Exhibit 10.15


 


FIRST AMENDMENT TO OFFICE LEASE


 


THIS FIRST AMENDMENT TO
OFFICE LEASE (this “Amendment”)  is entered into as
of the date set forth below Landlord’s signature (the “Effective Date”),  by and between
CRESCENT REAL ESTATE FUNDING VIII, L.P. (“Landlord”),  a Delaware limited partnership, and
NETSPEND CORPORATION (“Tenant”),  a Delaware
corporation, with reference to the following:


 


A.                                    Pursuant to
that certain Lease Agreement dated August 11, 2003, by and between
Landlord and Tenant (the “Lease”),  Landlord has leased
to Tenant certain space designated as Suite 1200 (the “Original Premises”)  in the building
known as Austin Centre located at 701 Brazos, Austin, Travis County, Texas (the
“Building”).


 


B.                                    Landlord and
Tenant now desire to amend the Lease as set forth below. Unless otherwise
expressly provided in this Amendment, capitalized terms used in this Amendment
shall have the same meanings as in the Lease.


 


FOR GOOD AND VALUABLE
CONSIDERATION, the receipt and sufficiency of which are acknowledged, the
parties agree as follows:


 


1.                                      Renewal and Expansion Options.  Landlord and
Tenant acknowledge and agree that except as expressly provided in Exhibit “F” to the Lease, Tenant
has no further options or rights to extend or renew the Term of the Lease or
expand the Premises.


 


2.                                      Expansion Space.  The Lease is
hereby modified and amended to include, effective as of the Expansion Date,
certain space containing an additional 10,498 Rentable Square Feet, located on
the 13th floor of the Building, as shown on Exhibit “A” attached hereto (the “Expansion Space”).  As used herein, “Expansion Date” means
the date that is the later of (a) Substantial Completion of the Landlord
Work (as defined in the Work Letter attached hereto as Exhibit “B”), (b) the date on
which the Landlord Work would have been Substantially Complete but for Tenant
Delay, as such term is defined in the Work Letter, or (c) the date Tenant
takes possession of any part of the Expansion Space for purposes of conducting
business. Tenant hereby acknowledges that the Expansion Space is leased by
Tenant subject to all terms and conditions of the Lease, as amended hereby.


 


3.                                      Premises.  From and after
the Expansion Date, the term “Premises” wherever used in the Lease shall mean and
include the Original Premises, together with the Expansion Space, collectively
consisting of 33,172 Rentable Square Feet.


 


4.                                      Lease Term for Expansion Space.  Tenant’s lease
of the Expansion Space shall commence on the Expansion Date and shall terminate
on March 31, 2009 (the “Expansion Term”),  which is the date the initial Lease Term
shall terminate, subject to earlier termination pursuant to the terms of the
Lease.


 


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5.                                      Base
Rent.  During the Expansion Term,
Tenant shall, in addition to the Base Rent due for the Original Premises
pursuant to Section 1.D of the Lease, at the time and place and in the
manner provided in the Lease, pay to Landlord as Base Rent for the Expansion
Space the sum of $104,980.00 per annum (based on an annual rate of $10.00 per
square foot), payable in monthly installments of $8,748.33 each, plus any
applicable tax thereon. If the Expansion Term commences on a day other than the
first day of a calendar month, the monthly Base Rent and the OE Payment for the
Expansion Space for such month shall be prorated on a daily basis based on a
360 day calendar year.


 


6.                                      Operating Expenses.  Tenant shall
continue to pay its Pro Rata Share of Operating Expenses in accordance with the
Lease, as amended hereby. Landlord and Tenant acknowledge that Tenant’s Pro
Rata Share prior to the Expansion Date is 6.598%, which is the percentage
obtained by dividing (i) 22,647 Rentable Square Feet in the Premises by (ii) the
343,664 Rentable Square Feet in the Building. Landlord and Tenant further
acknowledge that Tenant’s Pro Rata Share on and after the Expansion Date is
9.6525%, which is the percentage obtained by dividing (i) 33,172 Rentable
Square Feet in the Premises by (ii) the 343,664 Rentable Square Feet in
the Building.


 


7.                                      Condition of Expansion Space.  Tenant accepts the Expansion Space in its  current condition, i.e., “AS IS” and “WITH ALL FAULTS” and
acknowledges that Landlord makes no representations or warranties with respect
thereto. Notwithstanding the foregoing, Landlord shall construct leasehold
improvements in the Expansion Space in accordance with the Work Letter attached
hereto as Exhibit “B”.


 


8.                                      Parking.  On and after the Expansion Date, in addition to the Parking Permits
described in  the Parking
Agreement attached to the Lease as Exhibit “E”, Tenant shall take and pay  for 14 permits allowing access to
unreserved parking spaces in the Austin
Centre Garage and 25  permits
allowing access to unreserved parking spaces in the St. David’s Garage (each an
“Additional Permit”).  During the Expansion
Term, Tenant shall pay $110.00 per month (plus any taxes thereon) for each
Additional Permit allowing access to unreserved parking spaces in the Austin
Centre Garage and $90.00 per month (plus any taxes thereon) for each Additional
Permit allowing access to unreserved parking spaces in the St. David’s Garage.
Other than the fee set forth above, each Additional Permit shall be taken by
Tenant subject to the terms and conditions of the Parking Agreement attached to
the Lease as  Exhibit “E”.


 


9.                                      Security Deposit.  Prior to the
Expansion Date, Tenant shall, in addition to the $34,653.43 Security Deposit
currently held by Landlord, deliver to Landlord as an additional Security
Deposit the sum of $14,074.58, for a total Security Deposit of $48,728.01.


 


10.                               Broker.  Tenant represents and warrants that it has not been represented by any
broker, other than HerronWilliams, LLC (whose commission shall be paid by
Landlord pursuant to a separate agreement), or agent in connection with the
execution of this Amendment. Tenant shall
indemnify and hold harmless Landlord and its designated property management,
construction and marketing firms, and their respective partners, members,
affiliates and subsidiaries, and all of their respective officers, directors,
shareholders, employees,


 


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servants, partners, members,
representatives, insurers and agents from and against all claims (including
costs of defense and investigation) of any broker or agent or similar party
claiming by, through or under Tenant in connection with this Amendment. Landlord
represents and warrants that it has not been represented by any broker or agent
in connection with the execution of this Amendment. Landlord shall indemnify and hold harmless Tenant and its employees,
agents and affiliates from and against any and all claims (including costs of
defense and investigation) of any other broker or agent or similar party
claiming, through or under Landlord in connection with this Amendment.


 


11.                               Applicable Law.  As  used herein, “Applicable Law” means
all laws, statutes, ordinances, court rulings, regulations, public or private
restrictions and requirements now or hereafter adopted by any governmental or
other authority, board of fire underwriters, utility company, property
association, declarant or similar body, affecting the Building or this Lease,
including Title III of The Americans with Disabilities Act of 1990, the
Accessibility Guidelines for Buildings and Facilities and any other law pertaining
to disabilities and architectural barriers. The validity, performance and
enforcement of the Lease are governed by the Applicable Law of the state or
other jurisdiction where the Building is located. All obligations under the
Lease are performable in the county or other jurisdiction in which the Building
is located, which shall be the venue for all legal actions.


 


12.                               Miscellaneous.  This Amendment
shall become effective only upon full execution and delivery of this Amendment
by Landlord and Tenant. This Amendment contains the parties’ entire agreement
regarding the subject matter covered by this Amendment, and supersedes all
prior correspondence, negotiations, and agreements, if any, whether oral or
written, between the parties concerning such subject matter. There are no
contemporaneous oral agreements, and there are no representations or warranties
between the parties not contained in this Amendment. Except as modified by this
Amendment, the terms and provisions of the Lease shall remain in full force and
effect, and the Lease, as modified by this Amendment, shall be binding upon and
shall inure to the benefit of the parties hereto, their successors and
permitted assigns. Landlord represents to Tenant that the person signing this
Amendment on behalf of Landlord is authorized to execute this Amendment without
the necessity of obtaining any other signature, and that this Amendment is
fully binding on Landlord.


 


[SIGNATURES
ON FOLLOWING PAGE]


 


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Landlord and Tenant have executed this Amendment as
of the Effective Date specified below Landlord’s signature.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  CRESCENT REAL ESTATE FUNDING VIII, L.P., 

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CRE Management VIII, LLC, a Delaware 

  
	
   

  	
   

  	
  limited liability company, its general
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Crescent Real Estate Equities, Ltd.,

  
	
   

  	
   

  	
   

  	
  a Delaware corporation, its manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Leasing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Effective Date:

  	
  August 2, 2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NETSPEND CORPORATION,

  
	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard J. Savard

  
	
   

  	
   

  	
  Name:

  	
  Richard J. Savard

  
	
   

  	
   

  	
  Title:

  	
  CEO

  
								



 


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EXHIBIT A


 


EXPANSION SPACE


 





 


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EXHIBIT B



 


WORK
LETTER


 


This Work Letter is attached
as an Exhibit to a First Amendment to Office Lease (the “Amendment”)  between
CRESCENT REAL ESTATE FUNDING VIII, L.P., as Landlord, and NETSPEND CORPORATION,
as Tenant, for the Expansion Space, the Rentable Square Footage of which is
10,498, located on the 13th floor of the Building. Unless
otherwise specified, all capitalized terms used in this Work Letter shall have
the same meanings as in the Lease, as amended. In the event of any conflict
between the Lease, as amended, and this Work Letter, the latter shall control.


 


1.                                      Approved
Construction Documents.


 


(a)                                 Tenant’s
Information. Within 10 days after the Effective Date of this
Amendment, Tenant shall submit to Landlord (i) the name of a
representative of Tenant who has been designated as the person responsible for
receiving all information from and delivering all information to Landlord
relating to the construction of the Landlord Work (as defined below), and
(ii) all information necessary for the preparation of complete, detailed
architectural, mechanical, electrical and plumbing drawings and specifications
for construction of the Landlord Work in the Expansion Space, including
Tenant’s partition and furniture layout, reflected ceiling, telephone and
electrical outlets and equipment rooms, initial provider(s) of
telecommunications services, doors (including hardware and keying schedule),
glass partitions, windows, critical dimensions, imposed loads on structure,
millwork, finish schedules, security devices, if any, which Tenant desires or
Landlord requires to have integrated with other Building safety systems, and
HVAC and electrical requirements (including Tenant’s connected electrical loads
and the National Electrical Code (NFPA-70) Design Load Calculations), together
with all supporting information and delivery schedules (“Tenant’s Information”).


 


(b)                                 Construction
Documents. Following Landlord’s execution of the Amendment
and receipt of Tenant’s Information, Landlord’s designated
architectural/engineering firm shall prepare and submit to Tenant all finished
and detailed architectural drawings and specifications, including mechanical,
electrical and plumbing drawings (the “Construction Documents”). In addition,
Landlord shall advise Tenant of the number of days of Tenant Delay (as defined
below) attributable to extraordinary requirements (if any) contained in
Tenant’s Information. Landlord (or its designated representative) reserves the
right to designate the location(s) of all of Tenant’s mechanical,
electrical or other equipment and the manner in which such equipment will be
connected to Building systems.


 


(c)                                  Approved
Construction Documents. Within 3 Business Days after receipt,
Tenant shall (i) approve and return the Construction Documents to
Landlord, or (ii) provide Landlord Tenant’s written requested changes to
the Construction Documents, in which event Landlord shall have the Construction
Documents revised (as Landlord deems appropriate) and resubmitted to Tenant for
approval within 3 Business Days after receipt. If Tenant fails to request
changes within such 3 Business Day period, Tenant shall be deemed to have
approved


 


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the Construction Documents. Upon Tenant’s approval,
the Construction Documents shall become the “Approved Construction Documents.” By
granting approval of the Construction Documents (whether such approval is
expressly granted or deemed given as provided above), Tenant shall be deemed to
have confirmed by means of calculations or metering that the available capacity
of the Building electrical system will support Tenant’s electrical
requirements.


 


2.                                      Pricing and Bids.  Following receipt of the Approved Construction
Documents, Landlord will promptly price the construction of the Landlord Work
with approved general contractors in accordance with the Approved Construction
Documents and furnish written price estimates to Tenant. Upon receipt, Tenant
shall promptly review such estimates and complete negotiations with Landlord
for any changes or adjustments thereto. Within 5 Business Days after such
receipt, Tenant shall return the estimates with written approval to Landlord.
If Tenant fails to give its approval within such 5 Business Day period, the
lowest competent estimates will be deemed approved by Tenant.


 


3.                                      Landlord’s Contributions.  Landlord
will provide a construction allowance not to exceed $183,715.00
(the “Construction
Allowance”),
toward the cost of constructing the Landlord Work. Payments
shall be made directly to Landlord’s contractor performing the Landlord Work.
The cost of (a) all space planning, design, consulting or review services
and construction drawings, (b) extension
of electrical wiring from Landlord’s designated location(s) to the
Expansion Space, (c) purchasing and installing all building equipment for
the Expansion Space (including any submeters and other above building standard
electrical equipment approved by Landlord), (d) required metering,
re-circuiting or re-wiring for metering, equipment rental, engineering design
services, consulting services, studies, construction services, cost of billing
and collections, (e) materials and labor, and (f) an asbestos survey
of the Expansion Space if required by applicable Law, shall all be included in
the cost of the Landlord Work and may be paid out of the Construction
Allowance, to the extent sufficient funds are available for such purpose. Tenant acknowledges that an asbestos survey will
probably be required by applicable Law and that the time required for such
asbestos surveys should be incorporated in Tenant’s construction planning. The
Construction Allowance made available to Tenant under this Work Letter must be
utilized for its intended purpose within 180 days of the Effective Date or be
forfeited with no further obligation on the part of Landlord.


 


4.                                      Construction.


 


(a)                                 General Terms.  Subject
to the terms of this Work Letter, Landlord agrees  to cause leasehold improvements to be constructed in
the Expansion Space (the “Landlord
Work”) in a good and workmanlike manner in accordance with the Approved Construction  Documents. Tenant acknowledges that
Landlord is not an architect or engineer, and that the Landlord Work will be
designed and performed by independent architects, engineers and contractors.
Accordingly, Landlord does not guarantee or warrant that the Approved
Construction Documents will comply with Laws or be free from errors or
omissions, nor that the Landlord Work will be free from defects, and Landlord
will have no liability therefor. In the event of such errors, omissions or
defects, and upon Tenant’s written request, Landlord will use commercially
reasonable efforts to cooperate with Tenant in enforcing any applicable
warranties.


 


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In addition, Landlord’s approval of the Construction
Documents or the Landlord Work shall not be interpreted to waive or otherwise
modify the terms and provisions of the Lease, as amended. Except with respect
to the economic terms set forth in Paragraph 3 of
this Work Letter, the terms and provisions contained in this Work Letter shall
survive the completion of the Landlord Work and shall govern in all applicable
circumstances arising under the Lease throughout the term of the Lease,
including the construction of future improvements in the Expansion Space.
Tenant acknowledges that Tenant’s Information and the Approved Construction
Documents must comply with (i) the definitions used by Landlord for the
electrical terms used in this Work Letter, (ii) the electrical and HVAC
design capacities of the Building, (iii) Landlord’s policies concerning
communications and fire alarm services, and (iv) Landlord’s policies
concerning Tenant’s electrical design parameters, including harmonic
distortion. Upon Tenant’s request, Landlord will provide Tenant a written
statement outlining items (i) through (iv) above.


 


(b)                                 ADA Compliance.  Landlord shall, as an Operating Expense, be
responsible for ADA (and any applicable state accessibility standard)
compliance for the core areas of the Building (including elevators, Common
Areas, and service areas), the Property’s parking facilities and all points of
access into the Property. Tenant shall, at its expense, be responsible for ADA
(and any applicable state accessibility standard) compliance in the Expansion
Space, including restrooms on any floor now or hereafter leased or occupied in
its entirety by Tenant, its Affiliates or transferees. Landlord shall not be
responsible for determining whether Tenant is a public accommodation under ADA
or whether the Approved Construction Documents comply with ADA requirements,
including submission of the Approved Construction Documents for review by
appropriate state agencies. Such determinations, if desired by Tenant, shall be
the sole responsibility of Tenant.


 


(c)                                  Substantial
Completion.  The
Landlord Work shall be deemed to be “Substantially Complete” on the date that all
Landlord Work (other than any details of construction, mechanical adjustment or
any other similar matter, the noncompletion of which does not materially
interfere with Tenant’s use or occupancy of the Expansion Space) has been
performed. Time is of the essence in connection with the obligations of
Landlord and Tenant under this Work Letter. Landlord shall not be liable or
responsible for any claims incurred (or alleged) by Tenant due to any delay in
achieving Substantial Completion for any reason. Tenant’s sole and exclusive
remedy for any delay in achieving Substantial Completion for any reason other
than Tenant Delay (defined below) shall be the resulting postponement (if any)
of the commencement of rental payments for the Expansion Space under the
Amendment. “Tenant
Delay” means any act or omission of Tenant or its agents,
employees, vendors or contractors that actually delays the Substantial
Completion of the Landlord Work, including: (i) Tenant’s failure to
furnish information or approvals within any time period specified in the
Amendment, including the failure to prepare or approve preliminary or final
plans by any applicable due date; (ii) Tenant’s selection of non-building
standard equipment or materials; (iii) changes requested or made by Tenant
to previously approved plans and specifications; or (iv) performance of
work in the Expansion Space by Tenant or Tenant’s contractor(s) during the
performance of the Landlord Work.


 


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5.                                      Costs.


 


(a)                                 Change Orders
and Cost Overruns.  Landlord’s
approval is required in advance of all changes to, and deviations from, the Approved
Construction Documents (each, a “Change Order”),  including any
(i) omission, removal, alteration or other modification of any portion of
the Landlord Work, (ii) additional architectural or engineering services,
(iii) changes to materials, whether building standard materials, specially
ordered materials, or specially fabricated materials, or (iv) cancellation
or modification of supply or fabrication orders. Except as otherwise expressly
provided in this Work Letter, all costs of the Landlord Work in excess of the
Construction Allowance including Change Orders requested by Tenant and approved
by Landlord which increase the cost of the Landlord Work (collectively, “Cost Overruns”)  shall be paid by
Tenant to Landlord within 10 days of receipt of Landlord’s invoice. In
addition, at Landlord’s election, Landlord may require Tenant to prepay any
projected Cost Overruns within 10 days of receipt of Landlord’s invoice for
same. Landlord may stop or decline to commence all or any portion of the
Landlord Work until such payment (or prepayment) of Cost Overruns is received.
On or before the Commencement Date, and as a condition to Tenant’s right to
take possession of the Expansion Space, Tenant shall pay Landlord the entire
amount of all Cost Overruns, less any prepaid amounts. Tenant’s failure to pay,
when due, any Cost Overruns or the cost of any Change Order shall constitute an
event of default under the Lease.


 


(b)                                 Construction
Management Fee.  Within 10
days following the date of invoice, Tenant shall, for supervision and
administration of the construction and installation of the Landlord Work, pay
Landlord a construction management fee equal to 5% of the aggregate contract
price for the Landlord Work, which may be paid from the unused portion of the
Construction Allowance (if any). Tenant’s failure to pay such construction
management fee when due shall constitute an event of default under the Lease.


 


6.                                      Acceptance.  By taking possession of the
Expansion Space, Tenant agrees and acknowledges that (i) the Expansion
Space is usable by Tenant as intended; (ii) Landlord has no further
obligation to perform any Landlord Work or other construction (except punchlist
items, if any agreed upon by Landlord and Tenant in writing): and
(iii) both the Building and the Expansion Space are satisfactory in all
respects.


 


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