EXHIBIT 10.8
LEASE AGREEMENT
Between
CFH-FTAX Limited Partnership,
as Landlord,
and
ClearCommerce Corporation,
as Tenant
Covering approximately 22,344 gross square feet
of the Building known as
Braker M-3
located at
11500 Metric Boulevard
Suite 300
Austin, Texas, 78758.
STANDARD INDUSTRIAL LEASE AGREEMENT
TRAMMELL CROW COMPANY - (AUS/91)
Approximately 22,344 gross square feet
11500 Metric Boulevard - Suite 300
Austin, Texas 78758
(Braker M-3)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between CFH-FTAX Limited
Partnership, hereinafter referred to as "Landlord," and ClearCommerce
Corporation, hereinafter referred to as "Tenant."
1. PREMISES AND TERM. In consideration of the mutual obligations of Landlord and
Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from
Landlord, certain leased premises situated within the County of Travis, State of
Texas, as more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference (the "Premises"), to have and to hold, subject
to the terms, covenants and conditions in this Lease. The term of this Lease
shall commence on the Commencement Date hereinafter set forth and shall end on
the last day of the month that is thirty-six (36) months after the Commencement
Date.
B. Building or Improvements to be Constructed. If the Premises or part thereof
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are to be constructed, the "Commencement Date" shall be deemed to be the later
of (ii) the date on which the Premises or such improvements would have been
substantially completed but for delays caused directly or indirectly by Tenant,
including Plan delays or change orders; (iii) the date on which Tenant occupies
any part of the Premises; or (iv) January 15, 1999. As used herein, the term
"substantially completed" shall mean that, in the opinion of the architect or
space planner that prepared the Plans, such improvements have been completed in
accordance with the Plans, and the Premises are in good and satisfactory
condition, with the exception of completion of minor punch list items. As soon
as such improvements have been substantially completed, Landlord shall notify
Tenant in writing that the Commencement Date has occurred. If the Premises are
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vacant prior to the Commencement Date, Tenant shall be permitted access to the
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Premises to install furniture and equipment so long as such access does not
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interfere with construction. Landlord and Tenant acknowledge that prior
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tenant(s) may sell office furniture to Tenant. Such furniture may remain in the
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Premises between the vacation of Premises by tenant(s) and Tenant's
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Commencement Date.
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2. BASE RENT, SECURITY DEPOSIT AND ESCROW DEPOSITS.
A. Base Rent. Tenant agrees to pay Landlord rent for the Premises, in
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advance, without demand, deduction or set off, at the rate of
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Months Monthly Base Rental Per Square Foot Total Monthly Base Rental
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1-12 $0.800 $17,875.20
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13-36 $0.825 $18,433.80
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per month during the term hereof. One such monthly installment, plus the other
monthly charges set forth in Paragraph 2C below, shall be due and payable on the
date hereof, and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the Commencement Date,
except that all payments due hereunder for any fractional calendar month shall
be prorated.
B. Security Deposit. In addition, Tenant agrees to deposit with Landlord on
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the date hereof the sum of Seventeen Thousand Eight Hundred Seventy Five and
20/100 Dollars ($17,875.20), which shall be held by Landlord, without obligation
for interest, as security for the performance of Tenant's obligations under this
Lease (the "Security Deposit"), it being expressly understood and agreed that
the Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon occurrence of an Event of Default,
Landlord may use all or part of the Security Deposit to pay past due rent or
other payments due Landlord under this Lease or the cost of any other damage,
injury, expense or liability caused by such Event of Default, without prejudice
to any other remedy provided herein or provided by law. On demand, Tenant shall
pay Landlord the amount that will restore the Security Deposit to its original
amount. The Security Deposit shall be deemed the property of Landlord, but any
remaining balance of the Security Deposit shall be returned by Landlord to
Tenant when all of Tenant's present and future obligations under this Lease have
been fulfilled. If Tenant does not supply written evidence of a new equity
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financing (such financing to be in excess of $5 million) prior to the
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Commencement Date, Tenant shall provide a Letter of Credit, from a bank
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acceptable to Landlord, in the amount of $53,000.00, as an additional Security
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Deposit.
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C. Escrow Deposits. Without limiting in any way Tenant's other obligations
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under this Lease, Tenant agrees to pay to Landlord its Proportionate Share (as
defined in this Paragraph 2C below) of (i) Taxes (hereinafter defined) payable
by Landlord pursuant to Paragraph 3A below, and the cost of any tax consultant
to assist Landlord in determining the fair tax valuation of the building and
land (ii) the cost of utilities payable by Landlord pursuant to Paragraph 8
below, (iii) Landlord's cost of maintaining any insurance or insurance related
expense applicable to the Building and Landlord's personal property used in
connection therewith including, but not limited to, insurance pursuant to
Paragraph 9A below, and (iv) Landlord's cost of maintaining the Premises which
include but are not limited to (a) maintenance and repairs, (b) landscaping, (c)
common area utilities, (d) water and sewer, (e) roof repairs, (f) reasonable
management fees, (g) exterior painting, and (h) parking lot maintenance and
repairs (collectively, the "Tenant's Costs"). Escrow deposits shall not include
the following expenses: (a) any costs for interest, amortization, or other
payments on loans to Landlord; (b) expenses incurred in leasing or procuring
tenants, (c) legal expenses other than those incurred for the general benefit of
the Building's tenants, (d) allowances, concessions, and other costs of
renovating or otherwise improving space for occupants of the Building or vacant
space in the Building, (e) rents under ground leases, and (f) costs incurred in
selling, syndicating, financing, mortgaging or hypothecating any of Landlord's
interests in the Building. During each month of the term of this Lease, on the
same day the rent is due hereunder, Tenant shall deposit in escrow with Landlord
an amount equal to one-twelfth (1/12) of the estimated amount of Tenant's
Proportionate Share of the Tenant Costs. Tenant authorizes Landlord to use the
funds deposited with Landlord under this Paragraph 2C to pay such Tenant Costs.
The initial monthly escrow payments are based upon the estimated amounts for the
year in question and shall be increased or decreased annually to reflect the
projected actual amount of all Tenant Costs. If the Tenant's total escrow
deposits for any calendar year are less than Tenant's actual Proportionate Share
of the Tenant Costs for such calendar year, Tenant shall pay the difference to
Landlord within ten (10) days after demand if Tenant owes less than $10,000.00.
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If Tenant owes more than $10.000.00, Tenant shall pay $10,000.00 within ten (10)
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days after demand and fifty percent (50%) of the remaining balance within forty
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(40) days after demand and the remaining fifty percent (50%) of the remaining
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balance within seventy (70) days after the demand. If the total escrow deposits
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of Tenant for any calendar year are more than Tenant's actual Proportionate
Share of the Tenant Costs for such calendar year, Landlord shall retain such
excess and credit it against Tenant's escrow deposits next maturing after such
determination. In the event the Premises constitute a portion of a multiple
occupancy building (the "Building"). Tenant's "Proportionate Share" with respect
to the Building, as used in this Lease, shall mean a fraction, the numerator of
which is the gross rentable area contained in the Premises and the denominator
of which is the gross rentable area contained in the entire Building. In the
event the Premises or the Building is part of a project or business park owned,
managed or leased by Landlord or an affiliate of Landlord (the "Project").
Tenant's "Proportionate Share" of the Project, as used in this Lease, shall mean
a fraction, the numerator of which is the gross rentable area contained in the
Premises and the denominator of which is the gross rentable area contained in
all of the buildings (including the Building) within the Project. Landlord will
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warrant that, except for Property Taxes, all other expenses will not exceed 105%
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of the estimate during calendar year 1999. Estimated Common Area Maintenance,
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Insurance and Management fees for 1999 are $0.0483 per square foot per month,
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$0.0068 per square foot per month, $0.0425 per square foot per month,
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respectively. Landlord will not warranty expenses for any such succeeding year.
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3. TAXES
A. Real Property Taxes. Subject to reimbursement under Paragraph 2C herein,
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Landlord agrees to pay all taxes, assessments and governmental charges of any
kind and nature (collectively referred to herein as "Taxes") that accrue against
the Premises, the Building and/or the land of which the Premises or the Building
are a part. If at any time during the term of this Lease there shall be
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levied, assessed or imposed on Landlord a capital levy or other tax directly on
the rents received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based in whole or in part, upon such rents from the Premises
and/or the land and improvements of which the Premises are a part, then all such
taxes, assessments, levies or charges, or the part thereof so measured or based
shall be deemed to be included within the term "Taxes" for the purposes hereof.
B. Personal Property Taxes. Tenant shall be liable for all taxes levied or
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assessed against any personal property or fixtures placed in or on the Premises.
If any such taxes are levied or assessed against Landlord or Landlord's property
and (i) Landlord pays the same or (ii) the assessed value of Landlord's property
is increased by inclusion of such personal property and fixtures and Landlord
pays the increased taxes, then Tenant shall pay to Landlord, upon demand, the
amount of such taxes. Tenant shall not be liable for taxes against any personal
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property belonging to the prior tenant(s).
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4. LANDLORD'S REPAIRS AND MAINTENANCE
A. Structural Repairs. Landlord, at its own cost and expense, shall
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maintain the foundation and the structural soundness of the exterior walls of
the Building in good repair, reasonable wear and tear excluded. The term "walls"
as used herein shall not include windows, glass or plate glass, any doors,
special store fronts or office entries, and the term "foundation" as used herein
shall not include loading docks. Tenant shall immediately give Landlord written
notice of defect or need for repairs, after which Landlord shall have reasonable
opportunity to effect such repairs or cure such defect. Landlord shall be
responsible for structural integrity of roof.
5. TENANTS REPAIRS.
A. Maintenance of Premises and Appurtenances. Tenant, at its own cost and
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expense, shall (i) maintain all parts of the interior of the Premises and
promptly make all necessary repairs and replacements to the interior of the
Premises (except those for which Landlord is expressly responsible hereunder),
and (ii) keep the parking areas, driveways and alleys surrounding the Premises
free of trash and debris from Tenant's use. Tenant's obligation to maintain,
repair and make replacements to the Premises shall cover, but not be limited to,
pest control (including termites), trash removal and the maintenance, repair and
replacement of all HVAC, electrical, plumbing, sprinkler and other mechanical
systems.
C. Parking. Tenant and its employees, customers and licensees shall have
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the right to use only its Proportionate Share of any parking areas that have
been designated for such use by Landlord in writing, subject to (i) all rules
and regulations promulgated by Landlord, and (ii) rights of ingress and egress
of other lessees. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties, and Tenant expressly does not have the
right to tow or obstruct improperly parked vehicles. Tenant agrees not to park
on any public streets or private roadways adjacent to or in the vicinity of the
Premises if such public streets or roadways are designated as "no parking"
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areas. Tenant shall have the right to park 92 cars in front of and to the sides
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of the Premises and additional cars in Tenant's designated truck court.
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D. System Maintenance. Landlord shall service HVAC equipment prior to
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Tenant's occupancy to ensure such HVAC equipment is in good working order.
Tenant, at its own cost and expense, shall enter into a regularly scheduled
preventive maintenance/service contract with a maintenance contractor approved
by Landlord for servicing all hot water, heating and air conditioning systems
and equipment within the Premises. The service contract must include the
replacement of filters on a regular basis and all services suggested by the
equipment manufacturer in its operations/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Landlord shall service the HVAC, provide a report of its working order
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and warranty the HVAC for a period of ninety (90) days from the Commencement
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Date.
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E. Option to Maintain Premises. Landlord reserves the right to perform,
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in whole or in part and without notice to Tenant, maintenance, repairs and
replacements to the Premises, paving, common area, landscape, exterior painting,
common sewage line plumbing and any other items that are otherwise Tenant's
obligations under this Paragraph 5, in which event, Tenant shall be liable for
its Proportionate Share of the cost and expense of such repair, replacement,
maintenance and other such items.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord, and
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such consent shall not be unreasonably withheld, delayed or conditioned for non-
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structural alterations; under $5,000.00. Landlord shall not be required to
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notify Tenant of whether it consents to any alteration, addition or improvement
until it (a) has received plans and specifications in a CAD disk format
therefor which are sufficiently detailed to allow construction of the work
depicted thereon to be performed in a good and workmanlike manner, and (b) has
had a reasonable opportunity to review them. If the alteration, addition or
improvement will affect the Building's structure, HVAC system, or mechanical,
electrical, or plumbing systems, then the plans and specifications therefor must
be prepared by a licensed engineer reasonably acceptable to Landlord and
provided to Landlord in a CAD disk format. Landlord's approval of any plans and
specifications shall not be a representation that the plans or the work depicted
thereon will comply with law or be adequate for any purpose, but shall merely be
Landlord's consent to performance of the work. Upon completion of any
alteration, addition or improvement, Tenant shall deliver to Landlord accurate,
reproducible as-built plans therefor in a CAD disk format. Tenant may erect
shelves, bins, machinery and trade fixtures provided that such items (1) do not
alter the basic character of the Premises or the Building; (2) do not overload
or damage the same; and (3) may be removed without damage to the Premises.
Unless Landlord specifies in writing otherwise, all alterations, additions, and
improvements, except for equipment in server room that is added by Tenant,
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shall be Landlord's property when installed in the Premises. All shelves, bins,
machinery and trade fixtures installed by Tenant shall be removed on or before
the earlier to occur of the day of termination or expiration of this Lease or
vacating the Premises, at which time Tenant shall restore the Premises to their
original condition, reasonable wear and tear excepted. All work performed by a
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Tenant in the Premises (including that relating to the installations, repair
replacements, or removal of any item) shall be in accordance with all applicable
governmental laws, ordinances, regulations, and with Landlord's specifications
and requirements, in a good and workmanlike manner, and so as not to damage or
alter the Building's structure or the Premises. Tenant shall be responsible for
compliance with The Americans With Disabilities Act of 1990. In connection with
any such alteration, addition or improvement, Tenant shall pay to Landlord an
administration fee of five percent (5%) of all costs incurred for such work in
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excess of $5,000.00 in consideration for construction administration services.
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7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval and shall be submitted to Landlord prior to the
Commencement Date of this Lease. Notwithstanding anything hereinabove, Tenant
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shall have the right to exclusive signage on the Premises. Tenant shall repair,
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paint and/or replace the Building fascia surface to which its signs are attached
upon Tenant's vacating the Premises or the removal or alteration of its signage.
Tenant shall not, without Landlord's prior written consent, (i) make any changes
to the exterior of the Premises, such as painting; (ii) install any exterior
lights, decorations, balloons, flags, pennants or banners; or (iii) erect or
install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises. All signs, decorations, advertising media, blinds, draperies and other
window treatment or bars or other security installations visible from outside
the Premises shall conform in all respects to the criteria established by
Landlord or shall be otherwise subject to Landlord's prior written consent.
8. UTILITIES. Landlord agrees to provide normal water and electricity service to
the Premises. Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on or
at the Premises, together with any taxes, penalties, surcharges or the like
pertaining to the Tenant's use of the Premises and any maintenance charges for
utilities. Landlord shall have the right to cause any of said services to be
separately metered to Tenant, at Tenant's expense. Tenant shall pay its pro rata
share, as reasonably determined by Landlord, of all charges for jointly metered
utilities. Landlord shall not be liable for any interruption or failure of
utility service on the Premises, and Tenant shall have no rights or claims as a
result of any such failure unless such interruption or failure of utility
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service is caused by Landlord's gross negligence or willful misconduct. In the
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event water is not separately metered to Tenant, Tenant agrees that it will not
use water and sewer capacity for uses other than normal domestic restroom and
kitchen usage, and Tenant further agrees to reimburse Landlord for the entire
amount of common water and sewer costs as additional rental if, in fact, Tenant
uses water or sewer capacity for uses other than normal domestic kitchen uses
without first obtaining Landlord's written permission, including but not limited
to the cost for acquiring additional sewer capacity to service Tenant's excess
sewer use. Furthermore, Tenant agrees in such event to install at its own
expense a submeter to determine Tenant's usage.
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9. INSURANCE.
A. Landlord's Insurance. Subject to reimbursement under Paragraph 2C
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herein, Landlord shall maintain insurance covering the Building in an amount not
less than eighty percent (80%) of the "replacement cost" thereof, insuring
against the perils of fire, lightning, extended coverage, vandalism and
malicious mischief.
B. Tenant's Insurance. Tenant, at its own expense, shall maintain during
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the term of this Lease a policy or policies of workers' compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage and One Million
Dollars ($1,000,000.00) per occurrence and One Million Dollars ($1,000,000.00)
in the aggregate for personal injuries or deaths of persons occurring in or
about the Premises. Tenant, at its own expense, shall also maintain during the
term of this Lease fire and extended coverage insurance covering the replacement
cost of (i) all alterations, additions, partitions and improvements installed or
placed on the Premises by Tenant or by Landlord on behalf of Tenant; and (ii)
all of Tenant's personal property contained within the Premises. Said policies
shall (i) name the Landlord and management company as additional insured and
insure Landlord's and management company's contingent liability under or in
connection with this Lease (except for the workers' compensation policy, which
instead shall include a waiver of subrogation endorsement in favor of Landlord);
(ii) be issued by an insurance company which is acceptable to Landlord; and
(iii) provide that said insurance shall not be canceled unless thirty (30) days
prior written notice has been given to Landlord. Said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant on or before the
Commencement Date and upon each renewal of said insurance.
C. Prohibited Uses. Tenant will not permit the Premises to be used for any
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purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance risk or cost thereof, or (iii) cause the disallowance of
any sprinkler credits; including without limitation, use of the Premises for the
receipt, storage or handling of any product, material or merchandise that is
explosive or highly inflammable. If any increase in the cost of any insurance on
the Premises or the Building is caused by Tenant's use of the Premises or
because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord upon demand therefor.
10. FIRE AND CASUALTY DAMAGE.
A. Total or Substantial Damage and Destruction. If the Premises or the
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Building should be damaged or destroyed by fire or other peril, Tenant shall
immediately give written notice to Landlord of such damage or destruction. If
the Premises or the Building should be totally destroyed by any peril covered by
the insurance to be provided by Landlord under Paragraph 9A above, or if they
should be so damaged thereby that, in Landlord's estimation, rebuilding or
repairs cannot be completed within one hundred eighty (180) days after the date
of such damage or after such completion there would not be enough time remaining
under the terms of this Lease to fully amortize such rebuilding or repairs, then
this Lease shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective upon the due of the occurrence of such damage.
B. Partial Damage or Destruction. If the Premises or the Building should
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be damaged by any peril covered by the insurance to be provided by Landlord
under Paragraph 9A above and, in Landlord's estimation, rebuilding or repairs
can be substantially completed within one hundred eighty (180) days after the
date of such damage, then this Lease shall not terminate and Landlord shall
substantially restore the Premises to its previous condition, except that
Landlord shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements that may have been
constructed, erected or installed in or about the Premises for the benefit of,
by or for Tenant.
C. Lienholders' Rights in Proceeds. Notwithstanding anything herein to the
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contrary, in the event the holder of any indebtedness secured by a mortgage or
deed of trust covering the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made known to Landlord by any such holder,
whereupon all rights and obligations hereunder shall cease and terminate.
D. Waiver of Subrogation. Notwithstanding anything in this Lease to the
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contrary, Landlord and Tenant hereby waive and release each other of and from
any and all rights of recovery, claims, actions or causes of action against each
other, or their respective agents, officers and employees, for any loss or
damage that may occur to the Premises, improvements to the Building or personal
property (Building contents) within the Building and/or Premises, for any reason
regardless of cause or origin. Each party to this Lease agrees immediately after
execution of this Lease to give written notice of the terms of the mutual
waivers contained in this subparagraph to each insurance company that has issued
to such party policies of fire and extended coverage insurance and to have the
insurance policies properly endorsed to provide that the carriers of such
policies waive all rights of recovery under subrogation or otherwise against the
other party.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of recovery and
causes of action that Landlord has released, Tenant shall hold Landlord harmless
from and defend Landlord against any and all claims or liability for any injury
or damage (i) to any person or property whatsoever occurring in, or on or about
the Premises or any part thereof, the Building and/or other common areas, the
use of which Tenant may have in accordance with this Lease, if (and only if)
such injury or damage shall be caused in whole or in part by the act, neglect,
fault or omission of any duty by Tenant, its agents, servants, employees or
invitees: (ii) arising from the conduct or management of any work done by the
Tenant in or about the Premises; (iii) arising from transactions of the Tenant;
and (iv) all costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or action or proceeding brought thereon. The
provisions of this Paragraph 11 shall survive the expiration or termination of
this Lease. Landlord shall not be liable in any event for personal injury or
loss of Tenant's property caused by fire, flood, water leaks, rain, hail, ice,
snow, smoke, lightning, wind, explosion, interruption of utilities or other
occurrences. Landlord strongly recommends that Tenant secure Tenant's own
insurance in excess of the amounts required elsewhere in this Lease to protect
against the above occurrences if Tenant desires additional coverage for such
risks. Tenant shall give prompt notice to Landlord of any significant accidents
involving injury to persons or property. Furthermore, Landlord shall not be
responsible for lost or stolen personal property, equipment, money or jewelry
from the Premises or from the public areas of the Building or the Project,
regardless of whether such loss occurs when the area is locked against entry.
Landlord shall not be liable to Tenant or Tenant's employees, customers or
invitees for any damages or losses to persons or property caused by any lessees
in the Building or the Project, or for any damages or losses caused by theft,
burglary, assault, vandalism or other crimes. Landlord strongly recommends that
Tenant provide its own security systems and services and secure Tenant's own
insurance in excess of the amounts required elsewhere in this Lease to protect
against the above occurrences if Tenant desires additional protection or
coverage for such risks. Tenant shall give Landlord prompt notice of any
criminal or suspicious conduct within or about the Premises, the Building or the
Project and/or any personal injury or property damage caused thereby. Landlord
may, but is not obligated to, enter into agreements with third parties for the
provision, monitoring, maintenance and repair of any courtesy patrols or similar
services or fire protective systems and equipment and, to the extent same is
provided at Landlord's sole discretion, Landlord shall not be liable to Tenant
for any damages, costs or expenses which occur for any reason in the event any
such system or equipment is not properly installed, monitored or maintained or
any such services are not properly provided. Landlord shall use reasonable
diligence in the maintenance of existing lighting, if any, in the parking garage
or parking areas servicing the Premises, and Landlord shall not be responsible
for additional lighting or any security measures in the Project, the Premises,
the parking garage or other parking areas. Landlord will indemnify and hold
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Tenant harmless from all suits, actions, damages, liability and expense in
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connection with loss of life, bodily or personal injury or property damage
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arising from any gross negligence or willful misconduct of Landlord, its agents
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or invitees.
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12. USE. The Premises shall be used only for general office use and for the
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purpose of receiving, storing, shipping and selling (other than retail)
products, materials and merchandise made and/or distributed by Tenant and for
such other lawful purposes as may be directly incidental thereto. Outside
storage, including without limitation storage of trucks and other vehicles, is
prohibited without Landlord's prior written consent. Tenant shall comply with
all governmental laws, ordinances and regulations applicable to the use of the
Premises and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in, upon or connected
with the Premises, all at Tenant's sole expense. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with or endanger Landlord or
any other lessees of the Building or the Project.
13. HAZARDOUS WASTE. The term "Hazardous Substances" as used in this Lease,
shall mean pollutants, contaminants, toxic or hazardous wastes, radioactive
materials or any other substances, the use and/or the removal of which is
required or the use of which is restricted, prohibited or penalized by any
"Environmental Law," which term shall mean any federal, state or local statute,
ordinance, regulation or other law of a governmental or quasi-governmental
authority relating to pollution or protection of the environment or the
regulation of the storage or handling of Hazardous Substances. Tenant hereby
agrees that: (i) no activity will be
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conducted on the Premises that will produce any Hazardous Substances, except for
such activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities"), provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been approved in
advance in writing by Landlord and, in connection therewith, Tenant shall be
responsible for obtaining any required permits or authorizations and paying any
fees and providing any testing required by any governmental agency; (ii) the
Premises will not be used in any manner for the storage of any Hazardous
Substances, except for the temporary storage of such materials that are used in
the ordinary course of Tenant's business (the "Permitted Materials"), provided
such Permitted Materials are properly stored in a manner and location meeting
all Environmental Laws and have been approved in advance in writing by Landlord,
and, in connection therewith, Tenant shall be responsible for obtaining any
required permits or authorizations and paying any fees and providing any testing
required by any governmental agency; (iii) no portion of the Premises will be
used as a landfill or a dump; (iv) Tenant will not install any underground tanks
of any type; (v) Tenant will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time may
constitute, a public or private nuisance; and (vi) Tenant will not permit any
Hazardous Substances to be brought onto the Premises, except for the Permitted
Materials, and if so brought or found located thereon, the same shall be
immediately removed, with proper disposal, and all required clean-up procedures
shall be diligently undertaken by Tenant at its sole cost pursuant to all
Environmental Laws. Landlord and Landlord's representatives shall have the right
but not the obligation to enter the Premises for the purpose of inspecting the
storage, use and disposal of any Permitted Materials to ensure compliance with
all Environmental Laws. Should it be determined, in Landlord's sole opinion,
that any Permitted Materials are being improperly stored, used or disposed of,
then Tenant shall immediately take such corrective action as requested by
Landlord. Should Tenant fail to take such corrective action within twenty-four
(24) hours, Landlord shall have the right to perform such work and Tenant shall
reimburse Landlord, on demand, for any and all costs associated with said work.
If at any time during or after the term of this Lease, the Premises is found to
be contaminated with Hazardous Substances, Tenant shall diligently institute
proper and thorough clean-up procedures, at Tenant's sole cost. Tenant agrees to
indemnify and hold Landlord harmless from all claims, demands, actions,
liabilities, costs, expenses, damages, penalties and obligations of any nature
arising from or as a result of any contamination of the Premises with Hazardous
Substances, or otherwise arising from the use of the Premises by Tenant. The
foregoing indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this Lease.
14. INSPECTION. Landlord's agents and representatives shall have the right to
enter the Premises at any reasonable time during business hours (or at any time
in case of emergency) (i) to inspect the Premises, (ii) to make such repairs as
may be required or permitted pursuant to this Lease, and/or (iii) during the
last six (6) months of the Lease term, for the purpose of showing the Premises.
In addition, Landlord shall have the right to erect a suitable sign on the
Premises stating the Premises are available for lease. Tenant shall notify
Landlord in writing at least thirty (30) days prior to vacating the Premises and
shall arrange to meet with Landlord for a joint inspection of the Premises prior
to vacating. If Tenant fails to give such notice or to arrange for such
inspection, then Landlord's inspection of the Premises shall be deemed correct
for the purpose of determining Tenant's responsibility for repairs and
restoration of the Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to sublet, assign
or otherwise transfer or encumber this Lease, or any interest therein, without
the prior written consent of Landlord, which shall not be unreasonably withheld,
----------------------------------------
delayed or conditioned. Any attempted assignment, subletting, transfer or
- ----------------------
encumbrance by Tenant in violation of the terms and covenants of this paragraph
shall be void. Any assignee, sublessee or transferee of Tenant's interest in
this Lease (all such assignees, sublessees and transferees being hereinafter
referred to as "Transferees"), by assuming Tenant's obligations hereunder, shall
assume liability to Landlord for all amounts paid to persons other than Landlord
by such Transferees to which Landlord is entitled or is otherwise in
contravention of this Paragraph 15. No assignment, subletting or other transfer,
whether or not consented to by Landlord or permitted hereunder, shall relieve
Tenant of its liability under this Lease. If an Event of Default occurs while
the Premises or any part thereof are assigned or sublet, then Landlord, in
addition to any other remedies herein provided or provided by law, may collect
directly from such Transferee all rents payable to the Tenant and apply such
rent against any sums due Landlord hereunder. No such collection shall be
construed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations hereunder. If Landlord consents to any
subletting or assignment by Tenant as hereinabove provided and any category of
rent subsequently received by Tenant under any such sublease is in excess of the
same category of rent payable under this Lease, or any additional consideration
is paid to Tenant by the assignee under any such assignment, then Landlord may,
at its option, declare fifty percent (50%) of such excess rents under any
-------------------
sublease or fifty percent (50%) of such additional consideration for any
-------------------
assignment to be due and payable by Tenant to Landlord as additional rent
hereunder. The following shall additionally constitute an assignment of this
Lease by Tenant for the purposes of this Paragraph 15: (i) if Tenant is a
corporation, any merger, consolidation, dissolution or liquidation, or any
change in ownership or power to vote of thirty percent (30%) or more of Tenant's
outstanding voting stock; (ii) if Tenant is a partnership, joint venture or
other entity, any liquidation, dissolution or transfer of ownership of any
interests totaling thirty percent (30%) or more of the total interests in such
entity; (iii) the sale, transfer, exchange, liquidation or other distribution of
more than thirty percent (30%) of Tenant's assets, other than this Lease; or
(iv) the mortgage, pledge, hypothecation or other encumbrance of or grant of a
security interest by Tenant in this Lease, or of any of Tenant's rights
hereunder, provided however, that such transfer may occur without Landlord's
-----------------------------------------------------------------
consent so long as the primary business or the new entity remains the same as
- -----------------------------------------------------------------------------
Tenant's primary business and the tangible net worth of the new entity is equal
- -------------------------------------------------------------------------------
to or greater than that of the Tenant's.
- ----------------------------------------
16. CONDEMNATION. If more than eighty percent (80%) of the Premises are taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain or private purchase in lieu thereof,
and the taking prevents or materially interferes with the use of the remainder
of the Premises for the purpose for which they were leased to Tenant, then this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective on the date of such taking. If less than eighty percent
(80%) of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain or
private purchase in lieu thereof, or if the taking does not prevent or
materially interfere with the use of the remainder of the Premises for the
purpose for which they were leased to Tenant, then this Lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances. All compensation awarded in connection with or as a result of
any of the foregoing proceedings shall be the property of Landlord, and Tenant
hereby assigns any interest in any such award to Landlord; provided, however,
Landlord shall have no interest in any award made to Tenant for loss of business
or goodwill or for the taking of Tenant's trade fixtures and personal property,
if a separate award for such items is made to Tenant.
17. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant shall immediately deliver possession of the Premises to
Landlord with all repairs and maintenance required herein to be performed by
Tenant completed. If, for any reason, Tenant retains possession of the Premises
after the expiration or termination of this Lease, unless the parties hereto
otherwise agree in writing, such possession shall be deemed to be a tenancy at
will only, and all of the other terms and provisions of this Lease shall be
applicable during such period, except that Tenant shall pay Landlord from time
to time, upon demand, as rental for the period of such possession, an amount
equal to one and one-half (1 1/2) times the rent in effect on the date of such
termination of this Lease, computed on a daily basis for each day of such
period. No holding over by Tenant, whether with or without consent of Landlord,
shall operate to extend this Lease except as otherwise expressly provided. The
preceding provisions of this Paragraph 17 shall not be construed as consent for
Tenant to retain possession of the Premises in the absence of written consent
thereto by Landlord.
18. QUIET ENJOYMENT. Landlord represents that it has the authority to enter into
this Lease and that, so long as Tenant pays all amounts due hereunder and
performs all other covenants and agreements herein set forth, Tenant shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to as
an "Event of Default") each shall be deemed to be a default in or breach of
Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of five (5) days from the date
such payment was due and written notice was provided to Tenant. Landlord will
---------------------------------------------------------
only be required to provide such written notice once during any calendar year.
- -----------------------------------------------------------------------------
B. Tenant shall (i) vacate or abandon all or a substantial portion of the
Premises or (ii) fail to continuously operate its business at the Premises for
the permitted use set forth herein, but only if Tenant is in default of the
-----------
rental payments due under this Lease.
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 22 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
4
D. Tenant shall default in the performance of any of its obligations under
any other lease to Tenant from Landlord, or from any person or entity affiliated
with or related to Landlord, and same shall remain uncured after the lapsing of
any applicable cure periods provided for under such other lease.
E. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than those listed above in this paragraph) and shall not cure such
failure within twenty (20) days after written notice thereof from Landlord.
20. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand:
(a) Terminate this Lease;
(b) Enter upon and take possession of the Premises without terminating
this Lease;
(c) Make such payments and/or take such action and pay and/or perform
whatever Tenant is obligated to pay or perform under the terms of this Lease,
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action; and/or
(d) Alter all locks and other security devices at the Premises, with or
without terminating this Lease, and pursue, at Landlord's option, one or more
remedies pursuant to this Lease, and Tenant hereby expressly agrees that
Landlord shall not be required to provide to Tenant the new key to the Premises,
regardless of hour, including Tenant's regular business hours;
and in any such event Tenant shall immediately vacate the Premises, and if
Tenant fails to do so, Landlord, without waiving any other remedy it may have,
may enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying such Premises or any part thereof,
without being liable for prosecution or any claim of damages therefore. The
provisions of this Lease are intended to supersede Section 93.002 of the Texas
Property Code and Tenant hereby expressly waives any and all rights and remedies
Tenant may have under Paragraph (g) of such Section 93.002.
A. Damages upon Termination. If Landlord terminates this Lease at
------------------------
Landlord's option, Tenant shall be liable for and shall pay to Landlord the sum
of all rental and other payments owed to Landlord hereunder accrued to the date
of such termination, plus, as liquidated damages, an amount equal to (i) the
present value of the total rental and other payments owed hereunder for the
remaining portion of the Lease term, calculated as if such term expired on the
date set forth in Paragraph 1, less (ii) the present value of the then fair
market rental for the Premises for such period, provided that, because of the
difficulty of ascertaining such value and in order to achieve a reasonable
estimate of liquidated damages hereunder, Landlord and Tenant stipulate and
agree, for the purposes hereof, that such fair market rental shall in no event
exceed seventy-five percent (75%) of the rental amount for such period set forth
in Paragraph 2 above.
B. Damages upon Repossession. If Landlord repossesses the Premises without
-------------------------
terminating this Lease, Tenant, at Landlord's option, shall be liable for and
shall pay Landlord on demand all rental and other payments owed to Landlord
hereunder, accrued to the date of such repossession, plus all amounts required
to be paid by Tenant to Landlord until the date of expiration of the term as
stated in Paragraph 1, diminished by all amounts actually received by Landlord
through reletting the Premises during such remaining term (but only to the
extent of the rent herein reserved). Actions to collect amounts due by Tenant
to Landlord under this paragraph may be brought from time to time, on one or
more occasions, without the necessity of Landlord's waiting until expiration of
the Lease term.
C. Costs of Reletting, Removing, Repairs and Enforcement. Upon an Event of
-----------------------------------------------------
Default, in addition to any sum provided to be paid under this Paragraph 20,
Tenant also shall be liable for and shall pay to Landlord (i) brokers' fees and
all other costs and expenses incurred by Landlord in connection with reletting
the whole or any part of the Premises; (ii) the costs of removing, storing or
disposing of Tenant's or any other occupant's property; (iii) the costs of
repairing, altering, remodeling or otherwise putting the Premises into condition
acceptable to a new tenant or tenants; (iv) any and all costs and expenses
incurred by Landlord in effecting compliance with Tenant's obligations under
this Lease; and (v) all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies hereunder, including without
limitation all reasonable attorneys' fees and all court costs incurred in
connection with such enforcement or defense.
D. Late Charge. In the event Tenant fails to make any payment due hereunder
-----------
within five (5) days after such payment is due, including without limitation any
rental or escrow payment, in order to help defray the additional cost to
Landlord for processing such late payments and not as interest, Tenant shall pay
to Landlord on demand a late charge in an amount equal to five percent (5%) of
such payment. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law, and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
E. Interest on Past Due Amounts. If Tenant fails to pay any sum which at
----------------------------
any time becomes due to Landlord under any provision of this Lease as and when
the same becomes due hereunder, and such failure continues for ten (10) days
after the due date for such payment, then Tenant shall pay to Landlord interest
on such overdue amounts from the date due until paid at an annual rate which
equals the lesser of (i) eighteen percent (18%) or (ii) the highest rate then
permitted by law.
F. No Implied Acceptances or Waivers. Exercise by Landlord of any one or
---------------------------------
more remedies hereunder granted or otherwise available shall not be deemed to be
an acceptance by Landlord of Tenant's surrender of the Premises, it being
understood that such surrender can be effected only by the written agreement of
Landlord. Tenant and Landlord further agree that forbearance by Landlord to
enforce any of its rights under this Lease or at law or in equity shall not be a
waiver of Landlord's right to enforce any one or more of its rights, including
any right previously forborne, in connection with any existing or subsequent
default. No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention is given to Tenant, and, notwithstanding any such
reletting or re-entry or taking possession of the Premises, Landlord may at any
time thereafter elect to terminate this Lease for a previous default. Pursuit of
any remedies hereunder shall not preclude the pursuit of any other remedy herein
provided or any other remedies provided by law, nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages occurring to Landlord by reason of the violation of
any of the terms, provisions and covenants contained in this Lease. Landlord's
acceptance of any rent following an Event of Default hereunder shall not be
construed as Landlord's waiver of such Event of Default. No waiver by Landlord
of any violation or breach of any of the terms, provisions and covenants of this
Lease shall be deemed or construed to constitute a waiver of any other violation
or default.
G. Reletting of Premises. In the event of any termination of this Lease
---------------------
and/or repossession of the Premises for an Event of Default, Landlord shall use
reasonable efforts to relet the Premises and to collect rental after reletting,
with no obligation to accept any lessee that Landlord deems undesirable or to
expend any funds in connection with such reletting or collection of rents
therefrom. Tenant shall not be entitled to credit for or reimbursement of any
proceeds of such reletting in excess of the rental owed hereunder for the period
of such reletting. Landlord may relet the whole or any portion of the Premises,
for any period, to any tenant and for any use or purpose.
H. Landlord's Default. If Landlord fails to perform any of its obligations
------------------
hereunder within thirty (30) days after written notice from Tenant specifying
such failure, Tenant's exclusive remedy shall be an action for damages. Unless
and until Landlord fails to so cure any default after such notice, Tenant shall
not have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of its
possession of the premises and not thereafter. The term "Landlord" shall mean
only the owner, for the time being, of the Premises and, in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Landlord thereafter accruing, provided that such covenants and obligations shall
be binding during the Lease term upon each new owner for the duration of such
owner's ownership. Notwithstanding any other provision of this Lease, Landlord
shall not have any personal liability hereunder. In the event of any breach or
default by Landlord in any term or provision of this Lease, Tenant agrees to
look solely to the equity or interest then owned by Landlord in the Premises or
the Building; however, in no event shall any deficiency judgment or any money
judgment of any kind be sought or obtained against any Landlord.
I. Tenant's Personal Property. If Landlord repossesses the Premises
--------------------------
pursuant to the authority herein granted, or if Tenant vacates or abandons all
or any part of the Premises at any time when Tenant is in default of the rental
---------------------------------------------------
payments due under this Lease, then, in addition to Landlord's rights under
- -----------------------------
Paragraph 27 hereof, Landlord shall have the right to (i) remove and store, all
of the furniture, fixtures and equipment at the Premises, including that which
is owned by or leased to Tenant,
5
at all times prior to any foreclosure thereon by Landlord or repossession
thereof by any lessor thereof or third party having a lien thereon. In addition
to the Landlord's other rights hereunder, Landlord may dispose of the stored
property if Tenant does not claim the property within ten (10) days after the
date the property is stored. Landlord shall give Tenant at least ten (10) days
prior written notice of such intended disposition. Landlord shall also have the
obligation to relinquish possession of all or any portion of such furniture,
- ----------
fixtures, equipment and other property to any person ("Claimant") who presents
to Landlord a copy of any instrument represented by Claimant to have been
executed by Tenant (or any predecessor of Tenant) granting Claimant the right
under various circumstances to take possession of such furniture, fixtures,
equipment or other property, without the necessity on the part of Landlord to
inquire into the authenticity or legality of said instrument. The rights of
Landlord herein stated shall be in addition to any and all other rights that
Landlord has or may hereafter have at law or in equity, and Tenant stipulates
and agrees that the rights granted Landlord under this paragraph are
commercially reasonable. The Landlord's rights hereunder are subject and
-----------------------------------------------
subordinate to any prior lien rights held by any creditor of Tenant on the
- --------------------------------------------------------------------------
personal property within the Premises. Upon the written request from time to
- ----------------------------------------------------------------------------
time from Tenant or any of its lenders, Landlord agrees to subordinate its lien
- -------------------------------------------------------------------------------
to any lenders providing general operating capital to Tenant.
- -------------------------------------------------------------
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated thereon or the
Building, provided, however, that if the mortgagee, trustee or holder of any
such mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed superior to such lien, whether
this Lease was executed before or after said mortgage or deed of trust. Tenant,
at any time hereafter on demand, shall execute any instruments, releases or
other documents that may be required by any mortgagee, trustee or holder for the
purpose of subjecting and subordinating this Lease to the lien of any such
mortgage. Tenant shall not terminate this Lease or pursue any other remedy
available to Tenant hereunder for any default on the part of Landlord without
first giving written notice by certified or registered mail, return receipt
requested, to any mortgagee, trustee or holder of any such mortgage or deed of
trust, the name and post office address of which Tenant has received written
notice, specifying the default in reasonable detail and affording such
mortgagee, trustee or holder a reasonable opportunity (but in no event less than
thirty (30) days to make performance, at its election, for and on behalf of
Landlord.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind, the interest of Landlord or Tenant in the Premises. Tenant will
save and hold Landlord harmless from any and all loss, cost or expense,
including without limitation attorneys' fees, based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease.
23. MISCELLANEOUS.
A. Interpretation. The captions inserted in this Lease are for
--------------
convenience only and in no way define, limit or otherwise describe the scope or
intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease. Any reference in this Lease to rentable area shall
mean the gross rentable area as determined by the roofline of the building in
question.
B. Binding Effect. Except as otherwise herein expressly provided, the
--------------
terms, provisions and covenants and conditions in this Lease shall apply to,
inure to the benefit of and be binding upon the parties hereto and upon their
respective heirs, executors, personal representatives, legal representatives,
successors and assigns. Landlord shall have the right to transfer and assign, in
whole or in part, its rights and obligations in the Premises and in the Building
and other property that are the subject of this Lease.
C. Evidence of Authority. Tenant agrees to furnish to Landlord, promptly
---------------------
upon demand, a corporate resolution, proof of due authorization by partners or
other appropriate documentation evidencing the due authorization of such party
to enter into this Lease.
D. Force Majeure. Neither Tenant nor Landlord shall not be held
------------- ------------------
responsible for delays in the performance of its obligations hereunder when
caused by material shortages, acts of God, labor disputes or other events beyond
the control of Landlord or Tenant.
---------
E. Payments Constitute Rent. Notwithstanding anything in this Lease to the
------------------------
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as rent, shall constitute rent.
F. Estoppel Certificates. Tenant agrees, from time to time, within ten
---------------------
(10) days after request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired term of this Lease,
any defaults existing under this Lease (or the absence thereof) and such other
factual or legal matters pertaining to this Lease as may be requested by
Landlord. It is understood and agreed that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of this Lease.
G. Entire Agreement. This Lease and associated exhibits constitutes the
---------------- -----------------------
entire understanding and agreement of Landlord and Tenant with respect to the
subject matter of this Lease, and contains all of the covenants and agreements
of Landlord and Tenant with respect thereto. Landlord and Tenant each
acknowledge that no representations, inducements, promises or agreements, oral
or written, have been made by Landlord or Tenant, or anyone acting on behalf of
Landlord or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations or representations not expressly set forth in this Lease
are of no force or effect. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE, TENANT
HEREBY WAIVES THE BENEFIT OF ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PREMISES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR ANY PARTICULAR PURPOSE. Landlord's agents and
employees do not and will not have authority to make exceptions, changes or
amendments to this Lease, or factual representations not expressly contained in
this Lease. Under no circumstances shall Landlord or Tenant be considered an
agent of the other. This Lease may not be altered, changed or amended except by
an instrument in writing signed by both parties hereto.
H. Survival of Obligations. All obligations of Tenant hereunder not fully
-----------------------
performed as of the expiration or earlier termination of the term of this Lease
shall survive the expiration or earlier termination of the term hereof,
including without limitation all payment obligations with respect to taxes and
insurance and all obligations concerning the condition and repair of the
Premises. Upon the expiration or earlier termination of the term hereof, and
prior to Tenant vacating the Premises, Tenant shall pay to Landlord any amount
reasonably estimated by Landlord as necessary to put the Premises in good
condition and repair, reasonable wear and tear excluded, including without
limitation the cost of repairs to and replacements of all heating and air
conditioning systems and equipment therein. Tenant shall also, prior to vacating
the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for real estate taxes and insurance premiums for the year
in which the Lease expires or terminates. All such amounts shall be used and
held by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefore upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have been
determined and satisfied, as the case may be. Any Security Deposit held by
Landlord may, at Landlord's option, be credited against any amounts due from
Tenant under this Paragraph 23H.
I. Severability of Terms. If any clause or provision of this Lease is
---------------------
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then, in such event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added, as a part of this Lease, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and be legal, valid or enforceable.
J. Effective Date. All references in this Lease to "the date hereof" or
--------------
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
K. Brokers' Commission. Tenant represents and warrants that is has
-------------------
dealt with and will deal with no broker, other than Diana Barbour of Colliers
Oxford Commercial, agent or other person in connection with this transaction or
future related transactions and that no other broker, agent or other person
brought about this transaction, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
L. Ambiguity. Landlord and Tenant hereby agree and acknowledge that this
---------
Lease has been fully reviewed and negotiated by both Landlord and Tenant, and
that Landlord and Tenant have each had the opportunity to have this Lease
reviewed by their respective legal counsel, and, accordingly, in the event of
any ambiguity herein, Tenant does hereby waive the rule of construction that
such ambiguity shall be resolved against the party who prepared this Lease.
6
M. Joint Several Liability. If there be more than one Tenant, the
-----------------------
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor, and Landlord need not first proceed against Tenant before proceeding
against such guarantor, nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including, without limitation, in case of
any amendments hereto, waivers hereof or failure to give such guarantor any
notices hereunder.
N. Third Party Rights. Nothing herein expressed or implied is intended,
------------------
or shall be construed, to confer upon or give to any person or entity, other
than the parties hereto, any right or remedy under or by reason of this Lease.
O. Exhibits and Attachments. All exhibits, attachments, riders and
------------------------
addenda referred to in this Lease, and the exhibits listed herein below and
attached hereto, are incorporated into this Lease and made a part hereof for all
intents and purposes as if fully set out herein. All capitalized terms used in
such documents shall, unless otherwise defined therein, have the same meaning as
are set forth herein.
P. Applicable Law. This Lease has been executed in the State of Texas
--------------
and shall be governed in all respects by the laws of the State of Texas. It is
the intent of Landlord and Tenant to conform strictly to all applicable state
and federal usury laws. All agreements between Landlord and Tenant, whether now
existing of hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever shall the amount
contracted for, charged or received by Landlord for the use, forebearance or
retention of money hereunder or otherwise exceed the maximum amount which
Landlord is legally entitled to contract for, charge or collect under the
applicable state or federal law. If, from any circumstances whatsoever,
fulfillment of any provision hereof at the time performance of such provision
shall be due shall involve transcending the limit of validity prescribed by law,
then the obligation to be fulfilled shall be automatically reduced to the limit
of such validity, and if from any such circumstances Landlord shall ever receive
as interest or otherwise an amount in excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied
to the reduction of rent hereunder, and if such amount which would be excessive
interest exceeds such rent, then such additional amount shall be refunded to
Tenant.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and If the following steps are taken:
(i) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth
below or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay rent
and any other amounts to Landlord under the terms of this Lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
(ii) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(iii) Except as expressly provided herein, any written notice, document or
payment required or permitted to be delivered hereunder shall be deemed to be
delivered when received or, whether actually received or not, when deposited in
the United States Mail, postage prepaid, Certified or Registered Mail, addressed
to the parties hereto at the respective addresses set out below, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith.
25. ADDITIONAL PROVISIONS, See EXHIBIT "C" attached hereto and incorporated
herein by reference.
7
EXECUTED BY LANDLORD, this 4 day of October, 1998.
CFH-FTAX Limited Partnership:
By: CFH-FTGP, L.L.C, it General Partner
By: Crow Family Holdings Industrial
Limited Partnership, its sole Member
By: CFH Industrial Trust, Inc.;
its General Partner
-----------------------------------------------
Attest/Witness: By: /s/ [ILLEGIBLE]
-----------------------------------------------
Virginia C. Bennett Title: Vice-President
- ------------------------- -----------------------------------------------
_________________________
Title: Office Assistant Address: c/o Trammel Crow Central Texas, Inc.
- ------------------------- -----------------------------------------------
301 Congress Avenue, Suite 1300, Austin, TX 78701
-------------------------------------------------
EXECUTED BY TENANT, this 19 day of October, 1998.
Clear Commerce Corporation:
Attest/Witness:
/s/ [ILLEGIBLE]
- -------------------------
Title: [ILLEGIBLE]
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: Vice President, CFO
----------------------------------------
Address: 9801 Burnet Rd. Ste. 207
Austin, TX 78758
EXHIBIT "A" - Description of Premises
EXHIBIT "B" - Plans
EXHIBIT "C" - Additional Provisions
8
EXHIBIT "A"
BUILDING: Braker M-3
LEGAL DESCRIPTION: Lot 2, Stonehollow Section 5, Acres 7.43
ADDRESS: 11500 Metric Boulevard, Suite
Austin, Texas 78758
[PLAN APPEARS HERE]
Exhibit "B"
Construction Plans
BRAKER M-3
11500 METRIC BOULEVARD
[PLAN APPEARS HERE]
NOTE:
Indicates walls to be demolished.
1. Replace doors to loading area.
2. It is our understanding that the dishwasher will remain with the space.
3. Install carpet.
4. Add door.
NOTE: TENANT AND LANDLORD ACKNOWLEDGE THAT THERE ARE SEVERAL EXISTING OFFICES
NOT DEPICTED ON THIS FLOOR PLAN.
EXHIBIT "C"
ADDITIONAL PROVISIONS
INTERIOR IMPROVEMENTS
- ---------------------
Tenant shall accept the Premises in its current "as is" condition with the
exception that the Landlord shall replace the two staircases, which connect the
two levels of the facility. Also, Landlord shall paint interior walls, clean all
carpet, clean all light fixtures, replace non-working bulbs and add new carpet
in areas depicted on attached plan (Exhibit B). Landlord shall clean and
make the space ready. Landlord shall add doors and demolish walls where
depicted on the attached plan. These improvements must comply with Trammell
Crow Company's standard specifications (see Standards and Specifications for
--------------------------------
Office/Warehouse Buildings) and all applicable governmental regulations. Prior
- --------------------------
to beginning construction of any such improvements, Tenant shall submit
architectural drawings of the proposed improvements to Landlord and shall obtain
Landlord's written consent to begin construction.
RIGHT OF FIRST OFFER
- --------------------
In the event that any space in the building immediately west of the Premises
(known as Braker M-2) becomes available during the term of this Lease, Landlord
shall first offer such space in writing for lease to Tenant at current market
rates. Tenant shall have five (5) days in which to accept such space on the
terms offered by Landlord. In the event that Tenant refuses such offer or fails
to respond in writing within the five (5) day period, Tenant's Right of First
Offer shall expire and be of no further force or effect for such space offered.
The Right of First Offer shall be subject to the existing rights of other
tenants in the building as of the execution date of this Lease.
TOXIC WASTE
- -----------
Tenant covenants not to introduce any form of hazardous or toxic materials onto
the Premises without complying with all applicable Federal, State and local laws
or ordinances pertaining to the transportation, storage, use or disposal of such
material, including but not limited to obtaining proper permits.
If Tenant's transportation, storage, use or disposal of hazardous or toxic
materials on the Premises results in: 1) contamination of the soil or surface or
ground water; or 2) loss or damage to person (s) or property, then Tenant agrees
to respond in accordance with the following paragraph.
Tenant agrees: (i) to notify Landlord immediately of any contamination, claim of
contamination, loss or damage; (ii) after consultation and approval by Landlord,
to clean up the contamination in full compliance with all applicable statues,
regulations and standards; and (iii) to indemnify claims, suits, causes of
action, costs and fees, including attorneys' fees, arising from or connected
with any such contamination, claim of contamination, loss or damage. These
Provisions shall survive termination of this Lease.
RENEWAL OPTION
- --------------
Tenant shall have the right and option to renew this Lease for one (1)
additional thirty six (36) month term by delivering written notice thereof to
Landlord at least One Hundred Eighty (180) days prior to the expiration date of
the lease term, provided that at the time of such notice and at the end of the
lease term, Tenant is not in default hereunder. Upon the delivery of said notice
and subject to the conditions set forth in the preceding sentence, this Lease
shall be extended upon the same terms, covenants and conditions as provided in
this Lease, except that the rental payable during said extended term shall be
the prevailing market rental rate for space of comparable size, quality and
location at the commencement of such extended term (the "Market Rate"). This
right and option shall apply to the initial lease term only. In the event
Landlord and Tenant are unable to agree upon the Market Rate, Landlord and
Tenant shall each promptly appoint a real estate broker who is licensed by the
Texas Real Estate Commission (TREC) and active in the Austin industrial market,
to assist in the determination of the Market Rate, and the two brokers shall
appoint a third broker who is also licensed by the Texas Real Estate Commission
and active in the Austin industrial market. The determination of the Market Rate
by the agreement of any two of such three brokers shall be accepted by and shall
be binding upon Landlord and Tenant as the Market Rate, which rate shall
thereafter be payable until further adjusted. Landlord and Tenant agree to use
all reasonable diligence to cause their appointed brokers to perform in good
faith and in a timely manner in order to make the determination of the Market
Rate on or before the date on which the Market Rate is to become effective. In
the event the brokers do not make such determination in a timely manner, this
Lease shall nevertheless continue in full force and effect until such
determination is made, and the rental for such period shall be payable at the
rate otherwise payable hereunder. Upon the determination of the Market Rate, the
payment of the Market Rate shall commence on the first day of the month
following the date of such determination, and in addition to such monthly
installment of rental, Tenant shall pay to Landlord the increase in rental
payable hereunder, if any, applicable to the period from the date on which the
Market Rate was scheduled to become effective to the payment of the first
installment at the Market Rate. Landlord and Tenant shall each bear the cost and
fees of their respective brokers and shall share equally the cost of the third
broker, if needed.
9
[LOGO]
May 6, 1999
Ms. Sophie Tschosik
ClearCommerce Corp.
11500 Metric Boulevard
Suite 300
Austin, TX 78758
Re: First Amendment to Lease Agreement between CFH-FTAX Limited Partnership, as
Landlord and ClearCommerce Corporation, as Tenant at Braker M-3
Dear Sophie:
Please let this letter serve to document our understanding that you will accept
and will occupy the facility at 11500 Metric Blvd., Suite 410, Austin, Texas,
effective June 15, 1999. Under the term of our Lease Agreement, dated April 13,
1999, the rental and any other monthly expenses, such as operating expenses,
utility and security costs, if any, for the facility accrue from June 15, 1999.
Commencement date of the lease term shall be established as June 15, 1999, and
the expiration date shall be established as shown on the Lease Agreement.
Please be advised that power will be discontinued in Lessor's name within three
(3) days of occupancy and that a representative of your firm should contact the
Electric Company to make appropriate arrangements as soon as possible.
Please indicate your acceptance of the above by signing all three (3) copies of
this letter, maintaining one (1) copy for your files and returning two (2)
copies to this office.
Sincerely,
TRAMMELL CROW CENTRAL TEXAS, LTD.
AGREED AND ACCEPTED:
By: /s/ [ILLEGIBLE]
-----------------------
Title: Vice President, CFO
--------------------
Date: 5/10/99
--------------------
CC: Rebecca Nixon
Connie Shelton
[LOGO]
May 3, 1999
Sophie Tschosik
ClearCommerce
11500 Metric Blvd.
Suite 300
Austin, TX 78758
Re: First Right of Offer - Lease Agreement between CFH-FTAX Limited
Partnership, Ltd., as Landlord and ClearCommerce, as Tenant In Braker M-2
Dear Sophie:
In accordance with the above mentioned Lease Agreement, please let this letter
serve as notice that Suite 250, a 3,946 square foot space in Braker M-2 will be
available as of October 1, 1999. Please note, the space may be available in May,
1999 as Kent Electronics has indicated they will move out early. The monthly
base rental shall be Three Thousand Thee Hundred Fifty Four and 10/100 Dollars
($3,354. 10). Tenant shall accept the space on an "As-Is" basis for a three-year
(3) term. As provided in Exhibit "C" of the Lease Agreement, ClearCommerce shall
have five (5) days from receipt of this letter to exercise the First Right of
Offer and deliver to Landlord written notice thereof.
If ClearCommerce wishes to take the First Right of Offer space, please execute
all three (3) copies of this letter acknowledging receipt of this notice and
return two (2) to me. The other copy is for your files. Thank you for your
attention to this matter, and if you have any questions, please feel free to
contact me at (512) 320-5525.
Sincerely,
TRAMMELL CROW CENTRAL TEXAS, INC.
/s/ Chad Marsh
Chad Marsh
Marketing Director
CAM/cah
PLEASE EXECUTE IF APPROPRIATE
- -----------------------------
Tenant exercises its right to the "First Right of Offer Space".
By: /s/ [ILLEGIBLE] Title: Vice President, CFO Date: 5/12/99
------------------ ------------------- -------
[LETTER HEAD APPEARS HERE]
April 9, 1999
Sophie Tschosik
ClearCommace
11500 Metric Blvd.
Suite 300
Austin, TX 78758
RE: First Amendment to the Lease Agreement between CFH-FTAX Limited
Partnership as Landlord; and ClearCommerce, as Tenant; located at 11500
Metric Blvd., Suite 300, Austin, Texas; known as Braker M-3
Dear Sophie:
We have enclosed four (4) copies of the above referenced Amendment. Please
execute, initial, witness and date where indicated and return all four (4)
Amendments to my attention for further processing. A fully executed original
Amendment will be sent to you for your files.
We look forward to ClearCommerce continuing as a tenant in our Braker M
buildings. Please do not hesitate to contact me at 512-320-5525 if I can answer
any questions or provide any additional information.
Sincerely,
TRAMMELL CROW CENTRAL TEXAS, LTD.
/s/ Chad A. Marsh
Chad A. Marsh
Marketing Director
CAM/cah
Enclosure
15