Texas-Austin-7600 Capital of Texas Highway North Lease - HUB Properties Trust and Perficient Inc.
LAKEWOOD ON THE PARK
7600 Capital of Texas Highway North
Austin, Texas
LEASE
by and between
HUB Properties Trust
as Landlord
and
Perficient, Inc.
as Tenant
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TABLE OF CONTENTS
Page
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ARTICLE 1. Reference Data..........................................................1
1.1. Introduction and Subjects Referred To................................1
1.2. Exhibits.............................................................3
ARTICLE 2. Premises and Term.......................................................4
2.1. Premises.............................................................4
2.2. Term.................................................................4
2.3. Extension Option.....................................................4
2.4. Measurement of the Premises..........................................5
ARTICLE 3. Condition and Preparation of Premises...................................6
3.1. Preparation of the Premises..........................................6
3.2. Conclusiveness of Landlord's Performance.............................7
3.3. Tenant Delay.........................................................7
3.4. Cooperation with Landlord's Contractors..............................8
ARTICLE 4. Rent, Additional Rent, Insurance and Other Charges......................9
4.1. The Annual Fixed Rent................................................9
4.2. Additional Rent......................................................9
4.3. Personal Property and Sales Taxes...................................14
4.4. Insurance...........................................................14
4.5. Utilities...........................................................16
4.6. Late Payment of Rent................................................16
4.7. Security Deposit....................................................16
ARTICLE 5. Landlord's Covenants...................................................17
5.1. Affirmative Covenants...............................................17
5.2. Interruption........................................................19
5.3. Outside Services....................................................20
5.4. Access to Building..................................................20
ARTICLE 6. Tenant's Additional Covenants..........................................20
6.1. Affirmative Covenants...............................................20
6.2. Negative Covenants..................................................23
ARTICLE 7. Casualty or Taking.....................................................30
7.1. Termination.........................................................30
7.2. Restoration.........................................................31
7.3. Award...............................................................31
ARTICLE 8. Defaults...............................................................32
8.1. Default of Tenant...................................................32
8.2. Remedies in Event of Termination....................................32
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8.3. Other Remedies......................................................33
8.4. Reletting...........................................................34
8.5. Remedies Cumulative.................................................35
8.6. Landlord's Right to Cure Defaults...................................35
8.7. Holding Over........................................................35
8.8. Effect of Waivers of Default........................................35
8.9. No Waiver, etc......................................................35
8.10. No Accord and Satisfaction.........................................35
ARTICLE 9. Rights of Holders......................................................36
9.1. Rights of Mortgagees or Ground Lessor...............................36
9.2. Modifications.......................................................37
9.3. Subordination, Non-Disturbance and Attornment.......................37
ARTICLE 10. Miscellaneous Provisions..............................................37
10.1. Notices............................................................37
10.2. Quiet Enjoyment; Landlord's Right to Make Alterations, Etc.........38
10.3. Lease not to be Recorded...........................................38
10.4. Assignment of Rents and Transfer of Title; Limitation of
Landlord's Liability...............................................38
10.5. Landlord's Default.................................................39
10.6. Notice to Mortgagee and Ground Lessor..............................40
10.7. Brokerage..........................................................40
10.8. Applicable Law and Construction....................................40
10.9. Electricity Audit..................................................41
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LEASE
LAKEWOOD ON THE PARK
ARTICLE 1.
Reference Data
1.1. Introduction and Subjects Referred To.
This is a lease (this "LEASE") entered into by and between HUB
Properties Trust, a Maryland real estate investment trust ("LANDLORD") and
Perficient, Inc., a Delaware corporation ("TENANT").
Each reference in this Lease to any of the following terms or phrases
shall be construed to incorporate the corresponding definition stated in this
Section 1.1.
Date of
this Lease: March ____, 2000.
Building: That building in the city of Austin, Texas
known as Lakewood on the Park, Building B,
with an address of 7600B North Capital of
Texas Highway, Austin, Texas 78731.
Property: The Building, the two other office buildings
within Lakewood on the Park known as
Building A and Building C, all parking
facilities, landscaped areas and other
appurtenances, the sidewalks and driveways
adjacent thereto, and the land parcels on
which all of the same are located.
Premises: A portion of the third floor of the Building
commonly known as Suite 340,
substantially as shown on Exhibit A hereto.
Premises
Rentable Area: 5,894 rentable square feet.
Original Term: Commencing on the Commencement Date and
expiring on the day immediately preceding
the third (3rd) anniversary of the
Commencement Date, except that if the
Commencement Date shall occur on a day other
than the first day of a month, the Original
Term shall expire on the last day of the
month in which such anniversary shall occur.
Commencement
Date: April 8, 2000
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Annual
Fixed Rent: (i) Commencing on the Commencement Date and
continuing until and including March 31,
2001, $123,774.00 per annum ($21.00 per
square foot of the Premises Rentable Area
per annum), in equal monthly installments of
$10,314.50;
(ii) Commencing April 1, 2001 and continuing
until and including March 31, 2002,
$126,721.00 per annum ($21.50 per square
foot of the Premises Rentable Area per
annum), in equal monthly installments of
$10,560.08;
(iii) Commencing on April 1, 2002, and
continuing until and including the last day
of the Original Term, $129,668.00 per annum
($22.00 per square foot of the Premises
Rentable Area per annum), in equal monthly
installments of $10,805.67.
The above amounts are subject to adjustment
as provided in the Lease.
Tenant's
Percentage: .0577 (5.77%).
Permitted
Uses: General office uses consistent with a first
class office building, subject to the
provisions of Subsection 6.1.2.
Security
Deposit: $60,395.53
Commercial General
Liability Insurance
Limits: $5,000,000 per occurrence (combined single
limit) for property damage, bodily and
personal injury and death.
Original
Address of
Landlord: HUB Properties Trust
c/o REIT Management & Research, Inc.
6300 Bridgepoint Parkway
Building 1, Suite 325
Austin, Texas 78730-5073
Attention: Property Manager
Original
Address of
Tenant: Perficient, Inc.
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7600B North Capital of Texas Highway
Suite 340
Austin, Texas 78731
Attention: _______________
Address for
Payment of
Rent: HUB Properties Trust
c/o REIT Management & Research, Inc.
P.O. Box 59902
Boston, MA 02206
1.2. EXHIBITS.
The Exhibits listed below in this section are incorporated in this
Lease by reference and are to be construed as a part of this Lease.
EXHIBIT A. Plan showing the Premises.
EXHIBIT B. Rules and Regulations.
EXHIBIT C. Alterations Requirements.
EXHIBIT D. Contractor's Insurance Requirements.
EXHIBIT E. Clerk's Certificate
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ARTICLE 2.
Premises and Term
2.1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, the Premises, excluding
exterior faces of exterior walls, the common lobbies, hallways, stairways,
stairwells, elevator shafts and other common areas, and the escalators,
elevators, pipes, ducts, conduits, wires and appurtenant fixtures and other
common facilities serving the common areas, the Premises and the premises of
other tenants in the Building.
Tenant shall have, as appurtenant to the Premises, rights to use, in
common with others, subject to reasonable rules of general applicability to
tenants of the Building from time to time made by Landlord of which Tenant is
given notice: (a) the common lobbies, hallways and stairways of the Building,
(b) the common escalators, elevators, pipes, ducts, conduits, wires and
appurtenant fixtures and other common facilities serving the Premises, (c)
common walkways and driveways (if any) necessary for access to the Building, and
(d) if the Premises include less than all of the rentable area of any floor of
the Building, the common toilets and other common facilities located on such
floor.
If Landlord so requests, Tenant shall vacate the Premises and
relinquish its rights with respect to the same provided that Landlord shall
provide to Tenant substitute space in the Building, such space to be
substantially equal to or better in size, layout, finish and utility to the
Premises, and further provided that Landlord shall, (i) at its sole cost and
expense, move Tenant and its equipment (restored, cabled and wired to working
condition), furniture and other removable personal property from the Premises to
such new space in such manner as will minimize, to the greatest extent
practicable, undue interference with the business or operations of Tenant, and
(ii) additionally reimburse Tenant for all reasonable incidental costs and
expenses incurred as a result of such relocation, including the expenses of
changing stationery and paying wages and overtime incurred that is directly
associated with the relocation. Any such substitute space shall, from and after
the date such space is so provided, be treated as the Premises demised under
this Lease, and shall be occupied by Tenant under the same terms, provisions and
conditions as are set forth in this Lease.
2.2. TERM. The term of this Lease shall be for a period beginning on
the Commencement Date and continuing for the Original Term and any extension
thereof in accordance with the provisions of this Lease, unless sooner
terminated as hereinafter provided. The Original Term and any extension
thereof in accordance with the provisions of this Lease is hereinafter
referred to as the "TERM" of this Lease.
2.3. EXTENSION OPTION. So long as this Lease is still in full force
and effect, and the named Tenant as set forth in Section 1.1 (or any
successor by merger, or any Affiliate) shall actually occupy the entire
Premises, Tenant shall have the right to extend the term of this Lease for
two (2) additional periods (the "EXTENDED TERM(S)") of three (3) years each.
Each Extended Term shall commence on the day succeeding the expiration of the
Original Term or the preceding Extended Term, as the case may be, and shall
end on the day immediately preceding the third anniversary of the
commencement of such Extended Term. All of the terms, covenants
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and provisions of this Lease applicable immediately prior to the expiration
of the then current Term (i.e., Original Term or Extended Term, as
applicable) shall apply to each such Extended Term except that (i) the Annual
Fixed Rent for each such Extended Term shall be the greater of (a) the Annual
Fixed Rent in effect on the day preceding the commencement of such Extended
Term without giving effect to any abatements, set-offs or concessions then in
effect or (b) the fair market rental value of the Premises for the
[applicable] Extended Term as determined by Landlord in its sole discretion;
and (ii) Tenant shall have no further right to extend the term of this Lease
beyond the Extended Terms hereinabove provided. If Tenant shall elect to
exercise any of the aforesaid options, it shall do so by giving Landlord
notice of its election not later than six months, nor sooner than twelve
months prior to the expiration of the then current Term of this Lease
(Original Term or Extended Term, as applicable). If Tenant fails to give any
such notice to Landlord, the term of this Lease shall automatically terminate
no later than the end of the Original Term, and Tenant shall have no further
option to extend the term of this Lease, it being agreed that time is of the
essence with respect to the giving of any such notice. If Tenant shall extend
the term hereof pursuant to the provisions of this Section 2.4, such
extension shall be automatically effected without the execution of any
additional documents, but Tenant shall, at Landlord's request, execute an
agreement confirming the Annual Fixed Rent for the applicable Extended Term.
Landlord shall give Tenant notice of its determination of fair market rental
value for the [applicable] Extended Term not later than the later to occur of
thirty (30) days after request for such determination by Tenant or seven
months prior to the commencement of the [applicable] Extended Term.
2.4. MEASUREMENT OF THE PREMISES. Landlord and Tenant agree that the
Premises Rentable Area identified in Section 1.1 is an estimate only and
that, although the Annual Fixed Rent and Tenant's Percentage have been
determined by reference to such square footage (regardless of the possibility
that the actual measurement of the Premises may be more or less than the
number identified, irrespective of measurement method used), the Annual Fixed
Rent and Tenant's Percentage shall not be changed except as expressly
provided in this Section 2.3.
Either party hereto may, not later than ninety (90) days after the
Commencement Date, request that an exact measurement of the Premises be made in
accordance with the measurement method recommended by Building Owners and
Managers Association. Such measurement shall be made by an architect or engineer
designated by Landlord at the cost and expense of the requesting party.
If the rentable area of the Premises, as so measured, is more than one
hundred one percent (101%) or less than ninety-nine percent (99%) of the
Premises Rentable Area as set forth in Section 1.1: (i) the definition of
Premises Rentable Area set forth in Section 1.1 shall be deemed amended in
accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to
the Rent Commencement Date, be recomputed by multiplying the Annual Fixed Rent
as set forth in Section 1.1 by a fraction (the "FRACTION"), the numerator of
which shall be the rentable area as so measured and the denominator of which
shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's
Percentage shall, retroactively to the Commencement Date, be recomputed to be
the percentage determined by multiplying Tenant's Percentage as set forth in
Section 1.1 by the Fraction.
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Any payment due to Landlord as the result of such adjustment shall be
paid within thirty (30) days after notice to Tenant of such computation. Any
payment due to Tenant as a result of such adjustment shall be credited against
installments of Annual Fixed Rent thereafter becoming due.
In the event of any adjustment pursuant to this Section 2.3, Landlord
and Tenant shall promptly execute a written statement setting forth the
recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's Percentage,
but the failure by either party to execute such a statement shall have no effect
on the validity of such recomputation.
If (i) neither Landlord nor Tenant requests any adjustment as herein
provided within the time limit provided, or (ii) such adjustment is requested,
but the rentable area is within the two percent range set forth above, Annual
Fixed Rent, Tenant's Percentage, and Premises Rentable Area shall remain as set
forth in Section 1.1, and neither Landlord nor Tenant shall have any right to
any adjustment.
ARTICLE 3.
Condition and Preparation of Premises
3.1. PREPARATION OF THE PREMISES. (a) Tenant shall, at its sole
cost and expense, have complete plans and specifications ("TENANT'S PLANS")
prepared for the initial improvements to the Premises, including mechanical,
electrical and architectural plans, which shall be in accordance with Landlord's
plan submission standards set forth in Exhibit C (notwithstanding that Landlord
shall perform the work) and shall be submitted to Landlord for its approval.
Within five Business Days (as defined in the Rules and Regulations) after
submission of Tenant's Plans to Landlord, Landlord shall notify Tenant of
approval or disapproval, and if Landlord fails to notify Tenant of disapproval
within said time period, Tenant's Plans shall be deemed approved provided they
are in conformity with the requirements of Exhibit C. Any disapproval of
Tenant's Plans shall be accompanied by a specific statement of the reasons
therefor and Tenant shall promptly revise and resubmit Tenant's Plans in order
to obtain Landlord's approval thereof. Each re-submission of Tenant's Plans
shall be subject to review and approval by Landlord in accordance with the
procedures for an original submission. The date on which Landlord gives its
approval to a complete and final set of Tenant's Plans is hereinafter the
"PLANS APPROVAL DATE".
(b) Landlord shall exercise all reasonable efforts to
substantially complete the work specified in Tenant's Plan's (collectively
"LANDLORD'S WORK") by that date which is forty five (45) days after the Plans
Approval Date (the "TARGET COMPLETION DATE"). Tenant agrees that Landlord may
make any changes in Landlord's Work from that shown on Tenant's Plans, the
necessity or desirability of which becomes apparent following approval of
Tenant's Plans, upon prior written notice to Tenant for nonsubtstantial changes
and with the approval of Tenant (which approval shall not be unreasonably
withheld or delayed) for substantial changes. Landlord shall provide Tenant with
an allowance ("LANDLORD'S CONTRIBUTION") of four dollars ($4.00) per square foot
of Premises Rentable Area for the performance of Landlord's Work, and Tenant
shall not be liable for any cost of Landlord's Work to the extent that the total
cost thereof is less than or equal to Landlord's Contribution. To the extent
that the cost of Landlord's Work exceeds Landlord's Contribution, Tenant shall
either (at Landlord's election) pay (i) fifty percent
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(50%) of the cost of such excess (as estimated by Landlord) to Landlord upon
approval by Landlord of Tenant's Plans and the remaining fifty (50) percent
within thirty (30) days after delivery to Tenant of a final accounting of the
cost of Landlord's Work, or (ii) the entire excess within thirty (30) days after
delivery to Tenant of a final accounting of the cost of Landlord's Work. For
purposes of this subsection (b), "COST" shall be the actual cost to Landlord of
performing Landlord's Work including, without limitation, all architectural
and/or engineering fees and expenses incurred by Landlord and all contractor
charges for the cost of work and materials, profit, general conditions and
overhead and supervision and all filing fees and other permitting costs. Tenant
shall, if requested by Landlord, execute an agreement (the "EXCESS COST
AGREEMENT") confirming Landlord's estimate of such excess costs, and Tenant's
obligation therefor, prior to the time Landlord shall be required to commence
Landlord's Work.
(c) Landlord's Work shall be considered substantially complete
and the "SUBSTANTIAL COMPLETION DATE" shall occur on the first day as of which
Landlord's Work has been completed except for items of work (and, if applicable,
adjustment of equipment and fixtures) which can be completed after occupancy has
been taken without causing material interference with Tenant's use of the
Premises (i.e. so-called "punch list" items). Landlord shall complete as soon as
conditions permit all "punch list" items and Tenant shall afford Landlord access
to the Premises for such purposes.
(d) If the Substantial Completion Date has not occurred within
thirty (30) days after the Target Completion Date, (as it may be extended for
Tenant Delays and Force Majeure as hereinafter provided), Tenant shall have the
right to terminate the term of this Lease by giving notice to Landlord not later
than twenty (20) days after the expiration of such thirty (30) day period (time
being of the essence with respect to the giving of such notice), and the term of
this Lease shall come to an end sixty (60) days after the giving of such notice
as if such date were the date set forth in the Lease for the expiration of the
Original Term, unless, within such sixty (60) day period after Tenant's notice,
Landlord substantially completes Landlord's Work (in which event such
termination of the term shall be null and void). Tenant's termination right
shall be Tenant's sole and exclusive remedy at law or in equity for any delay or
failure by Landlord to complete Landlord's Work.
3.2. CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Tenant shall be
conclusively deemed to have accepted Landlord's Work unless, within thirty (30)
days after the Substantial Completion Date, Tenant gives Landlord a notice
setting forth in detail those portions of Landlord's Work Tenant does not
accept.
3.3. TENANT DELAY. A "TENANT DELAY" shall be any delay in the
occurrence of the Substantial Completion Date as a result of a Direct Delay (as
defined in Section 3.4 (a)), plus any delay in the occurrence of the Substantial
Completion Date as a result of an Additional Delay (as defined in Section
3.4(b)).
(a) A "DIRECT DELAY" shall be any delay in the occurrence of
the Substantial Completion Date as a result of:
(i) any request by Tenant that Landlord delay in the commencement,
progress or completion of Landlord's Work for any reason;
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(ii) Tenant's failure to execute the Excess Cost Agreement if
requested by Landlord;
(iii) any change by Tenant in any of Tenant's Plans after the Plans
Approval Date; or
(iv) any special requirement of Tenant's Plans not in conformity
with Landlord's building standards (including without
limitation any so-called "long lead items").
(v) delays in the delivery of any fixtures, furnishings or other
items to be furnished directly by Tenant and installed as part
of Landlord's Work, or delays in the completion of any work
performed by Tenant or Tenant's contractors;
(vi) any failure by Tenant to cooperate with Landlord's contractors
as herein required; or
(vii) a delay in the performance of Landlord's Work that would not
have occurred if the Premises were not occupied by Tenant; or
(viii) any other act or omission of Tenant or its officers, agents,
servants or contractors (including unreasonable delay or
withholding of approval to changes desired by Landlord and
which require Tenant's approval, as described in Subsection
3.2(b)).
(b) An "ADDITIONAL DELAY" shall be any delay in the Substantial
Completion Date which is the result of (i) any reasonably necessary change in
Landlord's construction schedule resulting from a Direct Delay or (ii) any
"Force Majeure" condition (as defined in subsection (f) hereof) which would
have occurred after the Substantial Completion Date but for a Direct Delay.
(c) If as a result of Tenant Delays or Force Majeure the
Substantial Completion Date is delayed for more than six (6) months, Landlord
may (but shall not be required to) at any time thereafter terminate this
Lease by giving notice of such termination to Tenant and thereupon this Lease
shall terminate without further liability or obligation on the part of either
party.
(d) The Target Completion Date shall automatically be extended
by the aggregate of all delays in the Substantial Completion Date caused by
Tenant Delay(s), plus any period of delay in the Substantial Completion Date
caused by Force Majeure.
(e) "FORCE MAJEURE" shall be defined as any strike or other
labor trouble, fire, flood or other casualty, breakage, accident, repairs,
unusually severe weather, governmental preemption of priorities or other
controls in connection with a national or other public emergency (or
shortages of fuel, supplies or labor resulting therefrom), war, civil
commotion, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control despite the diligent efforts of Landlord.
3.4. COOPERATION WITH LANDLORD'S CONTRACTORS. Reference is made to
the fact that Landlord's Work shall be performed in the Premises after the
Commencement Date and after Tenant has taken occupancy of the Premises. Tenant
acknowledges and agrees that Landlord's Work may be performed during or outside
of the Normal Building Operating Hours, as
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determined by Landlord in its sole discretion. Tenant shall provide Landlord's
contractors with access to the Premises at all times for the purpose of
performing Landlord's Work, and shall cooperate with Landlord and Landlord 's
contractors in connection with the performance of Landlord's Work. Such
cooperation shall include, without limitation, removing (temporarily) Tenant's
furnishings, equipment and other personal property from the work area within the
Premises promptly upon receiving a request to do so from Landlord 's contractor.
Landlord shall direct its contractors to use reasonable efforts to minimize any
interference with Tenant's use of the Premises to the extent reasonably
possible, but Landlord's contractors will not be required to delay the progress
of Landlord's Work. Further, Landlord shall incur no liability to Tenant for any
disruption of Tenant's business caused by the performance of Landlord 's Work as
herein provided, including, without limitation, any temporary shut down of
utilities or suspension of other services that is reasonably necessary in
connection therewith. It shall be the responsibility of Tenant to determine what
measures are necessary to protect Tenant's computers, office equipment,
fixtures, furnishings and other personal property in the Premises from dirt and
dust caused by the construction of Landlord 's Work, and Tenant shall be fully
responsible for taking such measures and paying the cost thereof. Under no
circumstance shall Landlord be liable for damage to any such property resulting
from Tenant failure to take such measures.
ARTICLE 4.
Rent, Additional Rent, Insurance and Other Charges
4.1. THE ANNUAL FIXED RENT. Tenant agrees to pay to Landlord, or as
otherwise directed by Landlord, commencing on the Commencement Date, without
offset, abatement (except as provided in Article 7), deduction or demand, the
Annual Fixed Rent. Annual Fixed Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the term of this Lease, at the Address for Payment of Rent specified in
Section 1.1, by check drawn on a domestic bank.
Annual Fixed Rent for any partial month shall be prorated on a daily
basis, and if the Commencement Date occurs and the Annual Fixed Rent commences
on a day other than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be payable on the date Annual Fixed Rent
commences and shall be equal to a proportionate part of the monthly installment
of Annual Fixed Rent for the partial month in which Annual Fixed Rent commences
plus the installment of Annual Fixed Rent for the succeeding calendar month.
4.2. ADDITIONAL RENT. Tenant covenants and agrees to pay Tenant's
Percentage of Taxes and Operating Costs as provided in Sections 4.2.1 and
4.2.2, and all other charges and amounts payable by or due from Tenant to
Landlord (all such amounts referred to in this sentence being "ADDITIONAL
RENT").
4.2.1 REAL ESTATE TAXES. Tenant shall pay to Landlord, as
Additional Rent, Tenant's Percentage of the Building's share (as reasonably
determined by Landlord) of all Taxes (as hereinafter defined) assessed against
the Property (or estimated to be due by governmental authority) for any fiscal
tax period (a "TAX YEAR") during the term of this Lease (Tenant's Percentage of
Taxes being "TENANT'S TAX OBLIGATION"). Except as otherwise provided in the
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immediately following paragraph, Tenant shall pay Tenant's Tax Obligation to
Landlord within thirty (30) days after Landlord delivers to Tenant a notice of
the amount of taxes due, which notice shall set forth the manner of computation
of Tenant's Tax Obligation.
Tenant shall pay to Landlord, as Additional Rent on the first day of
each calendar month during the term but otherwise in the manner provided for the
payment of Annual Fixed Rent, estimated payments on account of Tenant's Tax
Obligation, such monthly amounts to be sufficient to provide Landlord by the
time Tax payments are due or are to be made by Landlord a sum equal to Tenant's
Tax Obligation, as reasonably estimated by Landlord from time to time on account
of Taxes for the then current Tax Year. If the total of such monthly remittances
for any Tax Year is greater than Tenant's Tax Obligation for such Tax Year,
Landlord shall credit such overpayment against Tenant's subsequent obligations
on account of Taxes (or promptly refund such overpayment if the term of this
Lease has ended and Tenant has no further obligations to Landlord); if the total
of such remittances is less than Tenant's Tax Obligation for such Tax Year,
Tenant shall pay the difference to Landlord within thirty (30) days after being
so notified by Landlord.
If, after Tenant shall have made all payments due to Landlord pursuant
to this subsection 4.2.1, Landlord shall receive a refund of any portion of
Taxes as a result of an abatement of such Taxes by legal proceedings, settlement
or otherwise (without either party having any obligation to undertake any such
proceedings), Landlord shall pay or credit to Tenant, Tenant's Percentage of
that percentage of the refund (after first deducting any expenses, including
attorneys', consultants' and appraisers' fees, reasonably incurred in connection
with obtaining any such refund) which equals the percentage of the applicable
Tax Year included in the term hereof, provided however, in no event shall Tenant
be entitled to receive more than the sum of payments actually made by Tenant on
account of Taxes with respect to such Tax Year.
In the event that the Commencement Date shall occur or the term of this
Lease shall expire or be terminated during any Tax Year, or should the Tax Year
or period of assessment of real estate taxes be changed or be more or less than
one (1) year, or should Tenant's Percentage be modified during any Tax Year due
to a change in the rentable area of the Building and/or the Premises or
otherwise, as the case may be, then the amount of Tenant's Tax Obligation which
may be otherwise payable by Tenant as provided in this subsection 4.2.1 shall be
appropriately apportioned and adjusted.
"TAXES" shall mean all taxes, assessments, excises and other charges
and impositions which are general or special, ordinary or extraordinary,
foreseen or unforeseen, of any kind or nature which are levied, assessed or
imposed at any time during the term by any governmental authority upon or
against the Property, or taxes in lieu thereof, and additional types of taxes to
supplement real estate taxes due to legal limits imposed thereon. If, at any
time during the term of this Lease, any tax or excise on rents or other taxes,
however described, are levied or assessed against Landlord with respect to the
rent reserved hereunder, either wholly or partially in substitution for, or in
addition to, real estate taxes assessed or levied on the Property, such tax or
excise on rents shall be included in Taxes; however, Taxes shall not include
franchise, estate, inheritance, succession, capital levy, income or excess
profits taxes assessed on Landlord. Taxes also shall include all court costs,
attorneys', consultants' and accountants' fees, and other expenses incurred by
Landlord contesting Taxes through and including all appeals. Taxes shall
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include any estimated payment made by Landlord on account of a fiscal tax period
for which the actual and final amount of taxes for such period has not been
determined by the governmental authority as of the date of any such estimated
payment.
4.2.2 OPERATING COSTS. Tenant shall pay to Landlord, as
Additional Rent, Tenant's Percentage of all costs and expenses of every kind
and nature paid or incurred by Landlord with respect to the Property in any
twelve-month period established by Landlord (an "OPERATING YEAR") during the
term of this Lease (such costs and expenses being "OPERATING COSTS", as
hereinafter more fully described). Except as otherwise provided in the
immediately following paragraph Tenant shall pay Tenant's Percentage of
Operating Costs ("TENANT'S OPERATING COST OBLIGATION") to Landlord within twenty
(20) days from the date Landlord shall furnish to Tenant an itemized statement
thereof, prepared, allocated and computed in accordance with then prevailing
customs and practices of the real estate industry in the greater Austin area,
consistently applied. Any year-end statement by Landlord relating to Operating
Costs (other than an invoice for a monthly estimate) shall be final and binding
upon Landlord and Tenant unless either party within 30 days after Tenant's
receipt thereof, shall contest any items therein by giving notice to the other
specifying each items contested and the reasons therefor.
Tenant shall pay to Landlord, as Additional Rent on the first day of
each calendar month during the term but otherwise in the manner provided for the
payment of Annual Fixed Rent, estimated payments on account of Tenant's
Operating Cost Obligation, such monthly amounts to be sufficient to provide to
Landlord, by the end of each Operating Year, a sum equal to Tenant's Operating
Cost Obligation for such Operating Year, as estimated by Landlord from time to
time during such Operating Year. If, at the expiration of each Operating Year in
respect of which monthly installments of Tenant's Operating Cost Obligation
shall have been made as aforesaid, the total of such monthly remittances is
greater than Tenant's Operating Cost Obligation for such Operating Year,
Landlord shall credit such overpayment against Tenant's subsequent obligations
on account of Operating Costs (or promptly refund such overpayment if the term
of this Lease has ended and Tenant has no further obligation to Landlord); if
the total of such remittances is less than Tenant's Operating Cost Obligation
for such Operating Year, Tenant shall pay the difference to Landlord within
thirty (30) days after being so notified by Landlord.
In the event that the Commencement Date shall occur or the term of this
Lease shall expire or be terminated during any Operating Year or Tenant's
Percentage shall be modified during any Operating Year due to a change in the
rentable area of the Building and/or the Premises or otherwise, as the case may
be, then the amount of Tenant's Operating Cost Obligation which may be payable
by Tenant as provided in this subsection 4.2.2 shall be appropriately
apportioned and adjusted.
"OPERATING COSTS" shall include, without limitation, all costs and
expenses paid or incurred for the operation, cleaning, management, maintenance,
repair, upkeep and security of the Building and, in addition, the Building's
share (as reasonably determined by Landlord) of such costs and expenses incurred
for the benefit of the Property as a whole, including, without limitation:
(a) all salaries, wages, fringe benefits, payroll taxes and workers'
compensation insurance premiums related thereto and all other costs paid or
incurred with respect to
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employment of personnel engaged in operation, administration, cleaning,
maintenance, repair, upkeep and security of the Property including, without
limitation, supervisors, property managers, accountants, bookkeepers, janitors,
carpenters, engineers, mechanics, electricians and plumbers, provided that, if
any such personnel are also employed on other property of Landlord, such costs
shall be suitably prorated among the Property and such other properties;
(b) all utilities and other costs related to provision of heat
(including oil, steam and/or gas), electricity, air conditioning, and water
(including sewer charges) and other utilities to the Property (exclusive of
reimbursement to Landlord for any of same received as a result of direct billing
to any tenant of the Building);
(c) all costs, including supplies, material and equipment costs, for
cleaning and janitorial services to the Building and Property (including,
without limitation, trash removal and interior and exterior window cleaning),
and interior and exterior landscaping and pest control;
(d) the cost of replacements for tools and other similar equipment used
in the repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties;
(e) all costs and premiums for fire, casualty, rental income, liability
and such other insurance as may be maintained from time to time by Landlord
relating to the Property and any deductible, and premiums for fidelity bonds
covering persons having custody or control over funds or other property of
Landlord relating to the Property;
(f) all costs of maintaining, repairing, decorating, operating,
administering, inspecting and protecting the Property (including, without
limitation, lighting, installation, maintenance, repair and alteration of signs,
snow removal on the Property and adjacent walks and ways, paving, patching and
restriping of parking areas and operation, maintenance, replacement and repair
of heating, ventilating and air conditioning equipment, fire protection and
security systems, elevators, roofs, parking areas and any other common Building
equipment, systems or facilities) and all costs of structural and other repairs
and replacements (other than repairs for which Landlord has received full
reimbursement from contractors, other tenants of the Building or from others)
necessary to keep the Property in good working order, repair, appearance and
condition (including, without limitation, fees, if any, imposed upon Landlord,
or charged to the Property, by the state or municipality in which the Property
is located on account of the need of the Property for increased or augmented
public safety services);
(g) costs of compliance with any laws, rules, regulations, ordinances,
agreements or standards applicable to the Building or the property, which
conformance is not the responsibility of any tenant of the Building or Property,
and which Landlord elects or is required to perform, and costs of removal or
remediation of any Hazardous Materials in or under the Building or property,
which is not the responsibility of any tenant of the Building or Property, and
which Landlord elects to perform, provided such costs shall be treated as
capital expenditures;
(h) all costs incurred in connection with the administration and
supervision of all matters referred to in items (a) through (f) hereof and in
performing Landlord's obligations under
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Article 5, including Landlord's office overhead costs provided that, if any such
administrative or supervisory personnel are also employed on other property of
Landlord, such cost of compensation shall be suitably prorated among the
Property and such other properties;
(i) payments under all service contracts relating to matters referred
to in Items (a) through (h) hereof;
(j) a management fee not to exceed four percent (4%) of the gross rents
from the Property; and
(k) attorney's fees and disbursements and auditing and other
professional fees and expenses associated with the operation of the Building,
but not including attorneys fees incurred in (i) tax abatement or reductions
proceedings, (ii) collection of rent and other sums due from any other tenant
of the Building or Property, (iii) eviction, foreclosure, repossession or
bankruptcy proceedings pertaining to any other tenant of the Building or
Property, or (iv) the preparation of leases.
Notwithstanding the foregoing, for purposes of this Lease, Operating
Costs shall not include the following:
(a) Costs incurred in connection with the original construction and
development of the Property or the original or future leasing of the Property,
and costs incurred with respect to the installation of tenant improvements made
for new tenants in the Property;
(b) the cost of capital expenditures except as expressly provided
herein;
(c) depreciation, interest and principal payments on mortgages, and
other debt costs except for the interest factor included in the annual charge
off of those capital expenditures that are included in Operating Costs as
hereinafter provided; (d) costs for which Landlord is reimbursed by any tenant
or occupant of the Property or by insurance by its carrier or any tenant's
carrier (or if Landlord fails to carry insurance required to be carried by
Landlord under this Lease, costs which would have been covered by insurance had
Landlord obtained the coverage required to be carried under this Lease) or by
anyone else, and electric power costs for which any tenant directly contracts
with the local utility;
(e) any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(f) any amounts paid as ground rental for the Property of Landlord:
(g) all items and services for which Tenant or any other tenant in the
Property separately reimburses Landlord or which Landlord provides selectively
to one or more tenants (but not to Tenant) without reimbursement;
(h) any costs expressly excluded from Operating Costs elsewhere in this
Lease;
(i) the amount of any payments by Landlord to its affiliates for goods
or services for
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the Property in excess of a competitive rate, except as otherwise provided
herein; and
(j) costs incurred in connection with the sale, financing, refinancing,
mortgaging, selling or change of ownership of the Property.
If, during the term of this Lease, Landlord shall make any capital
expenditure, the total cost thereof shall not be included in Operating Costs for
the Operating Year in which it was made, but Landlord may include in Operating
Costs for such Operating Year in which such expenditure was made and in
Operating Costs for each succeeding Operating Year an annual charge-off of such
capital expenditure, provided such expenditure is (i) made to comply with any
law, rule, regulation, order or ordinance after the date the Building was
constructed, or (ii) made to protect the health or safety of the occupants of
the Property, or (iii) made to replace worn out or obsolete items or to keep the
Property in first-class condition, or (iv) designed to reduce Operating Costs.
Annual charge-offs shall be determined by dividing the original capital
expenditure plus an interest factor, reasonably determined by Landlord as being
the interest rate then being charged for long-term mortgages by institutional
lenders on like properties within the locality in which the Building is located,
by the number of years of useful life of the improvement, repair, alteration or
replacement made with the capital expenditure; and the useful life shall be
determined reasonably by Landlord in accordance with then prevailing customs and
practices of the real estate industry in the greater Austin area, consistently
applied.
In addition, if during any portion of any Operating Year for which
Operating Costs are being computed, less than ninety five percent (95%) of the
rentable area of the Building was leased to tenants or if Landlord is supplying
less than ninety five percent (95%) of the rentable area of the Building with
the services and utilities being supplied hereunder, actual Operating Costs
incurred shall be reasonably projected by Landlord on an item-by-item basis to
the estimated Operating Costs that would have been incurred if ninety five
percent (95%) of the Building were occupied for such Operating Year and such
services and utilities were being supplied to ninety five percent (95%) of the
rentable area of the Building, and such projected amount shall, for the purposes
hereof, be deemed to be the Operating Costs for such Operating Year.
4.3. PERSONAL PROPERTY AND SALES TAXES. Tenant shall pay all taxes
charged, assessed or imposed upon the personal property of Tenant and all taxes
on the sales of inventory, merchandise and any other goods by Tenant in or upon
the Premises.
4.4. INSURANCE. Tenant shall, at its expense, take out and
maintain, throughout the term of this Lease, the following insurance:
4.4.1 Commercial general liability insurance (on an occurrence
basis and on a 1988 ISO CGL form or its equivalent, including without
limitation, broad form contractual liability, bodily injury, property damage,
fire legal liability, and products and completed operations coverage) under
which Tenant is named as an insured and Landlord (and the holder of any mortgage
on the Premises or Property, as set out in a notice from time to time) are named
(on an ISO Form 20226 or as otherwise acceptable to Landlord) as additional
insureds as their interests may appear, in an amount which shall, at the
beginning of the term, be at least equal to the Commercial General Liability
Insurance Limits, and, which, from time to time during the
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term, shall be for such higher limits, if any, as Landlord shall determine to be
customarily carried in the area in which the Premises are located at property
comparable to the Premises and used for similar purposes;
Worker's compensation insurance with statutory limits covering all of
Tenant's employees working on the Premises; and
So-called "all-risk" property insurance on a "replacement cost" basis
with an agreed value endorsement covering all furniture, furnishings, fixtures
and equipment and other personal property brought to the Premises by Tenant and
all improvements and betterments to the Premises performed at Tenant's expense.
4.4.2 All such policies shall contain a clause confirming that such
policy and the coverage evidenced thereby shall be primary with respect to any
insurance policies carried by Landlord and shall be obtained from responsible
companies qualified to do business and in good standing in the state or district
in which the Property is located, which companies shall have a general policy
holder's rating in Best's of at least A / X or otherwise be acceptable to
Landlord. A copy of each paid-up policy evidencing such insurance (appropriately
authenticated by the insurer) or a certificate (on ACORD Form 27 or its
equivalent) of the insurer, certifying that such policy has been issued and paid
in full, providing the coverage required by this Section and containing
provisions specified herein, shall be delivered to Landlord prior to the
commencement of the term of this Lease and, upon renewals, not less than thirty
(30) days prior to the expiration of such coverage. Each such policy shall be
non-cancelable and not materially changed with respect to the interest of
Landlord and such mortgagees of the Property (and others that are in privity of
estate with Landlord of which Landlord provides notice to Tenant from time to
time) without at least thirty (30) days' prior written notice thereto. Any
insurance required of Tenant under this Lease may be furnished by Tenant under a
blanket policy carried by it provided that such blanket policy shall reference
the Premises, and shall guarantee a minimum limit available for the Premises
equal to the insurance amounts required in this Lease. Landlord may, at any
time, and from time to time, inspect and/or copy any and all insurance policies
required to be procured by Tenant hereunder.
4.4.3 Landlord and Tenant shall each endeavor to secure an
appropriate clause in, or an endorsement upon, each property damage insurance
policy obtained by it and covering the Building, the Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation and permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim hereinbefore referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Premises by, through or under Tenant. If and
to the extent that such waiver or permission can be obtained only upon payment
of an additional charge then the party benefiting from the waiver or permission
shall pay such charge upon demand, or shall be deemed to have agreed that the
party obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or permission
from such insurance companies.
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Subject to the foregoing provisions of this Subsection 4.4.3, and
insofar as may be permitted by the terms of the insurance policies carried by
it, each party hereby releases the other with respect to any claim which it
might otherwise have against the other party for loss, damage or destruction of
or to its property to the extent such damage is or would be covered by policies
of insurance required by this Lease to be carried by the respective parties
hereunder. In addition, Tenant agrees to exhaust any and all claims against its
insurer(s) prior to commencing an action against Landlord for any property loss.
4.5. UTILITIES. Tenant shall pay all charges for telephone and other
utilities or services not supplied by Landlord pursuant to Subsections 5.1.1
and 5.1.2, whether designated as a charge, tax, assessment, fee or otherwise,
all such charges to be paid as the same from time to time become due. Except
as otherwise provided in this Subsection 4.5 or in Article 5, it is
understood and agreed that Tenant shall make its own arrangements for the
installation or provision of all utilities and services and that Landlord
shall be under no obligation to furnish any utilities to the Premises.
If permitted by law, Landlord shall have the right at any time, and
from time to time during the term of this Lease, to contract for electric
services from the company of Landlord's choice, whether the company is the
provider currently providing electric service to the Property ("CURRENT
PROVIDER") or a different company or companies ("ALTERNATE PROVIDER"). Tenant
shall cooperate with Landlord and Current Provider or Alternate Provider at all
times, and, as reasonably necessary, shall allow Landlord and Current Provider
or Alternate Provider reasonable access to the electric lines, feeders, risers,
wiring, and any other equipment within the Premises. Unless due to its negligent
act or omission, Landlord shall in no way be liable or responsible for any loss,
damage or expense that Tenant may sustain or incur by reason of any change,
failure, interference, disruption, or defect in the supply or character of the
electric energy furnished to the Premises, or if the quantity or character of
the electric energy supplied by the Current Provider or any Alternate Provider
is no longer available or suitable for Tenant's requirements. In no event shall
any such change, failure, defect, unavailability, or unsuitability constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent (except as provided in Section 5.2), or relieve
Tenant from any of its obligations under the Lease.
4.6. LATE PAYMENT OF RENT. If any installment of Annual Fixed Rent
or Additional Rent is not paid on or before the date the same is due, it
shall bear interest (as Additional Rent) from the date due until the date
paid at the Default Rate (as defined in Section 8.4). In addition, if any
installment of Annual Fixed Rent or Additional Rent is unpaid for more than
five (5) days after the date due, Tenant shall pay to Landlord a late charge
equal to the lesser of Four Hundred Dollars ($400) or seven percent (7%) of
the delinquent amount. The parties agree that the amount of such late charge
represents a reasonable estimate of the cost and expense that would be
incurred by Landlord in processing and administration of each delinquent
payment by Tenant, but the payment of such late charges shall not excuse or
cure any default by Tenant under this Lease. Absent specific provision to the
contrary, all Additional Rent shall be due and payable in full thirty (30)
days after demand by Landlord.
4.7. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
deposit with Landlord the Security Deposit. The Security Deposit shall be
held by Landlord as security for
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the faithful performance of all the terms of this Lease to be observed and
performed by Tenant. The Security Deposit shall not be mortgaged, assigned,
transferred or encumbered by Tenant and any such act on the part of Tenant
shall be without force and effect and shall not be binding upon Landlord.
If the Annual Fixed Rent or Additional Rent payable hereunder shall be
overdue and unpaid or should Landlord make any payment on behalf of the Tenant,
or Tenant shall fail, after notice and the expiration of any cure period
provided for in this Lease, to perform any of the terms of this Lease, then
Landlord may, at its option and without notice or prejudice to any other remedy
which Landlord may have on account thereof, appropriate and apply the entire
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of Annual Fixed Rent, Additional Rent or other sums or loss
or damage sustained by Landlord due to such breach by Tenant; and Tenant shall,
within ten (10) days after demand restore the Security Deposit to the original
sum deposited. So long as Tenant shall not be in default of its obligations
under this Lease, Landlord shall return the Security Deposit, or so much thereof
as shall have not theretofore been applied in accordance with the terms of this
Section 4.7, to Tenant promptly following the expiration or earlier termination
of the term of this Lease and the surrender of possession of the Premises by
Tenant to Landlord in accordance with the terms of this Lease. While Landlord
holds the Security Deposit, Landlord shall have no obligation to pay interest on
the same and shall have the right to commingle the same with Landlord's other
funds. If Landlord conveys Landlord's interest under this Lease, the Security
Deposit, or any part thereof not previously applied, shall be turned over by
Landlord to Landlord's grantee, and Tenant shall look solely to such grantee for
proper application of the Security Deposit in accordance with the terms of this
Section 4.7 and the return thereof in accordance herewith. The holder of a
mortgage on the Property shall not be responsible to Tenant for the return or
application of the Security Deposit, whether or not it succeeds to the position
of Landlord hereunder, unless such holder actually receives the Security
Deposit.
ARTICLE 5.
Landlord's Covenants
5.1. AFFIRMATIVE COVENANTS. Landlord shall, during the term of this
Lease provide the following:
5.1.1 HEAT AND AIR-CONDITIONING. Landlord shall furnish heat,
ventilation and air-conditioning ("HVAC") to the Premises sufficient to
maintain the Premises at comfortable temperatures for general office use,
subject to all federal, state and municipal regulations, during Normal
Building Operating Hours (as defined in the Rules and Regulations). If Tenant
shall require HVAC service outside the hours and days above specified,
Landlord may furnish such service and Tenant shall pay therefor such charges
as may from time to time be in effect. In the event Tenant locates an
excessive number of persons or heat-generating equipment in the Premises
which overloads the capacity of the Building HVAC systems or in any other way
interferes with such system's ability to perform adequately its proper
functions, supplementary systems may, if and as needed, at Landlord's option,
be provided by Landlord, at Tenant's expense. Landlord shall have no
responsibility for providing any service from separate HVAC Equipment, as
defined in Section 6.1.3.
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5.1.2 ELECTRICITY. Landlord shall furnish to the Premises
electricity to meet a requirement similar to the average load of other
general office tenants of the Building.
5.1.3 CLEANING; WATER. Landlord shall provide cleaning,
maintenance and landscaping to the common areas of the Building and Property
(including snow removal to the extent necessary to maintain reasonable access
to the Building) in accordance with standards generally prevailing throughout
the term hereof in comparable office buildings in the greater Austin, Texas
area; and furnish water for ordinary drinking, lavatory and toilet facilities
(as opposed to special laboratory or other uses in excess of general office
uses) and to cause the Premises to be cleaned in accordance with standards of
comparable office buildings in the greater Austin, Texas area. Tenant shall
pay to Landlord upon invoice the actual costs incurred by Landlord for (x)
extra cleaning work in the Premises required because of carelessness,
indifference, misuse or neglect on the part of Tenant or its subtenants or
its or their employees or visitors, and (y) removal from the Premises and the
Building of any refuse and rubbish of Tenant in excess of that ordinarily
accumulated in business office occupancy, including, without limitation,
kitchen refuse or large volumes of refuse generated by parties, receptions or
other special events of Tenant, or at times other than Landlord's standard
cleaning times. Notwithstanding the foregoing, Landlord shall not be required
to clean any portions of the Premises used for preparation, serving or
consumption of food or beverages or other special purposes if same requires
on a regularly recurring basis materially greater or more difficult cleaning
work than office areas, and Tenant agrees, at Tenant's expense, to retain
Landlord's cleaning contractor to perform such extra cleaning, provided that
the charges of such cleaning contractor shall be commercially reasonable.
Under no circumstances shall Landlord's cleaning contractor be required to
clean Tenant's refrigerator, microwave oven, dishes, utensils or other
kitchen equipment or personal property used in connection therewith.
Landlord, its cleaning contractor and their respective employees
shall have access to the Premises after 6:00 p.m. and before 8:00 a.m. and
shall have the right to use, without charge therefor, all light, power and
water in the Premises reasonably required to clean the Premises as required
hereunder.
Notwithstanding anything contained herein to the contrary, Landlord
shall have no obligation to collect or dispose of any a) radioactive,
volatile, highly flammable, explosive or toxic or hazardous materials, b)
needles, syringes, lancets, similar sharp objects or contaminated glassware,
c) blood products, d) body fluids, e) human or animal tissue, any item
identified in clauses a) through e), above, hereinafter referred to as
"EXCEPTED WASTE". Tenant agrees that title to and liability for any Excepted
Waste shall remain with Tenant, even if Landlord collects and/or disposes of
any such Excepted Waste.
If Tenant uses water for any purpose other than ordinary drinking,
lavatory and toilet purposes, Landlord may assess a reasonable charge for the
additional water so used, or install a water meter and thereby measure Tenant's
water consumption for all purposes. In the latter event, Tenant shall pay the
cost of the meter and the cost of installation thereof and shall keep such meter
and installation equipment in good working order and repair. Tenant agrees to
pay for water consumed, as shown on such meter, together with the sewer charge
based on such meter charges, as and when bills are rendered, and if Tenant shall
fail to make such payment, Landlord may pay such charges and collect the same
from Tenant as Additional Rent.
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5.1.4 ELEVATOR AND LIGHTING. Landlord shall furnish
non-exclusive passenger elevator service from the lobby to the Premises;
purchase and install all building standard lamps, tubes, bulbs, starters and
ballasts for lighting fixtures in the Premises; and provide lighting to
public and common areas of the Property.
5.1.5 REPAIRS. Except as otherwise expressly provided herein,
Landlord shall make such repairs and replacements to the roof, exterior
walls, floor slabs and other structural components of the Building, and to
the common areas and facilities of the Building and Property (including any
plumbing, electrical, HVAC equipment, elevators and any other common
equipment or systems in the Building) as may be necessary to keep them in
good repair and condition (exclusive of equipment installed by Tenant and
except for those repairs required to be made by Tenant pursuant to Subsection
6.1.3 hereof and repairs or replacements occasioned by any act or negligence
of Tenant, its servants, agents, customers, contractors, employees, invitees,
or licensees).
5.2. INTERRUPTION. Landlord shall be under no responsibility or
liability for failure, interruption or unavailability of any services,
facilities, utilities, repairs or replacements or inability to provide access
or inability to perform any other obligation under this Lease caused by
breakage, accident, fire, flood or other casualty, strikes or other labor
trouble, order or regulation of or by any governmental authority, inclement
weather, repairs, inability to obtain or shortages of supplies, labor or
materials, war, civil commotion or other emergency, transportation
difficulties or due to any act or neglect of Tenant or Tenant's servants,
agents, employees or licensees or for any other cause beyond the reasonable
control of Landlord, and in no event for any indirect or consequential
damages to Tenant; and failure or omission on the part of Landlord to furnish
any of same for any of the reasons set forth in this paragraph shall not be
construed as an eviction of Tenant, actual or constructive, nor entitle
Tenant to an abatement of rent, nor render the Landlord liable in damages,
nor release Tenant from prompt fulfillment of any of its covenants under this
Lease.
Notwithstanding the foregoing, if due to the default, negligence or
willful wrongful conduct of Landlord or its agents or contractors, (i) the
Premises or any material portion thereof are unusable by Tenant as a result of
the lack, for a period of more than three (3) consecutive Business Days
following notice from Tenant of (I) water, sewer, electricity, heat, or air
conditioning, or (II) the performance of repairs which Landlord is obligated to
perform pursuant to Section 5.1.4, and (ii) Tenant shall, concurrently with the
giving of such notice discontinue use of the Premises or the portion thereof
which is unusable as a result thereof (other than for sporadic purposes such as
salvage, security or retrieval of property), then the Annual Fixed Rent and
Additional Rent on account of Taxes and Operating Costs shall be equitably
abated for such portion of the Premises rendered unusable for the period
commencing on the expiration of such three (3) Business Day period and ending on
the earlier of the date that the Premises (or such portion) is rendered usable
or the date Tenant returns to use the Premises other than for sporadic purposes.
If more than fifty percent (50%) of the Premises is rendered unusable and if
Tenant shall vacate the entire Premises, then the aforesaid abatement shall be a
full abatement. Any notice from Tenant pursuant to the first sentence of this
paragraph shall expressly state that the failure of Landlord to cure any claimed
default timely shall give rise to Tenant's right of rent abatement.
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Landlord reserves the right temporarily (up to twenty-four (24) hours
or longer in a bona fide emergency) to stop the services of the HVAC, plumbing,
electrical or other mechanical systems or facilities in the Building when
necessary from time to time by reason of accident or emergency, or for repairs,
alterations, replacements or improvements which in the reasonable judgment of
Landlord are desirable or necessary, until such repairs, alterations,
replacements or improvements shall have been completed. Landlord shall use
reasonable efforts to (i) give to Tenant at least three (3) business days'
notice if service is to be stopped, except in cases of emergency, (ii) minimize
any disruption or interference with Tenant's use of the Premises, and (iii)
limit such disruption to a Saturday or Sunday or to times outside of the Normal
Building Operating Hours, if reasonably possible.
5.3. OUTSIDE SERVICES. In the event Tenant wishes to obtain services
or to hire vendors relating to the Premises, Tenant shall first obtain the
prior approval of Landlord, which approval shall not be unreasonably withheld
or delayed, for the installation and/or utilization of such services or
vendors. ("OUTSIDE SERVICES" shall include, but shall not be limited to,
utility providers, security services, moving facilities, equipment
installers, catering services and the like). Notwithstanding any Landlord
approval of the installation and/or utilization of such services or vendors,
such installation and utilization shall be at Tenant's sole cost, risk and
expense.
5.4. ACCESS TO BUILDING. During Normal Building Operating Hours, the
Building shall, subject to the provisions of Section 5.2, be open and access
to the Premises shall be freely available, subject to the Rules and
Regulations. During periods other than Normal Building Operating Hours,
Tenant shall have access to the Premises, but such access shall also be
subject to the Rules and Regulations. Tenant acknowledges that Tenant is
responsible for providing security to the Premises following Tenant's entry
onto the Premises for any reason and for its own personnel whenever located
therein. Subject to the foregoing, Landlord shall, at all times, retain the
right to control and prevent such access by all persons whose presence, in
the sole discretion of Landlord, may jeopardize the safety, protection,
character, reputation and interests of the Building and its tenants or
occupants. Landlord shall in no case be liable for damages resulting from any
error with regard to the admission or exclusion of any person from the
Building.
ARTICLE 6.
Tenant's Additional Covenants
6.1. AFFIRMATIVE COVENANTS. Tenant shall do the following:
6.1.1 PERFORM OBLIGATIONS. Tenant shall perform promptly all of
the obligations of Tenant set forth in this Lease; and pay when due the
Annual Fixed Rent and Additional Rent and all other amounts which by the
terms of this Lease are to be paid by Tenant.
6.1.2 USE. Tenant shall, during the term of this Lease, use
the Premises only for the Permitted Uses and from time to time to procure and
maintain all licenses and permits necessary therefor and for any other use or
activity conducted at the Premises, at Tenant's sole
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expense. The Permitted Uses shall expressly exclude use for utility company
offices, or employment agency or governmental or quasi-governmental offices.
6.1.3 REPAIR AND MAINTENANCE. Tenant shall, during the term of
this Lease, maintain the Premises in neat and clean order and condition and
perform all repairs to the Premises and all fixtures, systems, and equipment
therein (including Tenant's equipment and other personal property and any
HVAC equipment serving all or any portion of the Premises to the exclusion of
any other space in the Building ("SEPARATE HVAC EQUIPMENT"), provided such
Separate HVAC Equipment is reasonably accessible to Tenant) as are necessary
to keep them in good and clean working order, appearance and condition,
reasonable use and wear thereof and damage by fire or by unavoidable casualty
only excepted and shall replace any damaged or broken glass in windows and
doors of the Premises (except glass in the exterior walls of the Building)
with glass of the same quality as that damaged or broken.
6.1.4 COMPLIANCE WITH LAW. Tenant shall, during the term of
this Lease, make all repairs, alterations, additions or replacements to the
Premises required by any law or ordinance or any order or regulation of any
public authority; keep the Premises safe and equipped with all safety
appliances so required; and comply with, and perform all repairs,
alterations, additions or replacements required by, the orders and
regulations of all governmental authorities with respect to zoning, building,
fire, health and other codes, regulations, ordinances or laws applicable to
the Premises or applicable to the Premises or other portions of the Property
and arising out of any use being conducted in or on the Premises or arising
out of any work performed by Tenant, except that Tenant may (but only so long
as (i) Landlord shall not be subject to any fine or charge, (ii) neither the
Property nor any portion thereof shall be subject to being condemned or
vacated and (iii) neither the Property nor any portion thereof shall be
subject to any lien or encumbrance) defer compliance so long as the validity
of any such law, ordinance, order or regulation shall be contested by Tenant
in good faith and by appropriate legal proceedings, if Tenant first gives
Landlord assurance or security against any loss, cost or expense on account
thereof in form and amount acceptable to Landlord.
6.1.5 INDEMNIFICATION. Tenant shall save Landlord harmless,
and exonerate and indemnify Landlord from and against (i) any and all claims,
liabilities or penalties asserted by or on behalf of any person, firm,
corporation or public authority on account of nuisance or injury, death,
damage or loss to person or property in or upon the Premises and/or the
Property and (ii) any loss, cost, damage or expense incurred by Landlord (a)
arising out of the use or occupancy of the Premises by Tenant or by any
person claiming by, through or under Tenant (including, without limitation,
all patrons, employees, contractors, vendors, suppliers, invitees and
customers of Tenant), (b) arising out of labor disputes with Tenant's
employees or strikes, picketing or other similar actions, or (c) on account
of or based upon anything whatsoever done on or occurring in the Premises
during the term of this Lease except (and then only to the extent not subject
to the provisions of the last paragraph of Subsection 4.4.3) if the same were
caused by the negligence or willful misconduct of Landlord, its agents,
servants or employees. In respect of the matters set forth in clause (i),
Tenant shall indemnify Landlord (and such others as are in privity of estate
with Landlord) from and against all costs, expenses (including reasonable
attorneys' fees), and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon.
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6.1.6 LANDLORD'S RIGHT TO ENTER. Tenant shall, during the term
of this Lease, permit Landlord and its agents and invitees to enter into and
examine the Premises at reasonable times and to show the Premises to
prospective lessees, lenders, partners and purchasers and others having a
bonafide interest in the Premises, and to make such repairs, alterations and
improvements and to perform such testing and investigation as Landlord shall
reasonably determine to make or perform, and, during the last six (6) months
prior to the expiration of this Lease, to keep affixed in suitable places
notices of availability of the Premises. In exercising its rights hereunder,
Landlord shall minimize interference with Tenant's operations in the Premises
to the extent reasonably possible.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. Tenant shall, during
the term of this Lease keep, at the sole risk and hazard of Tenant, all of
the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through or
under Tenant which may be on the Property, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes, by theft or
from any other cause, Tenant shall hold harmless and indemnify Landlord from
and against any and all injury, loss, damage or liability to Tenant or to any
other person or entity arising out of said loss or damage.
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. Tenant shall
pay within thirty (30) days following written demand Landlord's expenses,
including reasonable attorneys' fees, incurred in enforcing any obligation of
Tenant under this Lease or in curing any default by Tenant under this Lease
as provided in Section 8.4.
6.1.9 YIELD UP. Tenant shall, at the expiration or earlier
termination of the term of this Lease, surrender all keys to the Premises;
remove all of its trade fixtures and personal property in the Premises;
remove such installations made (or if applicable, restore any items removed)
by it as Landlord may request and all Tenant's signs wherever located; repair
all damage caused by such removal (excluding minor nail or screw holes) and
yield up the Premises (including all installations and improvements made by
Tenant except for trade fixtures and such of said installations or
improvements as Landlord shall request Tenant to remove), broom clean and in
the same good order and repair in which Tenant is obliged to keep and
maintain the Premises by the provisions of this Lease, reasonable wear and
tear excepted. Any property not so removed shall be deemed abandoned and may
be removed and disposed of by Landlord in such manner as Landlord shall
determine and Tenant shall pay Landlord the reasonable cost and expense
incurred by it in effecting such removal and disposition and in making any
incidental repairs and replacements to the Premises and for use and occupancy
during the period after the expiration or earlier termination of the term of
this Lease and prior to the performance by Tenant of its obligations under
this subsection 6.1.9. Tenant shall further indemnify Landlord against all
loss, cost and damage resulting from Tenant's failure or delay in
surrendering the Premises as above provided.
6.1.10 RULES AND REGULATIONS. Tenant shall, during the term of
this Lease, observe and abide by the Rules and Regulations of the Building
set forth as Exhibit B, as the same may from time to time be amended, revised
or supplemented (the "RULES AND REGULATIONS"). Tenant shall further be
responsible for compliance with the Rules and Regulations by the employees,
servants, agents and visitors of Tenant. The failure of Landlord
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to enforce any of the Rules and Regulations against Tenant, or against any
other tenant or occupant of the Building, shall not be deemed to be a waiver
of such Rules and Regulations. Tenant shall be liable for all injuries or
damages sustained by Landlord or by other tenants, occupants or invitees of
the Building arising by reason of any breach of the Rules or Regulations by
Tenant or by Tenant's agents or employees.
6.1.11 ESTOPPEL CERTIFICATE. Tenant shall, within ten (10)
days' following written request by Landlord, execute, acknowledge and deliver
to Landlord a statement in form satisfactory to Landlord in writing
certifying, if true, that this Lease is unmodified and in full force and
effect and that Tenant, to the best of Tenant's knowledge, information and
belief, has no defenses, offsets or counterclaims against its obligations to
pay the Annual Fixed Rent and Additional Rent and any other charges and to
perform its other covenants under this Lease (or, if there have been any
modifications, that the Lease is in full force and effect as modified and
stating the modifications and, if there are any defenses, offsets or
counterclaims, setting them forth in reasonable detail), the dates to which
the Annual Fixed Rent and Additional Rent and other charges have been paid,
and any other matter pertaining to this Lease. Any such statement delivered
pursuant to this subsection 6.1.11 may be relied upon by any prospective
purchaser or mortgagee of the Property, or any prospective assignee of such
mortgage.
6.1.12 LANDLORD'S EXPENSES FOR CONSENTS. Tenant shall
reimburse Landlord, as Additional Rent, promptly on demand for all reasonable
legal, engineering and other professional services expenses incurred by
Landlord in connection with all requests by Tenant for consent or approval
hereunder.
6.1.13 FINANCIAL INFORMATION. Tenant shall, from and after the
Date of this Lease and thereafter throughout the term of this Lease, provide
Landlord with such information as to Tenant's financial condition and/or
organizational structure as Landlord reasonably requires or the holder of any
mortgage of the Property requires, within thirty days of request. Nothing in
this provision shall be construed to require Tenant to obtain an audit or
certified financial statement.
6.2. NEGATIVE COVENANTS. Tenant shall not do the following.
6.2.1 ASSIGNMENT AND SUBLETTING. Without Landlord's prior
written consent, which may be withheld in Landlord's sole discretion except
as hereinafter provided, Tenant shall not assign, mortgage, pledge,
hypothecate, encumber or otherwise transfer this Lease or sublease (which
term shall be deemed to include the granting of concessions and licenses and
the like) all or any part of the Premises or suffer or permit this Lease or
the leasehold estate hereby created or any other rights arising under this
Lease to be assigned, transferred, mortgaged, pledged, hypothecated or
encumbered, in whole or in part, whether voluntarily, involuntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone
other than Tenant, or the Premises to be offered or advertised for assignment
or subletting.
Any transfer of fifty percent (50%) or more of the stock or partnership
or beneficial interests or other evidences of ownership of Tenant or the
issuance of additional stock or partnership or beneficial interests or other
indicia of ownership in Tenant or any transactions pursuant to which Tenant is
merged, reorganized or consolidated with another entity or pursuant to which all
or substantially all of Tenant's assets are transferred to any other entity
shall be
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deemed to be an assignment of this Lease; provided, however, that any
transaction pursuant to which Tenant is merged, reorganized or consolidated
with another entity or pursuant to which all or substantially all of Tenant's
assets are transferred shall not be deemed a prohibited assignment, if (w)
after any such transaction or transfer, the successor to Tenant or the
transferee of or successor to any of Tenant's rights hereunder has a tangible
net worth computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth of Tenant
immediately prior to such merger, consolidation or transfer, or (2) the net
worth of Tenant herein named on the Date of this Lease, (x) proof of such net
worth, as evidenced by certified financial statements prepared by a certified
public accountant or by other information reasonably satisfactory to
Landlord, shall have been delivered to Landlord at least ten (10) days prior
to the effective date of any such transaction, (y) in the case of a sale of
assets, proof satisfactory to Landlord shall have been delivered to Landlord
at least ten (10) days prior to the effective date of any such transfer that
substantially all of Tenant's assets shall be sold to such transferee, and
(z) the assignee, transferee or successor agrees directly with Landlord, by
written instrument in form satisfactory to Landlord, to be bound by all the
terms of this Lease including, without limitation, the covenants contained in
this Subsection; or if after any such transaction or transfer, the stock or
other evidences of ownership of Tenant is publicly traded on a recognized,
U.S. securities exchange and the requirements of clauses (y) and (z) above
are satisfied. In addition, Tenant may, upon not less than ten (10) days
prior notice to Landlord, sublease all or any portion of the Premises to any
entity which controls, is controlled by or is under common control with the
Tenant identified in Section 1.1 (such entity being an "AFFILIATE"). Any
sublease to an Affiliate shall, at Landlord's election, be terminated if the
subtenant shall cease to be an Affiliate, and any sublease shall so provide.
The term "CONTROL" shall mean the ownership, directly or indirectly, of more
than fifty percent (50%) of the outstanding voting stock of a corporation or
other equity interest if Tenant is not a corporation.
In the event Tenant intends to enter into a sublease or assignment of
the Lease with a party who is not an Affiliate, then Tenant shall provide
Landlord with a written description of all terms and conditions of the proposed
transaction, copies of the proposed documentation, and the following information
about the proposed subtenant or assignee ("TRANSFEREE"): (i) name and address,
(ii) reasonably complete information about its business and business history,
(iii) its proposed use of the Premises, (iv) banking, financial and other credit
information , and (v) general references sufficient to enable Landlord to
determine the proposed Transferee's creditworthiness and character. Landlord
shall not unreasonably withhold its consent to any assignment or subletting as
to which it does not elect to exercise its rights pursuant to the following
paragraph, provided that the proposed Transferee (i) is creditworthy, (ii) does
not have a bad reputation in the business community, (iii) shall not use the
Premises for a purpose or in a manner which is inconsistent with Landlord's
commitments to other tenants in the Building, (iv) shall not cause an increase
in Operating Costs, and (v) is not another occupant of the Building; otherwise,
Landlord may withhold its consent in its sole discretion. Tenant shall reimburse
Landlord promptly upon request for its reasonable attorneys fees incurred in
connection with considering any request for consent to a subletting or
assignment. If Landlord consents to a proposed subletting or assignment, then
the proposed Transferee shall deliver to Landlord a written agreement whereby
its expressly assumes Tenant's obligations hereunder; however, any sublessee
shall be liable only for obligations under this Lease that are properly
allocable to the space subject to the subletting for the period of the
subletting. Landlord's consent to any assignment or subletting shall not release
Tenant from its obligations under this lease, but rather,
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Tenant and the Transferee shall be jointly and severally liable therefor.
Landlord's consent to any subletting or assignment shall not waive Landlord's
rights as to any subsequent subletting or assignment.
Landlord may, within thirty (30) days of submission of Tenant's written
request for Landlord's consent to an assignment or subletting requiring
Landlord's prior written consent, elect (i) to terminate the term of this Lease
if Tenant intends to assign this Lease or to sublease more than fifty percent
(50%) of the Premises for more than half of the remaining term of this Lease or
(ii) to exclude from the Premises, for the term of a proposed sublease, the
portion thereof to be sublet by giving notice to Tenant of such election not
later than thirty (30) days after receiving notice of such intent from Tenant.
If Landlord shall give such notice within such thirty (30) day period, upon the
later to occur of (a) the proposed date of commencement of such sublease or
assignment, or (b) the date which is fifteen (15) days after Landlord's notice,
the term of this Lease shall terminate or (as applicable), for the period
expiring on the expiration date of such proposed sublease, the Premises shall be
reduced to exclude the portion of the Premises intended for subletting, in which
case Annual Fixed Rent and Tenant's Percentage shall be correspondingly reduced
for such period. If Landlord terminates the term of this Lease as to all or any
portion of the Premises, then the term of this Lease shall cease as of such date
for such portion of the Premises.
If this Lease is assigned or if the Premises or any part thereof are
sublet (or occupied by any party other than Tenant and its employees) Landlord,
after default by Tenant hereunder, may collect the rents from such assignee,
subtenant or occupant, as the case may be, and apply the net amount collected to
the Annual Fixed Rent and Additional Rent herein reserved, but no such
collection shall be deemed a waiver of the provisions set forth in the first
paragraph of this Subsection 6.2.1, the acceptance by Landlord of such assignee,
subtenant or occupant, as the case may be, as a tenant, or a release of Tenant
from the future performance by Tenant of its covenants, agreements or
obligations contained in this Lease.
Any sublease of all or any portion of the Premises shall provide that
it is subject and subordinate to this Lease and to the matters to which this
Lease is or shall be subject or subordinate, and that in the event of
termination of this Lease or reentry or dispossession of Tenant by Landlord
under this Lease, Landlord may, at its option, take over all of the right, title
and interest of Tenant, as sublessor under such sublease, and such subtenant
shall, at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that neither Landlord nor any mortgagee of
the Property, as holder of a mortgage or as Landlord under this Lease if such
mortgagee succeeds to that position, shall (a) be liable for any act or omission
of Tenant under such sublease, (b) be subject to any credit, counterclaim,
offset or defense which theretofore accrued to such subtenant against Tenant, or
(c) be bound by any previous modification of such sublease or by any previous
prepayment of more than one (1) month's rent, (d) be bound by any covenant of
Tenant to undertake or complete any construction of the Premises or any portion
thereof, (e) be required to account for any security deposit of the subtenant
other than any security deposit actually received by Landlord, (f) be bound by
any obligation to make any payment to such subtenant or grant any credits, (g)
be responsible for any monies owing by Landlord to the credit of Tenant or (h)
be required to remove any person occupying the Premises or any part thereof; and
such sublease shall provide that the subtenant thereunder shall, at the request
of Landlord, execute a suitable instrument in confirmation of such
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agreement to attorn. The provisions of this paragraph shall not be deemed a
waiver of the provisions set forth in the first paragraph of this Subsection
6.2.1.
Tenant shall not enter into, nor shall it permit any person having an
interest in the possession, use, occupancy or utilization of any part of the
Premises to enter into, any sublease, license, concession, assignment or other
agreement for use, occupancy or utilization of the Premises (i) which provides
for rental or other compensation based on the income or profits derived by any
person or on any other formula such that any portion of such sublease rental, or
other consideration for a license, concession, assignment or other occupancy
agreement, would fail to qualify as "rents from real property" within the
meaning of Section 856(d) of the Internal Revenue Code or any similar or
successor provision thereto, or would otherwise disqualify Landlord for
treatment as a real estate investment trust under Sections 856-869 of the
Internal Revenue Code, (ii) under which fifty percent (50%) or more of the total
rent or other compensation received by Tenant is attributable to personal
property or (iii) which would otherwise be subject to the prohibitions of
Section 406 of ERISA or result in imposition of any tax pursuant to Section 511
or Section 4975 of the Internal Revenue Code; and any such purported lease,
sublease, license, concession or other agreement shall be absolutely void and
ineffectual as a conveyance of any right or interest in the possession, use,
occupancy or utilization of such part of the Premises.
No subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder, and no consent to any subletting or
assignment in a particular instance shall be deemed to be a waiver of the
obligation to obtain the Landlord's written approval in the case of any other
subletting or assignment. The joint and several liability of Tenant named herein
and any immediate and remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this Lease on Tenant's
part to be performed or observed, shall not in any way be discharged, released
or impaired by any (a) agreement which modifies any of the rights or obligations
of the parties under this Lease, (b) stipulation which extends the time within
which an obligation under this Lease is to be performed, (c) waiver of the
performance of an obligation required under this Lease, or (d) failure to
enforce any of the obligations set forth in this Lease. No assignment,
subletting or occupancy shall affect the Permitted Uses. Any subletting,
assignment or other transfer of Tenant's interest in this Lease in contravention
of this Subsection 6.2.1 shall be voidable at Landlord's option. Tenant shall
not occupy any space in the Building (by assignment, sublease or otherwise)
other than the Premises if Landlord advises Tenant, within forty-five (45) days
after notice from Tenant that it proposes to occupy such other space in the
Building, that Landlord has vacant space in the Building that is (or will be
made by Landlord) reasonably comparable to such other space in terms of size and
appearance, and that Landlord will make such space available to Tenant at the
same Annual Fixed Rent and for the same period as such other space, but
otherwise on the terms and conditions of this Lease. Tenant shall not take
occupancy of any such other space without giving Landlord at least forty-five
(45) days prior written notice.
If the rent and other sums (including, without limitation, all monetary
payments plus the reasonable value of any services performed or any other thing
of value given by any assignee or subtenant in consideration of such assignment
or sublease), either initially or over the term of any assignment or sublease,
payable by such assignee or subtenant (other than an Affiliate) on account of an
assignment or sublease of all or any portion of the Premises exceed the sum of
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Annual Fixed Rent plus Additional Rent called for hereunder with respect to the
space assigned or sublet, Tenant shall pay to Landlord as Additional Rent fifty
percent (50%) of such excess actually received by Tenant, (the "EXCESS INCOME"),
payable monthly at the time for payment of Annual Fixed Rent. Nothing in this
paragraph shall be deemed to abrogate the provisions of this Subsection 6.2.1
and Landlord's acceptance of any sums pursuant to this paragraph shall not, in
and of itself, be deemed a granting of consent to any assignment or sublease.
6.2.2 NUISANCE. Tenant shall not injure, deface or otherwise
harm the Premises; nor commit any nuisance; nor permit in the Premises any
vending machine (except such as is used for the sale of merchandise to
employees of Tenant) or inflammable fluids or chemicals (except such as are
customarily used in connection with standard office equipment); nor permit
any cooking to such extent as requires special exhaust venting; nor permit
the emission of any objectionable noise or odor; nor make, allow or suffer
any waste; nor make any use of the Premises which is improper, offensive or
contrary to any law or ordinance or which will invalidate or increase the
premiums for any of Landlord's insurance or which is liable to render
necessary any alteration or addition to the Building; nor conduct any
auction, fire, "going out of business" or bankruptcy sales.
6.2.3 FLOOR LOAD; HEAVY EQUIPMENT. Tenant shall not place a
load upon any floor of the Premises exceeding the lesser of the floor load
capacity which such floor was designed to carry or which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all heavy
business machines and equipment, including safes, which shall be placed so as
to distribute the weight. Business machines and mechanical equipment which
cause vibration or noise shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient to absorb and prevent vibration, noise and
annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment,
freight or fixtures into or out of the Premises without Landlord's prior
consent which consent may include a requirement to provide insurance naming
Landlord, and the holder of any mortgage affecting the Property, as
additional insureds, in such amount as Landlord reasonably requires. If any
such safe, machinery, heavy equipment, freight, or fixtures requires special
handling, Tenant agrees to employ only persons holding a master rigger's
license to do said work, and that all work in connection therewith shall
comply with applicable laws and regulations. Any such moving shall be at the
sole risk and hazard of Tenant and Tenant hereby agrees to exonerate,
indemnify and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such moving.
Tenant shall schedule such moving at such times as Landlord shall reasonably
designate.
6.2.4 ELECTRICITY. Tenant shall not connect to the electrical
distribution system serving the Premises (i) a total load exceeding the
lesser of the capacity of such system or the maximum load permitted from time
to time under applicable governmental regulations or (ii) any fixtures,
appliances or equipment other than telephone systems, dictation and
transcription machines, photocopy, facsimile and shredding machines, personal
computers, file servers, printers, scanners, modems and other customary
computer peripherals, refrigerators, coffee makers, toasters, toaster ovens
and microwave ovens, typewriters, calculators, adding machines, desk lamps,
pencil sharpeners, clocks, and radios. The capacity of the electrical
distribution system serving the Premises shall be the lesser of (i) the
capacity of the branch of the system serving the Premises exclusively or (ii)
the allocation to the Premises of the capacity of the
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system serving the entire Building, Landlord and Tenant agreeing that such
capacity shall be allocated equally over the entire rentable area of the
Building.
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS. Tenant shall not
make any installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes in the ceilings or floors without on
each occasion obtaining the prior consent of Landlord, and then only pursuant
to plans and specifications approved by Landlord in advance in each instance.
All work to be performed to the Premises by Tenant shall (i) be performed in
a good and workmanlike manner by contractors approved in advance by Landlord
and in compliance with the provisions of Exhibit C and all applicable zoning,
building, fire, health and other codes, regulations, ordinances and laws,
(ii) be made at Tenant's sole cost and expense and at such times and in such
a manner as Landlord may from time to time designate, and (iii) become part
of the Premises and the property of Landlord without being deemed additional
rent for tax purposes, Landlord and Tenant agreeing that Tenant shall be
treated as the owner for tax purposes until the expiration or earlier
termination of the term hereof, subject to Landlord's rights pursuant to
Section 6.1.7 to require Tenant to remove the same at or prior to the
expiration or earlier termination of the term hereof, and, subject to
Tenant's right to remove any trade fixtures, equipment or other personal
property installed and owned by Tenant, provided that Tenant repairs any
damage to the Premises caused by such removal (excluding minor nail or screw
holes and reasonable wear and tear). Tenant shall pay promptly when due the
entire cost of any work to the Premises so that the Premises, Building and
Property shall at all times be free of liens for labor and materials, and, at
Landlord's request, Tenant shall furnish to Landlord a bond or other security
acceptable to Landlord assuring that any such work will be completed in
accordance with the plans and specifications theretofore approved by Landlord
and assuring that the Premises will remain free of any mechanics' lien or
other encumbrances that may arise out of such work. Prior to the commencement
of any such work, and throughout and until completion thereof, Tenant shall
maintain, or cause to be maintained, the insurance required by Exhibit D, all
with coverage limits as stated therein or such higher limits as shall be
reasonably required by Landlord. In addition, Tenant shall save Landlord
harmless and indemnified from all injury, loss, claims or damage to any
person or property occasioned by or arising out of such work. Whenever and as
often as any mechanic's or materialmen's lien shall have been filed against
the Property based upon any act of Tenant or of anyone claiming through
Tenant, Tenant shall within seven (7) days of notice from Landlord to Tenant
take such action by bonding, deposit or payment as will remove or satisfy the
lien.
In the event that Landlord or any of its agents, employees or
contractors manage any installations, alterations or additions in, to or on the
Premises at Tenant's request (other than Landlord's Work, if any, in connection
with the initial preparation of the Premises for Tenant's occupancy), Tenant
shall pay to Landlord, promptly upon the completion of such work, an
administrative fee (the "ADMINISTRATIVE FEE") in an amount equal to ten percent
(10%) of the entire cost of such work. Notwithstanding the foregoing, Tenant
shall not be required to pay the Administrative Fee for merely seeking
Landlord's consent to any such work although Tenant shall pay any third party
expenses related to Landlord's consent.
Tenant shall not, at any time, directly or indirectly, employ or permit
the employment of any contractor, mechanic or laborer in the Premises, if such
employment will interfere or cause any conflict with other contractors,
mechanics or laborers engaged in the construction,
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maintenance or operation of the Building by Landlord, Tenant or others. In
the event of any such interference or conflict, Tenant, upon demand of
Landlord, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately.
6.2.6 ABANDONMENT. Tenant shall not abandon or vacate the
Premises during the term.
6.2.7 SIGNS. Tenant shall not paint or place any signs or
place any curtains, blinds, shades, awnings, aerials, or the like, visible
from outside the Premises. Landlord shall not unreasonably withhold consent
for signs or lettering on or adjacent to the entry doors to the Premises
provided such signs conform to building standards adopted by Landlord and
Tenant has submitted to Landlord a plan or sketch of the sign to be placed on
such entry doors. Landlord agrees, however, to maintain a tenant directory in
the lobby of the Building in which will be placed Tenant's name and the
location of the Premises in the Building.
6.2.8 OIL AND HAZARDOUS MATERIALS. Tenant shall not introduce
on or transfer to the Premises or Property, any Hazardous Materials (as
hereinafter defined); nor dump, flush or otherwise dispose of any Hazardous
Materials into the drainage, sewage or waste disposal systems serving the
Premises or Property; nor generate, store, use, release, spill or dispose of
any Hazardous Materials in or on the Premises or the Property, or to transfer
any Hazardous Materials from the Premises to any other location; and Tenant
shall not commit or suffer to be committed in or on the Premises or Property
any act which would require any reporting or filing of any notice with any
governmental agency pursuant to any statutes, laws, codes, ordinances, rules
or regulations, present or future, applicable to the Property or to Hazardous
Materials. This paragraph shall not prohibit Tenant from using minimal
quantities of cleaning fluids, photocopy toner and other products or
substances which may constitute Hazardous Materials, but which are
customarily present in or about premises devoted to first-class
administrative office uses or medical offices providing ophthalmological
laser surgery and related ophthalmological service, provided (i) that such
use, including storage and disposal thereof, by Tenant is in strict
compliance with all Environmental Laws and the manufacturer's instructions
and recommendations for the safe use and disposal of such products, and (ii)
Tenant follows the highest recognized standard of care with respect to the
use and disposal of such products.
Tenant agrees that if Tenant or any of Tenant's employees, agents,
contractors or invitees shall generate, store, release, spill, dispose of or
transfer to the Premises or Property any Hazardous Materials, Tenant shall
forthwith remove the same, at its sole cost and expense, in the manner provided
by all applicable Environmental Laws (as hereinafter defined), regardless of
when such Hazardous Materials shall be discovered. Furthermore, Tenant shall pay
any fines, penalties or other assessments imposed by any governmental agency
with respect to any such Hazardous Materials and shall forthwith repair and
restore any portion of the Premises or Property which it shall disturb in so
removing any such Hazardous Materials to the condition which existed prior to
Tenant's disturbance thereof.
Tenant agrees to deliver promptly to Landlord any notices, orders or
similar documents received from any governmental agency or official concerning
any violation of any Environmental Laws or with respect to any Hazardous
Materials affecting the Premises or Property. In addition, Tenant shall, within
ten (10) days of receipt, accurately complete any
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questionnaires from Landlord or other informational requests relating to
Tenant's use of the Premises and, in particular, to Tenant's use, generation,
storage and/or disposal of Hazardous Materials at, to, or from the Premises.
Tenant shall indemnify, defend (by counsel satisfactory to Landlord),
protect, and hold Landlord free and harmless from and against any and all
claims, or threatened claims, including without limitation, claims for death of
or injury to any person or damage to any property, actions, administrative
proceedings, whether formal or informal, judgments, damages, punitive damages,
liabilities, penalties, fines, costs, taxes, assessments, forfeitures, losses,
expenses, attorneys' fees and expenses, consultant fees, and expert fees that
arise from or are caused in whole or in part, directly or indirectly, by (i)
use, analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the Premises by Tenant or Tenant's employees, agents, contractors or invitees,
or (ii) Tenant's failure or the failure of any of Tenant's employees, agents or
contractors to comply with any Environmental Laws. Tenant's obligations
hereunder shall include, without limitation, and whether foreseeable or
unforeseeable, all costs (including, without limitation, capital, operating and
maintenance costs) incurred in connection with any investigation or monitoring
of site conditions, repair, cleanup, containment, remedial, removal or
restoration work, or detoxification or decontamination of the Premises, and the
preparation and implementation of any closure, remedial action or other required
plans in connection therewith. For purposes of this Section 6.2.8, any acts or
omissions of Tenant, or by employees, agents, assignees, contractors or
subcontractors of Tenant or others acting for or on behalf of Tenant (whether or
not they are negligent, intentional, willful or unlawful) shall be attributable
to Tenant.
The term "HAZARDOUS MATERIALS" shall mean and include any oils,
petroleum products, asbestos, radioactive, biological, medical or infectious
wastes or materials, and any other toxic or hazardous wastes, materials and
substances which are defined, determined or identified as such in any
Environmental Laws, or in any judicial or administrative interpretation of
Environmental Laws.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state and
municipal statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, codes, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants, contaminants,
petroleum or petroleum products, medical, biological, infectious, toxic or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, medical, biological, infectious, toxic or hazardous
substances or wastes or the cleanup or other remediation thereof.
ARTICLE 7.
Casualty or Taking
7.1. TERMINATION. In the event that the Premises or the Property, or
any material part thereof shall be destroyed or damaged by fire or casualty,
shall be taken by any public authority
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or for any public use or shall be condemned by the action of any public
authority, then this Lease may be terminated at the election of Landlord.
Such election, which may be made notwithstanding the fact that Landlord's
entire interest may have been divested, shall be made by the giving of notice
by Landlord to Tenant within sixty (60) days after the date of the taking or
casualty.
In addition, in the event that (i) at least twenty five percent (25%)
of the Premises is damaged by fire or other casualty to such an extent that
repair of the same in the ordinary course could not be expected to be completed,
or is not actually substantially completed, within nine (9) months of the fire
or other casualty, or (ii) at least twenty five percent (25%) of the Premises is
taken by any exercise of eminent domain for all or substantially all of the
remaining term of the Lease, then in either case Tenant shall have the right to
terminate the term of this Lease by giving notice of its desire to do so to
Landlord. In the case of a casualty, such notice must be given within thirty
(30) days after such damage or the expiration of such nine-month period. In the
case of a taking such notice must be given within thirty days after such taking.
Provided Tenant is entitled to give such notice as herein provided, then on the
date thirty (30) days after the giving of such notice, the term of this Lease
shall terminate with the same force and effect as if such date were the date on
which the term of this lease were scheduled to expire by effluxion of time.
Notwithstanding the foregoing to the contrary, Tenant shall have no right to
terminate the term of this Lease due to a fire or other casualty if the cause
thereof was due to the negligence or wrongful conduct of Tenant or any agent,
employee or invitee of Tenant or any sublessee or other occupant permitted on
the Premises by Tenant.
7.2. RESTORATION. If neither Landlord nor Tenant elects to so
terminate the term of this Lease, this Lease shall continue in force and (so
long as the damage is not caused by the negligence or other wrongful act of
Tenant or its employees, agents, contractors or invitees) a just proportion
of the Annual Fixed Rent reserved, according to the nature and extent of the
damages sustained by the Premises, shall be suspended or abated until the
Premises (excluding any improvements to the Premises made by Tenant at
Tenant's expense), or what may remain thereof, shall be put by Landlord in
proper condition for use, which Landlord covenants to do with reasonable
diligence to the extent permitted by the net proceeds of insurance recovered
or damages awarded for such destruction, taking, or condemnation and subject
to zoning and building laws or ordinances then in existence. "NET PROCEEDS OF
INSURANCE RECOVERED OR DAMAGES AWARDED" refers to the gross amount of such
insurance or damages actually made available to Landlord (and not retained by
any Superior Lessor or Superior Mortgagee) less the reasonable expenses of
Landlord incurred in connection with the collection of the same, including
without limitation, fees and expenses for legal and appraisal services.
7.3. AWARD. Irrespective of the form in which recovery may be had by
law, all rights to damages or compensation shall belong to Landlord in all
cases. Tenant hereby grants to Landlord all of Tenant's rights to such
damages and covenants to deliver such further assignments thereof as Landlord
may from time to time request. Nothing contained herein shall be construed to
prevent Tenant from prosecuting in any condemnation proceedings a claim for
relocation expenses or other compensable damage, provided that such action
shall not affect the amount of compensation otherwise recoverable by Landlord
from the taking authority.
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ARTICLE 8.
Defaults
8.1. DEFAULT OF TENANT. (a) (I) If Tenant shall default in its
obligations to pay the Annual Fixed Rent or Additional Rent or any other
charges under this Lease when due or shall default in complying with its
obligations under Subsection 6.1.11 of this Lease and if any such default
shall continue for ten (10) days after notice from Landlord designating such
default, or (II) if as promptly as possible but in any event within thirty
(30) days after notice from Landlord to Tenant specifying any default or
defaults other than those set forth in clause (I) Tenant has not cured the
default or defaults so specified; or (b) if any assignment shall be made by
Tenant or any guarantor of Tenant for the benefit of creditors; or (c) if
Tenant's leasehold interest shall be taken on execution; or (d) if a
involuntary lien or other involuntary encumbrance shall be filed against
Tenant's leasehold interest or Tenant's other property, including said
leasehold interest, or against the property of any guarantor of Tenant, and
shall not be discharged or a bond obtained in lieu of discharge within ten
(10) days thereafter; or (e) if a petition shall be filed by Tenant or any
guarantor of Tenant for liquidation, or for reorganization or an arrangement
under any provision of any bankruptcy law or code as then in force and
effect; or (f) if an involuntary petition under any of the provisions of any
bankruptcy law or code shall be filed against Tenant or any guarantor of
Tenant and such involuntary petition shall not be dismissed within thirty
(30) days thereafter; or (g) if a custodian or similar agent shall be
authorized or appointed to take charge of all or substantially all of the
assets of Tenant or any guarantor of Tenant; or (h) if Tenant or any
guarantor of Tenant dissolves or shall be dissolved or shall liquidate or
shall adopt any plan or commence any proceeding, the result of which is
intended to include dissolution or liquidation; or (i) if any order shall be
entered in any proceeding by or against Tenant or any guarantor of Tenant
decreeing or permitting the dissolution of Tenant or any guarantor of Tenant
or the winding up of its affairs; or (j) if Tenant shall fail to pay any
installment of Annual Fixed Rent or Additional Rent when due, Tenant shall
cure such default within the grace period provided in clause (a) (I) above
(or with Landlord's approval after the expiration of such grace period) and
Tenant shall, within the next year following the date such initial defaulted
payment was first due, fail more than twice to pay any installment of Annual
Fixed Rent or Additional Rent when due, then, and in any of such cases
indicated in clauses (a) through (j) hereof (collectively and individually, a
"DEFAULT OF TENANT"), Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for any
preceding breach of covenant, immediately or at any time thereafter mail a
notice of termination addressed to Tenant, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its and their effects without being deemed guilty of any
manner of trespass and without prejudice to any remedies which might
otherwise be used for arrears of rent or prior breach of covenant, and upon
such entry or mailing as aforesaid the term of this Lease shall terminate,
and Landlord may store Tenant's effects, and those of any person claiming
through or under Tenant, at the expense and risk of Tenant, and, if Landlord
so elects, may sell or otherwise dispose of such effects at public auction or
private sale or otherwise and apply the net proceeds (if any) to the payment
of all sums due to Landlord from Tenant, if any, and pay over the balance, if
any, to Tenant.
8.2. REMEDIES IN EVENT OF TERMINATION. In the event of any
termination pursuant to Section 8.1, Tenant shall pay the Annual Fixed Rent,
Additional Rent and other charges payable
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hereunder up to the time of such termination, and thereafter, Tenant, until
the end of what would have been the term of this Lease in the absence of such
termination and whether or not the Premises shall have been re-let, shall be
liable to Landlord for, and shall pay to Landlord, as current damages, the
Annual Fixed Rent, Additional Rent and other charges which would be payable
hereunder for the remainder of the term of this Lease if such termination had
not occurred, less the net proceeds, if any, of any reletting of the
Premises, after deducting all expenses in connection with such reletting
("RELETTING COSTS"), including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, advertising, expenses
of employees, alteration costs, the value of any tenant inducements
(including but without limitation free rent, moving costs, and contributions
toward leasehold improvements) and expenses of preparation for such
reletting. Tenant shall pay such current damages to Landlord monthly on the
days on which the Annual Fixed Rent would have been payable hereunder if the
term of this Lease had not been terminated.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such demand, at Landlord's election
Tenant shall pay to Landlord either (i) an amount equal to the excess, if any,
of (x) the Annual Fixed Rent, Additional Rent and other charges as hereinbefore
provided which would be payable hereunder from the date of such demand (assuming
that, for the purposes of this paragraph, annual payments by Tenant on account
of Taxes and Operating Costs would be the same as payments required for the
immediately preceding twelve calendar months, or if lesser than twelve calendar
months have expired since the Commencement Date, the payments required for such
lesser period projected to an annual amount) for what would be the then
unexpired term of this Lease if the same remained in effect, discounted to
present value at a discount rate selected by Landlord in its sole but reasonable
discretion, over (y) the then fair net rental value of the Premises for the same
period, discounted to present value at a discount rate selected by Landlord in
its sole but reasonable discretion or (ii) an amount equal to the lesser of (x)
the Annual Fixed Rent, Additional Rent and other charges that would have been
payable for the balance of the term of this Lease had it not been terminated or
(y) the aggregate of the Annual Fixed Rent, Additional Rent and other charges
accrued in the six (6) months ended next prior to such termination (without
reduction for any rent abatement) except that in the event the term of this
Lease is so terminated prior to the expiration of the first six calendar months,
the liquidated damages which Landlord may elect to recover pursuant to clause
(ii) (y) of this paragraph shall be calculated as if such termination had
occurred on the last day of the sixth calendar month after the Commencement Date
and there had been no rental abatement. Nothing contained in this Lease shall,
however, limit or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater than, equal to, or less than
the amount of the loss or damages referred to above.
8.3. OTHER REMEDIES. In the event of any Default of Tenant and at
any time prior to Landlord's election to terminate the term of this Lease,
Landlord may change the locks of the Premises without Tenant's consent,
whereupon Landlord shall post a notice on the door of the Premises informing
Tenant where a new key may be obtained. Landlord shall, however, be under no
obligation to furnish Tenant with a new key for the Premises unless and until
Tenant
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has cured the Default of Tenant and Tenant waives any and all duties and/or
liabilities imposed upon Landlord by Section 93.002 of the Texas Property
Code. In the event of any Default of Tenant at any time prior to Landlord's
election to terminate the term of this Lease, Landlord may terminate Tenant's
right to possession of the Premises, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be occupying
any portion of the Premises, by force if necessary, without being liable for
prosecution or any claim for damages therefor, and without terminating the
Lease. Landlord shall make reasonable efforts to relet the Premises and
receive the rent therefor as provided in Section 8.4. In the event of such
election by Landlord, Tenant shall pay to Landlord within ten (10) days after
written notice by Landlord, as liquidated damages, sums equivalent to the
Annual Fixed Rent and Additional Rent reserved hereunder less the proceeds of
reletting, if any, or, at Landlord's option, upon notice to Tenant, Landlord
may demand and Tenant shall become immediately liable to Landlord for the
amount by which the Annual Fixed Rent and Additional Rent that would be
payable by Tenant during the unexpired balance of the term of this Lease,
discounted to present value at a discount rate selected by Landlord in its
sole but reasonable discretion, exceeds the fair market value of the Premises
as of the time of the Default of Tenant for such balance of the term of this
Lease, , discounted to present value at a discount rate selected by Landlord
in its sole but reasonable discretion. Tenant shall also pay within ten (10)
days after notice, any amounts expended or incurred by Landlord for Reletting
Costs. If Tenant's right to possession of the Premises is terminated, Tenant
shall nonetheless remain liable (in addition to accrued liabilities) to the
extent legally permissible for the Annual Fixed Rent and Additional Rent and
all other charges Tenant would have been required to pay until the date this
Lease would have expired had such termination of Tenant's right to possession
of the Premises not occurred. Landlord shall have the right, at its option,
to recover sums due hereunder through litigation or otherwise from time to
time on one or more occasions without being obligated to wait until the
expiration of the term of this Lease before filing suit. Notwithstanding
Landlord's exercise of the remedy set forth in this Section 8.3, Landlord
shall have the continuing right, at its option, to terminate the term of this
Lease in accordance with Section 8.1 and to recover any amounts provided in
Section 8.2.
8.4. RELETTING. In case of any Default of Tenant and termination of
Tenant's right to possession of the Premises or termination of the term of
this Lease, Landlord shall make reasonable efforts to relet the Premises.
Landlord may (i) relet the Premises or any part or parts thereof, either in
the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the term of this Lease and may
grant concessions or free rent to the extent that Landlord considers, in its
reasonable business judgment, advisable and necessary to relet the same and
(ii) may make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary
for the purpose of reletting the Premises; and the making of such
alterations, repairs and decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. In the event of a
Default by Tenant, Landlord shall use reasonable efforts to mitigate damages,
to the extent required by law. To the fullest extent permitted by law, Tenant
hereby expressly waives any and all rights of redemption granted under any
present or future laws in the event of Tenant being evicted or dispossessed,
or in the event of Landlord obtaining possession of the Premises, by reason
of the violation by Tenant of any of the covenants and conditions of this
Lease.
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8.5. REMEDIES CUMULATIVE. Except as expressly provided otherwise in
Section 8.2, any and all rights and remedies which Landlord may have under
this Lease, and at law and equity (including without limitation actions at
law for direct, indirect, special and consequential (foreseeable and
unforeseeable) damages, for Tenant's failure to comply with its obligations
under this Lease shall be cumulative and shall not be deemed inconsistent
with each other, and any two or more of all such rights and remedies may be
exercised at the same time insofar as permitted by law.
8.6. LANDLORD'S RIGHT TO CURE DEFAULTS. At any time with or without
notice, Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of Tenant to
comply with any of its obligations under this Lease (irrespective of whether
the same shall have ripened into a Default of Tenant), and in the event of
the exercise of such right by Landlord, Tenant agrees to pay to Landlord
within thirty (30) days after demand, as Additional Rent, all such sums
including reasonable attorneys fees, together with interest thereon at a rate
(the "DEFAULT RATE") equal to the lesser of 6% over the Prime Rate or the
maximum rate allowed by law. "PRIME RATE" shall mean a rate of interest,
determined daily, which is two (2) percentage points above the 14-day moving
average closing trading price of 90-day Treasury Bills.
8.7. HOLDING OVER. Any holding over by Tenant after the expiration
or early termination of the term of this Lease shall be treated as a daily
tenancy at sufferance at a rate equal to one hundred and fifty percent (150%)
of the Annual Fixed Rent in effect immediately prior to the expiration or
earlier termination of the term plus Additional Rent and other charges herein
provided (prorated on a daily basis). Tenant shall also pay to Landlord all
damages, direct and/or consequential (foreseeable and unforeseeable),
sustained by reason of any such holding over. Otherwise, all of the
covenants, agreements and obligations of Tenant applicable during the term of
this Lease shall apply and be performed by Tenant during such period of
holding over as if such period were part of the term of this Lease.
8.8. EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by
Landlord or Tenant to any act or omission by the other shall not be deemed to
be consent or permission by Landlord to any other similar or dissimilar act
or omission and any such consent or permission in one instance shall not be
deemed to be consent or permission in any other instance.
8.9. NO WAIVER, ETC. The failure of Landlord or Tenant to seek
redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease shall not be deemed a waiver of such
violation nor prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of
any covenant of this Lease shall not be deemed to have been a waiver of such
breach by Landlord, or by Tenant, unless such waiver be in writing signed by
the party to be charged. No consent or waiver, express or implied, by
Landlord or Tenant to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
8.10. NO ACCORD AND SATISFACTION. No acceptance by Landlord of a
lesser sum than the Annual Fixed Rent, Additional Rent or any other charge
then due shall be deemed to be other
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than on account of the earliest installment of such rent or charge due, nor
shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent or other charge be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such installment or pursue any
other remedy in this Lease provided.
ARTICLE 9.
Rights of Holders
9.1. RIGHTS OF MORTGAGEES OR GROUND LESSOR. This Lease, and all rights
of Tenant hereunder, are and shall be subject and subordinate to any ground
or master lease, and all renewals, extensions, modifications and replacements
thereof, and to all mortgages, which may now or hereafter affect the Building
or the Property and/or any such lease, whether or not such mortgages shall
also cover other lands and/or buildings and/or leases, to each and every
advance made or hereafter to be made under such mortgages, and to all
renewals, modifications, replacements and extensions of such leases and such
mortgages and all consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under any
such lease or the holder of any such mortgage or any of their respective
successors in interest may reasonably request to evidence such subordination.
Any lease to which this Lease is subject and subordinate is herein called
"SUPERIOR LEASE" and the lessor of a Superior Lease or its successor in
interest, at the time referred to, is herein called "SUPERIOR LESSOR"; and
any mortgage to which this Lease is subject and subordinate, is herein called
"SUPERIOR MORTGAGE" and the holder of a Superior Mortgage is herein called
"SUPERIOR MORTGAGEE".
If any Superior Lessor or Superior Mortgagee or the nominee or designee
of any Superior Lessor or Superior Mortgagee shall succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, or otherwise, then at the request of such party
so succeeding to Landlord's rights (herein called "SUCCESSOR LANDLORD") and upon
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Upon such attornment, this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease, except that the
Successor Landlord (unless formerly the landlord under this Lease) shall not be
(a) liable in any way to Tenant for any act or omission, neglect or default on
the part of Landlord under this Lease, (b) responsible for any monies owing by
or on deposit with Landlord to the credit of Tenant, (c) subject to any
counterclaim or setoff which theretofore accrued to Tenant against Landlord, (d)
bound by any modification of this Lease subsequent to such Superior Lease or
Superior Mortgage, or by any previous prepayment of Annual Fixed Rent or
Additional Rent for more than one (1) month, which was not approved in writing
by the Successor Landlord, (e) liable to the Tenant beyond the Successor
Landlord's interest in the Property, (f) responsible for the performance of any
work to be done by Landlord under this Lease to render the Premises ready for
occupancy by the Tenant, or (g) required to remove any person occupying the
Premises or any part thereof, except
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if such person claims by, through or under the Successor Landlord. Tenant
agrees at any time and from time to time to execute a suitable instrument in
confirmation of Tenant's agreement to attorn, as aforesaid.
9.2. MODIFICATIONS. If any Superior Lessor or Superior Mortgagee
shall require any modification(s) of this Lease, Tenant shall, at Landlord's
request, promptly execute and deliver to Landlord such instruments effecting
such modification(s) as Landlord shall require, provided that such
modification(s) do not adversely affect in any material respect any of
Tenant's rights under this Lease. In addition, and notwithstanding Section
9.1 to the contrary, any Superior Lessor or Superior Mortgagee may, at its
option, subordinate the Superior Lease or Superior Mortgage of which it is
the lessor or holder to this Lease by giving Tenant ten (10) days prior
written notice of such election, whereupon this Lease shall, irrespective of
dates of execution, delivery and recording, be superior to such Superior
Lease or Superior Mortgage and no other documentation shall be necessary to
effect such change.
9.3. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. At Tenant's
request, Landlord shall use reasonable efforts (without the obligation to
incur expense or liability in connection with such efforts) to obtain a
so-called non-disturbance agreement from any such Superior Lessor or Superior
Mortgagee which agreement may be in the form customarily used by such
Superior Lessor or Superior Mortgagee, or if no such form exists, in any
commercially reasonable form, subject to the conditions and limitations of
Sections 9.1 and 9.2, provided, however, that if, despite such reasonable
efforts, Landlord is unable to obtain such agreement, such failure shall not
constitute a default by Landlord under this Lease. In addition, at Tenant's
request, Landlord shall subordinate any lien, security interest or
encumbrance of Landlord with respect to Tenant's business fixtures, equipment
and other personal property in or about the Premises, whether statutory,
contractual or arising by operation of law, to the lien, security interest or
encumbrance of any lender or financier of such personal property, provided
that Landlord shall not be obligated to honor Tenant's request if the request
is made during a time when there exists a Default of Tenant (as defined in
Section 8.1).
ARTICLE 10.
Miscellaneous Provisions
10.1. NOTICES. All notices, requests, demands, consents, approvals
or other communications to or upon the respective parties hereto shall be in
writing and delivered by hand or mailed by certified or registered mail,
return receipt requested, or a nationally recognized courier service that
provides a receipt for delivery such as Federal Express, United Parcel
Service or U.S. Postal Service Express Mail and shall be effective on the
date delivered (or the first date such delivery is attempted and refused) in
writing to the party to which such notice, request, demand, consent, approval
or other communication is required or permitted to be given or made under
this Lease, addressed if intended for Landlord, to the Original Address of
Landlord set forth in Section 1.1 of this Lease with a copy by regular mail
to HUB Properties Trust, c/o REIT Management & Research, Inc., 400 Centre
Street, Newton, MA 02458, Attention: Jennifer B. Clark (or to such other
address or addresses as may from time to time hereafter be designed by
Landlord by like notice); and if intended for Tenant, addressed to Tenant at
the Original Address of Tenant set forth in Section 1.1 of this Lease (or to
such other
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address or addresses as may from time to time hereafter be designated by
Tenant by like notice). Notices from Landlord may be given by Landlord's
attorney.
10.2. QUIET ENJOYMENT; LANDLORD'S RIGHT TO MAKE ALTERATIONS, ETC.
Landlord agrees that upon Tenant's paying the rent and performing and
observing the agreements, conditions and other provisions on its part to be
performed and observed, Tenant shall and may peaceably and quietly have, hold
and enjoy the Premises during the term hereof without any manner of hindrance
or molestation from Landlord or anyone claiming under Landlord, subject,
however, to the terms of this Lease; provided, however, Landlord reserves the
right at any time and from time to time, without the same constituting breach
of Landlord's covenant of quiet enjoyment or an actual or constructive
eviction, and without Landlord incurring any liability to Tenant or otherwise
affecting Tenant's obligations under this Lease, to make such changes,
alterations, improvements, repairs or replacements in or to the interior and
exterior of the Building (including the Premises, provided same do not
permanently and materially (i) interfere with Tenant's use of the Premises
for the permitted uses, or (ii) adversely affect the appearance of the
Premises) and the fixtures and equipment thereof, and in or to the Property,
or properties adjacent thereto, as Landlord may deem necessary or desirable,
and to change (provided that there be no unreasonable obstruction of the
right of access to the Premises by Tenant and that Landlord use commercially
reasonable efforts to minimize, to the extent practical, any interference
with the conduct of business at the Premises) the arrangement and/or location
of entrances or passageways, doors and doorways, corridors, elevators, or
other common areas of the Building and Property.
Without incurring any liability to Tenant, Landlord may permit access
to the Premises and open the same, whether or not Tenant shall be present, upon
any demand of any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal or court officer Landlord reasonably believes is entitled to
such access for the purpose of taking possession of, or removing, Tenant's
property or for any other lawful purpose (but this provision and any action by
Landlord hereunder shall not be deemed a recognition by Landlord that the person
or official making such demand has any right or interest in or to this Lease, or
in or to the Premises), or upon demand of any representative of the fire,
police, building, sanitation or other department of the city, state or federal
governments.
10.3. LEASE NOT TO BE RECORDED. Tenant agrees that it will not
record this Lease. Both parties shall, upon the request of either (and at the
expense of the requesting party), execute and deliver a notice or short form
of this Lease in such form, if any, as may be acceptable for recording with
the land records of the governmental entity responsible for keeping such
records for the city of Austin, Texas. In no event shall such document set
forth the rent or other charges payable by Tenant pursuant to this Lease; and
any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease and is not intended to vary the terms and
conditions of this Lease.
10.4. ASSIGNMENT OF RENTS AND TRANSFER OF TITLE; LIMITATION OF
LANDLORD'S LIABILITY. Tenant agrees that the assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder, whether
absolute or conditional in nature or otherwise, which assignment is made to
the holder of a mortgage on property which includes the Premises, shall never
be treated as an assumption by such holder of any of the obligations of
Landlord hereunder unless such
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holder shall, by notice sent to Tenant, specifically otherwise elect and
that, except as aforesaid, such holder shall be treated as having assumed
Landlord's obligations hereunder (subject to the limitations set forth in
Section 9.1) only upon foreclosure of such holder's mortgage and the taking
of possession of the Premises.
The term "LANDLORD", so far as covenants or obligations to be performed
by Landlord are concerned, shall be limited to mean and include only the owner
or owners at the time in question of Landlord's interest in the Property, and in
the event of any transfer or transfers of such title to said property, Landlord
(and in case of any subsequent transfers or conveyances, the then grantor) shall
be concurrently freed and relieved from and after the date of such transfer or
conveyance, without any further instrument or agreement, of all liability with
respect to the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed, it being intended
hereby that the covenants and obligations contained in this Lease on the part of
Landlord, shall, subject as aforesaid, be binding on Landlord, its successors
and assigns, only during and in respect of their respective period of ownership
of such interest in the Property. Notwithstanding the foregoing, in no event
shall the acquisition of Landlord's interest in the Property by a purchaser
which, simultaneously therewith, leases Landlord's entire interest in the
Property back to Landlord or the seller thereof be treated as an assumption by
operation of law or otherwise, of Landlord's obligations hereunder. Tenant shall
look solely to such seller-lessee, and its successors from time to time in
title, for performance of Landlord's obligations hereunder. The seller-lessee,
and its successors in title, shall be the Landlord hereunder unless and until
such purchaser expressly assumes in writing the Landlord's obligations
hereunder.
Tenant, its successors and assigns, shall not assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's assets
other than Landlord's interest in the Property, and Tenant agrees to look solely
to such interest for the satisfaction of any liability or claim against Landlord
under this Lease, it being specifically agreed that in no event whatsoever shall
Landlord ever be personally liable for any such liability. In addition, Landlord
hereby notifies Tenant that the Declaration of Trust of HUB Properties Trust
provides, and Tenant agrees, that no trustee, officer, director, general or
limited partner, member, shareholder, beneficiary, employee or agent (including
any person or entity from time to time engaged to supervise and/or manage the
operation of Landlord) of Landlord shall be held to any liability, jointly or
severally, for any debt, claim, demand, judgment, decree, liability or
obligation of any kind (in tort, contract or otherwise) of, against or with
respect to Landlord or arising out of any action taken or omitted for or on
behalf of Landlord.
10.5. LANDLORD'S DEFAULT. Landlord shall not be deemed to be in
default in the performance of any of its obligations hereunder unless it
shall fail to perform such obligations and such failure shall continue for a
period of thirty (30) days or such additional time as is reasonably required
to correct any such default after written notice has been given by Tenant to
Landlord specifying the nature of Landlord's alleged default. Tenant shall
have no right to terminate this Lease for any default by Landlord hereunder
and no right, for any such default, to offset or counterclaim against any
rent due hereunder. In no event shall Landlord ever be liable to Tenant for
any punitive damages or for any loss of business or any other indirect,
special or consequential damages suffered by Tenant from whatever cause.
Tenant further agrees that if Landlord shall have failed to cure any such
default within thirty (30) days of such notice to
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Landlord (or if such default cannot be cured within said time, then within
such additional time as may be necessary if within said thirty days Landlord
has commenced and is diligently pursuing the remedies necessary to cure such
default), then the holder(s) of any mortgage(s) or the lessor under any
ground lease entitled to notice pursuant to Section 10.6 shall have an
additional thirty (30) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within such thirty (30) days any such holder or lessor has
commenced and is diligently pursuing the remedies necessary to cure such
default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease
shall not be terminated while such remedies are being so diligently pursued.
Where provision is made in this Lease for Landlord's consent and Tenant
shall request such consent and Landlord shall fail or refuse to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where Landlord is expressly required not to
withhold its consent unreasonably.
10.6. NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice
from any party that it holds a mortgage which includes the Premises as part
of the mortgaged premises, or that it is the ground lessor under a lease with
Landlord, as ground lessee, which includes the Premises as part of the
demised premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder or ground lessor, and
the curing of any of Landlord's defaults by such holder or ground lessor
shall be treated as performance by Landlord.
10.7. BROKERAGE. Tenant warrants and represents that it has dealt
with no broker in connection with the consummation of this Lease, except
Leonard Rodell of Rodell Interests, Inc., and in the event of any brokerage
claims or lien against Landlord or the Property predicated upon or arising
out of prior dealings with Tenant, Tenant agrees to defend the same and
indemnify and hold Landlord harmless against any such claim, and to discharge
any such lien.
10.8. APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed
by and construed in accordance with the laws of the state or district in
which the Property is located and if any provisions of this Lease shall to
any extent be invalid, the remainder of this Lease shall not be affected
thereby. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except
to the extent that the same are expressly set forth in this Lease or in any
other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and which shall expressly refer
to this Lease. All understandings and agreements heretofore made between the
parties are merged in this Lease and any other such written agreement(s) made
concurrently herewith, which alone fully and completely express the agreement
of the parties and which are entered into after full investigation, neither
party relying upon any statement or representation not embodied in this Lease
or any other such written agreement(s) made concurrently herewith. This Lease
may be amended, and the provisions hereof may be waived or modified, only by
instruments in writing executed by Landlord and Tenant. The titles of the
several Articles and Sections contained herein are for convenience only and
shall not be considered in construing this Lease.
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The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and Tenant shall have no right to the Premises hereunder until the
execution and delivery hereof by both Landlord and Tenant. Except as herein
otherwise provided, the terms hereof shall be binding upon and shall inure to
the benefit of the successors and assigns, respectively, of Landlord and
Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. If two or more persons or
parties are named as Tenant herein, each of such persons or parties shall be
jointly and severally liable for the obligations of the Tenant hereunder, and
Landlord may proceed against any one without first having commenced
proceedings against any other of them. Each term and each provision of this
Lease to be performed by Tenant shall be construed to be both an independent
covenant and a condition and time is of the essence with respect to the
exercise of any of Tenant's rights under this Lease. The reference contained
to successors and assigns of Tenant is not intended to constitute a consent
to assignment of Tenant. Except as otherwise set forth in this Lease, any
obligations of Tenant (including, without limitation, rental and other
monetary obligations, repair obligations and obligations to indemnify
Landlord), shall survive the expiration or earlier termination of this Lease,
and Tenant shall immediately reimburse Landlord for any expense incurred by
Landlord in curing Tenant's failure to satisfy any such obligation
(notwithstanding the fact that such cure might be effected by Landlord
following the expiration or earlier termination of this Lease).
10.9. ELECTRICITY AUDIT. From time to time during the term of this
Lease, Landlord shall have the right to have an electrical consultant
selected by Landlord make a survey of Tenant's electric usage, the result of
which survey shall be conclusive and binding upon Landlord and Tenant. In the
event that such survey shows that Tenant has exceeded the requirements set
forth in Section 6.2.4, in addition to any other rights Landlord may have
hereunder, Tenant shall reimburse Landlord for the reasonable cost of such
survey within thirty (30) days after demand, and thereafter pay Landlord for
the cost, as determined by such consultant, of such excess electricity usage
for the balance of the term of this Lease unless and until Tenant's excess
electricity usage ceases and Tenant provides Landlord evidence thereof which
is reasonably acceptable to Landlord.
Landlord shall have the right to discontinue furnishing electricity to
the Premises at any time upon not less than thirty (30) days' notice to Tenant
provided Landlord shall, at Landlord's expense, separately meter the Premises.
If Landlord exercises such right, from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity to the
Premises, and
(i) Annual Fixed Rent shall be reduced by an amount equal to the
product of the square footage of the Premises multiplied by
the cost on a per square footage basis (the "ELECTRICITY
COST") of supplying electricity for connected lights and power
for space leased to tenants of the Building;
(ii) in the computation of Operating Costs, only the cost of
electricity supplied to those portions of the Building other
than those leased or intended to be leased to tenants for
their exclusive use or occupancy, i.e. only those areas which
are so-called common areas, shall be included; and
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(iii) Landlord shall permit Landlord's existing wires, risers,
conduits and other electrical equipment of Landlord to be used
to supply electricity to Tenant provided that the limits set
forth above shall not be exceeded.
WITNESS the execution hereof under seal on the day and year first above
written.
LANDLORD:
HUB Properties Trust
By:_______________________________
Name: Jennifer B. Clark
Title: Senior Vice President
TENANT:
Perficient, Inc.
By: ______________________________
Name:
Title:
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EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, corridors, vestibules, halls,
elevators or stairways in or about the Building shall not be obstructed by
Tenant.
2. Tenant shall not place objects against glass partitions, doors or
windows which would be unsightly from the Building corridor or from the exterior
of the Building. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or fixed by Tenant on any window or part of the
outside or inside of the Buildings without prior consent of Landlord.
3. Tenant shall not place a load upon any floor of the Building exceeding
the lesser of the floor load which such floor was designed to carry or that
allowed by law.
4. Tenant shall not waste electricity or water in the Building and shall
cooperate fully with Landlord to assure the most effective operation of the
Building HVAC system. All regulating and adjusting of HVAC equipment shall be
done by the Landlord's agents or employees.
5. No additional or different locks or bolts shall be affixed on doors by
Tenant. Tenant shall return all keys to Landlord upon termination of Tenant's
lease. Tenant shall not allow peddlers, solicitors or beggars in the Building
and shall report such persons to the Landlord.
6. Tenant shall not use the Premises so as to cause any increase above
normal insurance premiums on the Building.
7. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises. No space in the Building shall be used for
manufacturing or for the sale of merchandise of any kind at auction or for
storage thereof preliminary to such sale.
8. Tenant shall not engage or pay any employees of the Building without
approval from the Landlord. Tenant shall not employ any persons other than the
janitor or employees of Landlord for the purpose of cleaning Premises without
the prior written consent of Landlord.
9. All removals from the Building or the carrying in or out of the
Building or the Premises of any freight, furniture or bulky matter of any
description must take place at such time and in such manner as Landlord may
determine from time to time. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of the rules and regulations or provisions of Tenant's lease.
10. Normal Building Operating Hours are 7:00 a.m. to 6:00 p.m. Mondays
through Fridays and 7:00 a.m. to 6:00 p.m. on Saturdays excluding New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day (and
the applicable weekday when any such day occurs on a weekend day) and all other
federal and state holidays and all Sundays. Any day (other than a Saturday) on
which Normal Building Operating Hours shall occur shall be a "BUSINESS DAY".
Outside of Normal Building Operating Hours, Landlord reserves the right to
exclude from the Building all persons connected with or calling upon Tenant
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who do not present a pass to the Building signed by Tenant. Landlord will
furnish passes to persons designated by Tenant and Tenant shall be responsible
to Landlord for all acts of such persons.
11. Tenant shall cooperate with Landlord in minimizing loss and risk
thereof from fire and associated perils.
12. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the Landlord and/or its contractors, agents and employees
during the making of repairs, alterations, additions or improvements in or to
the demised premises.
13. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed and no sweepings, rubbish, rags, acid or like substance shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by Tenant.
14. Tenant may request HVAC service outside of Normal Building Operating
Hours by submitting a request in writing to the Building Manager's office by
noon of the preceding workday.
15. Landlord reserves the right to establish, modify and enforce parking
rules and regulations.
16. All refuse from the Premises shall be disposed of in accordance with
the requirements established therefor by Landlord and no dumpster shall be
overloaded by Tenant.
17. Landlord reserves the right at any time to rescind, alter or waive
any rule or regulation at any time prescribed for the Building and to impose
additional reasonable rules and regulations when in its judgment Landlord deems
it necessary, desirable or proper for its best interest and for the best
interest of tenants and other occupants and invitees thereof. No alteration or
waiver of any rule or regulation in favor of one Tenant shall operate as an
alteration or waiver in favor of any other Tenant. Landlord shall not be
responsible to any Tenant for the non-observance or violation by any other
Tenant however resulting of any rules or regulations at any time prescribed for
the Building.
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EXHIBIT C
ALTERATIONS REQUIREMENTS
A. GENERALLY
1. All alterations, installations or improvements ("ALTERATIONS") to be
made by Tenant in, to or about the Premises, including any Alterations to be
made prior to Tenant's occupancy of the Premises for the Permitted Use, shall be
made in accordance with the requirements of this Exhibit and with any additional
requirements stated in the Lease.
2. All submissions, inquiries approvals and other matters shall be
processed through Landlord's Building manager or regional property manager.
3. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence over the terms of this Exhibit.
B. PLANS
1. Before commencing construction of any Alterations, Tenant shall
submit for Landlord's written approval, either a description of the Alterations
or drawings and specifications for Tenant's Alterations as follows:
(i) Tenant shall submit drawings and written specifications
(collectively, "PLANS") for all of Tenant's Alterations,
including mechanical, electrical and cabling, plumbing and
architectural drawings. Drawings are to be complete, with full
details and finish schedules, and shall be stamped by an AIA
architect licensed in the state or district in which the Property
is located certifying compliance with building codes.
(ii) Tenant may submit a complete description of Tenant's Alterations
(including sketches or diagrams as necessary) in lieu of
submitting Plans if the proposed Alterations meet all of the
following criteria: (1) they are cosmetic in nature (e.g.
painting, wallpapering, installation of floor coverings, etc.),
(2) they do not require a building permit, (3) they do not
require work to be performed inside walls or above the ceiling of
the Premises, and (4) they will not affect the Building structure
or mechanical, electrical, plumbing or HVAC systems.
Notwithstanding that Tenant's proposed Alterations satisfy all of
the preceding criteria, upon review of Tenant's submission,
Landlord shall have the right to require Tenant to submit Plans
for all or any portion of the proposed Alterations.
2. Landlord shall review the description or Plans submitted by Tenant
("TENANT'S DESIGN SUBMISSION") and notify Tenant within ten (10) Business Days
of approval or disapproval. If Landlord disapproves Tenant's Design Submission,
Landlord shall specify the reasons for its disapproval and Tenant shall revise
Tenant's Design Submission to meet Landlord's objections, and shall resubmit the
same to Landlord as so revised until Tenant's Design Submission is approved by
Landlord. NO APPROVAL BY LANDLORD OF TENANT'S DESIGN SUBMISSION SHALL CONSTITUTE
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A WAIVER OF ANY OF THE REQUIREMENTS OF THIS EXHIBIT OR THE LEASE. Tenant shall
not make any changes to Tenant's Design Submission after approval by Landlord,
including changes required to obtain governmental permits, without obtaining
Landlord's written approval in each instance.
3. All mechanical, electrical, structural and floor loading
requirements shall be subject to approval of Landlord's engineers. Landlord also
reserves the right to require Tenant to submit copies of shop drawings for
Landlord's review and approval.
4. Before commencing construction of any Alterations, Tenant shall
provide Landlord with two (2) complete copies of Tenant's Design Submission in
final form as approved by Landlord.
C. SELECTION OF CONTRACTORS AND SUBCONTRACTORS
Before commencing construction of any Alterations, Tenant shall submit
to Landlord the names of Tenant's general contractor (the "GENERAL
CONTRACTOR")and any subcontractors for Landlord's approval. If Landlord shall
reject the General Contractor or any subcontractor, Landlord shall advise Tenant
of the reasons(s) in writing and Tenant shall submit another selection to
Landlord for Landlord's approval.
D. INSURANCE
1. Before commencing construction of any Alterations, Tenant will
deliver to Landlord:
(i) Four (4) executed copies of the Insurance Requirements
agreement in the form set forth in Exhibit D from the general
contractor and, if requested by Landlord, from the
subcontractors (Landlord will return two fully executed copies
to Tenant), and
(ii) insurance certificates for the General Contractor and
subcontractors as required by Exhibit D, which shall include
evidence of coverage for the indemnity provided by the
General Contractor or subcontractor executing such agreement.
E. BUILDING PERMIT AND OTHER LEGAL REQUIREMENTS
1. Before commencing construction of any Alterations, Tenant shall
furnish Landlord with a valid permit for the construction of the Alterations
from the building department or other agency having jurisdiction in the
municipality in which the Building is located (unless the Alterations are of a
cosmetic nature not requiring a building permit). Tenant shall keep the
original building permit posted on the Premises during the construction of the
Alterations.
2. Tenant Design Submission, the Alterations, and the construction of
the Alterations shall each be in strict compliance with (1) all applicable laws,
codes, rules and regulations, including, without limitation, the Americans with
Disabilities Act, state and local health department requirements, and
occupational health and safety laws and regulations, and (2) all building
permits, consents, licenses, variances, and approvals issued in connection with
the Alterations. Tenant shall ensure that the General Contractor and all
subcontractors have the requisite licenses to perform their work. Tenant shall
procure all permits, governmental
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approvals, licenses, variances and consents required for the Alterations and
shall provide Landlord with a complete copy thereof promptly upon receipt of
same by Tenant.
F. MATERIALS AND WORKMANSHIP
1. All equipment and installations must be equal to the Building
standard and all materials shall be new, commercial grade and of first-class
quality. Any deviation from these requirements will be permitted only if clearly
indicated or specified on Tenant's Design Submission and approved by Landlord.
2. Alterations shall be constructed in a professional, first-class and
workmanlike manner, in accordance with Tenant's Design Submission.
3. The General Contractor shall guaranty all materials and workmanship
against defects for a period of not less than one (1) year from installation.
Notwithstanding any limitations contained in such guaranty or in any contract,
purchase order or other agreement, during the entire term of the Lease, Tenant
shall promptly repair or replace, at Tenant's cost, any defective aspect of the
Alterations except for insubstantial defects that do not adversely effect the
Building or the appearance or rental value of the Premises, as determined by
Landlord in its sole discretion.
4. Alterations must be compatible with the existing mechanical,
plumbing, HVAC, electrical and life safety systems of the Building (collectively
the "BUILDING SYSTEMS"). In the event any Alterations shall interfere with the
proper functioning of any Building System, Tenant shall promptly cause such
repairs, replacements or adjustments to be made to the Alterations as are
necessary to eliminate any such interference at Tenant's sole cost and expense.
G. PROSECUTION OF THE WORK
1. All construction activities shall be conducted so as to avoid
disturbance of other tenants. Landlord may require that all demolition and other
categories of work that may inconvenience other tenants or disturb Building
operations be scheduled and performed before or after Normal Building Operating
Hours (at times determined by Landlord) and Tenant shall provide the Building
manager with at least 24 hours' notice prior to proceeding with such work.
2. Unless Landlord directs otherwise, Tenant's contractors shall have
access to the Building during the Normal Building Operating Hours only. If
Tenant's contractors desire access to the Building at any other time, Landlord
shall use reasonable efforts to provide such access, provided, however, that
Tenant shall pay Landlord any additional cost incurred by Landlord to provide
such access, including, without limitation, additional costs for utilities,
personnel, and security.
3. Prior arrangements for elevator use shall be made with the Building
manager by Tenant or the General Contractor. Elevator cabs shall be properly
padded and no material or equipment shall be carried under or on top of
elevators. If an operating engineer is required by any union rules, such
engineer shall be paid for by Tenant.
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4. Under no circumstances will any persons or material related to
Tenant's Alterations be allowed access through the Building's front entrance
without advance written approval of the Building manager.
5. If shutdown of risers and mains for electrical, HVAC, sprinkler or
plumbing work is required, such work shall be supervised by Landlord's
representative at Tenant's expense. No work will be performed in Building
mechanical equipment rooms except under Landlord's supervision.
6. Alterations shall be performed under the supervision of a
superintendent or foreman of the General Contractor at all times.
7. All areas adjacent to the construction area shall be sealed with
plastic so as to not be affected by dust and debris. All floors shall be
protected from the construction process.
8. The General Contractor or HVAC subcontractor shall block off supply
and return grilles, diffusers and ducts to keep dust from entering into the
Building HVAC system and thoroughly clean all HVAC units in the work area at the
completion of the Alterations.
9. Construction debris shall be removed from the construction area
daily and the construction area shall be kept neat and reasonably clean at all
times. All construction debris is to be discarded in waste containment provided
by the General Contractor only. No material or debris shall be stored outside
the Premises or Building without the prior written approval of the Landlord's
representative.
10. Landlord shall have the right to instruct the General Contractor to
deliver to Landlord, at Tenant's expense, any items to be removed from the
Premises during the construction of the Alterations.
11. Tenant, either directly or through the General Contractor, will
immediately notify Landlord, in writing, of any damage to the Building caused by
the General Contractor or any subcontractors. Such damage shall be repaired
within 72 hours unless otherwise directed by the Landlord in writing. Any damage
that is not repaired may be repaired by Landlord at Tenant's expense.
12. Construction personnel shall use the restrooms located within
Tenant's Premises only. If there are no restrooms within Tenant's Premises, then
construction personnel shall use only those Building restrooms located on the
floor where the work is being performed.
13. The General Contractor and all subcontractors shall cause their
employees to adhere to all applicable Rules and Regulations of the Building.
14. Landlord shall have the right to supervise and inspect the
Alterations as the work progresses and to require Tenant to remove or correct
any aspect of the Alterations that does not conform to Tenant's Design
Submission approved by Landlord. Such supervision and inspection shall be at
Tenant's sole expense and Tenant shall pay Landlord's reasonable charges for
such supervision and inspection.
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H. DOCUMENTS TO BE FURNISHED TO LANDLORD UPON COMPLETION OF TENANT'S WORK
1. Within fifteen (15) days after the substantial completion of the
Alterations, Tenant shall furnish Landlord with the following documents:
(i) record "as built" drawings in paper and electronic (CADD)
format showing all of the Alterations as actually constructed
for all portions of the Alterations for which drawings were
submitted;
(ii) if Plans for the Alterations were prepared by an architect, a
written certification from the architect confirming that the
Alterations were completed in accordance with the Plans and
all applicable laws, codes, ordinances, and regulations;
(iii) full and final lien waivers and releases executed by the
General Contractor and all subcontractors and suppliers;
(iv) if the Alterations include any HVAC work, a properly executed
air balancing report signed by a professional engineer
showing that the HVAC system is properly balanced for the
season;
(v) copies of all warranties and guarantees received from the
General Contractor, subcontractors and materials suppliers or
manufacturers;
(vi) copies of all maintenance manuals, instructions and similar
information pertaining to the operation and maintenance of
equipment and fixtures installed in the Premises as part of
the Alterations; and
(vii) a copy of the final, permanent certificate of occupancy or
amended certificate of occupancy for the Premises.
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EXHIBIT D
CONTRACTOR'S INSURANCE REQUIREMENTS
Building:
Tenant:
Premises:
The undersigned contractor or subcontractor ("CONTRACTOR") has been hired
by the tenant or occupant (hereinafter called "TENANT") of the Building named
above or by Tenant's contractor to perform certain work ("WORK") for Tenant in
the Premises identified above. Contractor and Tenant have requested the
undersigned landlord ("LANDLORD") to grant Contractor access to the Building and
its facilities in connection with the performance of the Work and Landlord
agrees to grant such access to Contractor upon and subject to the following
terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord,
and if Landlord is a general or limited partnership each of the partners
thereof, and if Landlord is a nominee trust the trustee(s) and all
beneficiaries thereof, and all of their respective officers, employees
and agents, from and against any claims, demands, suits, liabilities,
losses and expenses, including reasonable attorneys' fees, arising out
of or in connection with the Work (and/or imposed by law upon any or all
of them) because of personal injuries, including death, at any time
resulting therefrom and loss of or damage to property, including
consequential damages, whether such injuries to person or property are
claimed to be due to negligence of the Contractor, Tenant, Landlord or
any other party entitled to be indemnified as aforesaid except to the
extent specifically prohibited by law (and any such prohibition shall
not void this agreement but shall be applied only to the minimum extent
required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers Liability Insurance
covering each and every workman employed in, about or upon the Work, as
provided for in each and every statute applicable to Workmen's
Compensation and Employers' Liability Insurance.
(b) Commercial General Liability Insurance including coverages
for Protective and Contractual Liability (to specifically include
coverage for the indemnification clause of this agreement) for not less
than the following limits:
Bodily Injury: $5,000,000 per person
$5,000,000 per occurrence
Property Damage: $5,000,000 per occurrence
$5,000,000 aggregate
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(c) Commercial Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Bodily Injury: $5,000,000 per person
$5,000,000 per occurrence
Property Damage: $5,000,000 per occurrence.
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that
it has complied with the above requirements regarding insurance and
providing that the insurer will give Landlord ten (10) days' prior
written notice of the cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the
Work to provide the following insurance:
(a) Commercial General Liability Insurance including Protective
and Contractual Liability coverages with limits of liability at
least equal to the limits stated in paragraph 2(b).
(b) Commercial Automobile Liability Insurance (covering all
owned, non-owned and/or hired motor vehicles to be used in
connection with the Work) with limits of liability at least
equal to the limits stated in paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this_____day of_______ , 20___ .
Contractor: Landlord:
By: ____________________ By: ____________________
By: ____________________ By: ____________________
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EXHIBIT E
CLERK'S CERTIFICATE
I,__________________ , the duly elected and acting [Secretary/Clerk]
of Perficient, Inc. a Delaware corporation (the "CORPORATION"), hereby
certify that:
(A) at a meeting of the board of directors of the Corporation held on
_____________in accordance with law and the Bylaws of the Corporation the
following resolutions were duly adopted:
VOTED: a. To approve a lease of approximately 5,894 rentable square feet
of space for a term of approximately three years in the building commonly
known as Building B, Lakewood on the Park, 7600B, Capital of Texas Highway,
Austin, Texas substantially in the form of the draft presented at this
meeting, a copy of which shall be placed on file in the office of the
[Secretary/Clerk]and be incorporated by reference in this vote;
b. To authorize _________________ and __________________, or any
one of them (each hereinafter referred to as a "SIGNATORY"), to execute and
deliver in the name and on behalf of the Corporation the above-described
lease and to execute and deliver all other documents, agreements and
instruments, including, without limitation, notices of lease, and to take all
other actions with respect to the foregoing which any Signatory, in such
Signatory's discretion, shall determine to be necessary or appropriate to
effect or secure the transactions contemplated herein, the execution and
delivery of any of the foregoing or the taking of any such action to be
conclusive evidence of such Signatory's determination and of the Signatory's
authority so to do granted by this vote;
(B) as of this date the following individuals are duly elected and
qualified officers of the Corporation holding at this date, the offices
specified next to their names and the signature next to each such name is
such individual's true signature.
NAME OFFICE SIGNATURE
---- ------ ---------
__________________ _____________________ ____________________
__________________ _____________________ ____________________
(C) The form of lease attached to this Certificate is the form
referred to in the foregoing vote.
(D) The resolutions set forth above are unmodified and continue to be
in full force and effect and the Corporation has adopted no other resolutions
in respect of the subject matter thereof.
In witness whereof, I have hereunto set my hand and affixed the seal of the
Corporation this_______day of_______, 2000.
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