Exhibit 10.14


 


Suite 405


 


OFFICE BUILDING LEASE


 


 


by and between


 


HALL STONEBRIAR
CENTER I ASSOCIATES, LTD.


 


and


 


HEARTLAND CARD
SERVICES, L.L.C.


 

















 


OFFICE BUILDING LEASE


 


TABLE OF CONTENTS


 


	
  ARTICLE I - DEFINED TERMS

  	
   

  
	
   

  	
   

  
	
   

  	
  1.1

  	
  Tenant

  	
   

  
	
   

  	
  1.2

  	
  Premises

  	
   

  
	
   

  	
  1.3

  	
  Term

  	
   

  
	
   

  	
  1.4

  	
  Base
  Rental

  	
   

  
	
   

  	
  1.5

  	
  Base Year

  	
   

  
	
   

  	
  1.6

  	
  Landlord’s
  Share of Building Operating Costs

  	
   

  
	
   

  	
  1.7

  	
  First Year Estimated Energy Costs

  	
   

  
	
   

  	
  1.8

  	
  Prepaid
  Rent

  	
   

  
	
   

  	
  1.9

  	
  Security
  Deposit

  	
   

  
	
   

  	
  1.10

  	
  Premises
  Use

  	
   

  
	
   

  	
  1.11

  	
  Tenant’s Comprehensive General Liability Insurance

  	
   

  
	
   

  	
  1.12

  	
  Addresses for Notices and Payment of Rent and Other Charges

  	
   

  
	
   

  	
  1.13

  	
  Broker

  	
   

  
	
   

  	
  1.14

  	
  Exhibits

  	
   

  
	
   

  	
  1.15

  	
  Incorporation

  	
   

  
	
   

  	
   

  
	
  ARTICLE II - PREMISES COMMON AREAS

  	
   

  
	
   

  	
   

  
	
   

  	
  2.1

  	
  Demise

  	
   

  
	
   

  	
  2.2

  	
  Rentable Area of Building

  	
   

  
	
   

  	
  2.3

  	
  Acceptance
  of Premises and Building by Tenant

  	
   

  
	
   

  	
  2.4

  	
  Walls, Ceilings

  	
   

  
	
   

  	
  2.5

  	
  Common
  Areas

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  III - TERM

  	
   

  
	
   

  	
   

  
	
   

  	
  3.1

  	
  Lease Term

  	
   

  
	
   

  	
  3.2

  	
  Delivery of Premises

  	
   

  
	
   

  	
  3.3

  	
  Holding Over by Tenant

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV - TENANT’S MONETARY OBLIGATIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  4.1

  	
  Base Rental

  	
   

  
	
   

  	
  4.2

  	
  Tenant’s Share of Certain Building Costs

  	
   

  
	
   

  	
   

  	
  4.2.1

  	
  Pro
  Rata Share

  	
   

  
	
   

  	
   

  	
  4.2.2

  	
  Building Operating Costs

  	
   

  
	
   

  	
   

  	
  4.2.3

  	
  Energy
  Costs

  	
   

  
	
   

  	
   

  	
  4.2.4

  	
  Electricity Savings Expenditures

  	
   

  
	
   

  	
   

  	
  4.2.5

  	
  Estimated
  Costs

  	
   

  
	
   

  	
   

  	
  4.2.6

  	
  Adjustment for Occupancy

  	
   

  
	
   

  	
  4.3

  	
  Prepaid
  Rent

  	
   

  
	
   

  	
  4.4

  	
  Security
  Deposit

  	
   

  
	
   

  	
  4.5

  	
  Taxes on Tenant’s Property

  	
   

  
	
   

  	
  4.6

  	
  Late
  Payments

  	
   

  
	
   

  	
  4.7

  	
  Interest

  	
   

  
	
   

  	
  4.8

  	
  Supervision
  Fee

  	
   

  
	
   

  	
  4.9

  	
  Additional
  Rental

  	
   

  



 


i

















 


	
  ARTICLE V - CONSTRUCTION

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI - SERVICES AND UTILITIES

  	
   

  
	
   

  	
   

  
	
   

  	
  6.1

  	
  Services by Landlord

  	
   

  
	
   

  	
  6.2

  	
  Tenant’s Obligations

  	
   

  
	
   

  	
  6.3

  	
  Additional Services

  	
   

  
	
   

  	
   

  	
  6.3.1

  	
  Heating and Air Conditioning

  	
   

  
	
   

  	
   

  	
  6.3.2

  	
  Electricity

  	
   

  
	
   

  	
   

  	
  6.3.3

  	
  Cleaning

  	
   

  
	
   

  	
  6.4

  	
  Interruption

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VII – USE AND OCCUPANCY

  	
   

  
	
   

  	
   

  
	
   

  	
  7.1

  	
  Quiet
  Enjoyment

  	
   

  
	
   

  	
  7.2

  	
  Tenant’s
  Use

  	
   

  
	
   

  	
  7.3

  	
  Rules and Regulations

  	
   

  
	
   

  	
  7.4

  	
  Additional Covenants of Tenant

  	
   

  
	
   

  	
   

  	
  7.4.1

  	
  Applicable
  Laws

  	
   

  
	
   

  	
   

  	
  7.4.2

  	
  Waste, Hazards

  	
   

  
	
   

  	
  7.5

  	
  Entry
  by Landlord

  	
   

  
	
   

  	
  7.6

  	
  Building
  Name

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VIII – REPAIRS, ALTERATIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  8.1

  	
  Repairs and Maintenance

  	
   

  
	
   

  	
  8.2

  	
  Surrender of Premises

  	
   

  
	
   

  	
  8.3

  	
  Alterations and Additions by Tenant

  	
   

  
	
   

  	
   

  	
  8.3.1

  	
  Approval
  Required

  	
   

  
	
   

  	
   

  	
  8.3.2

  	
  Complex Alterations

  	
   

  
	
   

  	
   

  	
  8.3.3

  	
  Standard
  of Work

  	
   

  
	
   

  	
   

  	
  8.3.4

  	
  Ownership of Alterations

  	
   

  
	
   

  	
  8.4

  	
  Mechanics and Materialmen’s Liens

  	
   

  
	
   

  	
  8.5

  	
  Control of Building and Common Areas

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX - INSURANCE

  	
   

  
	
   

  	
   

  
	
   

  	
  9.1

  	
  Tenant’s Insurance

  	
   

  
	
   

  	
   

  	
  9.1.1

  	
  Liability Insurance

  	
   

  
	
   

  	
   

  	
  9.1.2

  	
  Property Insurance

  	
   

  
	
   

  	
   

  	
  9.1.3

  	
  Policy
  Form

  	
   

  
	
   

  	
  9.2

  	
  Indemnity

  	
   

  
	
   

  	
  9.3

  	
  Landlord’s Insurance

  	
   

  
	
   

  	
  9.4

  	
  Waiver of Subrogation

  	
   

  
	
   

  	
  9.5

  	
  Control of Proceeds

  	
   

  
	
   

  	
   

  
	
  ARTICLE X - ASSIGNMENT AND SUBLETTING

  	
   

  
	
   

  	
   

  
	
   

  	
  10.1

  	
  Consent

  	
   

  
	
   

  	
  10.2

  	
  Landlord’s
  Option

  	
   

  
	
   

  	
  10.3

  	
  Definition of Assignment

  	
   

  
	
   

  	
  10.4

  	
  Bankruptcy,
  Insolvency

  	
   

  
	
   

  	
  10.5

  	
  Landlord’s Assignment

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI - FIRE AND OTHER CASUALTY

  	
   

  
	
   

  	
   

  
	
   

  	
  11.1

  	
  Total
  Destruction

  	
   

  
	
   

  	
  11.2

  	
  Partial Destruction

  	
   

  



 


ii

















 


	
  ARTICLE
  XII - EMINENT DOMAIN

  	
   

  
	
   

  	
   

  
	
   

  	
  12.1

  	
  Total
  Taking

  	
   

  
	
   

  	
  12.2

  	
  Partial
  Taking

  	
   

  
	
   

  	
  12.3

  	
  Award

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIII - DEFAULT BY TENANT,

  	
   

  
	
   

  	
   

  
	
   

  	
  13.1

  	
  Events
  of Default

  	
   

  
	
   

  	
   

  	
  13.1.1

  	
  Monetary
  Default

  	
   

  
	
   

  	
   

  	
  13.1.2

  	
  Nonmonetary Default

  	
   

  
	
   

  	
   

  	
  13.1.3

  	
  Assignment to Creditors

  	
   

  
	
   

  	
   

  	
  13.1.4

  	
  Insolvency

  	
   

  
	
   

  	
   

  	
  13.1.5

  	
  Receivership

  	
   

  
	
   

  	
   

  	
  13.1.6

  	
  Abandonment

  	
   

  
	
   

  	
  13.2

  	
  Remedies

  	
   

  
	
   

  	
   

  	
  13.2.1

  	
  Termination of Lease

  	
   

  
	
   

  	
   

  	
  13.2.2

  	
  Relet
  Premises

  	
   

  
	
   

  	
   

  	
  13.2.3

  	
  Cure
  Default :

  	
   

  
	
   

  	
   

  	
  13.2.4

  	
  Injunctive
  Relief

  	
   

  
	
   

  	
  13.3

  	
  Landlord’s Damages

  	
   

  
	
   

  	
  13.4

  	
  Remedies Cumulative

  	
   

  
	
   

  	
  13.5

  	
  Joint and Several Liability

  	
   

  
	
   

  	
  13.6

  	
  Lien
  for Rent

  	
   

  
	
   

  	
  13.7

  	
  Attorneys’
  Fees

  	
   

  
	
   

  	
  13.8

  	
  Waiver

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIV - SUBORDINATION AND ATTORNMENT

  	
   

  
	
   

  	
   

  
	
   

  	
  14.1

  	
  Subordination

  	
   

  
	
   

  	
  14.2

  	
  Attornment

  	
   

  
	
   

  	
  14.3

  	
  Further Documentation

  	
   

  
	
   

  	
   

  
	
  ARTICLE XV - CERTIFICATES

  	
   

  
	
   

  	
   

  
	
   

  	
  15.1

  	
  Estoppel Certificates

  	
   

  
	
   

  	
  15.2

  	
  Financial Statements

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XVI - INTEREST OF LANDLORD

  	
   

  
	
   

  	
   

  
	
   

  	
  16.1

  	
  Consents

  	
   

  
	
   

  	
  16.2

  	
  Force
  Majeure

  	
   

  
	
   

  	
  16.3

  	
  Best
  Efforts

  	
   

  
	
   

  	
  16.4

  	
  Exculpation

  	
   

  
	
   

  	
  16.5

  	
  Sale
  of Building

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XVII- NOTICES

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XVIII - BROKERS

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIX - RELOCATION OF TENANT

  	
   

  
	
   

  	
   

  
	
   

  	
  19.1

  	
  Substitute Premises

  	
   

  
	
   

  	
  19.2

  	
  Substitute Premises Rental

  	
   

  
	
   

  	
  19.3

  	
  Landlord’s Obligations

  	
   

  
	
   

  	
  19.4

  	
  Tenant’s Obligations

  	
   

  
	
   

  	
  19.5

  	
  Status
  of Lease

  	
   

  



 


iii

















 


	
  ARTICLE XX - MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
   

  	
  20.1

  	
  No
  Implied Waiver

  	
   

  
	
   

  	
  20.2

  	
  No
  Recording

  	
   

  
	
   

  	
  20.3

  	
  Independent Contractor

  	
   

  
	
   

  	
  20.4

  	
  Survival,

  	
   

  
	
   

  	
  20.5

  	
  Severability

  	
   

  
	
   

  	
  20.6

  	
  Amendments

  	
   

  
	
   

  	
  20.7

  	
  Binding
  Effect

  	
   

  
	
   

  	
  20.8

  	
  Gender

  	
   

  
	
   

  	
  20.9

  	
  Captions

  	
   

  
	
   

  	
  20.10

  	
  Exhibits

  	
   

  
	
   

  	
  20.11

  	
  Entire
  Agreement

  	
   

  
	
   

  	
  20.12

  	
  Counterparts

  	
   

  
	
   

  	
  20.13

  	
  Governing Law and Venue

  	
   

  
	
   

  	
  20.14

  	
  No
  Reservation

  	
   

  
	
   

  	
  20.15

  	
  Guaranty

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit “A” - Floor Plan of the Premises

  	
   

  
	
  Exhibit “B” - Legal Description of Property

  	
   

  
	
  Exhibit “C” - Building Operating Cost Examples

  	
   

  
	
  Exhibit “D” - Rules and Regulations

  	
   

  
	
  Exhibit “E”
  - Tenant Estoppel Certificate Form

  	
   

  
	
  Exhibit “F”
  - Leasehold Improvements Agreement

  	
   

  
	
  Exhibit “G”
  - Parking Agreement

  	
   

  
	
  Exhibit “H”-
  Acceptance of Premises Memorandum

  	
   

  



 


iv

















 


INDEX OF DEFINED TERMS


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Addresses
  for Notices and Payment of Rent and Other Charges

  	
   

  	
  1.12

  
	
  Adequate
  Assurances of Future Performance

  	
   

  	
  10.4

  
	
  Applicable Laws

  	
   

  	
  7.4.1

  
	
  Assign,
  Assignment

  	
   

  	
  10.3

  
	
  Bankruptcy
  Code

  	
   

  	
  10.4

  
	
  Base Rental

  	
   

  	
  1.4

  
	
  Base Year

  	
   

  	
  1.5

  
	
  Broker

  	
   

  	
  1.13

  
	
  Building

  	
   

  	
  2.1

  
	
  Building
  Operating Costs

  	
   

  	
  4.2.2

  
	
  Common Areas

  	
   

  	
  2.5

  
	
  Commencement
  Date

  	
   

  	
  3.1

  
	
  Encumbrances

  	
   

  	
  14.1

  
	
  Energy Costs

  	
   

  	
  4.2.3

  
	
  Estimated
  Building Operating Costs

  	
   

  	
  4.2.4

  
	
  Estimated
  Energy Costs

  	
   

  	
  4.2.4

  
	
  Expiration
  Date

  	
   

  	
  3.1

  
	
  First Year
  Estimated Energy Costs

  	
   

  	
  1.7

  
	
  Landlord

  	
   

  	
  Preamble

  
	
  Landlord’s
  Share of Building and Operating Costs

  	
   

  	
  1.6

  
	
  Lease

  	
   

  	
  Preamble

  
	
  Exhibit F

  	
   

  	
  Article V

  
	
  Premises

  	
   

  	
  1.2

  
	
  Premises’
  Pro Rata Share

  	
   

  	
  4.2.1

  
	
  Prepaid Rent

  	
   

  	
  1.8

  
	
  Project
  Manager

  	
   

  	
  16.6

  
	
  Property

  	
   

  	
  2.1

  
	
  Purchaser

  	
   

  	
  14.2

  
	
  Rentable
  Square Feet

  	
   

  	
  22.2

  
	
  Security
  Deposit

  	
   

  	
  1.9

  
	
  Sublet,
  Subletting

  	
   

  	
  10.3

  
	
  Substitute
  Premises

  	
   

  	
  19.1

  
	
  Tenant

  	
   

  	
  1.1

  
	
  Tenant’s
  Comprehensive General Liability Insurance

  	
   

  	
  1.11

  
	
  Term

  	
   

  	
  1.3

  



 


v

















 


OFFICE BUILDING LEASE


 


THIS OFFICE BUILDING LEASE (the
“Lease”) is made and entered into as of the 28th day of May, 1998, between
Hall Stonebriar Center I Associates, Ltd., a Texas limited partnership (the
“Landlord”), and Tenant (as defined below).


 


ARTICLE I


 


DEFINED TERMS


 


For purposes of this Lease, the
following terms shall have the respective meanings set forth below.


 


1.1                                 Tenant: Heartland Card Services, L.L.C. (the “Tenant”),
a limited liability corporation organized under the laws of the State of
Missouri.


 


1.2                                 Premises: Designated as Suite 403, outlined and
crosshatched on Exhibit “A” hereof and containing approximately two
thousand seven hundred sixty nine(2,769) Rentable Square Feet on floor four (4)
of the Building. (Article II)


 


1.3                                 Term: Beginning on Commencement Date (contemplated
to be July 1, 1998) and ending June 30, 2003, sixty (60) full calendar months
following Commencement Date. (Article III)


 


1.4                                 Base Rental: Fifty Eight Thousand One Hundred
Forty Nine and No/l00 Dollars ($58,149.00) annually [Computed on the basis of
Twenty One and No/100 Dollars ($21.00) per Rentable Square Foot] payable in
equal monthly installments of Four Thousand Eight Hundred Forty Five and 75/100
Dollars ($4,845.75). (Section 4.1)


 


1.5                                 Base Year: Calendar year 1999. (Section 4.2)


 


1.6                                 Landlord’s Share of Building Operating Costs:
The actual Building. Operating Costs for the Base Year.


 


1.7                                 First Year Estimated Energy Costs: Three Thousand
Four Hundred Sixty One and 25/100 Dollars ($3,461.25) annually [computed on the
basis of One and 25/100 Dollars ($1.25) per Rentable Square Foot], payable in
equal monthly installments. (Section 4.2.4.4)


 


1.8                                 Prepaid Rent: Four Thousand Eight Hundred Forty Five and
75/100 Dollars ($4,845.75) applicable to the first month of the Term. (Section
4.4)


 


1.9                                 Security Deposit: Nineteen Thousand Three Hundred
Eighty Three and No/100 Dollars ($19,383.00).. (Section 4.5)


 


1.10                           Premises Use: Office space for general office use.
(Article VII)


 


1.11                           Tenant’s Comprehensive General Liability
Insurance: One Million and No/100 Dollars ($1,000,000.00) per occurrence.
(Section 9.1)


 


1

















 


1.12                           Addresses for Notices and Payment of Rent and
Other Charges: (Article XVII)


 


	
  To Tenant:

  	
   

  	
  To Landlord:

  
	
   

  	
   

  	
   

  
	
  Heartland
  Card Services

  	
   

  	
  Hall
  Stonebriar Center I Associates, Ltd.,

  
	
  200 Hanley
  Rd.

  	
   

  	
  750 N. St.
  Paul, Suite 200

  
	
  Suite 300

  	
   

  	
  Dallas, TX
  75201

  
	
  St. Louis,
  MO 63105

  	
   

  	
  Attn:
  Building Manager

  
	
   

  	
   

  	
   

  
	
  with copies
  of notices to:

  	
   

  	
  with copies
  of notices to:

  
	
   

  	
   

  	
   

  
	
  Heartland
  Card Services - New Jersey

  	
   

  	
  Hall
  Financial Group, Ltd.

  
	
  130 Nassau
  St.

  	
   

  	
  750 N. St.
  Paul, Suite 200

  
	
  2nd
  Floor

  	
   

  	
  Dallas,
  Texas 75201

  
	
  Princeton,
  NJ 08642

  	
   

  	
  Attn: Mark
  Depker

  



 


1.13                           Broker: Jim Ray Smith. (Article XVIII)


 


1.14                           Exhibits: The following numbered exhibits (the
“Exhibits”) are attached to this Lease and made a part of this Lease for all
purposes as if fully set forth herein:


 


Exhibit “A” - Floor Plan of the Premises


 


Exhibit “B” - Legal Description of Property


 


Exhibit “C” - Building Operating Cost Examples


 


Exhibit “D” - Rules and Regulations


 


Exhibit “E” - Leasehold Improvements Agreement


 


Exhibit “F” - Parking Agreement


 


Exhibit “G”- Acceptance of Premises Memorandum


 


Exhibit “H”- Termination Amortization


 


1.15                           Incorporation. Each reference in this
Lease or in any exhibit or any attachment to this Lease to any definition set
forth in this Article I will be construed to incorporate all of the terms
provided under the referenced provision in this Article I. In the event of any
conflict between a provision in this Article I and a provision in any other
article of or exhibit, rider or attachment to this Lease, the latter will
control.


 


ARTICLE II


 


PREMISES COMMON AREAS


 


2.1                                 Demise. Landlord, in consideration of the rent to
be paid and of the covenants and agreements in this Lease to be performed by
Tenant, does hereby lease and demise unto Tenant the Premises described in
Section 1.2, in a building (the “Building”) known as “Stonebriar One” situated
on a tract of land in the City of Frisco, Collin County, Texas, and more
particularly described in attached Exhibit “B” (the “Property”).


 


2

















 


2.2                                 Rentable Area of Building. For all purposes of
this Lease, Landlord and Tenant hereby agree that there are 97,712 Rentable
Square Feet contained in the Building based on BOMA Measurement Standards.


 


2.3                                 Acceptance of Premises and Building by Tenant.
Except for the completion of any remaining items of Landlord’s Work (as defined
in the Leasehold Improvements Agreement, if any) and except for defects which
are not observable upon a reasonable inspection and about which Tenant notifies
Landlord within six (6) months after taking possession of the Premises, the
taking of possession of the Premises by Tenant will be conclusive evidence as
to Tenant that: (i) the Premises are suitable for the purposes for which the
Premises are leased; (ii) the Building and each and every part and appurtenance
thereof are in good and satisfactory condition; and (iii) Tenant waives any
defects in the Premises and in all other parts of the Building and the
appurtenances thereto. Tenant agrees that upon the occupancy of the Premises,
to execute an Acceptance of Premises Memorandum substantially in the form of
the attached Exhibit “H”.


 


2.4                                 Walls, Ceilings. Landlord reserves the right to
use all of the Building, including, without limitation, the Premises, the
exterior Building walls, core corridor walls and doors and any core corridor
entrance, any terraces or roofs adjacent to the Premises, and any space in or
adjacent to the Premises used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other Building facilities, as well
as access thereto through the Premises, for the purposes of operation,
maintenance, decoration and repair, so long as same does not unreasonably
interfere with Tenant’s use and occupancy of the Premises. The installation,
erection, use and maintenance of any pipes, ducts and conduits in and through
the Premises pursuant to this Section 2.4 will not be deemed to interfere with
Tenant’s use, enjoyment and occupancy of the Premises, provided that such
pipes, ducts and conduits are concealed behind walls or above false ceilings to
the extent practicable or otherwise boxed against walls or columns in a manner
consistent with Tenant’s decor.


 


2.5                                 Common Areas. Tenant is hereby granted a
nonexclusive, revocable license to use the Common Areas (as hereinafter defined)
during the term of this Lease for their intended purposes, in common with
others, subject to the terms and conditions of this Lease, including, without
limitation, the Rules and Regulations. For purposes hereof, “Common Areas” will
mean all areas, spaces, facilities and equipment made available by Landlord for
the common and joint use of Landlord, Tenant and others, including, but not
limited to, sidewalks, lobbies, loading areas, Building stairs, elevators, and
such other areas and facilities, if any, as are designated by Landlord from
time to time as Common Areas.


 


ARTICLE III


 


TERM


 


3.1                                 Lease Term. The Term of this Lease shall
commence on the date (“Commencement Date”) set forth in a notice to be
delivered by Landlord to Tenant as the date on which Tenant may take possession
of the Premises and will expire on a date (the “Expiration Date”) which is the
number of full calendar months after the Commencement Date set forth in Section
1.3, unless sooner terminated in accordance with the provisions of this Lease.


 


3.2                                 Delivery of Premises. If possession
of the Premises is not actually delivered to Tenant on the contemplated
Commencement Date set forth in Section 1.3 for any reason, the obligations of
Landlord and Tenant will continue in full force and effect; provided, however,
in the event of a delay, the rental payable hereunder will not commence until
the date that Landlord has actually delivered possession of the Premises to


 


3

















 


Tenant. In addition, this Lease
will not be void or voidable, nor will Landlord be liable to Tenant for any
loss or damage resulting from any delay in delivering possession of the
Premises to Tenant. Suspension of rental will constitute full settlement of all
claims that Tenant might otherwise have against Landlord by reason of the
Premises not having been delivered to Tenant on the contemplated Commencement
Date.


 


3.3                                 Holding Over by Tenant. If Tenant
continues to hold the Premises after the Expiration Date or earlier termination
of this Lease, Tenant will pay to Landlord, as Base Rental, for each month of
such holding over, two (2) times the greater of (i) the amount of the current
monthly installments of Base Rental, or (ii) the then current fair market
monthly base rental for the Premises, which amount will be due and payable in
advance on the first day of each calendar month. During such time as Tenant
continues to hold the Premises after the termination hereof, such holding over
will be a tenancy at sufferance, subject to all of the terms, provisions,
covenants and agreements of this Lease except as modified by this Section 3.3
with respect to the length of the Term and the amount of the Base Rental. No
payments of money by Tenant to Landlord after the termination of this Lease or
after the giving of any notice of termination by Landlord to Tenant will
reinstate, continue or extend the Term or reduce the liability of Tenant to
Landlord for damages incurred because of such holding over by Tenant or affect
any termination notice given by Landlord to Tenant, and no extension of the
Term will be valid unless and until the same will be reduced to writing and
signed by both Landlord and Tenant.


 


ARTICLE IV


 


TENANT’S MONETARY OBLIGATIONS


 


4.1                                 Base Rental. Tenant agrees and promises to pay to
Landlord at Landlord’s offices in the Building (or at such other place as
Landlord may designate from time to time), in lawful money of the United States
of America, the Base Rental set forth in Section 1.4 hereof. The monthly
installments of Base Rental will be due and payable in advance on the first day
of each calendar month during the Term without notice or demand and without any
offset or deduction whatsoever. Should the Term commence on a day other than
the first day of a calendar month or terminate on a day other than the last day
of a calendar month, Base Rental for any such partial month will be prorated on
a daily basis. Base Rental for the first partial month, if any, will be payable
on Commencement Date notwithstanding the receipt by Landlord of any prepaid
rent under this Lease. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct installment of Base Rental or
other amount due from Tenant will be deemed to be other than a payment on
account, nor will any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right
to recover the balance or pursue any other remedy provided by this Lease or by
applicable law. The acceptance by Landlord of rental payment(s) on a date after
the due date of such payment(s) will not be construed to be a waiver of
Landlord’s right to declare a default for a subsequent late payment.


 


4.2                                 Tenant’s Share of Certain Building
Costs


 


4.2.1                        Pro Rata Share. The Term “Premises’ Pro
Rata Share” means the amount obtained by multiplying the fraction having as its
numerator the number of Rentable Square Feet in the Premises and as its
denominator the number of Rentable Square Feet in the Building, times the cost
in question.


 


4.2.2                        Building Operating Costs. Tenant will
pay to Landlord, as additional rental hereunder, in the manner set forth below,
an amount equal to the excess of the Premises’ Pro Rata Share of Building
Operating Costs for each calendar year of the Term over Landlord’s Share of
Building Operating Costs (“Tenant’s Pro Rata Share”). For purposes hereof, the
term “Building Operating Costs” means all costs, charges, and expenses incurred
by Landlord in connection with owning, operating,


 


4

















 


maintaining, repairing,
insuring and managing the Building and Common Areas except those costs,
charges, and expenses included within the definition of Energy Costs. Building
Operating Costs include, without limitation, the items enumerated on Exhibit
“C” to this Lease. If the Premises’ Pro Rata Share of Building Operating
Costs for any calendar year is less than Landlord’s Share of Building Operating
Costs, the Premises’ Pro Rata Share of Building Operating Costs will be deemed
to be equal to Landlord’s Share of Building Operating Costs.


 


4.2.3                        Energy Costs. Tenant will pay to Landlord,
as additional rental hereunder, in the manner set forth below, the Premises’
Pro Rata Share of Energy Costs for each calendar year of the Term. For purposes
hereof, the term “Energy Costs” means the costs charged to or incurred by
Landlord for electricity and any and all other forms of energy for the
Building, including all costs of metering the Building’s use of energy and all
indirect costs of providing such energy, such as, but not limited to, any
sales, use or other taxes and insurance.


 


4.2.4                        Electricity Savings Expenditures.
Notwithstanding anything contained in this Lease to the contrary, if for any
reason, including but not limited to imposition of governmental requirements,
laws or regulations, or in the event Landlord deems it necessary or prudent to
expend monies directly or indirectly for the purpose of attempting to reduce
energy consumption of the Building and if by generally accepted accounting
principals those funds expended are, or may be treated as capital expenditures,
the Tenant shall also pay: (i) its prorata share of the utility charges
actually incurred, in accordance with the Lease; plus (ii) its prorata share of
the savings generated by the capital expenditures for the applicable period,
which savings shall be applied toward amortization of those capital
expenditures until such time as the savings from the energy reduction have
fully amortized and paid for the capital expenditure.


 


4.2.5                        Estimated Costs. Within ninety (90) days
after the end of each calendar year after the Base Year, or as soon thereafter
as is reasonably practicable, Landlord will deliver to Tenant a statement
(“Statement”) setting forth for the previous calendar year the Building
Operating Costs, the Energy Costs, Tenant’s Pro Rata Share of Building
Operating Costs and the Premises’ Pro Rata Share of Energy Costs, the amounts
paid by Tenant toward Building Operating Costs and Energy Costs and the amounts
remaining due from or overpaid by Tenant. In addition, the Statement shall
contain Landlord’s estimate of Tenant’s Pro Rata Share of Building Operating
Costs (“Estimated Building Operating Costs”) and Landlord’s estimate of the
Premises’ Pro Rata Share of Energy Costs (“Estimated Energy Costs”) for the
then current calendar year. Any Statement delivered to Tenant by Landlord shall
be conclusively presumed to be true and correct unless Tenant delivers a
written objection to such Statement to Landlord within fifteen (15) days after
delivery thereof.


 


4.2.4.1               Commencing on the
first day of the first month following the delivery to Tenant of each Statement
referred to above and on the first day of each month thereafter until delivery
to Tenant of the next such Statement, Tenant will pay to Landlord, one-twelfth
(1/12th) of the Estimated Building Operating Costs and one-twelfth (1/12) of
the Estimated Energy Costs, as contained in the Statement.


 


4.2.4.2               In addition, within
thirty (30) days after the date of delivery of the Statement, Tenant will pay
to Landlord the balance of the amounts, if any, required to be paid pursuant to
Section 4.2.5 for the previous calendar year, or if Tenant has overpaid such
amount, Landlord will refund the amount of such overpayment to Tenant within
thirty (30) days, except that Landlord may at Landlord’s option credit any
amounts due from Landlord to Tenant against the monthly installments of Base
Rental next thereafter coming due.


 


5

















 


4.2.4.3               In event that the
Commencement Date of this Lease occurs on a day other than the first day of a
calendar year, Landlord will notify Tenant of the monthly installments of
Estimated Building Operating Costs, if any, for the remainder of such calendar
year, no later than thirty (30) days prior to Commencement Date. For such
initial calendar year, the Tenant’s Pro Rata Share of the Building Operating
Costs shall be prorated based on a fraction the numerator of which shall be the
number of days from the Commencement Date to December 31 and the denominator of
which is three hundred sixty-five (365).


 


4.2.4.4               During the initial
Base Year, the Premises’ Estimated Energy Costs shall be the amount set forth
in Section 1.6 hereof.


 


4.2.4.5               In the event that
this Lease terminates on a date other than the last day of a calendar year,
then upon termination Tenant will pay to Landlord a sum equal to Landlord’s
estimate of the amount due as of the date of termination, such estimate to be
based on the facts currently available to Landlord on the termination date.
Landlord and Tenant will thereafter settle the actual amounts owing within
thirty (30) days of the final determination of Building Operating Costs and
Energy Costs for such year.


 


4.3                                 Adjustment for Occupancy. During
any calendar year in which the Building has less than full occupancy, Building
Operating Costs and Energy Costs will be computed as though the Building had
been completely occupied for the entire calendar year.


 


4.4                                 Prepaid Rent. Contemporaneously, with
Tenant’s execution of this Lease, Tenant will pay to Landlord the sum specified
in Section 1.8 hereof, which sum shall be credited to monthly installments of
Base Rental as specified in Section 1.8.


 


4.5                                 Security Deposit. Contemporaneously,
with the execution of this Lease, Tenant will pay Landlord the sum set forth in
Section 1.9 as security for the performance by Tenant under this Lease. If
Tenant defaults with respect to any provision of this Lease (beyond the
expiration of any applicable notice, grace and opportunity to cure provisions)
Landlord may but will not be required to, use, apply or retain all or any part
of the Security Deposit for the payment of any rent or any other sum in
default, or for the payment of any other amount which Landlord may spend or may
become obligated to spend by reason of Tenant’s default, or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant’s default. If any portion of the Security Deposit is so used or applied,
Tenant will, upon demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to the original amount. The unused
balance of the Security Deposit will be returned to Tenant within thirty (30)
days after the Expiration Date. Tenant will not assign or encumber Tenant’s
interest in the Security Deposit and neither Landlord nor Landlord’s successors
or assigns will be bound by any such attempted assignment or encumbrance of the
Security Deposit. Tenant shall maintain the Security Deposit at all times
during this Lease until Tenant delivers to Landlord financial statements
reflecting and net worth of at least Two Million Five Hundred Thousand Dollars
($2,500,000.00).  After Tenant’s
delivery to Landlord of audited financial statements evidencing the
satisfaction of such financial requirements, Landlord shall abate all Base
Rental next accruing under this Lease until Tenant’s Security Deposit is
reduced to Four Thousand Eight Hundred Forty Five and No/100 Dollars
($4,845.00).


 


4.6                                 Taxes on Tenant’s Property.
Tenant will be liable for and will pay before delinquency all taxes,
assessments, license fees, excise and other charges levied or assessed by any
governmental or quasi-governmental authority against personal property,
furniture or fixtures placed by Tenant in the Premises, the leasehold estate
created hereby, or operations at, occupancy of, or conduct of business in or
from the Premises. If any such taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord’s property and if Landlord elects to pay
the same or if the assessed value of Landlord’s property


 


6

















 


is increased by inclusion of
personal property, furniture or fixtures placed by Tenant in the Premises or
the leasehold estate created hereby, and Landlord elects to pay the taxes based
on such increase, then Tenant will be liable to Landlord for such payment by
Landlord, and Tenant will pay to Landlord upon demand that part of such taxes
for which Tenant is so liable.


 


4.7                                 Late Payments. Should Tenant fail to pay
any installment of Base Rental on or before the fifth (5th) day of each
calendar month during the Term, a late charge in an amount equal to five
percent (5%) of the installment then due, will be paid by Tenant to Landlord at
the time of payment of the delinquent sum. The late charge is in addition to
any Interest pursuant to Section 4.8 and is agreed by Landlord and Tenant to be
a reasonable estimate of the extra administrative expenses incurred by Landlord
in handling such delinquencies.


 


4.8                                 Interest. All monetary obligations of Tenant to
Landlord under this Lease remaining unpaid after the due date therefor, will
bear interest from and after such date until paid at the lesser of (i) the
highest lawful rate or (ii) three percent (3%) over the “prime interest rate”
announced from time to time by Citibank N.A. in New York, New York. If no due
date is established under the other terms and provisions of this Lease, such
due date shall be five (5) days after the date upon which Landlord delivers to
Tenant written demand for payment.


 


4.9                                 Supervision Fee. If Tenant fails to
perform any obligation of Tenant under this Lease, Landlord may enter the
Premises and perform such obligation without liability to Tenant for any loss
or damage to Tenant thereby incurred, and Tenant will reimburse Landlord for
the costs incurred by Landlord in connection with such performance, plus twenty
percent (20%) of such cost for overhead and supervision, within ten (10) days
of receipt of Landlord’s invoice therefor.


 


4.10                           Additional Rental. All amounts payable
by Tenant to Landlord under this Lease in addition to Base Rental shall be
deemed to be additional rental and will be payable and recoverable as rent in
the manner prescribed in this Lease.


 


ARTICLE V


 


CONSTRUCTION


 


In the event
any construction of tenant improvements is necessary for the Premises prior to
Commencement Date, such construction will be accomplished and the cost of such
construction will be borne by Landlord and/or Tenant in accordance with the
Leasehold Improvement Agreement to this Lease, and except as expressly provided
therein, Tenant acknowledges that Landlord has not undertaken to perform any
modification, alteration or improvement to the Premises.


 


ARTICLE VI


 


SERVICES AND UTILITIES


 


6.1                                 Services by Landlord. Landlord agrees
to furnish the following services:


 


(i)                                     Electric
current to the Premises for lighting and machines of low electrical
consumption, as may, in the sole judgment of Landlord, be reasonably required
for use and occupancy under normal office operations;


 


7

















 


(ii)                                  Air
conditioning to the Premises, both heating and cooling (as required by the
seasons), as may, in the sole judgment of Landlord, be reasonably required for
comfortable use and occupancy under normal office operations;


 


(iii)                               Cold
water (at the normal temperature of the supply of water to the Building) for
lavatory and toilet purposes, refrigerated water for drinking purposes and hot
water (from the regular Building supply at prevailing temperatures) for
lavatory purposes, all of such water service to be supplied from the Building’s
regular water supply;


 


(iv)                              Janitorial
cleaning service to the Premises including such window washing and wall
cleaning as may in the sole judgment of Landlord be reasonably required;


 


(v)                                 Passenger
elevators to the floor(s) on which the Premises are located for ingress to and
egress from the Premises and freight elevator service in common with other
tenants but only when scheduled through Landlord in advance; and


 


(vi)                              Electric
lighting for all public areas and special service areas of the Building in the
manner and to the extent as may be reasonable and standard in the sole judgment
of Landlord.


 


Landlord, Landlord’s cleaning
contractor and such cleaning contractor’s employees will have access to the
Premises after 5:30 p.m. and before 8:00 a.m. and will have the right to use,
without charge therefor, all light, power and water in the Premises reasonably
required to clean the Premises as required under this Lease. Landlord will be
deemed to have observed and performed the terms and conditions to be performed
by Landlord under this Lease, including those relating to the provision of
utilities and services, if in so doing Landlord acts in accordance with a
directive, policy or request of any governmental or quasi-governmental
authority.


 


6.2                                 Tenant’s Obligations. Tenant will
pay, prior to delinquency, charges for all materials and services not expressly
the obligation of Landlord that are furnished to or used on or about the
Premises during the Term of this Lease.


 


6.3                                 Additional Services.


 


6.3.1                        Heating and Air Conditioning.
If Tenant requires heating and air conditioning after normal business hours or
on days other than normal business days, Landlord will furnish such services
upon not less than twenty-four (24) hours’ advance notice from Tenant, and
Tenant will pay to Landlord upon demand Landlord’s then established charges
therefor. Tenant will not, without Landlord’s prior written consent in each
instance, install in the Premises equipment (including computer and telephone
equipment) which generates sufficient heat to affect the temperature otherwise
maintainable in the Premises by the Building air conditioning system as
normally operated. If any such heat generating equipment is installed, Landlord
may install such supplementary air conditioning units, facilities or services
in the Premises, or make such modifications to the Premises’ air conditioning
system, as may in Landlord’s reasonable opinion be required to maintain proper
temperature levels, and Tenant will pay Landlord within ten (10) days of
receipt of an invoice for the cost thereof, including installation plus
Landlord’s supervision fee, operation and maintenance expenses.


 


6.3.2                        Electricity. Tenant’s use of electric
current in the Premises will not at any time exceed the capacity of any of the
electrical conductors and equipment in or serving the Premises. Tenant will
not, without Landlord’s prior written consent in each instance, connect any
fixtures, appliances or equipment to the Building’s electric distribution
system other than through outlets existing on Commencement Date or make any
alteration or addition to the electric system of the Premises existing on


 


8

















 


the Commencement Date. Should
Landlord grant such consent, all additional risers or other equipment required
therefor will be provided and installed by Landlord, and the cost thereof will
be paid by Tenant to Landlord within ten (10) days after receipt of an invoice
therefor. If Landlord grants such consent or if Landlord from time to time
reasonably determines that Tenant’s use of electricity or any other utility or
service in the Premises may be disproportionate to the use of other tenants,
Landlord may separately charge Tenant for the excess costs attributable to such
disproportionate use. Landlord may install separate metering for any utility
service, the cost of which separate metering, including installation and
Landlord’s supervision fee, Tenant will reimburse to Landlord within ten (10)
days after invoicing by Landlord.


 


6.3.3                        Cleaning. Tenant will pay to Landlord within ten
(10) days after receipt of an invoice from Landlord, the costs incurred by
Landlord for (a) extra cleaning work in the Premises required because of the
nature of the use and occupancy of the Premises by Tenant, and (b) removal from
the Premises and the Building of any refuse and rubbish of Tenant in excess of
that ordinarily accumulated in business office occupancy or at times other than
Landlord’s standard cleaning times. If Tenant desires to have cleaning work
done in the Premises in addition to that provided by Landlord pursuant to
Section 6.1 hereof, Tenant must employ Landlord’s janitorial cleaning
contractor for such services, and the cost of such additional services will be
borne solely by Tenant.


 


6.4                                 Interruption. Landlord reserves the right,
without any liability to Tenant and without affecting Tenant’s covenants and
obligations hereunder, to stop or interrupt or reduce any of the services
listed in Section 6.1 or to stop or interrupt or reduce any other services
required of Landlord under this Lease, whenever and for so long as may be
necessary, by reason of (i) the making of repairs or changes which Landlord is
required or is permitted by this Lease or by law to make or in good faith deems
necessary or (ii) any other cause beyond Landlord’s control. Landlord does not
warrant that the services provided for in Section 6.1 or elsewhere in this
Lease will be free from interruption or stoppage and no such interruption or
stoppage will in any manner relieve Tenant of any of Tenant’s obligations under
this Lease except as expressly provided in this Lease.


 


ARTICLE VII


 


USE AND OCCUPANCY


 


7.1                                 Quiet Enjoyment. During the Term of this
Lease, Landlord agrees to warrant and defend Tenant in the quiet enjoyment and
possession of the Premises against any party claiming by, through or under
Landlord, subject to the terms of this Lease and any ground lease, mortgage or
deed of trust which is now or hereafter placed against the Building or
Property, and so long as Tenant is not in default under this Lease. This covenant
will be construed as a covenant running with the land, and is not, nor will
this covenant be construed as, a personal covenant of Landlord, except to the
extent of Landlord’s interest in this Lease and only for so long as such
interest continues, and thereafter this covenant will be binding only upon
subsequent successors in interest of Landlord’s interest in this Lease, to the
extent of such successors’ respective interests, as and when they will acquire
the same, and for so long as such successors will retain such interest.


 


7.2                                 Tenant’s Use. Tenant agrees that the Premises
will be used and occupied by Tenant only for those uses permitted by Section
1.10 of this Lease.


 


7.3                                 Rules and Regulations. Tenant will
comply fully with all requirements of the “Rules and Regulations” (herein so
called) of the Building which are contained in attached Exhibit “D”;
provided that, in the event of any conflict between the provisions of this
Lease and the Rules and Regulations, the provisions of this Lease shall control.
Landlord will at all times have the right to change such Rules and Regulations
or to promulgate other Rules and Regulations in such manner as may be deemed
advisable


 


9

















 


for the safety, care, or
cleanliness of the Building and Common Areas, and for the preservation of good
order therein, all of which Rules and Regulations, changes and amendments will
be forwarded to Tenant in writing and will be carried out and observed by
Tenant. Tenant will also be responsible for the compliance with such Rules and
Regulations by the agents, employees, licensees and invitees of Tenant. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations against any other tenant or any
employees or agents of any other tenant, and Landlord will not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or such
other tenant’s employees, agents, invitees or licensees.


 


7.4                                 Additional Covenants of Tenant.


 


7.4.1                        Applicable Laws. Tenant agrees to use and
maintain the Premises in a careful, safe and proper manner and to comply with
all applicable laws, ordinances, orders, rules and regulations of all
governmental bodies, federal, state, county and municipal (collectively
“Applicable Laws”) from time to time in force which affect Tenant’s use or
occupancy of the Premises. Tenant will pay all costs, expenses, fines,
penalties and damages which may be imposed upon Landlord by reason of or arising
out of Tenant’s failure to comply with and observe fully and promptly such
Applicable Laws. Tenant will, at Tenant’s expense, procure and maintain all
governmental licenses or permits required for the proper and lawful conduct of
Tenant’s business in the Premises. Tenant will give prompt notice to Landlord
of any notice Tenant receives of the violation of any Applicable Laws.


 


7.4.2                        Waste, Hazards. Tenant agrees not to commit waste
or permit waste to be committed or to allow or permit any public nuisance on or
in the Premises. Tenant will not use the Premises or allow or permit the same
to be used in any way which will increase the rate of fire or other insurance
for the Building or the Building’s contents or which may render the Building
uninsurable at normal rates by responsible insurance carriers authorized to do
business in the State of Texas or which may render void or voidable any
insurance on the Building or the Building’s contents. Tenant will not violate,
or permit the violation of, any condition imposed by any insurance policy
covering the Building and/or the Property and will not do, or permit anything
to be done in the Premises which would result in the cancellation of, or limit
the assertion of any defense by the insured, in whole or in part to claims
under any policy of insurance in respect of the Building or the Property. In
the event that by reason of Tenant’s acts or conduct of business there is an
increase in the rate of insurance on the Building or the contents thereof, then
Tenant hereby agrees to pay such increase but such payment will not be deemed a
waiver of Landlord’s rights to enforce the covenants herein contained.


 


7.5                                 Entry by Landlord. Landlord will have
the right at any time to enter the Premises for the purpose of examining and
inspecting the Premises and to make such repairs, additions or alterations to
the Premises or other portions of the Building as Landlord may deem necessary
or proper for the safety, improvement or preservation of the Premises or of the
Building, so long as same do not unreasonably interfere with Tenant’s use and
occupancy of the Premises. During the period of eighteen (18) months prior to
the expiration date of this Lease, Landlord and Landlord’s agent may show the
Premises to prospective tenants.


 


7.6                                 Building Name. Landlord reserves and
retains the right at any time and from time to time to change the name by which
the Building is designated.


 


10

















 


ARTICLE VIII


 


REPAIRS. ALTERATIONS


 


8.1                                 Repairs and Maintenance. Landlord
will repair and maintain the structural components of the Building, the basic
Building core, the basic Building facilities systems which pass through the
Premises and the Common Areas. Tenant will, at Tenant’s expense, take good care
of and maintain the Premises in good order, condition and repair, except as
provided in the preceding sentence. Tenant will be liable for any damage to the
Premises or to any other part of the Building which arises out of any act,
omission, misuse or neglect of Tenant or any of Tenant’s subtenant’s,
employees, agents, contractors or invitees or any other person entering upon
the Premises. Tenant, at Tenant’s expense, will promptly replace all scratched,
damaged or broken doors and glass in and about the Premises and will be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Premises and replacement of all light bulbs and fluorescent
tubes in the Premises. Any repairs in or to the Premises or the Building for
which Tenant is responsible will, after written request, be performed by
Landlord at Tenant’s expense (including Landlord’s supervision fee under
Section 4.9 hereof).


 


8.2                                 Surrender of Premises. Upon termination or
earlier expiration of this Lease, or upon the exercise by Landlord of
Landlord’s right to re-enter the Premises without terminating this Lease,
Tenant will deliver the Premises to Landlord in a condition comparable to the
condition existing on the Commencement Date, ordinary wear, tear and
obsolescence only excepted. Tenant will deliver to Landlord all keys for the
Premises and combinations to safes located in the Premises. Tenant will, at
Landlord’s option, remove, or cause to be removed, from the Premises or the
Building, at Tenant’s expense and as of Expiration Date or earlier termination
of this Lease, all of Tenant’s signs, notices, displays, millwork, non-movable
trade fixtures, or, subject to Subsection 8.3 of this Lease, any non-Building
standard tenant improvements placed in the Premises or the Building. Tenant
agrees to repair, at Tenant’s expense, any damage to the Premises or the
Building resulting from the removal of any articles of personal property,
movable business or trade fixtures, machinery, equipment, furniture, movable
partitions or non-Building standard tenant improvements, including without
limitation, repairing the floor and patching and painting the walls where
reasonably required by Landlord. Tenant’s obligations under this Section 8.2
will survive the expiration or earlier termination of this Lease. If Tenant
fails to remove any item of property permitted or required to be removed at the
expiration or earlier termination of the Term, Landlord, may, at Landlord’s
option, (a) remove such property from the Premises at the expense of Tenant and
sell or dispose of same in such manner as Landlord deems advisable, or (b)
place such property in storage at the expense of Tenant. Any property of Tenant
remaining in the Premises ten (10) days after the Expiration Date or earlier
termination of this Lease will be deemed to have been abandoned by Tenant, and
in such case such items may be retained by Landlord as Landlord’s property or
disposed of by Landlord without accountability to Tenant, in such manner as
Landlord determines, at Tenant’s expense.


 


8.3                                 Alterations and Additions by Tenant.


 


8.3.1                        Approval Required. Tenant will not
make, or cause or permit to be made, any additions, alterations, installations
or improvements in or to the Premises (singularly “Alteration” and collectively
“Alterations”), without the prior written consent of Landlord. Unless Landlord
has waived such requirement in writing, together with Tenant’s request for
approval of any Alteration, Tenant must also submit details with respect to the
proposed source of funds for the payment of the cost of the Alteration by
Tenant, design concept, plans and specifications, names of proposed
contractors, and financial and other pertinent information about such
contractors (including without limitation, the labor organization affiliation or
lack of affiliation of any contractors), certificates of insurance to be
maintained by Tenant’s contractors, hours of construction, proposed
construction methods, details with respect to the


 


11

















 


quality of the proposed work
and evidence of security (such as payment and performance bonds) to assure
timely completion of the work by the contractor and payment by the contractor
of all costs of the work. With respect to any Alteration which is visible from
outside the Premises, such proposed Alteration must, in the opinion of
Landlord, also be architecturally and aesthetically harmonious with the
remainder of the Building.


 


8.3.2                        Complex Alterations. If the nature,
volume or complexity of any proposed Alterations causes Landlord to consult
with an independent architect, engineer or other consultant, Tenant will
reimburse Landlord for the fees and expenses incurred by Landlord. If any
improvements will affect the basic heat, ventilation and air conditioning or other
Building systems or the Building, Landlord may require that such work be
designed by consultants designated by Landlord and be performed by Landlord or
Landlord’s contractors.


 


8.3.3                        Standard of Work. All work to be
performed by or for Tenant pursuant hereto will be performed diligently and in
a first-class, workmanlike manner, and in compliance with all applicable laws,
ordinances, regulations and rules of any public authority having jurisdiction
over the Building and/or Tenant and Landlord’s insurance carriers. Landlord
will have the right, but not the obligation, to inspect periodically the work
on the Premises and may require changes in the method or quality of the work.


 


8.3.4                        Ownership of Alterations. All
Alterations made by or for Tenant (other than the Tenant’s movable trade
fixtures), will immediately upon installation become the property of the
Landlord, without compensation to the Tenant; provided, however, Landlord will
have no obligation to repair or maintain such Alterations. Carpeting, shelving
and cabinetry will be deemed improvements of the Premises and not movable trade
fixtures, regardless of how or where affixed. Such Alterations will not be
removed by Tenant from the Premises either during or at the expiration or
earlier termination of the Term and will be surrendered as a part of the
Premises unless such Alteration is not Building standard and Landlord has
requested that Tenant remove same. Tenant will have the right to request at the
time of submission to Landlord of Tenant’s information in connection with a
proposed Alteration that Landlord designate which non-Building standard Tenant
improvements resulting from such Alteration will be subject to removal at the
end of the Term. In the absence of such request, all non-Building standard improvements
resulting from such Alteration will be subject to removal. Tenant will
reimburse Landlord for the cost of all damage done to the Premises or the
Building by the installation and/or removal of any Alterations.


 


8.4                                 Mechanics and Materialmen’s Liens.
Tenant will not permit to be placed upon the Premises, the Building, the Common
Areas or the Property during the Term, any mechanics’ or materialmen’s lien or
liens caused by or resulting from any work performed, materials furnished or
obligations incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant promptly will pay the same. If default in
payment thereof continues for twenty (20) days after written notice thereof
from Landlord to Tenant, Landlord will have the right and privilege, at
Landlord’s option, of paying the same or any portion thereof without inquiry as
to the validity thereof, and any amounts so paid, including expenses and
interest, will be additional rental hereunder due from Tenant to Landlord and
will be repaid to Landlord within ten (10) days after delivery to Tenant of an
invoice therefor.


 


8.5                                 Control of Building and Common Areas.
The Building and Common Areas will be at all times under the exclusive control,
management and operation of the Landlord. Landlord hereby reserves the right
from time to time (i) to alter or redecorate the Building (including the Common
Areas) or construct additional facilities adjoining or proximate to the
Building; (ii) to close temporarily doors, entry ways, public spaces and
corridors and to interrupt or suspend temporarily Building services and
facilities


 


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in order to perform any
redecorating or alteration or in order to prevent the public from acquiring
prescriptive rights in the Common Areas; and (iii) to change the name of the
Building.


 


ARTICLE IX


 


INSURANCE


 


9.1                                 Tenant’s Insurance.


 


9.1.1                        Liability Insurance. Tenant agrees to
carry comprehensive general liability insurance, with contractual liability
protection in the amount set forth in Section 1.11 hereof.


 


9.1.2                        Property Insurance. Tenant will also
carry “all risk” property insurance in the amount of one hundred percent (100%)
of replacement cost on all leasehold improvements, betterments, fixtures and
other contents located in the Premises.


 


9.1.3                        Policy Form. Such insurance will be written
by an insurance carrier which carries a Best’s Insurance Report’s rating of at
least A XII (or an equivalent rating if Best’s ratings are substantially
revised or discontinued) and will name Landlord as either an “additional
insured” or insured “as Landlord’s interest will appear”. Landlord will be
furnished, within the earlier of thirty (30) days after execution hereof or the
date on which Tenant begins occupancy the Premises, with a certificate of
insurance of the original policy, and of all renewals within thirty (30) days
before the effective dates of such renewals. Such certificate will contain an
endorsement to the effect that the insurance company will give Landlord thirty
(30) days’ prior written notice by certified mail in the event of cancellation,
non-renewal or material change in any such policy. Landlord may from time to
time, but not more frequently than once every three (3) years, require that the
amount of liability insurance to be maintained by Tenant under Section 9.1.1 be
increased, so that the amount thereof adequately protects Landlord’s interest.


 


9.2                                 Indemnity. BECAUSE TENANT HAS AGREED TO CARRY
INSURANCE TO COVER SAME, TENANT HEREBY AGREES TO HOLD LANDLORD HARMLESS FROM
AND DEFEND LANDLORD AGAINST ANY LOSSES, COSTS, EXPENSES, LIABILITIES OR CLAIMS
FOR DAMAGE (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH RESULT FROM ANY
OCCURRENCES ON THE PREMISES OR WHICH RESULT DIRECTLY OR INDIRECTLY FROM
TENANT’S USE AND OCCUPANCY OF THE PREMISES. 
FOR PURPOSES OF THIS SECTION 9.2, THE TERM “LANDLORD” SHALL BE DEEMED TO
INCLUDE ANY PARTNER, PRINCIPAL, DIRECTOR, OFFICER, AGENT, SERVANT OR EMPLOYEE
OF LANDLORD.


 


9.3                                 Landlord’s Insurance. Landlord hereby
agrees to maintain “all risk” property insurance on the Building adequate to
provide at least ninety percent (90%) of replacement value; provided, however,
that Landlord shall have the right to self-insure this obligation.


 


9.4                                 Waiver of Subrogation. EACH PARTY
AGREES TO NOTIFY SUCH PARTY’S PROPERTY INSURANCE CARRIER OF THE EXISTENCE OF
THIS WAIVER OF SUBROGATION PROVISION AND TO HAVE INCLUDED IN EACH OF THE
PROPERTY INSURANCE POLICIES REQUIRED TO BE CARRIED BY SUCH PARTY UNDER THIS
LEASE A WAIVER OF THE INSURER’S RIGHT OF SUBROGATION AGAINST THE OTHER PARTY
DURING THE TERM OF THIS LEASE OR, IF SUCH WAIVER SHOULD BE UNOBTAINABLE OR
UNENFORCEABLE, (I) AN EXPRESS AGREEMENT THAT SUCH POLICY WILL NOT BE
INVALIDATED IF THE INSURED WAIVES THE RIGHT OF RECOVERY AGAINST ANY PARTY RESPONSIBLE
FOR A CASUALTY COVERED BY THE POLICY BEFORE THE CASUALTY OR (II) ANY OTHER FORM
OF PERMISSION FOR THE RELEASE OF THE OTHER PARTY. IF SUCH WAIVER,


 


13

















 


AGREEMENT OR PERMISSION IS NOT,
OR CEASES TO BE, OBTAINABLE FROM EITHER PARTY’S THEN CURRENT INSURANCE COMPANY,
THE INSURED PARTY WILL NOTIFY THE OTHER PARTY PROMPTLY AFTER LEARNING THEREOF,
AND SHALL USE SUCH PARTY’S BEST EFFORTS TO OBTAIN SAME FROM ANOTHER ACCEPTABLE
INSURANCE COMPANY. EACH PARTY HEREBY RELEASES THE OTHER PARTY, WITH RESPECT TO
ANY CLAIM (INCLUDING A CLAIM FOR NEGLIGENCE) WHICH SUCH PARTY MIGHT OTHERWISE
HAVE AGAINST THE OTHER PARTY, FOR LOSS, DAMAGE OR DESTRUCTION WITH RESPECT TO
SUCH PARTY’S PROPERTY OCCURRING DURING THE TERM OF THE LEASE WITH RESPECT TO
ANY LOSS, DAMAGE OR DESTRUCTION INSURED UNDER A POLICY OR POLICIES CONTAINING A
WAIVER OF SUBROGATION OR PERMISSION TO RELEASE LIABILITY, AS PROVIDED ABOVE.


 


9.5                                 Control of Proceeds. Any insurance
which may be carried by Landlord or Tenant against loss or damage to the
Building or to the Premises will be for the sole benefit of the party carrying
such insurance and under such party’s sole control.


 


ARTICLE X


 


ASSIGNMENT AND SUBLETTING


 


10.1                           Consent. Tenant will not assign this Lease or
sublet all or any portion of the Premises without the prior consent of the
Landlord. If consent to any assignment or subletting is given by Landlord, such
consent will not relieve the Tenant or any guarantor of this Lease from any
obligation or liability under this Lease. If this Lease is assigned or any part
of the Premises is occupied by any person other than the Tenant without the
consent of Landlord, the Landlord may nevertheless collect Base Rental and
additional rent from the assignee or occupant, and apply the net amount
collected to the Base Rental and other amounts payable under this Lease but, in
no event will such collection be construed as a waiver of this covenant. The
consent by Landlord to any assignment or subletting shall not relieve Tenant,
or any permitted sublessee or assignee, from obtaining the express consent of
Landlord to any further assignment or subletting.


 


10.2                           Landlord’s Option. If the Tenant desires
to assign this Lease or sublet all or part of the Premises, Tenant will notify
Landlord at least sixty (60) days in advance of the date on which Tenant
desires to make such assignment or enter into such sublease. Tenant will
provide Landlord with a copy of the proposed assignment or sublease, and
sufficient information concerning the proposed sublessee or assignee to allow
Landlord to make informed judgments as to the financial condition, reputation,
operations and general desirability of the proposed assignee or subtenant(s).
Within thirty (30) days after Landlord’s receipt of Tenant’s proposed
assignment or sublease and all required information concerning the proposed
subtenant(s) or assignee, Landlord will have the option to:


 


(i)                                     Cancel
this Lease as to all of the Premises on the effective or commencement date of
such proposed assignment or subletting, if Tenant proposes to assign Tenant’s
interest in the Lease or sublet more than fifty percent (50%) of the Premises,
or cancel this Lease as to the portion of the Premises proposed to be sublet if
Tenant proposes to sublet less than fifty percent (50%) of the Premises; or


 


(ii)                                  Consent
to the proposed assignment or sublease, provided, however, if the rent due and
payable by any assignee or sublessee under any such permitted assignment or
sublease (or a combination of the rent payable under such assignment or
sublease plus any bonus or any other consideration for the assignment or
sublease or any payment incident to the assignment or sublease) exceeds the
rent payable under the Lease for such space, Tenant will pay to Landlord


 


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all of such
excess rent and other excess consideration within ten (10) days following
receipt of such excess rent and/or consideration by Tenant; or


 


(iii)                               Sublease
the Premises, or so much of the Premises as Tenant proposes to sublease, from
Tenant upon the same terms and conditions as are contained in the proposed
sublease or assignment; or


 


(iv)                              Refuse
to consent to the proposed assignment or sublease but allow Tenant to continue
in the search for an assignee or sublessee that will be acceptable to Landlord,
which option will be deemed to be elected unless Landlord gives Tenant notice
providing otherwise.


 


10.3                           Definition of Assignment. The use
of the words “assignment”, “subletting”, “assign”, or “assigned” or “sublet” in
this Article X will include (i) the pledging, mortgaging or encumbering of
Tenant’s interest in this Lease, or the Premises or any part thereof, (ii) the
total or partial occupation of all or any part of the Premises by any person,
firm, partnership, or corporation, to any groups of persons, firms
partnerships, or corporations, or any combination thereof, other than Tenant,
(iii) an assignment or transfer by operation of law, and (iv) with respect to a
corporation, partnership, or other business entity, a transfer or issue by
sale, assignment, bequest, inheritance, operation of law, or other disposition,
or by subscription, any part or all of the corporate shares of or general
partnership interest or other interests in the Tenant, so as to result in any
change in the present effective voting control of the Tenant by the party or
parties holding such voting control on the date of this Lease. Upon the request
of Landlord, Tenant will make available to the Landlord or to Landlord’s
representatives, for inspection all books and records of the Tenant necessary
to ascertain whether there has, in effect, been a change in control of Tenant.
Item (iv) of this Section 10.3 will not apply to a corporation whose shares are
traded on a nationally recognized stock exchange.


 


10.4                           Bankruptcy, Insolvency. If this Lease is
assigned to any person or entity pursuant to the provisions of the Federal
Bankruptcy Code, 11 U.S.C. § 101, et seq., as subsequently amended (the
“Bankruptcy Code), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment will be paid or
delivered to Landlord, will be and remain the exclusive property of Landlord
and will not constitute property of Tenant within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord’s
property under the preceding sentence not paid or delivered to Landlord will be
held in trust for the benefit of Landlord and be promptly paid to or turned
over to Landlord. For purposes of Section 365(f)(2) of the Bankruptcy Code
“adequate assurances of future performance” will include, but not be limited
to, a Security Deposit, net worth, and creditworthiness equal to that of Tenant
on the date of this Lease. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, will be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee will upon
demand execute and deliver to Landlord an instrument confirming such
assumption.


 


10.5                           Landlord’s Assignment. Landlord
shall have the right to sell, convey, transfer, assign, pledge, mortgage or
encumber, in whole or in part, all and every feature of Landlord’s rights and
obligations hereunder and in the Building and the Property. Upon the occurrence
of any sale, conveyance, transfer or assignment, such successor in interest
shall be deemed to have assumed Landlord’s rights and obligations under this Lease,
Landlord will be released from all obligations hereunder, and Tenant agrees to
look solely to such successor in interest of Landlord for the performance of
such obligations.


 


15

















 


ARTICLE XI


 


FIRE AND OTHER CASUALTY


 


11.1                           Total Destruction. In the event that
the Building is totally destroyed by fire, tornado or other casualty or in the
event the Premises or the Building is so damaged that rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the date of such
damage, either Landlord or Tenant may terminate this Lease, in which event rent
will be abated during the unexpired portion of the Term of this Lease effective
from the date of such damage. If Tenant wishes to terminate this Lease, Tenant
must do so by notifying Landlord in writing of such election within thirty (30)
days after the date of the occurrence of the casualty. In determining whether
rebuilding or repair can be completed within one hundred eighty (180) days, a statement
of the estimated time for rebuilding or repair certified to by Landlord’s
architect will be conclusive.


 


11.2                           Partial Destruction. In the event the
Building or the Premises is damaged by fire, tornado or other casualty, but
only to such extent that rebuilding or repairs can be completed within one
hundred eighty (180) days after the date of such damage, or if the damage is
more serious but neither Landlord nor Tenant elects to terminate this Lease,
Landlord will within sixty (60) days after the date of such damage commence to
rebuild or repair the Building and/or the Premises and proceed with reasonable
diligence to restore the Building and/or the Premises to substantially the same
condition in which the same existed immediately prior to the happening of the
casualty, except that Landlord will not be required to rebuild, repair or
replace any part of the furniture, equipment, fixtures and leasehold
improvements which have been placed by Tenant, or on behalf of Tenant, on or
within the Premises. Landlord will allow Tenant a fair diminution of rental
during the time the Premises are unfit for occupancy. In the event any
mortgagee under a deed of trust, security agreement or mortgage on the Building
require that the insurance proceeds be applied to the debt secured thereby,
Landlord will have no obligation to rebuild, and if Landlord elects not to
rebuild, this Lease will terminate upon notice of such election to Tenant.
Except as specifically provided above, there will be no reduction of rental and
Landlord shall have no liability to Tenant by reason of any injury to or
interference with Tenant’s business or property arising from fire or other
casualty, howsoever caused, or from the making of any repairs resulting
therefrom in or to any portion of the Building of the Premises.


 


ARTICLE XII


 


EMINENT DOMAIN


 


12.1                           Total Taking. If the whole or substantially
the whole of the Building or of the Premises is condemned or taken in any
manner including a voluntary conveyance by Landlord in lieu of condemnation, during
the Term of this Lease by any governmental or quasi-governmental agency having
the power of eminent domain, this Lease will terminate as of the date of taking
of possession for such purpose. If less than the whole or substantially the
whole of the Building or the Premises is taken but the portion of the Premise
taken is so great that Tenant cannot continue to conduct business in a manner
comparable to the manner in which Tenant conducted Tenant’s business prior to
the taking, Tenant may elect to terminate this Lease by delivering written
notice thereof to Landlord and thereupon this Lease will terminate upon the
date of the taking.


 


12.2                           Partial Taking. If less than the whole or
substantially the whole of the Building or the Premises is taken but the portion
of the Building or the Property taken is such that the taking materially
adversely affects the value of the Property or the Building, Landlord may elect
to terminate this Lease by delivering written notice thereof to Tenant and
thereupon this Lease will terminate upon the date of the taking. Any election
to terminate this Lease pursuant to the preceding sentences must be exercised
within


 


16

















 


sixty (60) days after the date
of taking. Upon any condemnation of less than the whole of the Building or the
Premises which does not result in the termination of this Lease as described
above, this Lease will nevertheless terminate as to the portion of the Premises
so taken and continue in full force and effect as to the remaining portion of
the Premises and the rent payable hereunder will abate with respect to the
portion of the Premises so taken (with no effect on the rental payable for the
remainder of the Premises).


 


12.3                           Award. Landlord shall be entitled to receive the
entire award in any condemnation proceeding for a permanent taking which
affects the Building or the Premises described in this Sections 12.1 and 12.2,
including without limitation, any award for the value of the unexpired portion
of the Term of this Lease. Tenant hereby expressly assigns to Landlord all of
Tenant’s right, title and interest in and to any such award or payment for a
permanent taking. No temporary taking of the Premises, and/or Tenant’s rights
therein, by a public or quasi-public agency under the right of eminent domain
will terminate this Lease or give Tenant any right to any abatement of Base
Rental or Additional Rent under this Lease. Any award made to Tenant by reason
of any temporary taking will belong entirely to Tenant and Landlord will not be
entitled to share in such award.


 


ARTICLE XIII


 


DEFAULT BY TENANT


 


13.1                           Events of Default. The occurrence of any
of the following will constitute a default by Tenant under this Lease:


 


13.1.1                  Monetary Default. If Tenant fails to pay
any monetary obligation of Tenant under this Lease at the time such monetary
obligation is due and such failure continues for five (5) days after delivery
of written notice from Landlord to Tenant specifying such default.


 


13.1.2                  Nonmonetary Default. If Tenant fails
to comply with any term, provision or covenant of this Lease, other than the
payment of monetary obligations, within thirty (30) days after written notice
from Landlord that Tenant has failed to comply with such term, provision or
covenant.


 


13.1.3                  Assignment to Creditors. If Tenant
shall make a general assignment for the benefit of creditors.


 


13.1.4                  Insolvency. If Tenant becomes insolvent, or
unable to pay Tenant’s debts as the same become due, or Tenant files or there
is filed against Tenant and not dismissed within a period of sixty (60) days, a
petition seeking entry as to Tenant of an order for relief under any chapter of
the Bankruptcy Code, or under any similar law or statute of the United States
or any State thereof.


 


13.1.5                  Receivership. If a receiver, custodian,
examiner, sequestrator or trustee if appointed for all or substantially all of
the assets of Tenant and the same is not terminated or stayed within sixty (60)
days.


 


13.1.6                  Abandonment. If Tenant fails to take
possession or delivery of the Premises within ten (10) days after tender by
Landlord or deserts or vacates any substantial portion of the Premises for a
period of ten (10) or more consecutive days.


 


As used in this Section 13.1,
the term “Tenant” includes any guarantor of Tenant’s obligations under this
Lease.


 


17

















 


13.2                           Remedies. Upon the occurrence of any event of
default specified in Sections 13.1.1., 13.1.2, or 13.1.6, Landlord will have
the option to pursue any one or more of the following remedies without any
further notice or demand whatsoever. Upon the occurrence of any other event of
default under Section 13.1, this Lease will automatically terminate without
action on the part of Landlord and Section 13.2.1 will control.


 


13.2.1                  Termination of Lease. Landlord may
terminate this Lease under Section 13.2, in which event Tenant will immediately
surrender the Premises to Landlord. If Tenant fails to surrender the Premises,
Landlord may, without prejudice to any other remedy which Landlord
may have for possession of the Premises or arrearages in rent, enter upon and
take possession of the Premises and expel or remove Tenant and any other party
who may be occupying the Premises or any part thereof, without being liable for
prosecution or any claim for damages therefor. Tenant will pay to Landlord on
the date of such termination damages in an amount equal to the greater of (i)
the excess, if any, of the present value of the total amount of all rental and
other amounts to be paid by Tenant to Landlord hereunder for the period which
would otherwise have constituted the unexpired portion of the Term of this
Lease over the present value of the fair market rental value of the Premises
for such unexpired portion of the Term of this Lease, or (ii) one (1) year of
Base Rental.


 


13.2.2                  Relet Premises. Landlord may enter upon
and take possession of the Premises and expel or remove Tenant and any other
party who may be occupying the Premises or any part thereof without being
liable for prosecution or any claim for damages therefor, and if Landlord so
elects, relet the Premises on such terms as Landlord deems advisable and
receive the rental thereof. Tenant will pay to Landlord on demand any
deficiency that may arise by reason of such reletting for the remainder of the
Term of this Lease. If the Premises or any portion thereof are relet by
Landlord during the unexpired portion of the Term of this Lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rental reserved upon such reletting will, prima
facie, be the fair and reasonable rental value for the Premises, or part
thereof, so relet during the term of the reletting. Landlord will not be liable
in any way whatsoever for Landlord’s failure or refusal to relet the Premises
or any portion thereof, or if the Premises or any portion thereof are relet,
for Landlord’s failure to collect the rental under such reletting, and no such
refusal or failure to relet or failure to collect rental will release or affect
Tenant’s liability for damages or otherwise under this Lease. No re-entry or
taking of possession of the Premises by Landlord will be construed as an
election on Landlord’s part to terminate this Lease, unless a written notice of
such intention is given to Tenant. Notwithstanding any reletting or reentry or
taking possession, Landlord may at any time thereafter elect to terminate this
Lease for a previous default.


 


13.2.3                  Cure Default. Landlord may enter upon the
Premises without being liable for prosecution or any claim for damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant shall reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting compliance with Tenant’s obligations under
this Lease together with Landlord’s supervision fee, and Tenant further agrees
that Landlord will not be liable for any damages resulting to Tenant from such
action.


 


13.2.4                  Injunctive Relief. In the event of a
breach or threatened breach by Tenant of any of Tenant’s obligations under this
Lease, Tenant expressly acknowledges and agrees that Landlord will also have
the right of injunction.


 


13.3                           Landlord’s Damages. The loss or damage
suffered by Landlord by reason of termination of this Lease or the deficiency
from any reletting as provided for above will include the expense of
repossession and any repairs or remodeling undertaken by Landlord following
repossession, brokerage fees resulting from reletting the Premises, and all
damages Landlord may incur by reason of such default, including without
limitation, the cost of recovering the Premises.


 


18

















 


13.4                           Remedies Cumulative. The specific
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully
be entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein. Pursuit of any of
the foregoing remedies will not preclude pursuit of any of the other remedies
herein provided or any other remedies provided by law, nor will pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rental due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.


 


13.5                           Joint and Several Liability. If
more than one party is defined as Tenant in this Lease, all of the duties,
obligations, promises, covenants and agreements contained in this Lease to be
paid and performed by Tenant will be the joint and several obligation of all
parties defined as Tenant. Each party defined as Tenant agrees that Landlord in
Landlord’s sole discretion may (i) institute or bring suit against each such
party, jointly and severally, or against any one or more of such parties, (ii)
compromise or settle with any one or more of such parties for such
consideration as Landlord may deem proper, and (iii) release one or more of
such parties from liability hereunder, and that no such action by Landlord will
impair or affect Landlord’s right to collect costs, expenses, losses or damages
incurred or suffered by Landlord from the other parties defined as Tenant, or
any of such parties, not so sued, compromised, settled with or released.


 


13.6                           Lien for Rent. In order to secure Landlord
in the payment of Tenant of all rental and other sums herein agreed and
provided to be paid by Tenant to Landlord hereunder, Tenant hereby grants to
Landlord an express contractual lien upon all property of Tenant now or
hereafter placed in or upon the Premises, except such part of such property as
may be exchanged, replaced or sold from time to time in the ordinary course of
the operations of Tenant, and all such property will be and remain subject to
such lien of Landlord and, subject to foreclosure in accordance with the
applicable laws of the State of Texas. Such express lien will be in addition to
and cumulative of the Landlord’s lien provided by the laws of the State of
Texas. For the purpose of securing all rental and other sums due hereunder,
this Lease shall also be deemed a security agreement under the Uniform
Commercial Code as such is in effect in the State of Texas, and Landlord shall
have all rights and remedies provided by such Uniform Commercial Code. Landlord
and Tenant agree that five (5) days notice of public or private sale in the
event of foreclosure of the rights of Landlord under this security agreement
shall be reasonable notice. Tenant agrees to execute from time to time
financing statements required by Landlord to perfect the lien hereby created.


 


13.7                           Attorneys’ Fees. If legal action is
necessary in order for Landlord or Tenant to enforce this Lease against the
other party, the prevailing party will be entitled to reasonable attorneys’
fees, costs and disbursements in addition to any other relief to which the
prevailing party is entitled.


 


13.8                           Waiver. Forbearance by Landlord to enforce one or
more of the remedies herein provided upon an event of default will not be
deemed or construed to constitute a waiver of any other violation or default.
Landlord’s acceptance of rental following an event of default will not be
construed as a waiver by Landlord of such event of default, nor be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained.


 


ARTICLE XIV


 


SUBORDINATION AND ATTORNMENT


 


14.1                           Subordination. Tenant hereby subordinates
this Lease and all rights of Tenant hereunder to any ground lease, mortgage or
deed of trust and all liens created pursuant to future advances thereunder
which are now or which may from time to time be placed upon the Premises, the
Building, the Property or


 


19

















 


any part thereof, and any such
ground lease, mortgage or deed of trust and all modifications, consolidations,
replacements and extensions thereof (all such encumbrances being collectively
referred to herein as the “Encumbrances” or individually as an “Encumbrance”)
will be superior to and have priority over this Lease. This Section 14.1 is
self-operative and no further instrument of subordination is required.


 


14.2                           Attornment. Tenant further covenants and
agrees that if the lessor of any ground lease acquires title to the Property
through termination or assignment of such ground lease or if the holder of any
mortgage or deed of trust acquires the Premises by foreclosure or deed in lieu
of foreclosure, or if any other party acquires the Premises as a purchaser at
any foreclosure sale (any such lessor of any ground lease, holder of any
mortgage or deed of trust or purchaser at a foreclosure sale being each
hereinafter referred to as the “Purchaser”), Tenant will thereafter, but only
at the option of the Purchaser, as evidenced by the written notice of the
Purchaser’s election given to Tenant within a reasonable time after the
Purchaser’s acquisition of title, remain bound by novation or otherwise to the
same effect as if a new and identical lease containing the terms of this Lease
between the Purchaser, as landlord, and Tenant, as tenant, had been entered
into for the remainder of the Term of this Lease effective on the date of the
Purchaser’s acquisition of title.


 


14.3                           Further Documentation. Tenant
agrees to execute any instrument(s) which may be deemed necessary or desirable
to effect the subordination of this Lease to each such Encumbrance or to
confirm any election to continue this Lease in effect in the event of foreclosure
or ground lease termination or assignment, as above provided. Landlord is
hereby irrevocably appointed and authorized as agent and attorney-in-fact (such
power to be deemed to be coupled with an interest) of Tenant to execute and
deliver all such subordination instruments in the event that Tenant fails to
execute and deliver such instruments within five (5) days after notice from
landlord requesting the execution thereof. The Purchaser will not be liable for
any act or omission of Landlord, or subject to any offsets or defenses which
Tenant might have against Landlord. If the Purchaser requires any
modification(s) of this Lease, Tenant will, at Landlord’s request, promptly
execute and deliver to Landlord such instruments effecting such modification(s)
as the Purchaser requires, provided that such modification(s) do not adversely
affect in any material respect any of Tenant’s monetary obligations under this
Lease.


 


ARTICLE XV


 


CERTIFICATES


 


15.1                           Estoppel Certificates. Tenant
agrees that upon tender of possession of the Premises and from time to time
thereafter, upon not less than ten (10) days’ prior written request by
Landlord, or any mortgagee of Landlord, Tenant will execute, acknowledge and
deliver to Landlord and for such mortgagee a statement in a form acceptable to
Landlord’s mortgagee. Any such statement may be relied upon by any prospective
transferee or mortgagee of all or any portion of the Building or the Property,
or any assignee of any such persons. If Tenant fails to deliver timely such statement,
Tenant shall be deemed to have acknowledged that this Lease is in full force
and effect, without modification except as may be represented by Landlord, and
that there are no uncured defaults in Landlord’s performance.


 


15.2                           Financial Statements. Landlord will
have the right to request financial statements from Tenant for purposes of
selling, financing or refinancing the Building. Tenant shall, within ten (10)
days after receipt of a request from Landlord setting forth the purposes for
which such financial statement will be used, deliver to Landlord a current
financial statement certified by Tenant’s chief financial officer to be true
and correct and to fairly express Tenant’s current financial condition. All
such financial statements will be received by Landlord in confidence and used
only for the purposes set forth in the request.


 


20

















 


ARTICLE XVI


 


INTEREST OF LANDLORD


 


16.1                           Consents. If Tenant requires Landlord’s consent
under any provision of this Lease and Landlord fails or refuses to give such
consent, Tenant will not be entitled to any damages for any withholding by
Landlord of Landlord’s consent; it being intended that Tenant’s sole remedy
will be an action for specific performance or injunction, and that such remedy
shall be available only in those cases where Landlord has expressly agreed in
this Lease not to unreasonably withhold Landlord’s consent or where as a matter
of law Landlord may not unreasonably withhold Landlord’s consent.


 


16.2                           Force Majeure. Whenever a period of time is
herein prescribed for action to be taken by Landlord, Landlord will not be
liable or responsible for, and there shall be excluded from the computation of
any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
control of Landlord.


 


16.3                           Best Efforts. Whenever in this Lease or any
exhibit hereto there is imposed upon Landlord the obligation to use Landlord’s
best efforts or reasonable efforts or diligence, Landlord will be required to
exert such efforts or diligence only to the extent the same are economically
feasible and will not impose upon Landlord extraordinary financial or other
burdens.


 


16.4                           Exculpation. In any action brought by Tenant
against Landlord, Tenant will look only to Landlord’s interest in the Property
and the Building for satisfaction of Tenant’s remedies or for the collection of
a judgment or other judicial process requiring the payment of money by Landlord
in the event of any default by Landlord hereunder, and no other property or
assets of Landlord, disclosed or undisclosed, will be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant’s
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Tenant’s use and occupancy of the Premises. As used in this
Section 16.4, the term “Landlord” will be deemed to include any (i) partner,
(ii) principal (disclosed or undisclosed), (iii) director, officer, or
shareholder of any corporation which is Landlord or a partner of Landlord, or
(iv) agent, servant or employee of Landlord.


 


16.5                           Sale of Building. The term “Landlord”
will mean only the owner at the time in question of the fee title or a tenant’s
interest in a ground lease of the Premises. The obligations contained in this
Lease to be performed by Landlord will be binding on Landlord and Landlord’s
successors and assigns only during their respective periods of ownership. In
the event of a sale of the Building or assignment of this Lease by Landlord,
Landlord will have the right to transfer the Security Deposit to Landlord’s
vendee or assignee, subject to Tenant’s rights therein, and Landlord will
thereafter be released from any liability to Tenant with respect to the return
of the Security Deposit to Tenant.


 


ARTICLE XVII


 


NOTICES


 


Each provision of this Lease
with reference to the sending, mailing, or delivery of any notice, or with
reference to the making of any payment by Tenant to Landlord, will 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
will be payable to Landlord at the address set forth in Section 1.12, or at
such other


 


21

















 


address as
Landlord may specify from time to time by written notice delivered in
accordance herewith.


 


(ii)                                  Any
notice or document required to be delivered hereunder will be deemed to be
delivered, whether or not received, when deposited in the United States Postal
Service, postage prepaid, certified or registered mail, with return receipt
requested, addressed to the parties hereto at the respective addresses set
forth in Section 1.12, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith, provided that
after the Commencement Date, Tenant’s address for notice or other communication
will be Tenant’s address in the Building.


 


ARTICLE XVIII


 


BROKERS


 


Tenant warrants and represents
that Tenant has had no dealings with any broker or agent (other than the Broker
named in Section 1.13, if any) in connection with the negotiation or execution
of this Lease. Tenant hereby agrees to indemnify and hold Landlord harmless
from any such claims or liability arising or resulting from anyone claiming
such a commission by, through or under Tenant.


 


ARTICLE XIX


 


RELOCATION OF TENANT


 


19.1                           Substitute Premises. Landlord may, at
Landlord’s option, before or after the Commencement Date, elect by giving
ninety (90) days prior written notice to Tenant to substitute for the Premises
other office space in the Building or the Stonebriar Office Park in which the
Building is located (the “Substitute Premises”) designated by Landlord,
provided that the Substitute Premises contain approximately the same number of
Rentable Square Feet as the Premises and have a configuration and amenities
substantially similar to that of the Premises. Landlord’s notice will be
accompanied by a plan of the Substitute Premises, and such notice or plan will
set forth the number of Rental Square Feet contained in the Substitute
Premises. Tenant will vacate and surrender the Premises and will occupy the
Substitute Premises promptly [and, in any event, not later than fifteen (15)
days] after Landlord has substantially completed the work to be performed by
Landlord in the Substitute Premises pursuant to Section 19.3


 


19.2                           Substitute Premises Rental. The
Base Rental for the Substitute Premises will be the product of the Base Rental
rate per Rentable Square Foot under the Lease at such time multiplied by the
number of Rentable Square Feet in the Substitute Premises. In addition to the
payment of Base Rental for the Substitute Premises, Tenant will pay the
Tenant’s Pro Rata Share of Building Operating Costs and the Premises’ Pro Rata
Share of Energy Costs in accordance with Section 4.2 hereof, except that the
Pro Rata Shares of such costs shall be subject to adjustment based upon the
number of Rentable Square Feet contained in the Substitute Premises.


 


19.3                           Landlord’s Obligations. Tenant will
not be entitled to any compensation for any inconvenience or interference with
Tenant’s business due to relocation of Tenant, nor to any abatement or
reduction of Base Rental or additional rental under this Lease; but Landlord
shall, at Landlord’s expense, do the following: (i) furnish and install in the
Substitute Premises fixtures, equipment, improvements and appurtenances at
least equal in quantity and quality to those contained in the Premises at the
time such notice of substitution is given by Landlord, (ii) provide to Tenant
personnel to perform under Tenant’s direction the moving of Tenant’s personal
property and fixtures from the Premises to the Substitute Premises, (iii)
promptly reimburse Tenant for Tenant’s actual and reasonable out-of-pocket
costs incurred


 


22

















 


by Tenant in connection with
the relocation of any telephone or other communications equipment from the
Premises to the Substitute Premises, and (iv) promptly reimburse Tenant for any
other actual and reasonable out-of-pocket costs incurred by Tenant in
connection with the Tenant’s move from the Premises to the Substitute Premises,
provided such costs are approved by Landlord in advance, which approval will
not be unreasonably withheld or delayed.


 


19.4                           Tenant’s Obligations. Tenant
agrees to cooperate with Landlord so as to facilitate the prompt completion by
Landlord of Landlord’s obligations under this Article XIX and the prompt
surrender by Tenant of the Premises. Without limiting the generality of the
preceding sentence, Tenant agrees (i) to provide to Landlord promptly any
approvals or instructions, and any plans and specifications or any other
information reasonably requested by Landlord, and (ii) to promptly perform in
the Substitute Premises any work to be performed therein by Tenant to prepare
the same for Tenant’s occupancy.


 


19.5                           Status of Lease. From and after the date
that Tenant actually vacates and surrenders the Premises to Landlord, this
Lease (i) will no longer apply to the Premises, except with respect to
obligations which accrued on or prior to such surrender date, and (ii) will
apply to the Substitute Premises as if the Substitute Premises had been the
space originally demised under this Lease.


 


ARTICLE XX


 


MISCELLANEOUS


 


20.1                           No Implied Waiver. No provision of this
Lease will be deemed to have been released or waived by Landlord unless such
release or waiver is in writing and is signed by Landlord.


 


20.2                           No Recording. Tenant agrees that Tenant will
not record this Lease or a memorandum thereof or a reference thereto without
first securing the prior written consent of Landlord, which may be withheld at
Landlord’s sole discretion. However, Tenant agrees upon the written request of
Landlord to execute, acknowledge and deliver to Landlord a short form lease in
recordable form. Such memorandum shall not be deemed to change or affect any of
the obligations or provisions of this Lease.


 


20.3                           Independent Contractor. It is
understood and agreed that in leasing and operating the Premises, Tenant is
acting as an independent contractor and is not acting as agent, partner, joint
venturer or employee of Landlord, and nothing contained in this Lease shall
create any relationship between the parties hereto other than that of Landlord
and Tenant.


 


20.4                           Survival. All of the terms, conditions,
covenants, promises and agreements contained in this Lease will survive the
expiration or termination of this Lease with respect to all rights or remedies
which have accrued prior to such expiration or termination.


 


20.5                           Severability. If any term or provision of
this Lease is illegal, invalid or unenforceable under present or future laws
effective during the Term of this Lease, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease will not be
affected thereby. Each covenant, agreement, obligation or other provision of
this Lease to be performed by Tenant will be deemed and construed as a separate
and independent covenant of Tenant and not as dependent on any other provision
of this Lease.


 


20.6                           Amendments. This Lease may not be altered,
changed or amended, except by an instrument in writing signed by both parties
hereto. No custom or practice which may arise between the


 


23

















 


parties in the administration
of the terms, provisions, covenants and conditions hereof will be construed to modify,
waive or lessen the rights of Landlord hereunder.


 


20.7                           Binding Effect. The terms, provisions,
covenants and conditions contained in this Lease will apply to, inure to the
benefit of, and be binding upon the parties hereto, and upon such parties’ respective
permitted assigns, successors in interest and legal representatives, except as
otherwise herein expressly provided.


 


20.8                           Gender. Words of any gender used in this Lease
shall be held and construed to include any other gender, and words in the singular
number shall be held to include the plural unless the context otherwise
requires.


 


20.9                           Captions. The captions contained in this Lease
are for convenience of reference only, and in no way limit or enlarge the
terms, provisions, covenants and conditions of this Lease.


 


20.10                     Exhibits. All exhibits, attachments,
annexed or referenced instruments and addenda referred to herein shall be
considered a part hereof for all purposes with the same force and effect as if
copied verbatim herein.


 


20.11                     Entire Agreement. This Lease, and the
attachments, riders and exhibits thereto constitute the entire agreement
between the parties hereto with respect to the subject matter of this Lease.
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 shall expressly refer to this Lease.
All understanding and agreements heretofore had between the parties are merged
in this Lease and any other 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 with neither party relying upon any
statement or representation not embodied in this Lease or in other written
agreement(s) made concurrently herewith.


 


20.12                     Counterparts. This Lease may be executed in
several counterparts, each of which shall be deemed an original, and all of
which shall constitute but one and the same instrument.


 


20.13                     Governing Law and Venue. This Lease
and all of the transactions contemplated herein shall be governed by and
construed in accordance with the laws of the State of Texas, and Landlord and
Tenant both irrevocably agree that their respective agreements and obligations
hereunder will be performable in Dallas County, Texas, and that venue for any
action arising under or relating to the terms of this Lease shall be in Dallas
County, Texas.


 


20.14                     No Reservation. Submission by Landlord of
this instrument to Tenant for examination or signature does not constitute a
reservation of or option for lease. This Lease will be effective as a lease or
otherwise only upon execution and delivery by both Landlord and Tenant.


 


20.16                     Termination Option. In the event that
Tenant is not in default of any term, condition or covenant of this Lease,
Tenant shall have the option to terminate this Lease (the “Termination
Option”)in the thirty seventh (37th) month or the forty ninth (49th) month of
the Lease. The exercise of the Termination Option is subject to, and
conditioned upon, the satisfaction of the following terms and conditions:


 


24

















 


(i)                                     Tenant
shall give Landlord one hundred eighty (180) days advance written notice prior
to the month in which it desires to terminate the Lease.


 


(ii) Upon
termination of the Lease by the exercise of the Termination Option, Tenant
shall pay to Landlord an amount equal to the amount of all the unpaid
unamortized cost as shown on the attached Exhibit “H”.


 


25

















 


EXECUTED as of the day, month and year first above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  HALL STONEBRIAR CENTER I ASSOCIATES, LTD.,

  a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Phoenix/Inwood Corporation,

  
	
   

  	
   

  	
  a Texas corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
             /s/
  Mark Depker

  
	
   

  	
   

  	
  Mark Depker

  
	
   

  	
   

  	
  Its: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Heartland Card Services, LLC

  
	
   

  	
  a Missouri Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
             /s/
  Robert O. Carr

  
	
   

  	
   

  	
  Robert O. Carr

  
	
   

  	
   

  	
  Its: President and Chief Executive

  
	
   

  	
   

  	
   Officer

  
				



 


26

















 


EXHIBIT
“A”


 


FLOOR PLAN OF THE PREMISES


 


A-1

















 


EXHIBIT “B”


 


LEGAL DESCRIPTION OF PROPERTY

STONEBRIAR CENTER PHASE 1 - 6.908 ACRE TRACT

FRISCO, COLLIN COUNTY, TEXAS


 


Being all of that tract of.
land in the City of Frisco, Collin County, Texas, a part of the Collin County
School Land Survey, Abstract No. 149, and being all of that 6.908 acre tract of
land conveyed to Hall Stonebriar Center I Associates, Ltd. From Hall
Phoenix/Inwood, Ltd. On April 17, 1997 and recorded in Document No. 97-0044895,
Collin County Land Records, and being further described as follows:


 


BEGINNING at a 1/2 inch iron
rod found at the intersection of the south line of said 175.015 acre tract of
land with the west line of Dallas North Tollway (a 300 foot wide right-of-way),
said point being the southwest corner of a 11.21 acre tract of land conveyed to
the City of Frisco from 15% Guaranteed Plus Land Income Fund, Ltd. on June 7, 1994
as recorded in Document Number 95-0050911, Collin County Land Records;


 


THENCE South 89 degrees 51
minutes 08 seconds West, 351.00 feet along the south line of said 175.015 acre
tract of land to a 1/2 inch iron rod set for corner;


 


THENCE North 00 degrees 03
minutes 39 seconds East, 522.51 feet to a 1/2 inch iron rod set for
corner; THENCE North 21 degrees 57 minutes 41 seconds West, 137.65 feet to a
1/2 inch iron rod set for corner; THENCE North 06 degrees 53 minutes 51 seconds
West, 109.01 feet to a 1/2 inch iron rod set for corner; THENCE North 81
degrees 55 minutes 33 seconds East, 165.91 feet to a 1/2 inch iron rod set for
corner;


 


THENCE North 61 degrees 02
minutes 18 seconds East, 287.71 feet to a 1/2 inch iron rod set for corner in
the west line of Dallas North Tollway;


 


THENCE South 00 degrees 03
minutes 39 seconds West, 920.11 feet along the west line of Dallas North
Tollway to the POINT OF BEGINNING and containing 300,932 square feet or 6.908
acres of land.


 


B-1

















 


EXHIBIT “C”


 


BUILDING OPERATING COST EXAMPLES


 


1.                                       Building
Operating Cost Exclusions. The following are, without limitation, examples
of costs excluded from the computation of Building Operating Costs:


 


(a)                                  leasing
commissions, attorneys’ fees, costs and disbursements and other expenses
incurred in connection with leasing, renovating or improving space for tenants
or prospective tenants of the Building;


 


(b)                                 costs
incurred by Landlord in the discharge of its obligations under Exhibit “F”


 


(c)                                  costs
(including permit, license and inspection fees) incurred in renovating or
otherwise improving or decorating, painting or redecorating space for tenants
or vacant space;


 


(d)                                 Landlord’s
costs of any services sold to tenants for which Landlord is entitled to be
reimbursed by such tenants as an additional charge or rental over and above the
Base Rental, Energy Costs and Building Operating Costs payable under the lease
with such tenant or other occupant;


 


(e)                                  any
depreciation and amortization on the Building except as expressly permitted
herein;


 


(f)                                    costs
incurred due to violation by Landlord of any of the terms and conditions of
this Lease or any other lease relating to the Building;


 


(g)                                 interest
on debt or amortization payments on any mortgages or deeds of trust or any
other debt for borrowed money;


 


(h)                                 all
items and services for which Tenant reimburses Landlord outside of Building
Operating Costs or pays third persons or which Landlord provides selectively to
one or more tenants or occupants of the Building (other than Tenant) without
reimbursement;


 


(i)                                     advertising
and promotional expenditures;


 


(j)                                     repairs
or other work occasioned by fire, windstorm or other work paid for through
insurance or condemnation proceeds;


 


(k)                                  repairs
resulting from any defect in the original design or construction of the
Building;


 


2.                                       Building
Operating Costs. The following are, without limitation, examples of
Building Operating Costs:


 


(a)                                  Labor
Costs. Costs, charges and expenses incurred for the services of the following
classes of employees of Landlord and/or independent contractors performing
services required or utilized in connection with the operation, repair and
maintenance of the Building and Common Areas including, without limitation, all
expenses incurred by Landlord or on Landlord’s behalf which shall be directly
related to employment of personnel, including amounts incurred for wages,
salaries and other compensation for services, payroll, social security,
unemployment and other similar taxes, workmen’s


 


C-1

















 


compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and expenses
imposed on or on behalf of Landlord pursuant to any collective bargaining
agreement.


 


(i)                                     the
building manager, assistants and the clerical staff attached to the Building;


 


(ii)                                  window
cleaners, elevator operators, and miscellaneous handymen;


 


(iii)                               porters,
cleaners and janitors employed in and about the Building and Common Areas;


 


(iv)                              watchmen,
caretakers, security guards and persons engaged in patrolling and protecting
the Building, Common Areas and the Property;


 


(v)                                 superintendents,
assistant superintendents, carpenters, engineers, firemen, mechanics,
electricians and plumbers and any and all other Building personnel engaged in
the operation, repair and maintenance of any part of the Property, the
Building, the Common Areas, and the heating, air conditioning, ventilating, plumbing,
electrical and elevator systems of the Building and Common Areas; and


 


(vi)                              personnel,
but not officers or executives of Landlord if such personnel are full time
on-premises employees at the Building and Common Areas.


 


(b)                                 Supplies.
The cost of materials and supplies, including, without limitation, toilet
supplies, keys and signs, used in the operation, repair and maintenance of the
Building and Common Areas.


 


(c)                                  Replacement.
The cost of replacements for tools and equipment used in the operation, repair
and maintenance of the Building and Common Areas.


 


(d)                                 Professional
Fees. Legal or other professional fees incurred in connection with Building and
Common Areas operations excluding fees paid in connection with leasing
activity.


 


(e)                                  Contractors.
Amounts charged to Landlord by contractors for services, materials and supplies
furnished in connection with the operation, repair and maintenance of any part
of the Building, the Common Areas, and the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other systems of the Building
and Common Areas.


 


(f)                                    Management.
Administrative and management fees for the Building (if Landlord manages the
Building, the amount included for management fees will not exceed the amount
typically charged by independent management companies in the Central Business
District of Dallas, Texas).


 


(g)                                 Insurance.
Premiums paid by Landlord for property insurance, whether all risks or fire and
extended coverage insurance, earthquake and extended coverage insurance, liability,
comprehensive general liability insurance, and other insurance customarily
carried from time to time by landlords of first class office buildings or, if
Landlord self-insures with respect to any of the Landlord in an amount equal to
the cost of the premiums for such policies.


 


(h)                                 Water.
Water and sewer charges.


 


C-2

















 


(i)                                     Taxes.
Taxes, including (i) real estate taxes and assessments on the Property, the
Building or the Premises, and taxes and assessments levied in substitution or
supplementation in whole or in part of such taxes, (ii) personal property taxes
for the Building’s personal property, including license expenses, (iii)
franchise fees, (iv) taxes imposed on services of Landlord’s agents and
employees, and (v) all other taxes or fees now or hereafter levied by any
governmental authority on the Building, the Property or its contents or on the
operation and use thereof but excluding income taxes.


 


(j)                                     Decorations.
The cost of painting or otherwise decorating any part of the Building including
holiday decorations for the lobby and other public portions of the Building and
Common Areas below the second floor.


 


(k)                                  Landscaping.
Landscape expenses.


 


(l)                                     Equipment
Rentals. Rental costs of equipment or other personal property used in
connection with the management, operation or repair of the Property, the
Building, Common Areas and the appurtenances thereto.


 


(m)                               Cost
Savings and Additional Improvements. The amortization of the cost of the
following items, the cost of such items to be amortized for items (i) and (ii)
below, over a minimum period of the lesser of (A) the useful life or (B) ten
(10) calendar years and for items (iii) below, the shortest of (A) the useful
life, (B) ten (10) years or (C) the “pay back period”, i.e., the period in
which cost of the equipment or improvement is predicted to equal cost savings
resulting from such installation and all such costs to be calculated without
interest:


 


(i)                                     improvements,
additions, changes or replacements required by law, ordinance or requirement of
any governmental authority having jurisdiction or deemed necessary by Landlord,
to be made to the Property, the Building or the equipment thereof;


 


(ii)                                  replacement
of component parts of the Building and Building equipment and property; and


 


(iii)                               expenditures
of a capital nature if such capital expenditures are reasonably expected to
result or do result in cost savings.


 


(n)                                 Other
Costs. All other incurred costs and charges which are generally recognized
by the City of Dallas, Texas real estate industry as constituting operating
costs of a first-class office building or the land on which the Building is
situated.


 


3.                                       Net
Character. Building Operating Costs shall be “net” only, and for that
purpose shall be reduced by the amounts of any reimbursement or credit owed to
Landlord from any source, including Tenant and other tenants of the Building.


 


C-3

















 


EXHIBIT “D”


 


RULES AND REGULATIONS


 


1.                                       Parties.
For purposes of these Rules and Regulations, “tenant” includes the servants,
employees, agents, invitees and licensees of such tenant, others permitted by
such tenant to use or occupy such tenant’s premises, and anyone for whom such
tenant is otherwise legally responsible.


 


2.                                       After
Hours Air Conditioning. Air conditioning (both heating and cooling) shall be
provided by Landlord from Monday through Friday only between the hours from
7:00 A.M. to 6:00 P.M. and on Saturday only between the hours from 7:00 A.M. to
2:00 P.M. No air conditioning (heating or cooling) will be provided on Sundays
or on state or national legal holidays. If any tenant shall require air
conditioning (heating or cooling) at hours or on days other than as specified
above, Landlord agrees to furnish the same for the area designated in a written
request delivered by such tenant to the Project Manager not later than 3:00
p.m. of the first business day next preceding the date upon which such tenant
requests such extra usage, and for such service, such tenant shall pay
Landlord, upon delivery of an invoice Landlord’s then established charges
therefor.


 


3.                                       Electrical
Equipment. Landlord has not agreed to furnish electrical capacity for the
Premises in excess of three (3) watts per Rentable Square Feet. If any tenant
requires electricity in excess of that which Landlord has agreed to provide,
Landlord will, upon the written request of such tenant and the written
agreement of such tenant to pay all costs and expenses for the same, make
reasonable efforts to supply such service through the then existing feeders
servicing the Building. No machinery or mechanical equipment other than
ordinary portable business machines may be installed or operated in any
tenant’s premises without Landlord’s prior written consent, which consent shall
not be unreasonably withheld or delayed, and in no case (even where the same
are of a type so excepted or as so consented to by Landlord) shall any machines
or mechanical equipment be so placed or operated so as to impair or interfere with
any of the Building’s services or the proper and economic heating, cooling,
cleaning or other servicing of any portion of the Building or so as to disturb
other tenants but machines and mechanical equipment which may be permitted to
be installed and used in a tenant’s premises shall be so equipped, installed
and maintained by such tenant as to prevent any disturbing noise, vibration or
electrical or other interference from being transmitted from such premises to
any other area of the Building.


 


4.                                       Common
Areas. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress to and egress from such tenant’s
premises, and no tenant shall use, or permit the use of, the entrances,
corridors or elevators for any other purpose. No tenant shall invite to the
tenant’s premises, or permit the visit of, persons in such numbers or under
such conditions as to interfere with the use and enjoyment of any of the
plazas, entrances, corridors, elevators and other facilities of the Building by
any other tenants. Fire exits and stairways are for emergency use only and
shall not be used for any other purpose by the tenants. No tenant shall
encumber or obstruct, or permit the encumbrance or obstruction of any of the
sidewalks, plazas, entrances, corridors, elevators, fire exits or stairways of
the Building. Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as Landlord, in its
reasonable judgment, deems best for the benefit of the tenants generally.


 


5.                                       Nails,
Hooks. No nails, hooks or screws shall be driven into or inserted in any part
of the Building, except by Building maintenance personnel.


 


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6.                                       Signs.
No signs, posters, advertisements, or notices shall be painted or affixed on
any of the windows or doors, or other parts of the Building, except of such
color, size and style and in such places, as shall be first approved in writing
by the Landlord. No lettering, sign, advertisement, notice or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant’s premises, or at any point inside any tenant’s premises where the same
might be visible outside of such premises, without the prior written consent of
Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expense
incurred in such removal to the tenant violating this rule. Interior signs,
elevator cab designations and lettering on doors and the Building directory
shall, if and when approved by Landlord, be inscribed, painted or affixed for
each tenant by Landlord at the expense of such tenant, and shall be of a size,
color and style acceptable to Landlord. Landlord shall have the right to
prohibit any advertising or identifying sign by any tenant which, in Landlord’s
reasonably judgment, tends to impair the reputation of the Building or its
desirability as a building for others, and upon written notice from Landlord,
such tenant shall refrain from and discontinue such advertising or identifying
sign.


 


7.                                       Hazards.
Tenant shall not do anything, or permit anything to be done, in or about the
Building, or bring or keep anything therein, that will in any way increase the
possibility of fire or other casualty or obstruct or interfere with the rights
of, or otherwise injure or annoy, other tenants, or do anything in conflict
with laws, rules or regulations of any governmental authority. In addition,
tenant shall not use or keep in the Building any inflammable explosive fluid or
substance or otherwise dangerous fluid, chemical or substance or any
illuminating material, unless it is battery powered, Underwriters’ Laboratory
approved.


 


8.                                       Heavy
Equipment. Landlord shall have the power to prescribe the weight and position
of safes or other heavy equipment which may over stress any portion of the
floor. All damage done to the Building by the improper placing of heavy items
which over stress the floor will be repaired at the sole expense of the tenant
which causes such damage. If, in the judgment of Landlord, it is necessary to
distribute the concentrated weight of any heavy object, the work involved in
such distribution shall be done at the expense of the tenant and in such manner
as Landlord shall determine.


 


9.                                       Security.
All entrance doors in the premises shall be left locked when the premises are
not in use.


 


10.                                 Deliveries.
Removals. All deliveries must be made through the service entrance and service
designated elevator during normal working hours which hours will be determined
by the Landlord from time to time. Prior approval must be obtained from the
Landlord for any deliveries that must be received after normal working hours.
All removals, or the carrying in or out of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during such hours, in such elevators and in such manner as Landlord
or its agent may determine from time to time. The persons employed to move
safes and other heavy objects shall be acceptable to Landlord. Arrangements
will be made with Landlord by any tenant moving large quantities of furniture and
equipment into or out of the Building. All labor and engineering costs incurred
by Landlord in connection with any moving specified in this rule, including a
reasonable charge for overhead and profit, shall be paid by tenant to Landlord
on demand.


 


11.                                 Cleaning.
All tenants shall cooperate with Building employees in keeping all parts of the
Building neat and clean.


 


12.                                 Hallways.
No showcases or other articles shall be put in front of or affixed to any part
of the exterior of the Building, nor placed in the halls, elevator shafts or
stairways.


 


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13.                                 Animals.
No birds, animals or reptiles, or any other creatures, shall be brought into or
kept in or about the Building other than may be required by the American’s with
Disabilities Act or similar state law.


 


14.                                 Control
of Access. Landlord may refuse admission to the Building outside of normal
business hours, which hours will be determined by the Landlord from time to
time, to any person not known to the watchman in charge or not having a pass
issued by Landlord or the tenant whose premises are to be entered or not
otherwise properly identified, and Landlord may require all persons admitted to
or leaving the Building outside of such times to provide appropriate
identification. Tenant shall be responsible for all persons for whom it issues
any such pass and shall be liable to Landlord for all acts or omissions of such
persons. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character or reputation of
the Building or of its tenants may be denied access to the Building or may be
ejected therefrom. During any invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building by closing the doors
or otherwise for the safety of the tenants and protection of property in the
Building. Tenants and anyone else who desires to enter the Building after
normal working hours will be required to sign in upon entry and sign out upon
leaving, giving their location during their stay and their time of arrival and
departure.


 


15.                                 Evacuation.
Landlord has the right to evacuate the Building in the event of emergency or
catastrophe.


 


16.                                 Window
Coverings. No awnings or other projections shall be attached to the outside
walls of the Building. Tenants shall not install any window shades, screens,
drapes, covers, or other materials on or at any window in the premises without
Landlord’s prior written consent. Tenants shall ensure that all blinds are
closed on all windows in the premises while they are exposed to the direct rays
of the sun. If Landlord shall elect to install any energy saving film on the
windows of the premises or to install energy saving windows in place of the
present windows, all tenants shall cooperate with the reasonable requirements
of Landlord in connection with such installation and permit Landlord to have
access to the premises at reasonable times during business hours to perform
such work.


 


17.                                 Damage
to Common Areas. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with
other tenants caused by any tenant shall be paid by such tenant. Each tenant
shall carry out tenant’s repair, maintenance, alterations and improvements in
the premises only during times agreed to in advance by Landlord and in a manner
which will not interfere with the rights of other tenants in the Building.


 


18.                                 No
Lodging. The Premises shall not be used or permitted to be used for
residential, lodging, or sleeping purposes or for the storage of personal
effects or property not required for business purposes.


 


19.                                 Carpet
Protection. In those portions of the premises where carpet has been provided
directly or indirectly by Landlord, tenant shall at their own expense install
and maintain pads to protect the carpet under all furniture having casters
other than carpet casters.


 


20.                                 Control
of Soliciting. Landlord reserves the right to restrict or prohibit canvassing,
soliciting or peddling in the Building.


 


21.                                 Food
Service. Only persons approved from time to time by Landlord may prepare,
solicit orders for, sell, serve or distribute foods or beverages in the
Building, or use the elevators, corridors or common areas for any such purpose.
Except with Landlord’s prior written consent and in accordance with
arrangements approved by Landlord, no tenant shall permit on tenant’s premises
the use of equipment for


 


D-3

















 


dispensing food or beverages or
for the preparation, solicitation of orders for, sale, serving or distribution
of food or beverages. No tenant shall obtain or accept for use in its premises
ice, drinking water, food, beverage, towel, barbering, floor polishing, cleaning
or other similar services from any persons reasonably prohibited in writing
from furnishing such services. Such services shall be furnished only at such
hours, and under such reasonable regulations, as may be fixed by Landlord from
time to time.


 


22.                                 Additional
Locks and Keys. Additional locks or bolts of any kind which shall not be
operable by the master key system for the Building shall not be placed upon any
of the doors or windows by any tenant, nor shall any changes be made in locks
or the mechanism thereof which shall make such locks inoperable by the master
key system. Additional keys for a tenant’s premises and toilet rooms shall be
procured only from Landlord who may make a reasonable charge therefor. Each
tenant shall, upon the termination of its tenancy, turn over to Landlord all
keys to stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost thereof.


 


23.                                 Inspection
of Items. Landlord reserves the right to inspect all objects and matter which
violate any of these Rules and Regulations or the Lease of which this Exhibit
is a part. Landlord may require any person leaving the Building with any
package or other object or matter to submit a pass, listing such package or
object or matter and the tenant from whose premises the package or object or
matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the premises
or the Building under the provisions of these Rules and Regulations.


 


24.                                 Prohibition
Uses. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for the possession, storage, manufacture, or sale of
liquor, narcotics, illegal drugs, tobacco in any form, or as a barber, beauty
or manicure shop, or as a school. No tenant shall use its premises or any part
thereof for manufacturing, or the sale at retail or auction of merchandise,
goods or property of any kind.


 


25.                                 Odors.
No tenant shall cause or permit any unusual or objectionable odors to emanate
from its premises which would annoy other tenants or create a public or private
nuisance. No cooking shall be done in the premises of any tenant except as is
expressly permitted in such tenant’s Lease.


 


26.                                 Utility
Use by Janitors. Landlord, its contractors, and their respective employees,
shall have the right to use, without charge therefor, all light, power and
water in the premises of any tenant while cleaning or making repairs or
alterations in the premises of such tenant.


 


27.                                 Hand
Trucks. Hand trucks not equipped with rubber tires and side guards shall not be
used within the Building.


 


28.                                 Requests
by Tenant. The requirements of tenants will be attended to only upon
application at the office of the Landlord in the Building. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties, unless under special instructions from Landlord.


 


29.                                 Misuse
of Building Systems. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures
in or serving any tenant’s premises shall not be used for any purpose other
than the purposes for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other foreign substances shall be deposited
therein. Tenant shall not use


 


D-4

















 


water fixtures for any purpose
for which they are not intended nor shall water be wasted by tampering with
such fixtures. All damages resulting from any misuse of the fixtures shall be
borne by the tenants causing same.


 


30.                                 No
Smoking. No smoking is permitted in any portion of the Building or within
thirty feet of any entrance to the building.


 


31.                                 Modification
of Rules. Landlord reserves the right to rescind, alter or waive any of these
Rules and Regulations and to make such other and further Rules and Regulations
as in the judgment of Landlord shall from time to time be needed for the
safety, protection, care and cleanliness of the Building and its Common Areas,
the operation thereof, the preservation of good order therein, and the
protection and comfort of its tenants, which Rules and Regulations when made
and notice thereof given to a tenant shall be binding upon such tenant in like
manner as if originally herein prescribed. In the event of any conflict,
inconsistency, or other difference between the terms and provisions of these
Rules and Regulations, as now or hereafter in effect and the terms and
provisions of any lease now or hereafter in effect between Landlord and Tenant,
the terms and provisions of the Lease shall prevail and control.


 


D-5

















 


EXHIBIT “E”


 


LEASEHOLD
IMPROVEMENTS AGREEMENT


 


The Premises leased by Landlord
to Tenant pursuant to the Lease to which this Work Letter Agreement is attached
as Exhibit “F” shall contain or receive the benefit of the following Basic
Building Improvements (herein so called) regardless of any other improvements
which may be constructed in the Premises pursuant hereto:


 


A.                                   Ceiling
grid installed.


 


B.                                     Ceiling
tiles (2x4) purchased and stacked on the floor.


 


C.                                     Sprinkler
main runs installed, heads installed on the basis of 1/140 square feet.


 


D.                                    HVAC
with 21 zones per floor and power mixing boxes installed.


 


E.                                      Slot
Diffusers installed.


 


F.                                      Window
coverings/Mini Blinds installed.


 


G.                                     Parabolic
lights purchased and stacked on the floor on the basis of 1/130 square feet.


 


It is agreed that construction
of the Premises shall be completed in accordance with the following procedures:


 


1.                                       Design
of Premises. Using information supplied by Tenant, Landlord’s architect,
interior designer or consulting engineer (“Landlord’s Architect”) has, at the
sole cost and expense of Landlord, prepared for Tenant, a layout of the
Premises (the “Preliminary Space Plan”) which has been delivered and approved
by Tenant. The approved Space Plan is hereinafter referred to as the “Final
Space Plan”. From the Final Space Plan, Landlord’s Architect will, at the sole
cost and expense of Landlord, prepare all one-eighth inch (1/8”) architectural,
mechanical and electrical working drawings together with specifications
necessary to complete all of the leasehold improvements. When such working
drawings and specifications (collectively the “Preliminary Drawings”) have been
completed, Landlord shall deliver same to Tenant. Unless Tenant objects to the
Preliminary Drawings within ten (10) working days after delivery by Landlord,
Tenant shall be deemed to have approved the Preliminary Drawings. If Tenant
does reasonably object, Landlord shall deliver revised Drawings to Tenant
within ten (10) working days thereafter until Drawings are approved. The
approved or deemed approved drawings are hereinafter referred to as the “Final
Drawings.” In the event that the Final Drawings have any substantial additions
which vary from the Preliminary Drawings, Tenant will be responsible for all
cost associated with the preparation of changes to the drawings.


 


2.                                       Tenant
Improvements. Landlord shall install, furnish and perform with reasonable
diligence the facilities, materials and work in and for the Premises described
in the Final Drawings. The cost of the Tenant Improvements shall include all
costs incurred by Landlord in connection with the installation of such Tenant
Improvements. Landlord will submit a budget of the cost of all cost of
construction to Tenant, within five (5) days after delivery by Landlord, Tenant
shall be deemed to have


 


E-1

















 


approved the budget. If Tenant
objects to the budget Landlord and Tenant shall review the budget and come to
agreement on any items to be deleted from the budget. Landlord shall then
submit another budget to Tenant, within five (5) days after delivery by
Landlord, Tenant shall be deemed to have approved the budget.


 


2.1                                 Expenditure
Authorization. The cost of any work in excess of the Allowance (“Excess
Work”) shall be set out in detail in an expenditure authorization (the
“Expenditure Authorization”). After the Expenditure Authorization has been
prepared, Landlord shall deliver same to. Tenant. Unless Tenant objects to the
Expenditure Authorization within five (5) days after delivery by Landlord,
Tenant shall be deemed to have approved the Expenditure Authorization. If
Tenant objects, Landlord and Tenant shall meet within five (5) days after
delivery to Landlord of Tenant’s objections to discuss any revisions to the
scope of the Excess Work requested by Tenant. Landlord shall deliver a revised
Expenditure Authorization to Tenant within five (5) days after agreement by the
parties as to the revised scope of the Above Standard Work and completion of
revisions, if any, to the Final Drawings. Unless Tenant objects to the revised
Expenditure Authorization within five (5) days after delivery by Landlord,
Tenant shall be deemed to have approved same. If the cost of any item is not
known or will not be known until it is completed, an estimate of such item’s
cost shall be included in the Expenditure Authorization and Tenant shall pay
(or Landlord shall give Tenant credit for) any additional (or lesser) actual
final cost of such item when the actual cost is finally determined. In no event
shall Landlord commence construction of the leasehold improvements until such
time as an Expenditure Authorization for Excess Work is approved or deemed
approved by Tenant.


 


3.                                       Landlords
Monetary Obligation


 


Landlord will
provide and install initial tenant improvements (the “Tenant Improvements”) in
the Premises in accordance with the Final Drawings, as the same may be revised
as set forth herein. Landlord’s sole monetary obligation for the Tenant
Improvements, including all costs associated with the preparation of the Final
Drawings, is to pay an amount (the “Allowance”) not to exceed Forty Eight
Thousand Four Hundred Fifty Seven and 50/100 Dollars ($48,457.50). The Total
Construction Costs in excess of the Allowance (collectively “Tenant’s Costs”)
shall be borne by Tenant and shall be payable by Tenant as follows:


 


(a)                                  Tenant
shall pay to Landlord prior to commencement of construction of the Tenant
Improvements, an amount equal to one hundred percent (100%) of Tenant’s Costs.


 


(b)                                 As
soon as the final accounting can be prepared and submitted to Tenant, Tenant
shall pay to Landlord the entire unpaid balance of the actual Tenant’s Costs
based on the final costs to Landlord. In the event that such final accounting
reflects an amount less than the Allowance a credit will be given to Tenant and
a proportionate reduction of the Base Rental shall be calculated. Landlord and
Tenant agree that in the event that there is a reduction in the Base Rental
they will amend the Lease as to that amount reflected in Article 1.4


 


In the event
that Tenant does not use all of the Allowance, Tenant will be given a credit
and reduction of the Base Rental. The reduction will be the amount of the
unused Allowance divided by the Term of the Lease times twelve months the
product of which will be divided by the Rentable Square Feet in the Premises.
The Base Rental per square foot cost will be reduced by this amount and
Landlord and Tenant will amend the Lease to reflect the new Base Rental.


 


E-2

















 


4.                                       Change
Orders. All changes to the Final Drawings will be subject to Landlord’s
prior written approval which shall not be unreasonably withheld. Prior to
commencing any change, Landlord shall prepare and deliver to Tenant, for
Tenant’s approval, a change order setting forth the cost of such change, which
cost will include associated architectural, engineering and construction
contractor’s fees, if any, and the cost of the delay, if any, in completing the
work resulting from such change [such cost being based upon the number of days
of “Base Rental” (as defined in the Lease) Landlord will forego]. If Tenant
fails to approve such change order within five (5) days after delivery by
Landlord, Tenant will be deemed to have withdrawn the proposed change and
Landlord will not construct same. If Tenant timely approves such change order,
Tenant will immediately pay to Landlord any amounts payable by Tenant in
connection with the change order.


 


5.                                       Permits.
Landlord shall take whatever action which shall be necessary to obtain and
maintain all authorizations, approvals and permits required by any governmental
entity for the work described herein. Tenant shall cooperate with Landlord in
obtaining such authorizations, approvals or permits.


 


6.                                       Commencement
of Term.


 


6.1                                 Commencement
Date. Notwithstanding anything in the Lease to the contrary, the Term will
commence upon the earlier of Tenant’s occupancy of the Premises or the date set
forth in the Certificate of Occupancy issued by the City of Dallas.


 


6.2                                 Substantial
Completion. The work shall be deemed substantially completed for the
purposes of this Paragraph 6, notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration remain
to be performed, the noncompletion of which details does not materially
interfere with Tenant’s use of the Premises or the City of Dallas issuing a
Certificate of Occupancy for the Premises.


 


6.3                                 Tenant
Delays. Tenant will be responsible for any delay in completion of
Landlord’s work resulting from:


 


(i)                                     any
request by Tenant that Landlord delay the completion of any of the work;


 


(ii)                                  any
request for a change by Tenant in any of the Final Drawings;


 


(iii)                               Tenant’s
failure to supply timely any information necessary to complete the Final
Drawings;


 


(iv)                              any
breach or default by Tenant in the performance of Tenant’s obligations under
this Lease;


 


(v)                                 modifications,
revisions and changes to the Final Drawings requested by Tenant;


 


(vi)                              Tenant’s
request for Above Standard Work or delays resulting from revision of the
Expenditure Authorization after the Final Drawings are approved; and


 


(vii)                           any
other delay of any kind or nature caused by Tenant, its employees, agents or
independent contractors.


 


Any such delay (collectively,
“Tenant Delays”) shall extend the time for performance by Landlord of
Landlord’s obligations hereunder by an amount of time equal to the length of
such Tenant


 


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Delay. In addition, Tenant
shall on Commencement Date pay to Landlord an amount equal to one (1) day of
Base Rental multiplied by the number of days of Tenant Delays in order to
compensate Landlord for lost rentals. If the cost to Landlord of the leasehold
improvements is increased in any way by a Tenant Delay, Tenant shall also pay
to Landlord on Commencement Date the additional cost so incurred.


 


6.4                                 Uncontrollable
Delays. If a delay in substantially completing the work, or if any
substantial portion of such delay, is the result of a strike or other labor
trouble, fire or other casualty, governmental pre-emption of priorities or
other controls in connection with a national or other public emergency or
shortages of fuel, supplies or labor resulting therefrom, or any other cause beyond
Landlord’s reasonable control (collectively, “Uncontrollable Delays”), then
each such Uncontrollable Delay shall extend the time for performance by
Landlord of Landlord’s obligations hereunder by an amount of time equal to the
length of such Uncontrollable Delay.


 


7.                                       Default.
A default by Tenant under this Exhibit F will constitute a default under the
Lease and Landlord may exercise Landlord’s remedies under the Lease.


 


8.                                       Defective
Work.


 


8.1                                 Punch
List. Tenant shall give Landlord a notice specifying any Work which remains
to be completed or which, if completed, is defective or otherwise not
substantially in accordance with the Final Drawings, within thirty (30) days
after Commencement Date and thereafter within thirty (30) days after notice
from Landlord that any of the work has been fully completed. Landlord shall
promptly complete or cause the completion of the incomplete work or remedy or
cause the remedy of the defective work set forth in any such notice.


 


8.2                                 Final
Approval. If Tenant shall fail to give such notice within such thirty (30)
days after Commencement Date, or within thirty (30) days after receipt of
notice from Landlord that the work has been fully completed, as the case may
be, then it shall be deemed that the work has been fully completed in
accordance with the Final Drawings, except for any defects or omissions in such
work not observable upon a reasonable inspection. If Tenant shall give one or
more such notices within such thirty (30) day period, then it shall be deemed,
except for the items set forth in Tenant’s notice and any defects or omissions
not observable upon a reasonable inspection, that all of the work has been
completed in accordance with the Final Drawings.


 


9.                                       Access
Before Commencement Date.


 


9.1                                 Purposes.
Tenant shall have access to the Premises and the Building prior to the
Commencement Date only for the purposes of inspecting the work.


 


9.2                                 Tenant’s
Obligations. In connection with such access, Tenant agrees:


 


(i)                                     to
cease promptly upon request of Landlord any activity which shall interfere with
or delay the completion of the leasehold improvements or the Commencement Date;
and


 


(ii)                                  to
comply and cause Tenant’s agents to comply promptly with all procedures and
regulations prescribed by Landlord from time to time.


 


E-4

















 


EXHIBIT “F”


 


PARKING AGREEMENT


 


Landlord shall make available
to Tenant at the commencement of the term of this Lease the use of the parking
surface adjacent to the Building (the “Surface Lot”) within which Tenants,
Tenant’s employees, agents, advisors and customers may park. There will be no
charge for the use of the Surface Lot during the Term of the Lease.


 


Landlord reserves the right to
designate specific areas and spaces on the Surface Lot. Tenant shall not,
however, be entitled to exclusive use of such designated parking spaces (unless
granted such rights by Landlord in writing) and Landlord may, in its sole
discretion, reassign the location of such parking spaces at any time. Landlord
further reserves the right to promulgate rules and regulations for the use of
all parking areas at any time during the term of this Lease. Notwithstanding
the foregoing provision of this Exhibit “F”, Landlord shall have the right to
designate any parking area or space for the exclusive use of a tenant or other
person or persons. Tenant agrees that it will employ its best efforts to
prevent the use by Tenant’s employees, agents, visitors and customers of
parking spaces allocated to other tenants.


 


Landlord shall make available
to Tenant at the commencement of the term of this Lease the use of two (2)
monthly parking cards (the “Cards”) to be used for gaining access to the
Building parking garage (the “Parking Garage”); provided, however, Tenant must
notify Landlord in writing within ten (10) days of the commencement of the
Lease as to whether or not Tenant desires any or all of the Cards. In the event
Tenant does not elect to use any or all of the Cards within such ten (10) day
period, or terminates its right to the use of one or more of the Cards, or in
the event of termination of this Lease, Landlord shall have no further
obligation to make Cards available to Tenant. In the event Tenant elects to use
the Cards, Tenant shall contract directly with the operator (the “Operator”) of
the Parking Garage and pay the security deposits and rental fees plus any
applicable taxes for such Cards from time to time charged by the Operator. It
is hereby agreed and understood that Landlord’s sole obligation hereunder is to
make the Cards and the Parking Garage available to Tenant. Tenant’s right to
the use of such Cards and its right to park vehicles on the Property shall be
subject to compliance with the rules and regulations promulgated from time to
time by the Operator and the Landlord and shall be subject to termination for
the violation of any such rules or regulations upon notice from the Operator or
Landlord.


 


Landlord shall have no
liability whatsoever for any property damage and/or personal injury which might
occur as a result of, or in connection with, the use of the Parking Garage or
the Surface Lot by Tenant, its employees, agents, invitees and licensees, and
Tenant hereby agrees to indemnify and hold Landlord and the Operator harmless
from and against any and all costs, claims, expenses, and/or causes of action
which Landlord may incur in connection with or arising out of the use of the
Cards, Parking Garage or Surface Lot by Tenant, its employees, agents, invitees
and licensees.


 


F-1

















 


EXHIBIT “G”


 


ACCEPTANCE OF PREMISES MEMORANDUM


 


THIS ACCEPTANCE OF PREMISES
MEMORANDUM (this “Memorandum”) is made in connection with that certain Office
Building Lease (the “Lease”) dated
                   
199   , between Hall Stonebriar Center I Associates, Ltd., a
Texas limited partnership, as Landlord, and
               ,
a
                              
, as Tenant, covering those certain premises (as defined in the Lease) commonly
known as Suite      ,in Stonebriar One (the “Building”),
located in Frisco, Collin County, Texas.


 


Tenant hereby
stipulates, agrees and acknowledges that:


 


1.                                       Except
for those items shown on the annex hereto entitled “Landlord’s Punchlist,”
which Landlord will cause to be completed or corrected within days hereof, Landlord
has fully completed the construction and finish-out required to be performed or
caused to be performed by Landlord under the terms of the Lease and any
Leasehold Improvement Agreement incorporated by reference in the Lease.


 


2.                                       The
Premises and Building are tenantable, the Landlord has no further obligation
for construction and finish-out with respect to the Premises (except as may be
specified in Landlord’s Punchlist), and both the Building and the Premises are
satisfactory to Tenant in all respects (except as may be specified in
Landlord’s Punchlist).


 


3.                                       The
Premises are suitable for the purpose for which they were leased by Tenant.


 


4.                                       Except
as modified by this Memorandum, the Lease remains in full force and effect
enforceable in accordance with its terms.


 


	
   

  	
  EXECUTED
  this                   day
  of         ,
  199   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
						



 


G-1

















 


EXHIBIT “H”


 


Termination
Amortization


 


Heartland Card Services, L.L.C.


 


	
  Key Figures

  	
   

  	
   

  	
   

  
	
  Annual Payments

  	
   

  	
  $

  	
  15,329.88

  	
   

  
	
  Monthly Payments

  	
   

  	
  $

  	
  1,277.49

  	
   

  
	
  Rentable Square Feet

  	
   

  	
  2,769

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Tenant Improvements

  	
   

  	
  $

  	
  48,457.50

  	
   

  
	
  Real Estate Commission

  	
   

  	
  $

  	
  13,083.53

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  61,541.03

  	
   

  



 


	
  Inputs

  	
   

  	
   

  	
   

  
	
  Principal Amount

  	
   

  	
  $

  	
  61,541.03

  	
   

  
	
  Annual Interest Rate

  	
   

  	
  9.00

  	
  %

  
	
  Term of Lease

  	
   

  	
  5

  	
   

  
	
  Base Year of Lease

  	
   

  	
  1998

  	
   

  
	
  Base Month of Lease

  	
   

  	
  July

  	
   

  
					



 


	
  Mo.#

  	
   

  	
  Month

  	
   

  	
  Beginning

  Balance

  	
   

  	
  Payment

  	
   

  	
  Principal

  	
   

  	
  Interest

  	
   

  	
  Cumulative

  Principal

  	
   

  	
  Cumulative

  Interest

  	
   

  	
  Ending

  Balance

  	
   

  
	
  1

  	
   

  	
  Jul-98

  	
   

  	
  $

  	
  61,541.03

  	
   

  	
  $

  	
  1,277.49

  	
   

  	
  $

  	
  815.93

  	
   

  	
  $

  	
  461.56

  	
   

  	
  $

  	
  815.93

  	
   

  	
  $

  	
  461.56

  	
   

  	
  $

  	
  60,725

  	
   

  
	
  2

  	
   

  	
  Aug-98

  	
   

  	
  60,725.10

  	
   

  	
  1,277.49

  	
   

  	
  822.05

  	
   

  	
  455.44

  	
   

  	
  1,637.98

  	
   

  	
  917.00

  	
   

  	
  59,903

  	
   

  
	
  3

  	
   

  	
  Sep-98

  	
   

  	
  59,903.05

  	
   

  	
  1,277.49

  	
   

  	
  828.22

  	
   

  	
  449.27

  	
   

  	
  2,466.20

  	
   

  	
  1,366.27

  	
   

  	
  59,075

  	
   

  
	
  4

  	
   

  	
  Oct-98

  	
   

  	
  59,074.83

  	
   

  	
  1,277.49

  	
   

  	
  834.43

  	
   

  	
  443.06

  	
   

  	
  3,300.63

  	
   

  	
  1,809.33

  	
   

  	
  58,240

  	
   

  
	
  5

  	
   

  	
  Nov-98

  	
   

  	
  58,240.40

  	
   

  	
  1,277.49

  	
   

  	
  840.69

  	
   

  	
  436.80

  	
   

  	
  4,141.32

  	
   

  	
  2,246.13

  	
   

  	
  57,400

  	
   

  
	
  6

  	
   

  	
  Dec-98

  	
   

  	
  57,399.71

  	
   

  	
  1,277.49

  	
   

  	
  846.99

  	
   

  	
  430.50

  	
   

  	
  4,988.31

  	
   

  	
  2,676.63

  	
   

  	
  56.553

  	
   

  
	
  7

  	
   

  	
  Jan-99

  	
   

  	
  56,552.72

  	
   

  	
  1,277.49

  	
   

  	
  853.34

  	
   

  	
  424.15

  	
   

  	
  5,841.65

  	
   

  	
  3,100.78

  	
   

  	
  55,699

  	
   

  
	
  8

  	
   

  	
  Feb-99

  	
   

  	
  55,699.38

  	
   

  	
  1,277.49

  	
   

  	
  859.74

  	
   

  	
  417.75

  	
   

  	
  6,701.39

  	
   

  	
  3,518.53

  	
   

  	
  54,840

  	
   

  
	
  9

  	
   

  	
  Mar-99

  	
   

  	
  54,839.64

  	
   

  	
  1,277.49

  	
   

  	
  866.19

  	
   

  	
  411.30

  	
   

  	
  7,567.58

  	
   

  	
  3,929.83

  	
   

  	
  53,973

  	
   

  
	
  10

  	
   

  	
  Apr-99

  	
   

  	
  53,973.45

  	
   

  	
  1,277.49

  	
   

  	
  872.69

  	
   

  	
  404.80

  	
   

  	
  8,440.27

  	
   

  	
  4,334.63

  	
   

  	
  53,101

  	
   

  
	
  11

  	
   

  	
  May-99

  	
   

  	
  53,100.76

  	
   

  	
  1,277.49

  	
   

  	
  879.23

  	
   

  	
  398.26

  	
   

  	
  9,319.50

  	
   

  	
  4,732.89

  	
   

  	
  52,222

  	
   

  
	
  12

  	
   

  	
  Jun-99

  	
   

  	
  52,221.53

  	
   

  	
  1,277.49

  	
   

  	
  885.83

  	
   

  	
  391.66

  	
   

  	
  10,205.33

  	
   

  	
  5,124.55

  	
   

  	
  51.336

  	
   

  
	
  13

  	
   

  	
  Jul-99

  	
   

  	
  51,335.70

  	
   

  	
  1,277.49

  	
   

  	
  892.47

  	
   

  	
  385.02

  	
   

  	
  11,097.80

  	
   

  	
  5,509.57

  	
   

  	
  50,443

  	
   

  
	
  14

  	
   

  	
  Aug-99

  	
   

  	
  50,443.23

  	
   

  	
  1,277.49

  	
   

  	
  899.17

  	
   

  	
  378.32

  	
   

  	
  11,996.97

  	
   

  	
  5,887.89

  	
   

  	
  49,544

  	
   

  
	
  15

  	
   

  	
  Sep-99

  	
   

  	
  49,544.06

  	
   

  	
  1,277.49

  	
   

  	
  905.91

  	
   

  	
  371.58

  	
   

  	
  12,902.88

  	
   

  	
  6,259.47

  	
   

  	
  48,638

  	
   

  
	
  16

  	
   

  	
  Oct-99

  	
   

  	
  48,638.15

  	
   

  	
  1,277.49

  	
   

  	
  912.70

  	
   

  	
  364.79

  	
   

  	
  13,815.58

  	
   

  	
  6,624.26

  	
   

  	
  47,725

  	
   

  
	
  17

  	
   

  	
  Nov-99

  	
   

  	
  47,725.45

  	
   

  	
  1,277.49

  	
   

  	
  919.55

  	
   

  	
  357.94

  	
   

  	
  14,735.13

  	
   

  	
  6,982.20

  	
   

  	
  46,806

  	
   

  
	
  18

  	
   

  	
  Dec-99

  	
   

  	
  46,805.90

  	
   

  	
  1,277.49

  	
   

  	
  926.45

  	
   

  	
  351.04

  	
   

  	
  15,661.58

  	
   

  	
  7,333.24

  	
   

  	
  45,879

  	
   

  
	
  19

  	
   

  	
  Jan-2000

  	
   

  	
  45,879.45

  	
   

  	
  1,277.49

  	
   

  	
  933.39

  	
   

  	
  344.10

  	
   

  	
  16,594.97

  	
   

  	
  7,677.34

  	
   

  	
  44,946

  	
   

  
	
  20

  	
   

  	
  Feb-2000

  	
   

  	
  44,946.06

  	
   

  	
  1,277.49

  	
   

  	
  940.39

  	
   

  	
  337.10

  	
   

  	
  17,535.36

  	
   

  	
  8,014.44

  	
   

  	
  44,006

  	
   

  
	
  21

  	
   

  	
  Mar-2000

  	
   

  	
  44,005.67

  	
   

  	
  1,277.49

  	
   

  	
  947.45

  	
   

  	
  330.04

  	
   

  	
  18,482.81

  	
   

  	
  8,344.48

  	
   

  	
  43,058

  	
   

  
	
  22

  	
   

  	
  Apr-2000

  	
   

  	
  43,058.22

  	
   

  	
  1,277.49

  	
   

  	
  954.55

  	
   

  	
  322.94

  	
   

  	
  19,437.36

  	
   

  	
  8,667.42

  	
   

  	
  42,104

  	
   

  
	
  23

  	
   

  	
  May-2000

  	
   

  	
  42,103.67

  	
   

  	
  1,277.49

  	
   

  	
  961.71

  	
   

  	
  315.78

  	
   

  	
  20,399.07

  	
   

  	
  8,983.20

  	
   

  	
  41,142

  	
   

  
	
  24

  	
   

  	
  Jun-2000

  	
   

  	
  41,141.96

  	
   

  	
  1,277.49

  	
   

  	
  968.93

  	
   

  	
  308.56

  	
   

  	
  21,368.00

  	
   

  	
  9,291.76

  	
   

  	
  40,173

  	
   

  
	
  25

  	
   

  	
  Jul-2000

  	
   

  	
  40,173.03

  	
   

  	
  1,277.49

  	
   

  	
  976.19

  	
   

  	
  301.30

  	
   

  	
  22,344.19

  	
   

  	
  9,593.06

  	
   

  	
  39,197

  	
   

  
	
  26

  	
   

  	
  Aug-2000

  	
   

  	
  39,196.84

  	
   

  	
  1,277.49

  	
   

  	
  983.51

  	
   

  	
  293.98

  	
   

  	
  23,327.70

  	
   

  	
  9,887.04

  	
   

  	
  38,213

  	
   

  
	
  27

  	
   

  	
  Sep-2000

  	
   

  	
  38,213.33

  	
   

  	
  1,277.49

  	
   

  	
  990.89

  	
   

  	
  286.60

  	
   

  	
  24,318.59

  	
   

  	
  10,173.64

  	
   

  	
  37,222

  	
   

  
	
  28

  	
   

  	
  Oct-2000

  	
   

  	
  37,222.44

  	
   

  	
  1,277.49

  	
   

  	
  998.32

  	
   

  	
  279.17

  	
   

  	
  25,316.91

  	
   

  	
  10,452.81

  	
   

  	
  36,224

  	
   

  
	
  29

  	
   

  	
  Nov-2000

  	
   

  	
  36,224.12

  	
   

  	
  1,277.49

  	
   

  	
  1,005.81

  	
   

  	
  271.68

  	
   

  	
  26,322.72

  	
   

  	
  10,724.49

  	
   

  	
  35,218

  	
   

  
	
  30

  	
   

  	
  Dec-2000

  	
   

  	
  35,218.31

  	
   

  	
  1,277.49

  	
   

  	
  1,013.35

  	
   

  	
  264.14

  	
   

  	
  27,336.07

  	
   

  	
  10,988.63

  	
   

  	
  34,205

  	
   

  
	
  31

  	
   

  	
  Jan-2001

  	
   

  	
  34,204.96

  	
   

  	
  1,277.49

  	
   

  	
  1,020.95

  	
   

  	
  256.54

  	
   

  	
  28,357.02

  	
   

  	
  11,245.17

  	
   

  	
  33,184

  	
   

  
	
  32

  	
   

  	
  Feb-2001

  	
   

  	
  33,184.01

  	
   

  	
  1,277.49

  	
   

  	
  1,028.61

  	
   

  	
  248.88

  	
   

  	
  29,385.63

  	
   

  	
  11,494.05

  	
   

  	
  32,155

  	
   

  
	
  33

  	
   

  	
  Mar-2001

  	
   

  	
  32,155.40

  	
   

  	
  1,277.49

  	
   

  	
  1,036.32

  	
   

  	
  241.17

  	
   

  	
  30,421.95

  	
   

  	
  11,735.22

  	
   

  	
  31,119

  	
   

  
	
  34

  	
   

  	
  Apr-2001

  	
   

  	
  31,119.08

  	
   

  	
  1,277.49

  	
   

  	
  1,044.10

  	
   

  	
  233.39

  	
   

  	
  31,466.05

  	
   

  	
  11,968.61

  	
   

  	
  30,075

  	
   

  
	
  35

  	
   

  	
  May-2001

  	
   

  	
  30,074.98

  	
   

  	
  1,277.49

  	
   

  	
  1,051.93

  	
   

  	
  225.56

  	
   

  	
  32,517.98

  	
   

  	
  12,194.17

  	
   

  	
  29,023

  	
   

  
	
  36

  	
   

  	
  Jun-2001

  	
   

  	
  29,023.05

  	
   

  	
  1,277.49

  	
   

  	
  1,059.82

  	
   

  	
  217.67

  	
   

  	
  33,577.80

  	
   

  	
  12,411.84

  	
   

  	
  27,963

  	
   

  
	
  37

  	
   

  	
  Jul-2001

  	
   

  	
  27,963.23

  	
   

  	
  1,277.49

  	
   

  	
  1,067.77

  	
   

  	
  209.72

  	
   

  	
  34,645.57

  	
   

  	
  12,621.56

  	
   

  	
  26,895

  	
   

  
																									



 


H-1