Exhibit 10.5
FIRST AMENDMENT TO OFFICE LEASE
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THIS FIRST AMENDMENT TO OFFICE LEASE (this "Amendment") is
made as of this 2nd day of March, 2001, by and between
CORNERSTONE SUBURBAN OFFICE, L.P., a Delaware limited partnership
("Landlord"), having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ANTRIM CORPORATION, a Texas
corporation ("Tenant"), having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
RECITALS:
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A. Landlord's predecessor in title and Tenant entered into
a certain lease dated June 1, 1996 (the "Lease"), whereby
Landlord's predecessor in title leased to Tenant certain premises
consisting of approximately 47,420 rentable square feet of office
space on the tenth (10th), eleventh (11th), twelfth (12th) and
thirteenth (13th) floors (the "Original Premises") of that
certain building known as Bank of America Plano Tower located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇ (the "Building"), for a lease
term expiring on May 31, 2001 (the "Original Term").
B. Landlord acquired title to the Building and succeeded
to the interest of the landlord under the Lease.
C. Landlord and Tenant desire to extend the Original Term
of the Lease as provided herein.
D. Landlord and Tenant have further agreed that, subject
to the terms and conditions of this Amendment, Tenant shall
vacate, and the Lease shall terminate solely as to, a portion of
the Original Premises, and in connection therewith, Landlord and
Tenant desire to modify the Lease accordingly.
NOW, THEREFORE, for good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged,
it is hereby agreed as follows:
1. DEFINITIONS. Each capitalized term used in this
Amendment shall have the same meaning as is ascribed to such
capitalized term in the Lease, unless otherwise provided for
herein.
2. EXTENSION OF TERM. The Expiration Date of the Original
Term of the Lease is extended from May 31, 2001 to May 31, 2006.
As used herein and in the Lease, the "Term" of the Lease shall
mean the Original Term, as extended through May 31, 2006 pursuant
to the immediately preceding sentence of this Paragraph 2. All
of the provisions of the Lease shall be applicable to the balance
of the Term of the Lease occurring after May 31, 2001, except as
otherwise provided in this Amendment. The Renewal Option set
forth in Exhibit H to the Lease is hereby deleted and shall be of
no further force or effect.
3. TERMINATED SPACE. Effective as of 11:59 p.m. on May 31,
2001, the Original Premises shall be reduced by that portion of
the Original Premises located on the tenth (10th) and thirteenth
(13th) floors of the Building, consisting of approximately 12,922
rentable square feet and known as Suites 1001 and 1300
(collectively, the "Terminated Space"), and from and after May
31, 2001, the term "Premises" as used and defined in the Lease,
as amended hereby, shall be deemed to mean and refer to 34,498
rentable square feet of office space on the 11th (Suite 1100) and
12th (Suite 1200) floors of the Building and being the Original
Premises less the Terminated Space. On or before May 31, 2001,
Tenant shall
surrender, vacate and deliver possession of the Terminated Space
to Landlord. Tenant shall surrender the Terminated Space in the
condition required pursuant to Section 14 of the Lease. If Tenant
fails to timely surrender and vacate the Terminated Space, then the
provisions of Article 15 of the Lease shall apply to Tenant's holding
over in the Terminated Space. Neither Landlord nor Tenant shall have
any rights, estates, obligations or liabilities under the Lease with
respect to the Terminated Space for that part of the Term accruing after
May 31, 2001, except those which, pursuant to the provisions of the
Lease, as amended hereby, expressly survive the expiration or
termination of the Term (specifically including, without
limitation, the obligation to make a final reconciliation under
Article 4 of the Lease of the Additional Rent owing for the
Terminated Space for calendar year 2001).
4. ELEVATOR LOBBY. Tenant shall pay (as set forth in Exhibit
A) for modifications to the elevator lobby in that portion of the
Premises located on the twelfth (12th) floor of the Building so
as to (a) provide public access to the elevator running between
the twelfth (12th) and thirteenth (13th) floors and (b) comply
with all applicable Laws (collectively, the "Elevator Lobby
Work", with such area being referred to herein as the "Elevator
Lobby"). The Elevator Lobby shall become, upon completion of the
Elevator Lobby Work, a part of the Common Areas. The Elevator
Lobby Work shall be performed as provided in Exhibit A attached
hereto.
5. CONDITION OF SPACE. No promises of Landlord to alter,
remodel, improve, repair, decorate or clean the Premises or any
part thereof have been made, and no representation respecting the
condition of the Premises or the Building has been made, to
Tenant by or on behalf of Landlord, except as provided in Exhibit
A hereto.
6. RENT.
A. Effective as of June 1, 2001, Monthly Rent for the
Premises shall be paid in the manner provided in the Lease in the
following amounts for the following periods:
Period Monthly Rent Annual Rent
------ ------------ -----------
6/1/01 through 5/31/02 $57,496.67 $689,960.04
6/1/02 through 5/31/03 58,934.08 707,208.96
6/1/03 through 5/31/04 60,371.50 724,458.00
6/1/04 through 5/31/05 61,808.92 741,707.04
6/1/05 through 5/31/06 63,246.33 758,955.96
B. Effective as of June 1, 2001 and continuing thereafter
until the Expiration Date, Tenant shall pay Tenant's Pro Rata
Share of Taxes and Operating Expenses as provided under Article 4
of the Lease, except that (a) Tenant's Pro Rata Share (as set
forth in Section 1N of the Lease) shall be 15.3%, (b) the
Operating Expenses Base (as set forth in Section 1L of the Lease)
shall be the actual Operating Expenses for the calendar year of
2001 and (c) the Tax Base (as set forth in Section 1M of the
Lease) shall be the actual Taxes for the calendar year of 2001.
There shall be no abatement of Monthly Rent or Additional Rent
due under the Lease, as amended hereby, on account of this
Amendment.
C. Effective as of June 1, 2001, the fourth (4th)
grammatical paragraph of Section 4A of the Lease shall be deleted
and the following shall be inserted in lieu thereof:
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"Notwithstanding anything to the contrary contained
herein, and solely for the benefit of Tenant and not
for the benefit of any other tenant or third-party,
Operating Expenses for any Lease Year (the "Applicable
Lease Year"), commencing with the Lease Year of 2002,
shall not exceed an amount determined by increasing
Operating Expenses for the Lease Year of 2001 at the
rate of seven percent (7%) per year compounded through
the Applicable Lease Year. For purposes of the
foregoing cap on increases in Operating Expenses,
amounts attributable to utilities and insurance shall
not be included in the definition of Operating
Expenses."
7. PARKING SPACES. Effective as of June 1, 2001, Section 1Q of
the Lease shall be deleted and the following shall be inserted in
lieu thereof:
"Q. Parking Spaces / Fees: Subject to the terms of Article
26, Tenant shall have the right to use up to 103 unreserved
parking spaces, on a "first-come, first-served basis",
without payment of a parking fee during the Term."
8. RIGHT OF FIRST REFUSAL. Effective as of the date of this
Amendment, the Right of First Refusal set forth in Exhibit G to
the Lease is deleted and the following right of first offer is
hereby granted in lieu thereof:
A. If at any time during the Term prior to April 1, 2004
any space on the ninth (9th) or tenth (10th) floors of the
Building (the "First Notice Space") is available for lease and
Landlord receives a bona fide expression of interest in the First
Notice Space from a prospective tenant, Landlord shall deliver a
notice ("Landlord's Notice") to Tenant offering to lease the
First Notice Space to Tenant. Landlord's notice must specify the
First Notice Rate (defined below). The term "available for
lease" means that the First Notice Space is vacant and not then
subject to any existing rights of third parties, including,
without limitation, rights of first notice, expansion rights,
extension rights, options to lease, or other rights.
B. Tenant may elect to lease the applicable First Notice
Space by delivering a notice (the "Response Notice") to Landlord
within seven (7) business days after the date of Landlord's
notice specifying that Tenant elects either (a) to lease all, but
not less than all, of such First Notice Space or (b) to decline
to lease the First Notice Space.
C. If (a) Landlord does not receive the Response Notice
within the aforementioned seven (7) business day period or (b)
in the Response Notice Tenant does not elect to lease all of the
applicable First Notice Space, Tenant is deemed to waive its
right to lease the applicable First Notice Space and Tenant has
no further rights under this Section, subject to subsection (H),
below.
D. If Tenant timely delivers a Response Notice electing to
lease all of the applicable First Notice Space, Tenant's lease of
such First Notice Space shall commence on the date specified in
Landlord's Notice and shall be on the same terms as the Lease, as
amended, except that the Rent and other applicable terms for the
First Notice Space shall be adjusted based on the First Notice
Rate. Landlord shall prepare, and Landlord and Tenant will
execute and deliver to each other, within thirty (30) days after
Landlord's receipt of the Response Notice, an amendment to the
Lease adding the First Notice Space to the Premises upon the
terms specified in this Paragraph 7. In the event Tenant fails
to sign such amendment to the Lease within said thirty (30) day
period, time being of the essence, then Landlord shall be
entitled to proceed to lease the applicable First Notice Space to
a third party free and clear of such right and such right shall
be deemed terminated with respect to the First Notice Space
described in Landlord's Notice.
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E. Landlord is not obligated to offer the First Notice
Space to Tenant, and Tenant may not exercise its option to lease
the First Notice Space, if at the time Landlord would otherwise
be obligated to give Landlord's Notice to Tenant, Tenant is in
default under the Lease, as hereby amended.
F. The term "First Notice Rate" means the Monthly Rent,
Additional Rent, and any tenant concessions that Landlord quotes
in Landlord's Notice for the First Notice Space (as determined by
Landlord in its sole discretion) for a term equal to the
remainder of the Term.
G. Tenant may not assign this right of first notice to any
assignee of the Lease, nor may any sublessee or assignee exercise
this option.
H. If Tenant is deemed to waive its option to lease any
First Notice Space under subsection 8(C), above, and Landlord
does not lease such First Notice Space to another tenant within
180 days after the date of the Response Notice, Landlord must
again offer such First Notice Space to Tenant under this
Paragraph before leasing such First Notice Space to any other
tenant.
9. INSURANCE. Effective as of the date of this Amendment,
Section 8A of the Lease is amended by deleting subsection (ii) in
the first paragraph thereof, requiring Tenant to maintain
business interruption insurance.
10. CASUALTY DAMAGE. Effective as of the date of this
Amendment, Section 10G of the Lease is amended by inserting the
following at the end thereof:
"In the event of damage to the Premises which Landlord elects to
repair, if Landlord fails to substantially complete said repair
within 270 days after the date of casualty (which 270-day period
shall be extended by one day for each day said repair is delayed
due to acts of Tenant or any event described in Article 25),
Tenant may terminate this Lease by written notice to Landlord
within thirty (30) days after such 270-day period (as permissibly
extended as aforesaid). Tenant's termination right and the rental
abatement set forth above shall be Tenant's sole remedies and
Landlord's sole liability for delays in completion of said
repairs."
11. SUBLETTING AND ASSIGNMENT. Effective as of the date of this
Amendment Section 16(1) of the Lease is amended by inserting the
phrase ", which consent shall not be unreasonably withheld,"
between the words "tenant" and "provided" in the first (1st)
sentence thereof;
12. SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION.
Effective as of the date of this Amendment, Article 17 of the
Lease is amended by inserting the following at the end thereof:
"Notwithstanding the above, Landlord agrees that Tenant's
subordination to a Mortgage hereafter placed upon the
Building shall be conditioned upon Tenants receipt from the
applicable Lender, a written subordination and non-
disturbance agreement for the benefit of Tenant. Said
subordination and non-disturbance agreement shall be in the
Lender's standard form and shall provide, among other
provisions, that so long as this Lease shall be in full
force and effect that in the event it should become
necessary to foreclose the Mortgage, the Lender thereunder
will not join Tenant in summary or foreclosure proceedings
or otherwise disturb Tenant's possession of the Premises
pursuant to this Lease, so long as Tenant is not in default
under any of the terms, covenants or conditions of this
Lease."
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13. REMEDIES OF LANDLORD. Effective as of the date of this
Amendment:
A. Section 20(a) of the Lease is amended by inserting the
phrase "and during the continuation thereof," between the words
"period," and "Landlord" in the first (1st) sentence thereof;
B. Section 20(b) of the Lease is amended by deleting the phrase
"with or without legal process" and inserting the phrase "after
the due exercise of legal process" in lieu thereof; and
C. The first sentence of Section 20(c)(ii) of the Lease is
deleted and the following is hereby inserted in lieu thereof:
"Landlord shall use commercially reasonable efforts to
relet the Premises or any part thereof for a term or
terms which may at Landlord's option be less than or
exceed the period which would otherwise have
constituted the balance of the Term and may grant such
concessions in reletting as Landlord, in the exercise
of its reasonable business judgment, deems desirable,
provided, however, that Landlord shall not be obligated
to relet or attempt to relet the Premises on a priority
basis over other vacant or unleased space in the
Building."
14. NOTICES. Effective as of the date of this Amendment,
Section 30C of the Lease is amended to provide that notices to
Landlord shall be addressed as follows:
c/o Cornerstone Real Estate Advisers, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Transwestern Commercial Services, Attn: Building Manager
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or at such other or additional addresses as Landlord may
hereafter notify Tenant.
15. BROKER. Tenant represents that except for Transwestern
Commercial Services and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (collectively, the
"Brokers"), Tenant has not dealt with any real estate broker,
salesperson or finder in connection with this Amendment, and no
such person initiated or participated in the negotiation of this
Amendment. Tenant agrees to indemnify, defend and hold Landlord,
its property manager and their respective employees harmless from
and against all claims, demands, actions, liabilities, damages,
costs and expenses (including, attorneys' fees) arising from
either (i) a claim for a fee or commission made by any broker,
other than the Brokers, claiming to have acted by or on behalf of
Tenant in connection with this Amendment, or (ii) a claim of, or
right to, lien under the Statutes of Texas relating to real
estate broker liens with respect to any such broker retained by
Tenant.
16. BINDING EFFECT. The Lease, as amended hereby, shall
continue in full force and effect, subject to the terms and
provisions thereof and hereof. In the event of any conflict
between the terms of the Lease and the terms of this Amendment,
the terms of this Amendment shall control. This Amendment shall
be binding upon and inure to the benefit of Landlord, Tenant and
their respective successors and permitted assigns.
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17. SUBMISSION. Submission of this Amendment by Landlord to
Tenant for examination and/or execution shall not in any manner
bind Landlord and no obligations on Landlord shall arise under
this Amendment unless and until this Amendment is fully signed
and delivered by Landlord and Tenant; provided, however, the
execution and delivery by Tenant of this Amendment to Landlord
shall constitute an irrevocable offer by Tenant to enter into the
transactions described herein, which offer may not be revoked for
thirty (30) days after such delivery.
18. LIMITATION OF LIABILITY. Neither Landlord nor any principal
of Landlord nor any owner of the Building, whether disclosed or
undisclosed, shall have any personal liability with respect to
any of the provisions of the Lease, as amended hereby, or the
Premises, and if Landlord is in breach or default with respect to
Landlord's obligations under the Lease, as amended hereby, or
otherwise, Tenant shall look solely to the equity interest of
Landlord in the Building for the satisfaction of Tenant's
remedies or judgments.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, and intending to be legally bound
hereby, the parties have duly executed the Amendment with the
Exhibit attached hereto, as of this 2nd day of March, 2001.
Landlord:
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CORNERSTONE SUBURBAN OFFICE,
L.P., a Delaware limited
partnership
By: Cornerstone Office
Management, Limited
Liability Company, a
Delaware limited
liability company, its
general partner
By: CORNERSTONE REAL
ESTATE ADVISERS,
INC., its managing
member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
Tenant:
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ANTRIM CORPORATION, a Texas
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Secretary
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