between KVA, Inc. ("Agent") and 360
Austin Building LP ("LESSOR) that in the event a lease is consummated between
LESSOR and MISSION CRITICAL SOFTWARE, INC. ("LESSEE"), at the Austin Building
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 four percent
(4%) 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 effective 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________ ___________________________
Signature Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________ ____________________________
Printed Name Printed Name
4-16-98 4-16-98 4/14/98
___________________________ ____________________________
Date Date
Texas Broker #: 286962
(KVA, Inc.)
Federal Tax ID #: ▇▇-▇▇▇▇▇▇▇ (Incorporated)
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Lessor /s/ GKJ Lessee /s/ MSB
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