1
Exhibit 10.10
OFFICE LEASE
------------
CARRIER CENTER DALLAS
DALLAS CARRIER ASSOCIATES, LTD.,
a Texas limited partnership
as Landlord,
and
UNIVERSAL ACCESS,
an Illinois corporation,
as Tenant
2
CARRIER CENTER DALLAS
INDEX
ARTICLE SUBJECT MATTER PAGE
------- -------------- ----
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND
COMMON AREAS 1
ARTICLE 2 LEASE TERM; OPTION TERMS 2
ARTICLE 3 BASE RENT 3
ARTICLE 4 ADDITIONAL RENT 4
ARTICLE 5 USE OF PREMISES 10
ARTICLE 6 SERVICES AND UTILITIES 10
ARTICLE 7 REPAIRS 14
ARTICLE 8 ADDITIONS AND ALTERATIONS 15
ARTICLE 9 COVENANT AGAINST LIENS 16
ARTICLE 10 INSURANCE 17
ARTICLE 11 DAMAGE AND DESTRUCTION 19
ARTICLE 12 NONWAIVER 21
ARTICLE 13 CONDEMNATION 22
ARTICLE 14 ASSIGNMENT AND SUBLETTING 22
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES 26
ARTICLE 16 HOLDING OVER 26
ARTICLE 17 ESTOPPEL CERTIFICATES 27
ARTICLE 18 SUBORDINATION 27
ARTICLE 19 DEFAULTS; REMEDIES 28
ARTICLE 20 COVENANT OF QUIET ENJOYMENT 30
ARTICLE 21 SECURITY DEPOSIT 30
ARTICLE 22 SUPPLEMENTAL EQUIPMENT 31
ARTICLE 23 SIGNS 33
ARTICLE 24 COMPLIANCE WITH LAW 34
ARTICLE 25 LATE CHARGES 34
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT;
PAYMENTS BY TENANT 34
ARTICLE 27 ENTRY BY LANDLORD 35
ARTICLE 28 [Intentionally Deleted] 35
ARTICLE 29 MISCELLANEOUS PROVISIONS 35
EXHIBITS
A OUTLINE OF PREMISES
B TENANT WORK LETTER
C FORM OF NOTICE OF LEASE TERM DATES
D RULES AND REGULATIONS
E FORM OF TENANT'S ESTOPPEL CERTIFICATE
F ANTENNA SPACE RIDER
(a)
3
CARRIER CENTER DALLAS
INDEX OF MAJOR DEFINED TERMS
LOCATION OF
DEFINITION IN
DEFINED TERMS OFFICE LEASE
------------- -------------
Abatement Event 13
Additional Amp Access Fee 10
Additional Rent 4
Alterations 15
Antenna Exhibit H
Antenna Conduit Exhibit H
Antenna Conduit Space Exhibit H
Antenna Space Exhibit H
Antenna Space Effective Date Exhibit H
Auxiliary Space 31
Base Building 15
Base Rent 3
Base Year 4
Brokers 38
Building 1
Building Common Areas 1
Building Structure 14
Building Systems 14
Carrier Center Dallas 1
CDS 13
Claims 32
Common Areas 1
Connecting Equipment 31
Customer Subleases 25
Customers 25
Damage Termination Date 21
Damage Termination Notice 21
Direct Expenses 4
Effective Date 4
Eligibility Period 13
Emergency Generator 11
Estimate 9
Estimate Statement 9
Estimated Excess 9
Excess 8
Expense Year 4
Fair Rental Value 3
Fire-Suppression System 30
Force Majeure 37
Generator Access Fee 11
Generator Maintenance Fee 11
HVAC 10
Landlord i
Landlord Parties 17
Landlord Repair Notice 19
Lease i
Lease Commencement Date 2
Lease Expiration Date 2
Lease Term 2
Lease Year 2
(b)
4
License 30
Lines 31
Mail 37
MDF 13
MPOE 13
Notices 37
Operating Expenses 4
Option Rent 3
Option Rent Notice 3
Original Tenant 2
Premises 1
Project 1
Project Common Areas 1
Renovations 39
Rent 4
Security Deposit 30
Statement 8
Subject Space 22
Summary i
Supplemental Equipment 31
Tax Expenses 7
Tenant i
Tenant Damage Event 20
Tenant Work Letter 1
Tenant's Conduit 31
Tenant's HVAC Equipment 30
Tenant's Share 8
Transfer Notice 22
Transfer Premium 24
Transferee 22
Transfers 22
(c)
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CARRIER CENTER DALLAS
OFFICE LEASE
This Office Lease (the "LEASE"), dated as of the date set forth in
Section 1 of the Summary of Basic Lease Information (the "Summary"), below, is
made by and between DALLAS CARRIER ASSOCIATES, Ltd., a Texas limited partnership
("LANDLORD"), and UNIVERSAL ACCESS, an Illinois corporation ("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
TERMS OF LEASE DESCRIPTION
1. Date: May 20 1999 (the "EFFECTIVE DATE")
2. Premises
(Article 1).
2.1 Building: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇
2.2 Premises: Approximately 8,000 rentable square
feet of space located on the 6th
floor of the Building, and known as
Suite 605, as further set forth in
EXHIBIT A to the Office Lease.
3. Lease Term
(Article 2).
3.1 Length of Term: One hundred eighty (180) months.
3.2 Lease Commencement Date: The earlier to occur of (i) the
date upon which Tenant first
commences to conduct business in
the Premises, and (ii) the date
which is one hundred eighty (180)
days following the Effective Date
(as that term is defined in Section
1 of the Summary of Basic Lease
Information above). The Target
Lease Commencement Date is November
10, 1999
3.3 Lease Expiration Date: The date immediately preceding the
one hundred eighty (180) month
anniversary of the Lease
Commencement Date.
4. Base Rent (Article 3):
Annual
Monthly Rental Rate
Months of Annual Installment per Rentable
Lease Term Base Rent of Base Rent Square Foot
---------- --------- ------------ -----------
1-12 $152,000.00 $12,666.67 $19.000
13-24 $155,040.00 $12,920.00 $19.380
25-36 $158,140.80 $13,178.40 $19.768
37-48 $161,303.62 $13,441.97 $20.163
49-60 $164,529.69 $13,710.81 $20.566
61-72 $167,820.28 $13,985.02 $20.978
73-84 $171,176.69 $14,264.72 $21.397
85-96 $174,600.22 $14,550.02 $21.825
97-108 $178,092.23 $14,841.02 $22.262
(i)
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109-120 $181,654.07 $15,137.84 $22.707
121-132 $185,287.15 $15,440.60 $23.161
133-144 $188,992.89 $15,749.41 $23.624
145-156 $192,772.75 $16,064.40 $24.097
157-168 $196,628.21 $16,385.68 $24.579
169-180 $200,560.77 $16,713.40 $25.070
5. Base Year Calendar year 1999. (Article 4):
6. Tenant's Share Approximately 3.81%.
(Article 4):
7. Permitted Use General office use and
(Article 5): telecommunications switching
consistent with a first-class
telecommunications building
8. Security Deposit $16,713.40
(Article 21):
9. Address of Tenant ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Section 29.18): ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
(Prior to Lease Commencement Date)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇
(After Lease Commencement Date)
10. Address of Landlord See Section 29.18 of the Lease.
(Section 29.18):
11. Broker(s) Landlord's Representative
(Section 29.24): Telecom Real Estate Services, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant's Representative
▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ii)
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ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 PREMISES, BUILDING, PROJECT AND COMMON AREAS.
1.1.1 THE PREMISES. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the premises set forth in Section 2.2 of the
Summary (the "Premises"). The outline of the Premises is set forth in EXHIBIT A
attached hereto. The parties hereto agree that the lease of the Premises is upon
and subject to the terms, covenants and conditions herein set forth, and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of such terms, covenants and conditions by it to be kept
and performed and that this Lease is made upon the condition of such
performance. The parties hereto hereby acknowledge that the purpose of EXHIBIT A
is to show the approximate location of the Premises in the "Building," as that
term is defined in Section 1.1.2, below, only, and such Exhibit is not meant to
constitute an agreement, representation or warranty as to the construction of
the Premises, the precise area thereof or the specific location of the "Common
Areas," as that term is defined in Section 1.1.3, below, or the elements thereof
or of the accessways to the Premises or the "Project," as that term is defined
in Section 1.1.2, below. Except as specifically set forth in this Lease and in
the work letter attached hereto as EXHIBIT B (the "TENANT WORK LETTER"),
Landlord shall not be obligated to provide or pay for any improvements, work or
services related to the improvement, remodeling or refurbishment of the
Premises, and Tenant shall accept the Premises in its "AS IS" condition on the
Commencement Date. Tenant also acknowledges that neither Landlord nor any agent
of Landlord has made any representation or warranty regarding the condition of
the Premises, the Building or the Project or with respect to the suitability of
any of the foregoing for the conduct of Tenant's business. The taking of
possession of the Premises by Tenant shall conclusively establish that the
Premises and the Building were at such time in good and sanitary order,
condition and repair subject to (i) the completion of the Base Premises Work and
(ii) any latent defects identified by Tenant in writing to Landlord within the
first ninety (90) days following the Effective Date.
1.1.2 THE BUILDING AND THE PROJECT. The Premises are part of
the building set forth in Section 2.1 of the Summary (the "BUILDING"). The
Building is part of an office project known as "Carrier Center Dallas." The term
"PROJECT," as used in this Lease, shall mean (i) the Building and the Common
Areas, (ii) the land (which is improved with landscaping, subterranean parking
facilities and other improvements) upon which the Building and the Common Areas
are located, and (iii) at Landlord's discretion, any additional real property,
areas, land, buildings or other improvements added thereto outside of the
Project; provided that if Landlord adds any areas to the Project pursuant to
item (iii) above, Tenant's Share shall be equitably adjusted.
1.1.3 COMMON AREAS. Tenant shall have the non-exclusive right
to use in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project (such areas, together with such
other portions of the Project designated by Landlord, in its discretion,
including certain areas designated for the exclusive use of certain tenants, or
to be shared by Landlord and certain tenants, are collectively referred to
herein as the "COMMON AREAS"). The Common Areas shall consist of the "Project
Common Areas" and the "Building Common Areas." The term "PROJECT COMMON AREAS,"
as used in this Lease, shall mean the portion of the Project designated as such
by Landlord. The term "BUILDING COMMON AREAS," as used in this Lease, shall mean
the portions of the Common Areas located within the Building designated as such
by Landlord. The manner in which the Common Areas are maintained and operated
shall be at the sole discretion of Landlord and the use thereof shall be subject
to such rules, regulations and restrictions as Landlord may make from time to
time. Landlord reserves the right to close temporarily, make alterations or
additions to, or change the location of elements of the Project and the Common
Areas; provided that such alterations or additions do not materially interfere
with or unreasonably disturb Tenant's use and occupancy of the Premises.
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1.1.4 ACCESS. Landlord agrees that, subject to Landlord's
reasonable rules and regulations, and access control systems and procedures,
Tenant shall have access to the Premises 24 hours a day, 365 days a year during
the Lease Term. Landlord shall allow Tenant access to the Premises from and
after the Effective Date until the Commencement Date (the "EARLY OCCUPANCY
PERIOD") for the purpose of Tenant installing Tenant's equipment or fixtures
(including Tenant's data and switching equipment) in the Premises. Prior to
Tenant's entry into the Premises as permitted by the terms of this Section
1.1.4, Tenant shall submit a schedule to Landlord, for its approval, which
schedule shall detail the timing and purpose of Tenant's entry. Tenant shall
abide by all terms of this Lease (excepting the payment of Base Rent pursuant to
Section 3.1 unless Tenant commences business operations in the Premises) during
the Early Occupancy Period and shall hold Landlord harmless from and indemnify,
protect and defend Landlord against any loss or damage to the Building or
Premises and against injury to any persons caused by Tenant's actions pursuant
to any early occupancy of the Premises.
1.1.5 RENTABLE SQUARE FEET. The rentable square feet of the
Premises are approximately as set forth in Section 2.2 of the Summary, and the
rentable square feet of the Building is approximately as set forth in Section
2.1 of the Summary. For purposes hereof, the "rentable square feet" of the
Premises shall be calculated by Landlord pursuant to the Standard Method for
Measuring Floor Area in Office Buildings, ANSI Z65.1-1996 ("BOMA"), as
reasonably modified for the Project pursuant to Landlord's standard rentable
area measurements for the Project, to include, among other calculations, a
portion of the common areas and service areas of the Building and Project. The
rentable square feet of the Premises and the rentable square feet of the
Building and/or Project are not subject to adjustment or remeasurement by
Tenant, but are subject to verification from time to time by Landlord through
Landlord's planner/designer, and such verification shall be made in accordance
with the provisions of this Section 1.1.5. Landlord will confirm the rentable
square feet of the Premises following completion of the Base Premises work (as
defined in the Tenant Work Letter). The determination of Landlord's
planner/designer shall be conclusive and binding upon the parties. In the event
that Landlord's planner/designer determines that the rentable square footage
shall be different from those set forth in this Lease, all amounts, percentages
and figures appearing or referred to in this Lease based upon such incorrect
rentable square feet (including, without limitation, the amount of the Base Rent
and Tenant's Share) shall be modified in accordance with such determination. If
such determination is made, it will be confirmed in writing by Landlord to
Tenant.
ARTICLE 2
LEASE TERM; OPTION TERMS
2.1 LEASE TERM. The terms and provisions of this Lease shall be
effective as of the date of this Lease. The term of this Lease (the "LEASE
TERM") shall be as set forth in Section 3.1 of the Summary, shall commence on
the date set forth in Section 3.2 of the Summary (the "LEASE COMMENCEMENT
DATE"), and shall terminate on the date set forth in Section 3.3 of the Summary
(the "LEASE EXPIRATION DATE") unless this Lease is sooner terminated as
hereinafter provided. For purposes of this Lease, the term "Lease Year" shall
mean each consecutive twelve (12) month period during the Lease Term; provided,
however, that the last Lease Year shall end on the Lease Expiration Date. At any
time during the Lease Term, Landlord may deliver to Tenant a notice in the form
as set forth in EXHIBIT C, attached hereto, as a confirmation only of the
information set forth therein, which Tenant shall execute and return to Landlord
within ten (10) business days of receipt thereof.
2.2 OPTION TERM.
2.2.1 OPTION RIGHT. Landlord hereby grants the Tenant named in
the Summary and any permitted transferee pursuant to Section 14.7, below
(collectively, the "ORIGINAL TENANT"), two (2) options to extend the Lease Term
for a period of five (5) years each (the "OPTION TERM"), which options shall be
exercisable only by written notice delivered by Tenant to Landlord as provided
below, provided that, as of the date of delivery of any such notice, Tenant is
not in default under this Lease and Tenant has not previously been in default
under this Lease more than one (1) time during the last twenty four (24) months
of the Lease Term. Upon
2
9
the proper exercise of any such option to extend, and provided that, as of the
end of the Lease Term, Tenant is not in default under this Lease and Tenant has
not previously been in default under this Lease more than one (1) time during
the last twenty four (24) months of the Lease Term, the Lease Term, as it
applies to the Premises, shall be extended for a period of five (5) years. The
rights contained in this Section 2.2 shall be personal to the Original Tenant
and may only be exercised by the Original Tenant (and not any assignee,
sublessee or other transferee of Tenant's interest in this Lease) if Original
Tenant occupies the entire Premises (except for the occupancy of any permitted
Customers [as defined in Section 14.6 below]).
2.2.2 OPTION RENT. The "Rent," as that term is defined in
Section 4.1, below, payable by Tenant during the applicable Option Term (the
"Option Rent") shall be equal to the greater of (i) the "Fair Rental Value" for
the Premises as of the commencement of the then applicable Option Term, and (ii)
the Rent payable by Tenant for the period immediately prior to the end of the
Lease Term or then applicable Option Term. The "FAIR RENTAL VALUE" shall mean
the rent (including the obligation to directly pay electrical and janitorial
expenses and including additional rent and considering any "base year" or
"expense stop" applicable thereto), including all escalations, at which tenants
using their premises predominantly for telecommunications oriented purposes as
of the commencement of the then applicable Option Term, are leasing
non-sublease, non-encumbered, non-equity space comparable in size, location and
quality to the Premises for a term of five (5) years, which comparable space is
located in the Building or in comparable buildings in the downtown Dallas office
market.
2.2.3 EXERCISE OF OPTION. The applicable option contained in
this Section 2.2 shall be exercised by Tenant, if at all, and only in the
following manner: (i) Tenant shall deliver written notice to Landlord not more
than twelve (12) months nor less than nine (9) months prior to the expiration of
the applicable Lease or Option Term, stating that Tenant may be interested in
exercising its option; (ii) Landlord, after receipt of Tenant's notice, shall
deliver notice (the "OPTION RENT NOTICE") to Tenant not less than six (6) months
prior to the expiration of the applicable Lease or Option Term, setting forth
Landlord's determination of the Option Rent; and (iii) if Tenant wishes to
exercise such option, Tenant shall, on or before the date (the "EXERCISE DATE")
which is the earlier of (A) the date occurring five (5) months prior to the
expiration of the applicable Lease or Option Term, and (B) the date occurring
thirty (30) days after Tenant's receipt of the Option Rent Notice, exercise the
option by delivering written notice thereof to Landlord ("TENANT'S EXERCISE
NOTICE"). Tenant's failure to deliver Tenant's Exercise Notice on or before the
Exercise Date, shall be deemed to constitute Tenant's waiver of its extension
rights hereunder.
2.2.4 Tenant shall have no right to object to the Option Rent
provided by Landlord, and if Tenant disagrees with Landlord's determination of
the Option Rent but Landlord and Tenant are unable to resolve such disagreement
as to the Option Rent prior to the Exercise Date, then either (i) Tenant shall
accept Landlord's determination of the Option Rent by exercising its option to
extend the applicable Lease or Option Term by delivering Tenant's Exercise
Notice to Landlord on or before the Exercise Date, or (ii) Tenant shall be
deemed to have relinquished its option to extend the applicable Lease or Option
Term, in which event Tenant's options to extend the applicable Lease or Option
Term shall be null and void as of the Exercise Date, and Landlord and Tenant
shall have no further liability to the other under this Section 2.2.
ARTICLE 3
BASE RENT
3.1 BASE RENT. Tenant shall pay, without prior notice or demand, to
Landlord or Landlord's agent at the management office of the Project, or, at
Landlord's option, at such other place as Landlord may from time to time
designate in writing, by a check for currency which, at the time of payment, is
legal tender for private or public debts in the United States of America, base
rent for the Premises ("BASE RENT") as set forth in Section 4 of the Summary,
payable in equal monthly installments as set forth in Section 4 of the Summary
in advance on or before the first day of each and every calendar month during
the Lease Term, without any setoff or deduction whatsoever. The Base Rent for
the first full month of the Lease Term shall be paid at
3
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the time of Tenant's execution of this Lease. If any Rent payment date
(including the Lease Commencement Date) falls on a day of the month other than
the first day of such month or if any payment of Rent is for a period which is
shorter than one month, the Rent for any fractional month shall accrue on a
daily basis for the period from the date such payment is due to the end of such
calendar month or to the end of the Lease Term at a rate per day which is equal
to 1/365 of the applicable annual Rent. All other payments or adjustments
required to be made under the terms of this Lease that require proration on a
time basis shall be prorated on the same basis.
3.2 BASE RENT ABATEMENT. Notwithstanding anything to the contrary
contained in Section 3.1, Landlord hereby waives Tenant's obligation to pay Base
Rent for the first twelve (12) months after the Lease Commencement Date (the
"ABATEMENT PERIOD"). Landlord agrees to waive Tenant's obligation to pay Base
Rent for the period stated above; provided, however, that if at any time during
the Abatement Period Landlord issues a notice to Tenant respecting a default on
the part of Tenant which default is not cured within the applicable grace
period, if any, Landlord's agreement to waive payment of Base Rent shall be
immediately revoked without further notice to Tenant, and any previous waiver of
Base Rent, Landlord shall be null and void. In any such notice given by
Landlord, Landlord shall have the right to demand any and all Base Rent which
would have been due and payable in accordance with the Lease absent the waiver
contained in this Section 3.2. Notwithstanding anything to the contrary
contained in this Section 3.2, Tenant shall be required to make all payments of
Direct Expenses (including without limitation any Generator Maintenance Fee or
Condenser Water Charge) during the Abatement Period and throughout the Lease
Term.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
Article 3 of this Lease, Tenant shall pay "Tenant's Share" of the annual "Direct
Expenses," as those terms are defined in Sections 4.2.6 and 4.2.2 of this Lease,
respectively allocated to the tenants of the Building, to the extent such Direct
Expenses allocated to the tenants of the Building are in excess of Tenant's
share of Direct Expenses applicable to the "BASE YEAR," as that term is defined
in Section 4.2.1 of this Lease. Such payments by Tenant, together with any and
all other amounts payable by Tenant to Landlord pursuant to the terms of this
Lease (including without limitation the Conduit Rental described in Section 6.4
below), are hereinafter collectively referred to as the "ADDITIONAL RENT", and
the Base Rent and the Additional Rent are herein collectively referred to as
"RENT." All amounts due under this Article 4 as Additional Rent shall be payable
for the same periods and in the same manner as the Base Rent. Without limitation
on other obligations of Tenant which survive the expiration of the Lease Term,
the obligations of Tenant to pay the Additional Rent provided for in this
Article 4 that accrue during the Lease Term shall survive the expiration of the
Lease Term.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in
this Article 4, the following terms shall have the meanings hereinafter set
forth:
4.2.1 "BASE YEAR" shall mean the period set forth in Section 5
of the Summary.
4.2.2 "DIRECT EXPENSES" shall mean "Operating Expenses" and
"Tax Expenses."
4.2.3 "EXPENSE YEAR" shall mean each calendar year in which
any portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires, provided that Landlord, upon notice to Tenant, may
change the Expense Year from time to time to any other twelve (12) consecutive
month period, and, in the event of any such change, Tenant's Share of Direct
Expenses shall be equitably adjusted for any Expense Year involved in any such
change.
4.2.4 "OPERATING EXPENSES" shall mean all expenses, costs and
amounts of every kind and nature which Landlord pays or accrues during any
Expense Year because of or in connection with the ownership, management,
maintenance, security, repair, replacement,
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restoration or operation of the Project, or any portion thereof. Without
limiting the generality of the foregoing, Operating Expenses shall specifically
include any and all of the following: (i) the cost of supplying all utilities
(except for utilities provided to the Premises or to the premises of other
tenants in the Building), the cost of operating, repairing, maintaining, and
renovating the utility, telephone, mechanical, sanitary, storm drainage, and
elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and
inspections and the cost of contesting any governmental enactments which may
affect Operating Expenses, and the costs incurred in connection with any
governmentally mandated transportation system management program or similar
program; (iii) the cost of all insurance carried by Landlord in connection with
the Project, and the amounts of insurance deductibles or self-insured losses to
the extent otherwise includable in Operating Expenses; (iv) the cost of
landscaping, relamping, and all supplies, tools, equipment and materials used in
the operation, repair and maintenance of the Project, or any portion thereof;
(v) costs incurred in connection with any parking areas servicing the Building;
(vi) fees and other costs, including management fees (such management fees to be
consistent with fees charged in other first class office building in the Dallas
Market), consulting fees, legal fees and accounting fees, of all contractors and
consultants in connection with the management, operation, maintenance and repair
of the Project (including city sidewalks); (vii) payments under any equipment
rental agreements and the fair rental value in the Building of any management
office space; (viii) wages, salaries and other compensation and benefits,
including taxes levied thereon, of all persons engaged in the operation,
maintenance and security of the Project; (ix) costs under any instrument
pertaining to the sharing of costs by the Project; (x) operation, repair,
maintenance and replacement of all systems and equipment and components thereof
of the Building except as specifically excluded in Item G below; (xi) the cost
of janitorial (except for janitorial services provided to the Premises or to the
premises of other tenants in the Building), alarm, security and other services,
replacement of wall and floor coverings, ceiling tiles and fixtures in the
Project and in common areas, maintenance and replacement of curbs and walkways,
repair to roofs and re-roofing; (xii) amortization (including interest on the
unamortized cost at a rate equal to the floating commercial loan rate announced
from time by Bank of America, a national banking association, or its successors,
as its prime rate, plus two percent (2%) per annum (the "Interest Rate)) of the
cost of acquiring or the rental expense of personal property used in the
maintenance, operation and repair of the Project, or any portion thereof; (xiii)
the cost of capital improvements or other costs incurred in connection with the
Project (A) which are intended to effect economies in the operation or
maintenance of the Project, or any portion thereof, (B) that are required to
comply with present or anticipated conservation programs, (C) which are
replacements or modifications of nonstructural items located in the Project
required to keep the Project in good order or condition, or (D) that are
required under any governmental law or regulation that come into effect
following the Lease Commencement Date; provided, however, that any capital
expenditure shall be amortized (including interest on the unamortized cost at
the Interest Rate in effect at the time such expenditure is placed in service)
over its useful life as Landlord shall reasonably determine, except as
specifically excluded in Item G below; (xiv) costs, fees, charges or assessments
imposed by, or resulting from any mandate imposed on Landlord by, any federal,
state or local government for fire and police protection, trash removal,
community services, or other services which do not constitute "Tax Expenses" as
that term is defined in Section 4.2.5, below; and (xv) payments under any
easement, license, operating agreement, declaration, restrictive covenant, or
instrument pertaining to the sharing of costs by the Building. If Landlord is
not furnishing any particular work or service (the cost of which, if performed
by Landlord, would be included in Operating Expenses) to a tenant who has
undertaken to perform such work or service in lieu of the performance thereof by
Landlord, Operating Expenses shall be deemed to be increased by an amount equal
to the additional Operating Expenses which would reasonably have been incurred
during such period by Landlord if it had at its own expense furnished such work
or service to such tenant. If the Project is less than ninety-five percent (95%)
occupied during all or a portion of the Base Year or any Expense Year Landlord
shall make an appropriate adjustment to the components of Operating Expenses for
such year to determine the amount of Operating Expenses that would have been
incurred had the Building been ninety-five percent (95%) occupied; and the
amount so determined shall be deemed to have been the amount of Operating
Expenses for such year. Operating Expenses for the Base Year shall not include
market-wide labor-rate increases due to extraordinary circumstances, including,
but not limited to, boycotts and strikes, and utility rate increases due to
extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages. In no event
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shall the components of Direct Expenses for any Expense Year related to
electrical costs be less than the components of Direct Expenses related to
electrical costs in the Base Year.
Notwithstanding the foregoing, for purposes of this Lease,
Operating Expenses shall not, however, include:
(A) bad debt expenses and interest, principal payments,
attorneys' fees, points and fees on debts, including lender costs and closing
costs (except in connection with the financing of items which may be included in
Operating Expenses) or amortization on any ground lease, mortgage or mortgages
or any other debt instrument encumbering the Building or Project;
(B) marketing costs, including leasing commissions, incurred
in connection with lease, sublease and/or assignment transactions with present
or prospective tenants or other occupants of the Project;
(C) legal fees incurred in negotiating and enforcing tenant
leases;
(D) costs, including permit, license and inspection costs,
incurred with respect to the installation of other tenants' or occupants'
improvements made for tenants or other occupants in the Project or incurred in
renovating or otherwise improving, decorating, painting or redecorating vacant
space for tenants or other occupants in the Project;
(E) the cost of providing any service directly to and paid
directly by any tenant;
(F) costs of any items (including, but not limited to, costs
incurred by Landlord for the repair of damage to the Project or for items which
are reimbursable under any contractor, manufacturer or supplier warranty), to
the extent Landlord receives reimbursement from insurance proceeds (or would
have received had Landlord maintained the insurance required under this Lease)
or from a contractor, manufacturer, supplier or any other third party (other
than reimbursement by tenants pursuant to the Operating Expenses pass-through
provisions of their leases); such proceeds shall be credited to Operating
Expenses in the year in which received, except that any deductible amount under
any insurance policy shall be included within Operating Expenses;
(G) costs of capital additions, capital alterations or
capital improvements (including any replacements) in excess of a total of
$15,000 for the Building per Expense Year, except those set forth in Section
4.2.4 (xiii) above;
(H) depreciation, amortization and interest payments, except
as specifically included in Operating Expenses pursuant to the terms of this
Lease and except on materials, tools, supplies and vendor-type equipment
purchased by Landlord to enable Landlord to supply services Landlord might
otherwise contract for with a third party, where such depreciation, amortization
and interest payments would otherwise have been included in the charge for such
third party's services, all as determined in accordance with standard accounting
practices and when depreciation or amortization is permitted or required, the
item shall be amortized over its reasonably anticipated useful life;
(I) Tax Expenses;
(J) expenses in connection with services, utilities or other
benefits which are not offered to Tenant or for which Tenant is charged for
directly but which are provided to another tenant or occupant of the Project
without charge, including, but not limited to, above-Building standard heating,
ventilation and air conditioning, janitorial services and exclusive use of
common areas;
(K) costs and the overhead and profit increment paid to
Landlord or to subsidiaries or affiliates of Landlord for goods and/or services
in the Project to the extent the same exceeds the costs of such by unaffiliated
third parties on a competitive basis;
(L) Landlord's general corporate overhead and general and
administrative expenses;
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(M) advertising and promotional expenditures, and costs of
signs in or on the Project identifying the owner of the Project or other
tenants' signs;
(N) tax penalties incurred as a result of Landlord's
negligence, inability or unwillingness to make payments or file returns when
due;
(O) costs arising from Landlord's charitable or political
contributions;
(P) costs, penalties, fines, awards or interest necessitated
by or resulting from the gross negligence or willful misconduct of Landlord, or
any of its agents, employees or independent contractors;
(Q) rent and other payments under any ground or underlying
lease of the Building or Project;
(R) costs, including, but not limited to, attorneys' fees
associated with the operation of the business of the partnership or entity which
constitutes Landlord or other real property owned by Landlord as the same are
distinguished from the costs of the maintenance, repair and operation of the
Project, including partnership accounting and legal matters, costs of defending
any lawsuits with any mortgagee, and costs of any disputes between Landlord and
its employees, disputes of Landlord with Project management or personnel;
(S) the cost of correcting any latent defects in the initial
design or construction of the Building or the Project improvements other than
any cost arising out of Tenant's Work;
(T) costs of removing or remediating any asbestos or
asbestos containing materials in the Project;
(U) costs incurred to remove, remedy, contain, or treat
hazardous materials, which (i) were in existence in the Building or Project
prior to the Lease Commencement Date, or (ii) are brought into the Building or
Project prior to or after the Lease Commencement Date by Landlord or Landlord's
employees, agents, contractors or tenants and which are of such a nature, at the
time of such introduction, that a federal, state or municipal governmental
authority, if it had then had knowledge of such hazardous materials would have
then required the removal of such hazardous materials or other remedial or
containment action with respect thereto; and
(V) wages or salaries of employees or attendants in parking
garages, newsstands or other commercial concessions, if any, operated by
Landlord in the Building.
4.2.5 TAXES.
4.2.5.1 "TAX EXPENSES" shall mean all federal, state,
county, or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special, ordinary or
extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, leasehold taxes or taxes based upon the
receipt of rent, including gross receipts or sales taxes applicable to the
receipt of rent, unless required to be paid by Tenant, personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus, systems and
equipment, appurtenances, furniture and other personal property used in
connection with the Project, or any portion thereof), which shall be paid or
accrued during any Expense Year (without regard to any different fiscal year
used by such governmental or municipal authority) because of or in connection
with the ownership, leasing and operation of the Project, or any portion
thereof.
4.2.5.2 Tax Expenses shall include, without limitation:
(i) Any tax on the rent, right to rent or other income from the Project, or any
portion thereof, or as against the business of leasing the Project, or any
portion thereof; (ii) Any assessment, tax, fee, levy or charge in addition to,
or in substitution, partially or totally, of any assessment, tax, fee, levy or
charge previously included within the definition of real property tax, Tax
Expenses shall also include any governmental or private assessments or the
Project's contribution towards a governmental or private cost-sharing agreement
for the purpose of augmenting or improving the quality of services and amenities
normally provided by governmental agencies; (iii) Any assessment, tax, fee,
levy, or charge allocable to or measured by the area of the Premises or the
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Rent payable hereunder, including, without limitation, any business or gross
income tax or excise tax with respect to the receipt of such rent, or upon or
with respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, or any portion
thereof; and (iv) Any assessment, tax, fee, levy or charge, upon this
transaction or any document to which Tenant is a party, creating or transferring
an interest or an estate in the Premises.
4.2.5.3 Any costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred in attempting to protest,
reduce or minimize Tax Expenses shall be included in Tax Expenses in the Expense
Year such expenses are paid. Tax refunds shall be credited against Tax Expenses
and refunded to Tenant regardless of when received, based on the Expense Year to
which the refund is applicable, provided that in no event shall the amount to be
refunded to Tenant for any such Expense Year exceed the total amount paid by
Tenant as Tax Expenses under this Article 4 for such Expense Year. If Tax
Expenses for any period during the Lease Term or any extension thereof are
increased after payment thereof for any reason, including, without limitation,
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Share of any such increased Tax
Expenses included by Landlord as Building Tax Expenses pursuant to the terms of
this Lease. Notwithstanding anything to the contrary contained in this Section
4.2.8 (except as set forth in Section 4.2.5.1, above), there shall be excluded
from Tax Expenses (i) all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal and
state income taxes, and other taxes to the extent applicable to Landlord's
general or net income (as opposed to rents, receipts or income attributable to
operations at the Project), (ii) any items included as Operating Expenses, and
(iii) any items paid by Tenant under Section 4.5 of this Lease.
4.2.5.4 The amount of Tax Expenses for the Base Year
attributable to the valuation of the Project, inclusive of tenant improvements,
shall be known as "Base Taxes." Subject to Section 4.4 below, Base Taxes shall
be adjusted to the amount of Tax Expenses that would be expected to be incurred
during the Base Year if the Project was 95% occupied and fully assessed for real
estate tax purposes.
4.2.6 "TENANT'S SHARE" shall mean the percentage set forth in
Section 6 of the Summary, and is based on the ratio of the rentable square
footage of the Premises to the total rentable square footage of the Building.
4.3 CALCULATION AND PAYMENT OF ADDITIONAL RENT. Tenant shall pay to
Landlord, in the manner set forth in Section 4.3.1 below, the Additional Rent as
follows:
4.3.1 CALCULATION OF EXCESS. If for any Expense Year ending or
commencing within the Lease Term, Tenant's Share of Direct Expenses for such
Expense Year exceeds Tenant's Share of the amount of Direct Expenses applicable
to the Base Year, then Tenant shall pay to Landlord, in the manner set forth in
Section 4.3.2, below, and as Additional Rent, an amount equal to such excess of
the Direct Expenses, as applicable (the "Excess").
4.3.2 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY
TENANT. Landlord shall endeavor to give to Tenant following the end of each
Expense Year, a statement (the "Statement") which shall state the Direct
Expenses incurred or accrued for such preceding Expense Year, and which shall
indicate the amount of the Excess. Upon receipt of the Statement for each
Expense Year commencing or ending during the Lease Term, if an Excess is
present, Tenant shall pay, with its next installment of Base Rent due, the full
amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as "Estimated Excess," as that term is defined in
Section 4.3.3, below provided that if the Statement shows that no Excess is
present, Landlord shall apply any Estimated Excess actually received by Landlord
from Tenant towards Tenant's next payment of Direct Expenses; provided further
that if the difference between the Statement and the Estimated Excess paid by
Tenant is greater than one twelfth (12th) of the Estimated Excess then Landlord
shall deliver such difference directly to Tenant rather than crediting Tenant's
next payment of Direct Expenses. The failure of Landlord to timely furnish the
Statement for any Expense Year shall not prejudice Landlord or Tenant from
enforcing its rights under this Article 4. Even though the Lease Term has
expired and Tenant has vacated the Premises, when the final determination is
made of Tenant's Share of
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Direct Expenses for the Expense Year in which this Lease terminates, if an
Excess if present, Tenant shall immediately pay to Landlord such amount. The
provisions of this Section 4.3.2 shall survive the expiration or earlier
termination of the Lease Term.
4.3.3 STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition,
Landlord shall endeavor to give Tenant a yearly expense estimate statement (the
"ESTIMATE STATEMENT") which shall set forth Landlord's reasonable estimate (the
"ESTIMATE") of what the total amount of Direct Expenses for the then-current
Expense Year shall be and the estimated excess (the "ESTIMATED EXCESS") as
calculated by comparing the Direct Expenses for such Expense Year, which shall
be based upon the Estimate, to the amount of Direct Expenses for the Base Year.
The failure of Landlord to timely furnish the Estimate Statement for any Expense
Year shall not preclude Landlord from enforcing its rights to collect any
Estimated Excess under this Article 4, nor shall Landlord be prohibited from
revising any Estimate Statement or Estimated Excess theretofore delivered to the
extent necessary. Thereafter, Tenant shall pay, with its next installment of
Base Rent due, a fraction of the Estimated Excess for the then-current Expense
Year (reduced by any amounts paid pursuant to the next to last sentence of this
Section 4.3.3). Such fraction shall have as its numerator the number of months
which have elapsed in such current Expense Year, including the month of such
payment, and twelve (12) as its denominator. Until a new Estimate Statement is
furnished (which Landlord shall have the right to deliver to Tenant at any
time), Tenant shall pay monthly, with the monthly Base Rent installments, an
amount equal to one-twelfth (1/12) of the total Estimated Excess set forth in
the previous Estimate Statement delivered by Landlord to Tenant.
4.4 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY
RESPONSIBLE.
4.4.1 Tenant shall be liable for and shall pay ten (10) days
before delinquency, taxes levied against Tenant's equipment (including without
limitation Tenant's switching and antenna equipment), furniture, fixtures and
any other personal property located in or about the Premises. If any such taxes
on Tenant's equipment, furniture, fixtures and any other personal property are
levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such equipment, furniture, fixtures or any other personal property and if
Landlord pays the taxes based upon such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof but only under
proper protest if requested by Tenant, Tenant shall upon demand repay to
Landlord the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment, as the case may be.
4.4.2 If the tenant improvements in the Premises, whether
installed and/or paid for by Landlord or Tenant and whether or not affixed to
the real property so as to become a part thereof, are assessed for real property
tax purposes by the tax assessor of the City of Dallas (or the equivalent taxing
authority) at a valuation higher than the valuation at which tenant improvements
conforming to Landlord's "building standard" in other space in the Building are
assessed, then the Tax Expenses levied against Landlord or the property by
reason of such excess assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
Section 4.4.1, above.
4.4.3 Notwithstanding any contrary provision herein, Tenant
shall pay prior to delinquency any (i) rent tax or sales tax, service tax,
transfer tax or value added tax, or any other applicable tax on the rent or
services herein or otherwise respecting this Lease, (ii) taxes assessed upon or
with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion of
the Project, including the Project parking facility; or (iii) taxes assessed
upon this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall use the Premises solely for the
Permitted Use set forth in Section 7 of the Summary and Tenant shall not use or
permit the Premises or the Project
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to be used for any other purpose or purposes whatsoever without the prior
written consent of Landlord, which may be withheld in Landlord's sole
discretion.
5.2 PROHIBITED USES. The uses prohibited under this Lease shall
include, without limitation, use of the Premises or a portion thereof for (i)
offices of any agency or bureau of the United States or any state or political
subdivision thereof; (ii) offices or agencies of any foreign governmental or
political subdivision thereof; (iii) offices of any health care professionals or
service organization; (iv) schools or other training facilities which are not
ancillary to corporate, executive or professional office use; (v) retail or
restaurant uses; or (vi) communications firms such as radio and/or television
stations. Tenant shall not allow occupancy density of use of the Premises which
is greater than the average density of the other tenants of the Building. Tenant
further covenants and agrees that Tenant shall not use, or suffer or permit any
person or persons to use, the Premises or any part thereof for any use or
purpose contrary to the provisions of the Rules and Regulations set forth in
EXHIBIT D, attached hereto, or in violation of the laws of the United States of
America, the State of Texas, or the ordinances, regulations or requirements of
the local municipal or county governing body or other lawful authorities having
jurisdiction over the Project) including, without limitation, any such laws,
ordinances, regulations or requirements relating to hazardous materials or
substances, as those terms are defined by applicable laws now or hereafter in
effect. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way materially damage the reputation of the Project
or obstruct or interfere with the rights of other tenants or occupants of the
Building, or injure or annoy them or use or allow the Premises to be used for
any improper, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises.
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall provide the following
services on all days during the Lease Term, unless otherwise stated below.
6.1.1 Heating and air conditioning ("HVAC") service in the
Premises will be provided by Tenant, at Tenant's sole cost and expense, through
separate package units which shall be subject to the direct control of Tenant.
Subject to Landlord's prior written approval of Tenant's plans and
specifications, Tenant shall have the right to install in a location within the
Premises and/or Project designated in writing by Landlord "Tenant's HVAC
Equipment" pursuant to Article 22 below. The acquisition and operation of
Tenant's HVAC Equipment (including without limitation the purchase,
installation, and maintenance thereof) shall be at Tenant's sole cost and
expense, and the electrical consumption resulting from Tenant's usage of
Tenant's HVAC equipment shall be separately metered, billed to Tenant and paid
by Tenant pursuant to Section 6.1.2 below.
6.1.2 Landlord shall provide Tenant with access to up to 800
amps of power at 480 volts, three-phase wiring (there shall be no fee imposed by
Landlord for such initial amperage) provided that Tenant shall be responsible
for installing in the Premises, at Tenant's sole cost and expense and subject to
Landlord's prior approval of the plans and specifications therefor, a
transformer tying into the Building's bus duct system to obtain such electrical
supply for the Premises. Tenant may, subject to availability, purchase
additional amps for the Premises from Landlord, for a one time access fee (the
"Additional Amp Access Fee") of $250.00 per amp. The cost of such electrical
supply shall be separately metered to the Premises at Tenant's sole cost and
expense (including without limitation, the cost of any metering equipment or the
installation cost thereof). Tenant shall pay directly to Landlord within ten
(10) days after receipt of written demand and as additional rent under this
Lease (and not as part of Operating Expenses) the cost of all electricity, HVAC,
gas and water provided to and/or consumed in the Premises or by Tenant's
Equipment (including without limitation Tenant's HVAC equipment). In addition,
Tenant shall bear the cost of replacement of lamps, starters and ballasts for
lighting fixtures within the Premises. Notwithstanding anything in this Lease to
the contrary, Landlord shall have the right to meter and test Tenant's connected
amperage load used at the Premises, and in the event that over a thirty (30) day
period, Landlord's metering and testing procedures demonstrate that Tenant is
not utilizing on a daily average business day basis, all of the amps
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initially reserved by Tenant in this Section 6.1.2, Landlord may reclaim up to
seventy-five percent of any amperage Landlord reasonably determines through such
process is being unused by Tenant.
6.1.3 Landlord shall not provide janitorial services to the
Premises. Tenant shall be solely responsible, at Tenant's sole cost and expense,
for keeping all areas of the Project used by Tenant, in a neat, clean and safe
condition, and for performing all janitorial services and other cleaning of the
Premises appropriate to maintain the Premises in a manner consistent with a
first-class telecommunications building; provided that Tenant shall use
Landlord's designated Building janitorial company for all janitorial services
within the Project.
6.1.4 Landlord shall furnish unheated water from mains for
drinking, lavatory and toilet purposes drawn through fixtures installed by
Landlord, or by Tenant with Landlord's prior written consent, and heated water
for lavatory purposes from regular building supply in such quantities as
required in Landlord's judgment for the comfortable and normal use of the
Premises. Tenant shall pay Landlord, as Additional Rent, for any additional
water which is furnished for any other purpose. The amount that Tenant shall pay
Landlord for such additional water shall be the average price per gallon charged
to the Landlord for the Building by the entity providing water.
6.2 EMERGENCY GENERATOR. Landlord has installed for the benefit of
the tenants of the Building an emergency generator (the "EMERGENCY GENERATOR")
in the Building which is in service as of the execution of this Lease. Tenant
shall reserve 300 Kilowatts of emergency power from the Emergency Generator to
be used in the event of an interruption of normal electrical service to the
Premises during the Lease Term, provided that Tenant pays to Landlord on the
first business day immediately following the expiration of the Abatement Period
a one-time fee in an amount equal to $500.00 per kilowatt of emergency power so
reserved (the "GENERATOR ACCESS FEE") and a monthly maintenance fee for the
Emergency Generator in an amount equal to $1.20 per month per kilowatt of
reserved emergency power (the "GENERATOR MAINTENANCE FEE"). Tenant shall also
pay the costs to connect the Premises to the Emergency Generator as described in
Section 6.2.3 below.
6.2.1 Tenant may elect to terminate its rights and obligations
under this Section 6.2 and the use of the Emergency Generator granted hereunder,
upon giving written notice to Landlord at least sixty (60) days prior to the
effective date of such termination. In the event of any such termination, Tenant
shall not be entitled to any reimbursement for sums expended pursuant to
Sections 6.2 or 6.2.3.
6.2.2 Tenant's use of such emergency power shall be in
accordance with such rules and regulations as may be established by Landlord
from time to time.
6.2.3 Landlord shall repair and maintain the Emergency
Generator, provided that Tenant shall reimburse Landlord upon demand, as
Additional Rent hereunder, for the cost of any repairs or extraordinary
maintenance for the Emergency Generator necessitated by acts of Tenant or
Tenant's employees, contractors, assignees, sublessees, agents, licensees or
invitees. In addition, any installation of equipment, wiring or cabling in the
Premises, the Building or the Project for the purpose of enabling Tenant to
access the Emergency Generator shall be performed by Landlord in accordance with
plans and specifications approved by the parties in writing in advance, and
Tenant shall reimburse Landlord for the costs of such installation, including,
but not limited to, design fees and costs of demolition.
6.2.4 Tenant acknowledges and agrees that in order to ensure
that the cumulative electrical loads on the emergency generators servicing the
Project stay within the maximum capabilities of the emergency generators, Tenant
shall be required to automatically shed a portion of Tenant's total electrical
load to the Emergency Generator to ensure that Tenant's equipment does not use
more than the number of Kilowatts reserved by Tenant pursuant to Section 6.2
above. Tenant covenants that such load shed shall occur simultaneously whenever
transfer is made to the Emergency Generator, and Landlord shall have the right
to test Tenant's load shed compliance on reasonable advance notice. Tenant
shall, within ten (10) days of the Lease Commencement Date, deliver to Landlord,
for Landlord's review and approval, all plans,
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specifications and other engineering documentation (including without
limitation, single-line diagrams, load summaries and equipment specifications)
required by Landlord or Landlord's agents showing Tenant's procedure for load
shedding of electrical load in the Premises.
6.2.5 The provision of Emergency Generator service by Landlord
to Tenant shall be subject to the terms and provisions of this Lease.
6.3 CONDENSER WATER. Landlord shall install for the benefit of the
tenants of the Building a central condenser water plant (the "CONDENSER WATER
PLANT") to provide each floor of the Building with available condenser water.
Tenant shall further be responsible for all costs associated with connecting the
Leased Premises to the condenser water loop located on the same floor as the
Leased Premises (the "CONDENSER WATER LOOP"). Tenant hereby instructs Landlord
to reserve 120 tons of condenser water per year (the "Reserved Condenser Water")
for Tenant's use in the Premises, at the hourly rate then charged by Landlord
for the Reserved Condenser Water ("CONDENSER WATER CHARGE") (which as of the
date of this Lease is $0.075 per ton per hour). The Condenser Water Charge shall
be deemed as additional rent hereunder, and Tenant shall pay the Condenser Water
Charge to Landlord along with, and in the same manner as, Tenant's monthly
installment of Base Rent.
6.3.1 Tenant agrees to indemnify and hold Landlord harmless
from and against any and all loss, cost, claim and liability (including all
attorneys' fees) for injuries to all persons and for damage to or loss of all
property arising or alleged to arise from Tenant's use of or connection to the
Condenser Water Loop.
6.3.2 Notwithstanding any contrary provision contained herein,
Landlord shall have the right to relocate, at Landlord's sole expense, the
Condenser Water Loop to another location in the Building, as Landlord shall
elect; provided, however, that no such relocation may result in any additional
cost or expense to Tenant or have any material detrimental effect on Tenant's
use of the Condenser Water Loop.
6.3.3 Tenant shall have the option, within six (6) months
following the Commencement Date, to notify Landlord in writing that it desires
to give back all or a portion of the Reserved Condenser Water. In the event
Tenant relinquishes any Reserved Condenser Water pursuant to this Section 6.3.3,
Tenant shall not be entitled to any reimbursement for sums expended pursuant to
Section 6.3 above, and shall not be entitled to reclaim any such relinquished
Reserved Condenser Water during the Lease Term.
6.3.4 Tenant shall have the right to reserve additional
condenser water (the "Additional Reserved Condenser Water") from the Condenser
Water Loop, provided that (i) Tenant delivers to Landlord at least thirty (30)
days prior written notice of its election to reserve such Additional Reserved
Condenser Water; (ii) the Additional Reserved Condenser Water requested to be
reserved by Tenant is available from the Condenser Water Plant and Condenser
Water Loop then installed at the Project, and (iii) Landlord shall not be
obligated to install any additional condenser water plants or loops at the
Project to meet Tenant's Additional Reserved Condenser Water request. Tenant
shall be required to pay the Condenser Water Charge then charged by Landlord for
any Additional Reserved Condenser Water so reserved by Tenant.
6.4 INTERRUPTION OF USE. Tenant agrees that Landlord shall not be
liable for damages, by abatement of Rent or otherwise, for failure to furnish or
delay in furnishing any service (including without limitation telephone,
telecommunication and emergency power services), or for any diminution or
interruption in the quality or quantity thereof, when such failure or delay or
diminution is occasioned, in whole or in part, by repairs, replacements, or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building or Project after
commercially reasonable effort to do so, by any accident or casualty whatsoever,
by act or default of Tenant or other parties, or by any other cause beyond
Landlord's reasonable control; and such failures or delays or diminution shall
never be deemed to constitute an eviction or disturbance of Tenant's use and
possession of the Premises or relieve Tenant from paying Rent or performing any
of its obligations under this Lease. Furthermore, Landlord shall not be liable
under any circumstances for a loss of, or injury to, property or for injury to,
or interference with, Tenant's business, including, without limitation, loss of
profits, however
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occurring, through or in connection with or incidental to a failure to furnish
any of the services or utilities as set forth in this Article 6. Landlord may
comply with voluntary controls or guidelines promulgated by any governmental
entity relating to the use or conservation of energy, water, gas, light or
electricity or the reduction of automobile or other emissions without creating
any liability of Landlord to Tenant under this Lease, provided that the Premises
are not thereby rendered untenantable. As a material inducement to Landlord's
entry into this Lease, Tenant waives and releases any rights it may have to make
repairs at Landlord's expense.
6.5 CENTRAL CABLING DISTRIBUTION SYSTEM/BUILDING MEET ME ROOM.
Tenant recognizes that Landlord desires to provide access to both existing and
future telecommunications services and service providers for tenants of the
Building, and Landlord has deemed it desirable to achieve this objective by
providing a central telecommunications cabling distribution system ("CDS") in
the Project which Landlord so designates for use by tenants of the Project and
all competitive providers of telecommunications services. Accordingly, and
notwithstanding anything contained in this Agreement to the contrary, Landlord
reserves the right to designate a CDS, including a main demarcation frame
("MDF") for use by all tenants of the Project and all competitive service
providers in order to reach tenant demarcation points or cross-connect
facilities in the Building (including without limitation the which Landlord
anticipates will be located on floor B-1 of the Building ("defined below")). In
this event, the MDF shall serve as the minimum point of entry ("MPOE")
demarcation point for service providers. The MDF shall also service as the
origination point of the CDS. The Tenant demarcation point on each floor of the
Building will serve as the terminating point of the CDS on that floor. Landlord
reserves the right to charge Tenant, and Tenant agrees to pay, reasonable fees
as established by Landlord from time to time for the right to use the CDS.
6.5.1 Tenant shall use the CDS and its components for (i)
providing all service to tenants in the Project, (ii) for making all
cross-connections with tenants in the Project (including without limitation the
MMR). Tenant's use of the CDS shall be in accordance with the requirements of
this Lease and the Telecommunications Conduit Agreement to be executed by Tenant
in the form attached hereto as EXHIBIT F.
6.5.2 Landlord's sole responsibility in the event of
interruption or other effects caused by malfunction, damage or destruction of
the CDS shall be to repair or replace the CDS as necessary to eliminate the
cause of malfunction or interruption, the cost of which shall be borne by Tenant
if the problem was caused directly or indirectly by Tenant, its employees,
agents or licensees. Notwithstanding the foregoing, Landlord's obligation to
repair or replace the CDS shall apply only to the extent necessary to reach
premises in the Building that are then used by tenants after the malfunction,
damage or destruction or that, if damaged or destroyed, will be again used by
tenants of the Building upon completion of restoration or repair thereof. In no
event shall Tenant have any right to make any claim against Landlord whatsoever
for any damages, whether direct, indirect or consequential, in any such
circumstance, Tenant's remedy being limited to a claim for specific performance
of Landlord's obligation to repair or replace as specified above.
6.5.3 Tenant acknowledges that Landlord may elect to install a
meet me room on floor B-1 of the basement of the Building (the "MMR"), and in
the event such a MMR is installed and Tenant is not the lessee or operator of
such MMR, Landlord shall pay any incremental cost required to be paid by Tenant
for the use of one (1) 6' x 8' cage in the MMR over the following costs: (i)
1,000/per month for a 6' by 8' cage and (ii) no installation fee for such cage.
6.6 SPECIAL ABATEMENT OF RENT. Notwithstanding the provisions of
Section 6.3 above to the contrary, in the event that during the Lease Term
Tenant is prevented from effectively conducting its business, and does not
conduct its business in the Premises or any portion thereof as a direct result
of (i) any failure by Landlord to provide any of the essential utilities and
services to the Premises required to be provided by Landlord under Section 6.1
of this Lease, (ii) any failure by Landlord to provide access to the Premises,
or (iii) Landlord's failure to promptly, timely and diligently perform any
repairs, maintenance or alterations required by this Lease to be performed by
Landlord, after the Lease Commencement Date, which substantially interferes with
Tenant's ability to conduct its business in the Premises or (iv) the
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material interference with or unreasonable disturbance of Tenant's ability to
conduct business operations in the Premises pursuant to the provisions of
Sections 1.1.3, 29.30, 29.32 and Article 27 herein, (any such set of
circumstances as set forth in items (i) through (iv), above, to be known as an
"ABATEMENT EVENT"), then Tenant shall give Landlord notice of such Abatement
Event. If such Abatement Event continues for three (3) consecutive business days
after Landlord's receipt of any such notice from Tenant ("ELIGIBILITY PERIOD"),
then the Rent for the Premises shall be abated or reduced, as the case may be,
during such time after the Eligibility Period that Tenant continues to be so
prevented from conducting its business in, and does not conduct its business in,
the Premises or a portion thereof, in the proportion that the rentable area of
the portion of the Premises that Tenant is prevented from using, and does not
use, bears to the total rentable area of the Premises; provided, however, in the
event that Tenant is prevented from using, and does not use, a portion of the
Premises for a period of time in excess of the Eligibility Period, and the
remaining portion of the Premises is not reasonably sufficient to allow Tenant
to effectively conduct its business therein, and if Tenant does not effectively
conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, the Rent shall be abated for such
time as Tenant continues to be so prevented from conducting business operations
therein, and does not conduct business operations therein. If, however, Tenant
re-occupies any portion of the Premises during such period, the Rent allocable
to such re-occupied portion, based on the proportion that the rentable square
feet of such re-occupied portion of the Premises bears to the total rentable
square feet of the Premises, shall be payable by Tenant from the date Tenant
re-occupies such portion of the Premises. The mere presence of nonoperational
equipment shall not be deemed as Tenant conducting business in the portion of
the Premises so occupied by the nonoperational equipment. For purposes of this
Section 6.6, Tenant shall not be deemed to be occupying or using the Premises
merely by having Tenant's furniture or personal property remaining in the
Premises. Such right to ▇▇▇▇▇ Rent shall be Tenant's sole and exclusive remedy
at law or in equity for an Abatement Event.
ARTICLE 7
REPAIRS
7.1 LANDLORD'S REPAIRS. Landlord shall maintain and repair (i) the
structural portions of the Building (the, "BUILDING STRUCTURE"), (ii) the
Building's mechanical, electrical, life safety, plumbing, sprinkler and HVAC
systems located outside the Premises (collectively, the "BUILDING SYSTEMS"), and
(iii) the Common Areas. Notwithstanding anything in this Lease to the contrary,
Tenant shall be required to pay for the cost of repairs to the Building
Structure, the Building Systems and/or the Common Areas to the extent required
because of (i) Tenant's use of the Premises for other than normal and customary
telecommunications operations, and/or (ii) Tenant's Alterations (as defined in
Section 8.1 below).
7.2 TENANT'S REPAIRS. Subject to Landlord's repair obligations set
forth in Section 7.1 above, Tenant shall, at Tenant's own expense, pursuant to
the terms of this Lease, including without limitation Article 8 hereof, keep the
Premises, including all improvements, fixtures, equipment (including without
limitation the Supplemental Equipment) and furnishings therein, and the floor or
floors of the Building on which the Premises are located, in good order, repair
and condition at all times during the Lease Term. In addition, Tenant shall, at
Tenant's own expense, but under the supervision and subject to the prior
approval of Landlord, and within any reasonable period of time specified by
Landlord, pursuant to the terms of this Lease, including without limitation
Article 8 hereof, promptly and adequately repair all damage to the Premises and
replace or repair all damaged, broken, or worn fixtures and appurtenances,
except for damage caused by ordinary wear and tear or beyond the reasonable
control of Tenant; provided however, that, at Landlord's option, or if Tenant
fails to make such repairs, Landlord may, but need not, make such repairs and
replacements, and Tenant shall pay Landlord the cost thereof, including a
percentage of the cost thereof (to be uniformly established for the Building
and/or the Project) sufficient to reimburse Landlord for all overhead, general
conditions, fees and other costs or expenses arising from Landlord's involvement
with such repairs and replacements forthwith upon being billed for same.
Landlord may, but shall not be required to, enter the Premises at all reasonable
times to make such repairs, alterations, improvements or additions to the
Premises or to the Project or to any equipment located in the Project as
Landlord shall desire
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or deem necessary or as Landlord may be required to do by governmental or
quasi-governmental authority or court order or decree, provided that Landlord
shall use commercially reasonable efforts to ensure that any such repairs,
alterations or improvements do not materially interfere with or unreasonably
disrupt Tenant's use and occupancy of the Premises.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
(collectively, the "ALTERATIONS") without first procuring the prior written
consent of Landlord to such Alterations, which consent shall be requested by
Tenant not less than thirty (30) days prior to the commencement thereof, and
which consent shall not be unreasonably withheld by Landlord, provided it shall
be deemed reasonable for Landlord to withhold its consent to any Alteration
which adversely affects the structural portions or the systems or equipment of
the Building or is visible from the exterior of the Building. The construction
of the initial improvements to the Premises shall be governed by the terms of
the Tenant Work Letter and not the terms of this Article 8.
8.2 MANNER OF CONSTRUCTION. Landlord may impose, as a condition of
its consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its reasonable discretion may deem
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list approved by Landlord, the requirement
that upon Landlord's request, Tenant shall, at Tenant's expense, remove such
Alterations upon the expiration or any early termination of the Lease Term if
Landlord gave Tenant written notice that such removal would be required at the
time Landlord consented to such Alteration. If such Alterations will involve the
use of or disturb hazardous materials or substances existing in the Premises,
Tenant shall comply with Landlord's rules and regulations concerning such
hazardous materials or substances. Tenant shall construct such Alterations and
perform such repairs in a good and workmanlike manner, in conformance with any
and all applicable federal, state, county or municipal laws, rules and
regulations an pursuant to a valid building permit, issued by the City of
Dallas, all in conformance with Landlord's construction rules and regulations.
In the event Tenant performs any Alterations in the Premises which require or
give rise to governmentally required changes to the "Base Building," as that
term is defined below, then Landlord shall, at Tenant's expense, make such
changes to the Base Building. The "BASE BUILDING" shall include the structural
portions of the Building, and the public restrooms and the systems and equipment
located in the internal core of the Building on the floor or floors on which the
Premises are located. In performing the work of any such Alterations, Tenant
shall have the work performed in such manner so as not to obstruct access to the
Project or any portion thereof, by any other tenant of the Project, and so as
not to obstruct the business of Landlord or other tenants in the Project. Tenant
shall not use (and upon notice from Landlord shall cease using) contractors,
services, workmen, labor, materials or equipment that, in Landlord's reasonable
judgment, would disturb labor harmony with the workforce or trades engaged in
performing other work, labor or services in or about the Building or the Common
Areas. In addition to Tenant's obligations under Article 9 of this Lease, upon
completion of any Alterations, Tenant agrees to deliver to the Project
management office a reproducible copy of the "as built" drawings of the
Alterations as well as all permits, approvals and other documents issued by any
governmental agency in connection with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to
contractors, Tenant shall comply with Landlord's requirements for final lien
releases and waivers in connection with Tenant's payment for work to
contractors. Whether or not Tenant orders any work directly from Landlord,
Tenant shall reimburse Landlord for any and all reasonable costs and expenses
incurred by Landlord arising from Landlord's involvement with such work.
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of
Article 10 of this Lease, in the event that Tenant makes any Alterations, prior
to the commencement of such Alterations, Tenant shall provide Landlord with
evidence that Tenant carries "Builder's All Risk"
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insurance in an amount approved by Landlord covering the construction of such
Alterations, and such other insurance as Landlord may reasonably require, it
being understood and agreed that all of such Alterations shall be insured by
Tenant pursuant to Article 10 of this Lease immediately upon completion thereof.
In addition, Landlord may, in its discretion, require Tenant to obtain a form of
security reasonably satisfactory to Landlord in an amount sufficient to ensure
the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
8.5 LANDLORD'S PROPERTY. All Alterations, improvements, fixtures,
conduit, equipment (excepting Tenant's telecommunications equipment) and/or
appurtenances which may be installed or placed in or about the Premises, from
time to time, including any non-general office use improvements made at the time
of Tenant's initial occupancy of the Premises, shall be at the sole cost of
Tenant and shall be and become the property of Landlord, and shall be and remain
part of the Premises and shall not be removed by Tenant at the end of the term
of this Lease, unless Landlord agreed to its removal at the time Landlord
consented to such Alteration. Such fixtures, alterations, additions, repairs,
improvements and/or appurtenances shall include, without limitation, the Base
Premises Work (as defined in the Tenant Work Letter) and improvements, built-in
utilities such as heating, ventilating and air conditioning units, floor
coverings, drapes, paneling, molding, doors, kitchen and dishwashing fixtures
and equipment, plumbing systems, electrical systems, lighting systems, silencing
equipment, switching conduit and cabling, all fixtures and outlets for the
systems mentioned above and for all telephone, radio, telegraph and television
purposes, and any special flooring or ceiling installations. Notwithstanding the
foregoing, Landlord may, by written notice to Tenant at the time Tenant requests
Landlord's consent to any Alteration pursuant to Section 8.1 or Section 22,, or
given following any earlier termination of this Lease, require Tenant, at
Tenant's expense, to remove any Alterations, improvements, fixtures, conduit,
equipment, and/or appurtenances in the Premises and Project, and to repair any
damage to the Premises and Building caused by such removal and return the
affected portion of the Premises and Project to a building standard tenant
improved condition as determined by Landlord. If Tenant fails to complete such
removal and/or to repair any damage caused by the removal of any Alterations,
improvements, fixtures, conduit, equipment, and/or appurtenances in the Premises
and Project, and returns the affected portion of the Premises and Project to a
building standard tenant improved condition as determined by Landlord, Landlord
may do so and may charge the cost thereof to Tenant. Tenant hereby protects,
defends, indemnifies and holds Landlord harmless from any liability, cost,
obligation, expense or claim of lien in any manner relating to the installation,
placement, removal or financing of any such Alterations, improvements, fixtures,
conduit, equipment, and/or appurtenances in, on or about the Premises and
Project, which obligations of Tenant shall survive the expiration or earlier
termination of this Lease.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any such
work on the Premises (or such additional time as may be necessary under
applicable laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within twenty (20) days after notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid shall be deemed
Additional Rent under this Lease payable upon demand, without limitation as to
other remedies available to Landlord under this Lease. Nothing contained in this
Lease shall authorize Tenant to do any act which shall subject Landlord's title
to the Building or Premises to any liens or encumbrances whether claimed by
operation of law or express or implied contract. Any claim to a lien or
encumbrance upon the Building or Premises arising in connection with any such
work or respecting the Premises not performed by or at the request of Landlord
shall be null and void, or at Landlord's option shall attach only against
Tenant's interest
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in the Premises and shall in all respects be subordinate to Landlord's title to
the Project, Building and Premises.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. Tenant hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any
cause whatsoever and agrees that Landlord, its partners, subpartners and their
respective officers, agents, servants, employees, and independent contractors
(collectively, "LANDLORD PARTIES") shall not be liable for, and are hereby
released from any responsibility for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant or
by other persons claiming through Tenant. TENANT SHALL INDEMNIFY, DEFEND,
PROTECT, AND HOLD HARMLESS THE LANDLORD PARTIES FROM ANY AND ALL LOSS, COST,
DAMAGE, EXPENSE AND LIABILITY (INCLUDING WITHOUT LIMITATION COURT COSTS AND
REASONABLE ATTORNEYS' FEES) INCURRED IN CONNECTION WITH OR ARISING FROM ANY
CAUSE IN, ON OR ABOUT THE PREMISES, ANY ACTS, OMISSIONS OR NEGLIGENCE OF TENANT
OR OF ANY PERSON CLAIMING BY, THROUGH OR UNDER TENANT, OR OF ANY OF TENANT'S
CUSTOMERS, THE CONTRACTORS, AGENTS, SERVANTS, EMPLOYEES, INVITEES, GUESTS OR
LICENSEES OF TENANT OR ANY SUCH PERSON, IN, ON OR ABOUT THE PROJECT OR ANY
BREACH OF THE TERMS OF THIS LEASE, EITHER PRIOR TO, DURING, OR AFTER THE
EXPIRATION OF THE LEASE TERM, PROVIDED THAT THE TERMS OF THE FOREGOING INDEMNITY
SHALL NOT APPLY TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD.
SHOULD LANDLORD BE NAMED AS A DEFENDANT IN ANY SUIT BROUGHT AGAINST TENANT IN
CONNECTION WITH OR ARISING OUT OF TENANT'S OCCUPANCY OF THE PREMISES, TENANT
SHALL PAY TO LANDLORD ITS COSTS AND EXPENSES INCURRED IN SUCH SUIT, INCLUDING
WITHOUT LIMITATION, ITS REASONABLE PROFESSIONAL FEES SUCH AS APPRAISERS',
ACCOUNTANTS' AND ATTORNEYS' FEES. FURTHER, TENANT'S AGREEMENT TO INDEMNIFY
LANDLORD PURSUANT TO THIS SECTION 10.1 IS NOT INTENDED AND SHALL NOT RELIEVE ANY
INSURANCE CARRIER OF ITS OBLIGATIONS UNDER POLICIES REQUIRED TO BE CARRIED BY
TENANT PURSUANT TO THE PROVISIONS OF THIS LEASE, TO THE EXTENT SUCH POLICIES
COVER THE MATTERS SUBJECT TO TENANT'S INDEMNIFICATION OBLIGATIONS; NOR SHALL
THEY SUPERSEDE ANY INCONSISTENT AGREEMENT OF THE PARTIES SET FORTH IN ANY OTHER
PROVISION OF THIS LEASE. THE PROVISIONS OF THIS SECTION 10.1 SHALL SURVIVE THE
EXPIRATION OR SOONER TERMINATION OF THIS LEASE WITH RESPECT TO ANY CLAIMS OR
LIABILITY ARISING IN CONNECTION WITH ANY EVENT OCCURRING PRIOR TO SUCH
EXPIRATION OR TERMINATION.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant's conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following
coverages in the following amounts.
10.3.1 Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
(including loss of use thereof) arising out of Tenant's operations (and the
operations of any Customers [defined in Section 14.6 below] of Tenant), and
contractual liabilities (covering the performance by Tenant of its indemnity
agreements) including a Broad Form endorsement covering the insuring provisions
of
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this Lease and the performance by Tenant of the indemnity agreements set forth
in Section 10.1 of this Lease, for limits of liability not less than:
Bodily Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office
furniture, business and trade fixtures, office equipment, free-standing cabinet
work, movable partitions, merchandise and all other items of Tenant's property
on the Premises installed by, for, or at the expense of Tenant, (ii) the
Supplemental Equipment, and (iii) "Tenant's Work," as that term is defined in
the Tenant Work Letter attached hereto as EXHIBIT B and incorporated herein by
this reference, and all other improvements, alterations and additions to the
Premises. Such insurance shall be written on an "all risks" of physical loss or
damage basis, for the full replacement cost value (subject to reasonable
deductible amounts) new without deduction for depreciation of the covered items
and in amounts that meet any co-insurance clauses of the policies of insurance
and shall include coverage for damage or other loss caused by fire or other
peril including, but not limited to, vandalism and malicious mischief, theft,
water damage of any type, including sprinkler leakage, bursting or stoppage of
pipes, and explosion, and providing business interruption coverage for a period
of one year.
10.3.3 Worker's Compensation and Employer's Liability or other
similar insurance pursuant to all applicable state and local statutes and
regulations.
10.3.4 Tenant's Blanket Policy. Tenant shall have the right to
maintain the required liability insurance in the form of a blanket policy
covering other locations of Tenant in addition to the Premises; provided,
however, such insurance maintained under a blanket policy shall (i) provide
Tenant coverage on a per location basis, (ii) not diminish or otherwise
adversely affect the amount and coverage required to be provided by Tenant
pursuant to this Section 10.3, and (iii) specifically name the location of the
Premises as an insured location and naming Landlord as an additional insured
pursuant to the requirements of this Section 10.3. In the event Tenant elects to
meet its insurance obligations under this Section 10.3 with a blanket insurance
policy, Tenant shall immediately provide Landlord with a certificate of
insurance evidencing compliance with the requirements of this Section 10.3.4 and
the other requirements of this Section 10.3.
10.4 LANDLORD'S PROPERTY AND LIABILITY INSURANCE. Landlord shall
procure and maintain during the term of this Lease, physical damage insurance
covering the base Building and common areas (excluding at Landlord's option, any
items Tenant is required to insure pursuant to Section 10.3) and general
liability insurance. Such coverages shall be in such amounts, from such
companies, and on such other terms and conditions as Landlord may from time to
time reasonably determine; provided, however, the amounts of insurance carried
by Landlord in connection with the Building shall at a minimum be comparable to
the coverage and amounts of insurance that are carried by reasonably prudent
institutional owners of comparable buildings located in the vicinity of the
Building and Workers' Compensation coverage as required by applicable law
(except that Landlord shall have the right, but not the obligation, to carry
flood insurance).
10.5 FORM OF POLICIES. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, and any other
party the Landlord so specifies, as an additional insured, including Landlord's
managing agent, if any; (ii) specifically cover the liability assumed by Tenant
under this Lease, including, but not limited to, Tenant's obligations under
Section 10.1 of this Lease; (iii) be issued by an insurance company having a
rating of not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State of Texas; (iv)
be primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and is non-contributing with any insurance
requirement.
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of Tenant; (v) be in form and content reasonably acceptable to Landlord; and
(vi) provide that said insurance shall not be canceled or coverage changed
unless thirty (30) days' prior written notice shall have been given to Landlord
and any mortgagee of Landlord. Tenant shall deliver said policy or policies or
certificates thereof to Landlord on or before the Lease Commencement Date and at
least thirty (30) days before the expiration dates thereof. In the event Tenant
shall fail to procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, after five (5) days written notice to
Tenant, procure such policies for the account of Tenant, and the cost thereof
shall be paid to Landlord within five (5) days after delivery to Tenant of bills
therefor.
10.6 SUBROGATION. Landlord and Tenant intend that their respective
property loss risks shall be borne by reasonable insurance carriers to the
extent above provided, and Landlord and Tenant hereby agree to look solely to,
and seek recovery only from, their respective insurance carriers in the event of
a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation
shall not affect the right of the insured to recover thereunder, so long as no
material additional premium is charged therefor.
10.7 ADDITIONAL INSURANCE OBLIGATIONS. Tenant shall carry and
maintain during the entire Lease Term, at Tenant's sole cost and expense,
increased amounts of the insurance required to be carried by Tenant pursuant to
this Article 10 and such other reasonable types of insurance coverage and in
such reasonable amounts covering the Premises and Tenant's operations therein,
as may be reasonably requested by Landlord.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE TO PREMISES BY LANDLORD. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to the
Premises shall be damaged by fire or other casualty, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this Article 11, restore the Base Building and such Common Areas. Such
restoration shall be to substantially the same condition of the Base Building
and the Common Areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building or Project or any other modifications to the Common Areas deemed
desirable by Landlord, provided that access to the Premises and any common
restrooms serving the Premises shall not be materially impaired. Upon the
occurrence of any damage to the Premises, upon notice (the "LANDLORD REPAIR
NOTICE") to Tenant from Landlord, Tenant shall assign to Landlord (or to any
party designated by Landlord) all insurance proceeds payable to Tenant under
Tenant's insurance required under Section 10.3.2(iii) of this Lease, and
Landlord shall repair any injury or damage to tenant improvements (but not any
Supplemental Equipment or any of Tenant's personal property which shall be
promptly and with due diligence repaired and restored by Tenant at Tenant's sole
cost and expenses, unless and to the extent Landlord elects in its sole
discretion to restore all or a part of the Supplemental Equipment) installed in
the Premises and shall return any such tenant improvements (and any Supplemental
Equipment Landlord elects to repair in its sole discretion) to their original
condition; provided that if the cost of such repair by Landlord exceeds the
amount of insurance proceeds received by Landlord from Tenant's insurance
carrier, as assigned by Tenant, the cost of such repairs shall be paid by Tenant
to Landlord prior to Landlord's commencement of repair of the damage. In the
event that Landlord does not deliver the Landlord Repair Notice within sixty
(60) days following the date the casualty becomes known to Landlord, Tenant
shall, at its sole cost and expense, repair any injury or damage to the Tenant's
Work and the Base Premises Work installed in the Premises and shall return such
Tenant's Work and Base Premises Work to their original condition provided that
if more than just the Premises are damaged by any casualty event (which casualty
is not caused by Tenant, its agents or
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employees), Tenant shall be obligated to repair the Premises pursuant to this
sentence only if Landlord is requiring other tenants with damaged premises in
the Building to repair (or is conducting such repair itself) such damaged
Premises. Whether or not Landlord delivers a Landlord Repair Notice, prior to
the commencement of construction, Tenant shall submit to Landlord, for
Landlord's review and approval, all plans, specifications and working drawings
relating thereto, and Landlord shall select the contractors to perform such
improvement work. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from such damage or the repair thereof; provided however, that if such
fire or other casualty shall have damaged the Premises or Common Areas necessary
to Tenant's occupancy, Landlord shall allow Tenant a proportionate abatement of
Base Rent to the extent Landlord is reimbursed from the proceeds of rental
interruption insurance purchased by Landlord as part of Operating Expenses,
during the time and to the extent the Premises are unfit for occupancy for the
purposes permitted under this Lease, and not occupied by Tenant as a result
thereof; provided, further, however, that if the damage or destruction is due to
the negligence or willful misconduct of Tenant or any of its agents, employees,
contractors, invitees or guests, Tenant shall be responsible for any reasonable,
applicable insurance deductible (which shall be payable to Landlord upon demand)
and there shall be no rent abatement. In the event that Landlord shall not
deliver the Landlord Repair Notice, Tenant's right to rent abatement pursuant to
the preceding sentence shall terminate as of the date which is reasonably
determined by Landlord to be the date Tenant should have completed repairs to
the Premises assuming Tenant used reasonable due diligence in connection
therewith.
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the terms of
Section 11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project, and instead terminate this Lease, by
notifying Tenant in writing of such termination within sixty (60) days after the
date of damage, such notice to include a termination date giving Tenant sixty
(60) days to vacate the Premises, but Landlord may so elect only if the Building
or Project shall be damaged by fire, earthquake or other casualty or cause,
whether or not the Premises are affected, and one or more of the following
conditions is present: (i) in Landlord's reasonable judgment, repairs cannot
reasonably be completed within one hundred eighty (180) days after the date of
discovery of the damage (when such repairs are made without the payment of
overtime or other premiums); (ii) the holder of any mortgage on the Building or
Project or ground lessor with respect to the Building or Project shall require
that the insurance proceeds or any portion thereof be used to retire the
mortgage debt, or shall terminate the ground lease, as the case may be; (iii)
the damage is not fully covered by Landlord's insurance policies; or (iv) the
damage occurs during the last twelve (12) months of the Lease Term; or (v) any
owner of any other portion of the Project, other than Landlord, does not intend
to repair the damage to such portion of the Project, provided, however, if such
damage or destruction does not affect the Premises or access to the Premises,
then Landlord may only terminate this Lease pursuant to clauses (i), (iii),
(iv), and (v) hereinabove if Landlord also terminates leases of all other
tenants in the Building which contain similar termination rights in their
leases; provided further, however, that (A) if Landlord does not elect to
terminate this Lease pursuant to Landlord's termination right as provided above,
(B) the damage constitutes a "Tenant Damage Event" (as defined below), and (C)
repair of such damage cannot, in the reasonable judgment of an architect or
contractor selected by Landlord, be substantially completed within one hundred
eighty (180) days after the date of the damage, then Tenant may elect, not later
than ninety (90) days after nor earlier then thirty (30) days after the date
Tenant receives notice from the architect or contractor that the repairs cannot
be completed within such one hundred eighty (180) day period, to terminate this
Lease by written notice to Landlord effective as of the date specified in the
notice, which date shall not be less than thirty (30) days nor more than sixty
(60) days after the date such notice is given by Tenant. As used herein, a
"Tenant Damage Event" shall mean damage by fire or other casualty, to all or any
part of the Premises, the Building or of the Common Areas providing access to
the Premises, which damage is not the result of the negligence or willful
misconduct of Tenant or any of Tenant's employees, agents, contractors,
licensees or invitees, and which damage substantially interferes with Tenant's
use of or access to the Premises and would entitle Tenant to an abatement of
Base Rent pursuant to Section 11.1 above. Furthermore, if neither Landlord nor
Tenant has terminated this Lease, and the repairs of a Tenant Damage Event are
not actually completed within the later of the Estimated Repair Period or 180
days after the date of the damage, Tenant shall have the right (but only on the
initial occasion of Tenant sending the Damage Termination Notice) to terminate
this Lease within five (5) business days of the end of such period and
thereafter during
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the first five (5) business days of each calendar month following the end of
such period until such time as the repairs are substantially complete, by notice
to Landlord (the "Damage Termination Notice"), effective as of a date set forth
in the Damage Termination Notice (the "Damage Termination Date"), which Damage
Termination Date shall not be less than five (5) business days following the end
of such period or each such month, as the case may be, and not later than ninety
(90) days after the end of such period or each such month, as the case may be.
Notwithstanding the foregoing, if Tenant delivers a Damage Termination Notice to
Landlord, then Landlord shall have the right to suspend the occurrence of the
Damage Termination Date for a period ending thirty (30) days after the Damage
Termination Date set forth in the Damage Termination Notice by delivering to
Tenant, within five (5) business days of Landlord's receipt of the Damage
Termination Notice, a certificate of Landlord's contractor responsible for the
repair of the damage certifying that it is such contractor's good faith judgment
that the repairs shall be substantially completed within thirty (30) days after
the Damage Termination Date. If repairs shall be substantially completed prior
to the expiration of such thirty-day period, then the Damage Termination Notice
shall be of no force or effect, but if the repairs shall not be substantially
completed within such thirty-day period, then this Lease shall terminate upon
the expiration of such thirty-day period.
11.3 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of Texas, with respect to any rights or obligations concerning damage
or destruction in the absence of an express agreement between the parties, and
any other statute or regulation, now or hereafter in effect, shall have no
application to this Lease or any damage or destruction to all or any part of the
Premises, the Building or the Project.
ARTICLE 12
NONWAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such 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 full amount due. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
If forty percent (40%) or more of the Premises, Building or Project
shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose, or if any adjacent
property or street shall be so taken or condemned, or reconfigured or vacated by
such authority in such manner as to require the use, reconstruction or
remodeling of any part of the Premises, Building or Project, or if Landlord
shall grant a deed or other instrument in lieu of such taking by eminent domain
or condemnation, Landlord shall have
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the option to terminate this Lease effective as of the date possession is
required to be surrendered to the authority. If more than twenty-five percent
(25%) of the rentable square feet of the Premises is taken, or if access to the
Premises is substantially impaired, in each case for a period in excess of one
hundred eighty (180) days, Tenant shall have the option to terminate this Lease
effective as of the date possession is required to be surrendered to the
authority. Tenant shall not because of such taking assert any claim against
Landlord or the authority for any compensation because of such taking and
Landlord shall be entitled to the entire award or payment in connection
therewith, except that Tenant shall have the right to file any separate claim
available to Tenant for any taking of Tenant's personal property and fixtures
belonging to Tenant and removable by Tenant upon expiration of the Lease Term
pursuant to the terms of this Lease, and for moving expenses, so long as such
claims do not diminish the award available to Landlord, its ground lessor with
respect to the Building or Project or its mortgagee, and such claim is payable
separately to Tenant. All Base Rent shall be apportioned as of the date Tenant
is physically dispossessed of the Premises. If any part of the Premises shall be
taken, and this Lease shall not be so terminated, the Rent shall be
proportionately abated in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Notwithstanding anything to the contrary contained in this Article 13,
in the event of a temporary taking of all or any portion of the Premises for a
period of one hundred and eighty (180) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Landlord shall be entitled to receive the entire award made in
connection with any such temporary taking.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Except as otherwise provided herein, Tenant shall
not, without the prior written consent of Landlord, assign, mortgage, pledge,
hypothecate, encumber, or permit any lien to attach to, or otherwise transfer,
this Lease or any interest hereunder, permit any assignment, or other transfer
of this Lease or any interest hereunder by operation of law, sublet the Premises
or any part thereof, or enter into any license, "co-location" or concession
agreements or otherwise permit the occupancy or use of the Premises or any part
thereof by any persons other than Tenant and its employees and contractors (all
of the foregoing are hereinafter sometimes referred to collectively as
"TRANSFERS" and any person to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a "TRANSFEREE"). If Tenant desires
Landlord's consent to any Transfer, Tenant shall notify Landlord in writing,
which notice (the "TRANSFER NOTICE") shall include (i) the proposed effective
date of the Transfer, which shall not be less than fifteen (15) days nor more
than one hundred eighty (180) days after the date of delivery of the Transfer
Notice, (ii) a description of the portion of the Premises to be transferred (the
"SUBJECT SPACE"), (iii) all of the terms of the proposed Transfer and the
consideration therefor, including calculation of the "Transfer Premium", as that
term is defined in Section 14.3 below, in connection with such Transfer, the
name and address of the proposed Transferee, and a copy of all existing executed
and/or proposed documentation pertaining to the proposed Transfer, including all
existing operative documents to be executed to evidence such Transfer or the
agreements incidental or related to such Transfer, provided that Landlord shall
have the right to require Tenant to utilize Landlord's standard Transfer
documents in connection with the documentation of such Transfer, (iv) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, business credit and personal references and history of the
proposed Transferee and any other information reasonably required by Landlord
which will enable Landlord to determine the financial responsibility, character,
and reputation of the proposed Transferee, nature of such Transferee's business
and proposed use of the Subject Space, and (v) an executed estoppel certificate
from Tenant in the form attached hereto as EXHIBIT E. Any Transfer made without
Landlord's prior written consent shall, at Landlord's option, be null, void and
of no effect, and shall, at Landlord's option, constitute a default by Tenant
under this Lease. Whether or not Landlord consents to any proposed Transfer,
Tenant shall pay Landlord's reasonable review and processing fees, as well as
any reasonable professional fees (including, without limitation, attorneys',
accountants', architects', engineers' and consultants' fees) incurred by
Landlord, within thirty (30) days after written request by Landlord.
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14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold its
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:
14.2.1 The Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Building
or the Project;
14.2.2 The Transferee intends to use the Subject Space for
purposes which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 The Transferee is not a party of reasonable financial
worth and/or financial stability in light of the responsibilities to be
undertaken in connection with the Transfer on the date consent is requested;
14.2.5 The proposed Transfer would cause a violation of another
lease for space in the Project, or would give an occupant of the Project a right
to cancel its lease;
14.2.6 The terms of the proposed Transfer will allow the
Transferee to exercise a right of renewal, right of expansion, right of first
offer, or other similar right held by Tenant (or will allow the Transferee to
occupy space leased by Tenant pursuant to any such right);
14.2.7 Either the proposed Transferee, or any person or entity
which directly or indirectly, controls, is controlled by, or is under common
control with, the proposed Transferee, (i) occupies space in the Project at the
time of the request for consent, or (ii) is negotiating or has negotiated with
Landlord to lease space in the Project;
14.2.8 The Transferee does not intend to occupy the entire
Premises and conduct its business therefrom for a substantial portion of the
term of the Transfer; or
14.2.9 The Transfer Premium, if any, to be paid by any
Transferee pursuant to such Transfer is to be paid by the Transferee in a manner
other than on a prorata monthly basis.
If Landlord consents to any Transfer pursuant to the terms of this
Section 14.2 (and does not exercise any recapture rights Landlord may have under
Section 14.4 of this Lease), Tenant may within six (6) months after Landlord's
consent, but not later than the expiration of said six-month period, enter into
such Transfer of the Premises or portion thereof, upon substantially the same
terms and conditions as are set forth in the Transfer Notice furnished by Tenant
to Landlord pursuant to Section 14.1 of this Lease, provided that if there are
any changes in the terms and conditions from those specified in the Transfer
Notice (i) such that Landlord would initially have been entitled to refuse its
consent to such Transfer under this Section 14.2, or (ii) which would cause the
proposed Transfer to be more favorable to the Transferee than the terms set
forth in Tenant's original Transfer Notice, Tenant shall again submit the
Transfer to Landlord for its approval and other action under this Article 14
(including Landlord's right of recapture, if any, under Section 14.4 of this
Lease). Notwithstanding anything to the contrary in this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably withheld or delayed
its consent under Section 14.2 or otherwise has breached or acted unreasonably
under this Article 14, their sole remedies shall be a declaratory judgment and
an injunction for the relief sought without any monetary damages, and Tenant
hereby waives all other remedies, including, without limitation, any right at
law or equity to terminate this Lease, on its own behalf and, to the extent
permitted under all applicable laws, on behalf of the proposed Transferee.
Tenant shall indemnify, defend and hold harmless Landlord from any and all
liability, losses, claims, damages, costs, expenses, causes of action and
proceedings involving any third party or parties (including without limitation
Tenant's proposed subtenant or assignee) who claim they were damaged by
Landlord's wrongful withholding or conditioning of Landlord's consent.
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14.3 TRANSFER PREMIUM. Except with respect to Customer Subleases (as
defined in Section 14.6 below) if Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
to Landlord, when received by Tenant, fifty percent (50%) of any "Transfer
Premium," as that term is defined in this Section 14.3, received by Tenant from
such Transferee. "TRANSFER PREMIUM" shall mean all rent, additional rent or
other consideration payable by such Transferee in connection with the Transfer
in excess of the Rent and Additional Rent payable by Tenant under this Lease
during the term of the Transfer on a per rentable square foot basis if less than
all of the Premises is transferred, after deducting the reasonable expenses
incurred by Tenant for (i) any changes, alterations and improvements to the
Premises in connection with the Transfer, (ii) any free base rent reasonably
provided to the Transferee, and (iii) any brokerage commissions in connection
with the Transfer. "Transfer Premium" shall also include, but not be limited to,
key money, bonus money or other cash consideration paid by Transferee to Tenant
in connection with such Transfer, and any payment in excess of fair market value
for services rendered by Tenant to Transferee or for assets, fixtures,
inventory, equipment, or furniture transferred by Tenant to Transferee in
connection with such Transfer. In the calculations of the Rent (as it relates to
the Transfer Premium calculated under this Section 14.3), and the Transferee's
Rent under Section 14.2 of this Lease, the Rent paid during each annual period
for the Subject Space, and the Transferee's Rent, shall be computed after
adjusting such rent to the actual effective rent to be paid, taking into
consideration any and all leasehold concessions granted in connection therewith,
including, but not limited to, any rent credit and tenant improvement allowance.
For purposes of calculating any such effective rent all such concessions shall
be amortized on a straight-line basis over the relevant term.
14.4 LANDLORD'S OPTION AS TO SUBJECT SPACE. Notwithstanding anything
to the contrary contained in this Article 14, and except with respect to
"Customer Subleases" and "Non-Transfers," as those terms are defined in Section
14.6 and 14.7, below, Landlord shall have the option, by giving written notice
to Tenant within thirty (30) days after receipt of any Transfer Notice, to
recapture the Subject Space. Such recapture notice shall cancel and terminate
this Lease with respect to the Subject Space as of the date stated in the
Transfer Notice as the effective date of the proposed Transfer until the last
day of the term of the Transfer as set forth in the Transfer Notice (or at
Landlord's option, shall cause the Transfer to be made to Landlord or its agent,
in which case the parties shall execute the Transfer documentation promptly
thereafter). In the event of a recapture by Landlord, if this Lease shall be
canceled with respect to less than the entire Premises, the Rent reserved herein
shall be prorated on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon request of either party, the parties shall execute written
confirmation of the same. If Landlord declines, or fails to elect in a timely
manner to recapture the Subject Space under this Section 14.4, then, provided
Landlord has consented to the proposed Transfer, Tenant shall be entitled to
proceed to transfer the Subject Space to the proposed Transferee, subject to
provisions of this Article 14.
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the
terms and conditions of this Lease shall in no way be deemed to have been waived
or modified, (ii) such consent shall not be deemed consent to any further
Transfer by either Tenant or a Transferee, (iii) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer, and (v) no
Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlord's consent, shall relieve Tenant or any
guarantor of the Lease from any liability under this Lease, including, without
limitation, in connection with the Subject Space. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer, and shall have the right
to make copies thereof. If the Transfer Premium respecting any Transfer shall be
found understated, Tenant shall, within thirty (30) days after demand, pay the
deficiency, and if understated by more than five percent (5%), Tenant shall pay
Landlord's costs of such audit.
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14.6 CUSTOMER SUBLEASES. Landlord acknowledges that Tenant's business
to be conducted on the Premises requires the installation on the Premises of
certain communications equipment by telecommunications customers of Tenant
("Customers") in order for such Customers to interconnect with Tenant's terminal
facilities or to permit Tenant to manage or operate their equipment. Tenant
represents to Landlord that such arrangements will require access by each
Customer to the Premises only on an infrequent basis, and only when accompanied
by a representative of Tenant. Notwithstanding anything contained elsewhere in
this Article 14, Landlord hereby consents in advance to any sublease, license
agreement, "Co-Location Agreement" or like agreement (collectively, "CUSTOMER
SUBLEASES") between Tenant and such a Customer for the limited purpose of
permitting such an arrangement as is described in this Section 14.6,. The
effectiveness of such advance consent as to a particular Customer Sublease is
conditioned on (a) Tenant providing Landlord with a copy of the co-location
agreement between Tenant and its Customer within twenty (20) days after any such
transaction; (b) such Customer Sublease being in writing and consistent with the
provisions of this Lease; and (c) Tenant providing Landlord with same-day
advance facsimile notice of all Customers authorized to enter the Premises and
Project during Business Hours, and same-day advance verbal authorization to and
approval by the Project manager for any authorized entry of the Premises and
Project during hours other than the Business Hours. Tenant shall be liable to
Landlord for any violation by its Customers of any provisions of this Lease.
14.7 NON-TRANSFERS. Notwithstanding anything to the contrary
contained in this Article 14, the term "Transfer" shall not include, and the
Transfer Premium shall not apply in the event of (i) a transfer of the Lease to
an entity which is the parent of Tenant, subsidiary of Tenant, affiliate of
Tenant, or shall directly or indirectly control, be controlled by, or be under
common control with, Tenant; (ii) a transaction in which Tenant becomes an
entity whose shares of stock or other ownership interests are, directly or
indirectly, sold on a national stock exchange or an inter-dealer quotation
system; (iii) in the event the transaction described in clause (ii) above shall
have occurred, any subsequent sale of ownership interest or issuance of new
ownership interests, directly or indirectly, in Tenant; and (iv) a transaction
in which any entity succeeds to all or substantially all of the assets of Tenant
whether by merger, consolidation, sale or otherwise provided such successor
entity assumes in full the obligations of Tenant under this Lease; provided,
however, that (A) Tenant shall remain liable for the performance of all
covenants, duties and obligations under the Lease, irrespective of any such
assignment, (B) the use of the Leased Premises by the assignee may not violate
any other agreements affecting the Leased Premises, the Building, Landlord or
other tenants, and (C) the use of the Leased Premises by the assignee shall
conform with the uses permitted by this Lease. Tenant shall notify Landlord, in
writing, of any such assignment or sublease within ninety (90) days of its
occurrence and shall provide Landlord with all such reasonable information as
Landlord may request regarding the identity and status of such assignee.
14.8 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in default
under this Lease, Landlord is hereby irrevocably authorized, as Tenant's agent
and attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply
towards Tenant's obligations under this Lease) until such default is cured. Such
Transferee may rely on any representation by Landlord that Tenant is in default
hereunder, without any need for confirmation thereof by Tenant. Upon any
assignment, the assignee shall assume in writing all obligations and covenants
of Tenant thereafter to be performed or observed under this Lease. No collection
or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this Article 14 or the approval of any Transferee or a
release of Tenant from any obligation under this Lease, whether theretofore or
thereafter accruing. In no event shall Landlord's enforcement of any provision
of this Lease against any Transferee be deemed a waiver of Landlord's right to
enforce any term of this Lease against Tenant or any other person. If Tenant's
obligations hereunder have been guaranteed, Landlord's consent to any Transfer
shall not be effective unless the guarantor also consents to such Transfer.
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ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any
agent or employee of Landlord during the Lease Term shall be deemed to
constitute an acceptance by Landlord of a surrender of the Premises unless such
intent is specifically acknowledged in writing by Landlord. The delivery of keys
to the Premises to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of this Lease,
whether or not the keys are thereafter retained by Landlord, and notwithstanding
such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord
of all subleases or subtenancies affecting the Premises or terminate any or all
such sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear, casualty and condemnation which are Landlord's responsibility
herein excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, business and trade
fixtures, free-standing cabinet work, movable partitions and other articles of
personal property owned by Tenant or installed or placed by Tenant at its
expense in the Premises, and such similar articles of any other persons claiming
under Tenant, as Landlord may, in its sole discretion, require to be removed,
and Tenant shall repair at its own expense all damage to the Premises and
Building resulting from such removal.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term or earlier
termination thereof, with or without the express or implied consent of Landlord,
such tenancy shall be from month-to-month only, and shall not constitute a
renewal hereof or an extension for any further term, and in such case Rent shall
be payable at a monthly rate equal to one hundred fifty percent (150%) (the
"PERCENTAGE RATE") of the Base Rent applicable during the last rental period of
the applicable Lease or Option Term for the first ninety (90) days of any such
holdover; provided that the Percentage Rate shall be increased to two hundred
percent (200%) for any holdover in excess of ninety (90) days. Such
month-to-month tenancy shall be subject to every other applicable term, covenant
and agreement contained herein. Nothing contained in this Article 16 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises to Landlord as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this Article 16 shall not be deemed
to limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold
Landlord harmless from all loss, costs (including reasonable attorneys' fees)
and liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender and any lost profits to Landlord resulting
therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by
Landlord, Tenant shall execute, acknowledge and deliver to Landlord an estoppel
certificate, which, as submitted by Landlord, shall be substantially in the form
of EXHIBIT E, attached hereto (or such other form as
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may be reasonably required by any prospective mortgagee or purchaser of the
Project, or any portion thereof), indicating therein any exceptions thereto that
may exist at that time, and shall also contain any other information reasonably
requested by Landlord or Landlord's mortgagee or prospective mortgagee. Any such
certificate may be relied upon by any prospective mortgagee or purchaser of all
or any portion of the Project. Tenant shall execute and deliver whatever other
instruments may be reasonably required for such purposes. At any time during the
Lease Term, Landlord may require Tenant to provide Landlord with a current
financial statement and financial statements of the two (2) years prior to the
current year provided that Landlord shall not request Tenant's financial
statements more than two (2) times in any calendar year. Such statements shall
be prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an independent
certified public accountant. Failure of Tenant to timely execute, acknowledge
and deliver such estoppel certificate or other instruments shall constitute an
acceptance of the Premises and an acknowledgment by Tenant that statements
included in the estoppel certificate are true and correct, without exception.
ARTICLE 18
SUBORDINATION
18.1 Subordination. This Lease is subject and subordinate to all
present and future ground or underlying leases of the Building or Project and to
the lien of any mortgage, trust deed or other encumbrances now or hereafter in
force against the Building or Project or any part thereof, if any, and to all
renewals, extensions, modifications, consolidations and replacements thereof,
and to all advances made or hereafter to be made upon the security of such
mortgages or trust deeds, unless the holders of such mortgages, trust deeds or
other encumbrances, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. Notwithstanding the
foregoing to the contrary, Landlord agrees to provide Tenant with commercially
reasonable non-disturbance agreement(s) in favor of Tenant from any ground
lessors, mortgage holders or deed of trust beneficiaries under any ground lease,
mortgage or deed of trust affecting the Project which comes into existence at
any time after the date of execution of this Lease but prior to the expiration
of the Lease Term ("Future Mortgage") in consideration of, and as a condition
precedent to, Tenant's agreement to be bound by the terms of this Article 18
with respect to such Future Mortgage. Tenant covenants and agrees in the event
any proceedings are brought for the foreclosure of any such mortgage or deed in
lieu thereof (or if any ground lease is terminated), to attorn, without any
deductions or set-offs whatsoever, to the lienholder or purchaser or any
successors thereto upon any such foreclosure sale or deed in lieu thereof (or to
the ground lessor), if so requested to do so by such purchaser or lienholder or
ground lessor, and to recognize such purchaser or lienholder or ground lessor as
the lessor under this Lease, provided such lienholder or purchaser or ground
lessor shall agree to accept this Lease and not disturb Tenant's occupancy, so
long as Tenant timely pays the rent and observes and performs the terms,
covenants and conditions of this Lease to be observed and performed by Tenant.
Landlord's interest herein may be assigned as security at any time to any
lienholder. Tenant shall, within ten (10) business days of request by Landlord,
execute such further instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination or superiority of this Lease
to any such mortgages, trust deeds, ground leases or underlying leases, provided
Tenant has received or will receive a commercially reasonable nondisturbance
agreement in favor of Tenant from any such party requesting such further
instruments or assurances. Tenant hereby irrevocably authorizes Landlord to
execute and deliver in the name of Tenant any such instrument or instruments if
Tenant fails to do so, provided that such authorization shall in no way relieve
Tenant from the obligation of executing such instruments of subordination or
superiority. Tenant waives the provisions of any current or future statute, rule
or law which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder in the event of any foreclosure proceeding or sale.
18.2 Non-Disturbance Agreement From Existing Lender. In the event
that as of the date of execution of this Lease, there exists any deed of trust
or ground lease encumbering the Project which is not terminated, released or
reconveyed within sixty (60) days thereafter, then Landlord shall obtain and
deliver to Tenant, on or before the date which is one hundred twenty (120) days
following the date of execution of this Lease, a commercially reasonable non-
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disturbance agreement from the beneficiary under such deed of trust. Tenant
shall execute and return such non-disturbance agreement to Landlord within
thirty (30) days after Tenant's receipt thereof.
ARTICLE 19
DEFAULTS; REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other
charge required to be paid under this Lease, or any part thereof, when due
unless such failure is cured within three (3) business days after receipt of
written notice by Tenant; or
19.1.2 Except where a specific time period is otherwise set
forth for Tenant's performance in this Lease, in which event the failure to
perform by Tenant within such time period shall be a default by Tenant under
this Section 19.1.2, any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; provided that if the nature of such default is
such that the same cannot reasonably be cured within a thirty (30) day period,
Tenant shall not be deemed to be in default if it diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure such
default; or
19.1.3 To the extent permitted by law, a general assignment by
Tenant for the benefit of creditors, or the taking of any corporate action in
furtherance of bankruptcy or dissolution whether or not there exists any
proceeding under an insolvency or bankruptcy law, or the filing by or against
Tenant of any proceeding under an insolvency or bankruptcy law, unless in the
case of a proceeding filed against Tenant the same is dismissed within ninety
(90) days, or the appointment of a trustee or receiver to take possession of all
or substantially all of the assets of Tenant, unless possession is restored to
Tenant within ninety (90) days, or any execution or other judicially authorized
seizure of all or substantially all of Tenant's assets located upon the Premises
or of Tenant's interest in this Lease, unless such seizure is discharged within
ninety (90) days; or
19.1.4 Abandonment or vacation of all or a substantial portion
of the Premises by Tenant; or
19.1.5 The failure by Tenant to observe or perform according to
the provisions of Articles 5, 14, 17 or 18 of this Lease where such failure
continues for more than five (5) business days after notice from Landlord.
The notice periods provided herein are in lieu of, and not in addition
to, any notice periods provided by law.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any event of
default by Tenant, Landlord shall have, in addition to any other remedies
available to Landlord at law or in equity (all of which remedies shall be
distinct, separate and cumulative), the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for prosecution or any claim
or damages therefor; and Landlord may recover from Tenant the following:
(i) The worth at the time of any unpaid rent which
has been earned at the time of such termination; plus
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(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Lease Term after the time
of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(iv) Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, specifically including
but not limited to, brokerage commissions and advertising expenses
incurred, expenses of remodeling the Premises or any portion thereof for
a new tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant; and
(v) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to
time by applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to
be and to mean all sums of every nature required to be paid by Tenant pursuant
to the terms of this Lease, whether to Landlord or to others. As used in
Paragraphs 19.2.1(i) and (ii), above, the "worth at the time of award" shall be
computed by allowing interest at the rate set forth in Article 25 of this Lease,
but in no case greater than the maximum amount of such interest permitted by
law. As used in Paragraph 19.2.1(iii) above, the "worth at the time of award"
shall be computed by discounting such amount at the Interest Rate.
19.2.2 Landlord may elect to continue the lease in effect after
Tenant's breach and abandonment and recover rent as it becomes due. Accordingly,
if Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all rent as it becomes due.
19.2.3 Landlord may enter upon and take possession of the
Premises and expel or remove Tenant and any other occupants therefrom, with or
without having terminated the Lease.
19.2.4 Landlord may alter locks and other security devices at
the Premises.
19.2.5 Landlord shall at all times have the rights and remedies
(which shall be cumulative with each other and cumulative and in addition to
those rights and remedies available under Sections 19.2.1 and 19.2.4, above, or
any law or other provision of this Lease), without prior demand or notice except
as required by applicable law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.
19.3 SUBLEASES OF TENANT. Whether or not Landlord elects to terminate
this Lease on account of any default by Tenant, as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord's sole discretion, enter
into new subleases, licenses, concessions or arrangements with Tenant's
Customers or subtenants.
19.4 FORM OF PAYMENT AFTER DEFAULT. Following the occurrence of two
(2) or more events of default in any twelve (12) month period by Tenant,
Landlord shall have the right to require that any or all subsequent amounts paid
by Tenant to Landlord hereunder, whether to cure the default in question or
otherwise, be paid in the form of cash, money order, cashier's or certified
check drawn on an institution acceptable to Landlord, or by other means approved
by Landlord, notwithstanding any prior practice of accepting payments in any
different form.
19.5 EFFORTS TO RELET. No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord's interests
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hereunder, or any other action or omission by Landlord shall be construed as an
election by Landlord to terminate this Lease or Tenant's right to possession, or
to accept a surrender of the Premises, nor shall same operate to release Tenant
in whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord to Tenant. Tenant hereby
irrevocably waives any right otherwise available under any law to redeem or
reinstate this Lease.
19.6 LIEN RIGHTS. Landlord hereby waives any lien rights, whether
provided herein or by statutory or common law, now in existence or hereafter
created, to a landlord's lien on any furnishings, equipment, trade fixtures,
inventory or other personal property of any kind belonging to Tenant located on
the Premises or elsewhere.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
Concurrent with Tenant's execution of this Lease, Tenant shall deposit
with Landlord a security deposit (the "SECURITY DEPOSIT") in the amount set
forth in Section 8 of the Summary, as security for the faithful performance by
Tenant of all of its obligations under this Lease. If Tenant defaults with
respect to any provisions of this Lease, including, but not limited to, the
provisions relating to the payment of Rent, the removal of property and the
repair of resultant damage, Landlord may, without notice to Tenant, but shall
not be required to apply all or any part of the Security Deposit for the payment
of any Rent or any other sum in default and Tenant shall, upon demand therefor,
restore the Security Deposit to its original amount. Any unapplied portion of
the Security Deposit shall be returned to Tenant, or, at Landlord's option, to
the last assignee of Tenant's interest hereunder, within forty-five (45) days
following the expiration of the Lease Term. Tenant shall not be entitled to any
interest on the Security Deposit.
ARTICLE 22
SUPPLEMENTAL EQUIPMENT
22.1 SUPPLEMENTAL EQUIPMENT. Landlord hereby grants to Tenant and
Tenant hereby accepts from Landlord, on the terms and conditions set forth
herein, a license (the "LICENSE") granting Tenant the right (but with respect to
Tenant's HVAC Equipment and Electrical Equipment in the Premises, Tenant shall
have the obligation), to install, at Tenant's sole cost and expense and subject
to the provisions of this Article 22, the following:
22.1.1 In the event Tenant has elected not to take any Reserved
Condensor Water from the Condensor Water Plant, Tenant may install a heating,
ventilating and air conditioning system and related connections to the Premises
providing up to 80 tons of cooling capacity in a designated area of the roof of
the Building not to exceed two hundred fifty (250) square feet (the "TENANT'S
HVAC EQUIPMENT");
22.1.2 A dry-pipe or FM 200 fire suppression system (the
"FIRE-SUPPRESSION SYSTEM") in the Premises in a location designated in writing
by Landlord. In connection with Tenant's installation of the Fire Suppression
System, Tenant shall have the right to disconnect
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and cap, if necessary, in compliance with applicable law, and in accordance with
the terms of Section 22.3 below, any existing fire-suppression system in the
Premises.;
22.1.3 The Electrical Equipment described in Section 6.1.2
above;
22.1.4 Subject to available capacity of the Building, such
connection equipment, such as conduits, cables, risers, feeders and materials
(collectively, the "CONNECTING EQUIPMENT") in the shafts, ducts, conduits,
chases, utility closets and other facilities of the Building as is reasonably
necessary to connect Tenant's HVAC Equipment, the Electrical Equipment and the
Fire-Suppression System to Tenant's other machinery and equipment in the
Premises, subject however, to the provisions of Section 22.3 below and subject
to the availability of vertical riser and feeder excess capacity;
22.1.5 Three (3) four inch (4.0") aluminum conduits running
from the Premises to the roof and basement of the Building, in each of the
northerly and southerly main telecommunications risers of the Building in
locations designated or approved in writing by Landlord, and in the basement
from the main southerly telecommunication riser to the MPOE (as defined in
Section 6.5 above) out of the Building to connect with the fiberoptic network of
Tenant's chosen fiber optic service provider (collectively "TENANT'S CONDUIT");
Tenant may use Tenant's Conduit running in the northerly telecommunications
riser of the Building for making direct cross-connections with other tenants in
the Project (including without limitation the MMR), provided that the total
cumulative horizontal diameter of Tenant's conduit break-out on all floors of
the Building shall not exceed twelve (12) inches;
22.1.6 Subject to the requirements of Section 6.5, new
telecommunications lines and related equipment (collectively the "LINES") in the
CDS and Tenant's Conduit described in Sections 6.5 and 22.1.5 above. Tenant
shall install its Lines in the Building and Project in a "backbone"
configuration with horizontal Lines on applicable floors of the Building being
connected to a single Line in a vertical riser. Once the backbone configuration
is constructed, any and all new Lines installed by Tenant pursuant to the terms
of this Section 22 shall be attached to such backbone configuration; and
22.1.7 A card key security access system and the necessary
paneling ("CARD KEY SYSTEM") therefor for the Premises, provided that Tenant
shall provide Landlord with the security code, access card or other means
necessary to utilize the Card Key System.
Tenant's HVAC Equipment, the Fire Suppression System, the Electrical
Equipment, the Connecting Equipment, Tenant's Conduit, the Lines and the Card
Key System are sometimes collectively referred to as the "SUPPLEMENTAL
EQUIPMENT."
22.2 LICENSE AREAS. The areas within the Building and Project which
are outside the Premises and are occupied by the Supplemental Equipment
(including without limitation, Tenant's non-exclusive use, in common with one or
more other tenants of the Project and Landlord, the vertical shafts and
horizontal raceways of the Building to the extent Tenant's use of such areas are
approved in writing by Landlord) are referred to herein collectively as the
"LICENSE AREAS". The precise amount and location of the License Areas shall be
designated by Landlord. It is expressly understood that Landlord retains the
right to use the License Areas for any purpose whatsoever provided that Tenant
shall have reasonable access to, and Landlord shall not unduly interfere with
the use of, the Supplemental Equipment therein.
22.3 INSTALLATION. The installation of the Supplemental Equipment
shall constitute Alterations and shall be performed in accordance with and
subject to the provisions of Article 8 of this Lease, and the Supplemental
Equipment shall be treated for all purposes of this Lease as if the same were
Tenant's property.
22.4 TENANT'S OBLIGATIONS. For the purposes of determining Tenant's
obligations with respect to the License Areas, the License Areas shall be deemed
to be a portion of the Premises;
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consequently, unless otherwise provided in this Article 22, all of the
provisions of this Lease with respect to Tenant's obligations hereunder shall
apply to the installation, use and maintenance of the License Areas and the
Supplemental Equipment, including without limitation, provisions relating to
compliance with requirements as to insurance, indemnity, janitorial services,
repairs, maintenance and compliance with law, except that unless otherwise
provided herein Tenant shall have no obligation to pay Base Rent or Direct
Expenses for the License Areas, and the square footage of the License Areas
shall not be included in the calculation of Tenant's Share. Landlord shall have
no obligation with regard to the License Areas except as provided in this
Article 22.
22.5 INDEMNITY. Tenant shall install, use, maintain and repair the
Supplemental Equipment, and use the License Areas, so as not to damage or
interfere with the operation of the Building, the Building systems or with the
occupancy or activities of any other tenant of the Building; and Tenant hereby
agrees to indemnify and hold harmless the Landlord Parties from and against any
and all claims (including but not limited to claims for bodily injury or
property damage), actions, mechanic's liens, losses, liabilities, and expenses
(including reasonable attorney fees and costs of defense by Landlord's legal
counsel) (collectively, "CLAIMS"), which may arise from the installation,
operation, use, maintenance or removal of the Supplemental Equipment and use of
the License Areas. Similarly, Tenant shall pay upon demand by Landlord the costs
to repair any physical damage to the Building and the License Areas caused by
such installation, operation, use, maintenance or removal. Tenant hereby waives
and releases the Landlord Parties from any Claims Tenant may have at any time
(including but not limited to Claims relating to interruptions in services)
arising out of or relating in any way to the installation, operation, use,
maintenance, and/or removal of the Supplemental Equipment and/or use of the
License Areas. Such waiver and release shall not apply to Claims to the extent
caused by Landlord's gross negligence or willful misconduct and not insured or
required to be insured by Tenant under this Lease. However, in no event shall
Landlord or any member of the Landlord Parties be liable to Tenant for lost
profits or consequential or incidental damages of any kind.
22.6 TENANT WAIVER. Landlord shall not have any obligations with
respect to the Supplemental Equipment or License Areas or compliance with any
requirements relating thereto, nor shall Landlord be responsible for any damage
that may be caused ?? the Supplemental Equipment or License Areas except to the
extent caused by the gross negligence or willful misconduct of Landlord and not
insured or required to be insured by Tenant under this Lease. Landlord makes no
representation that the Supplemental Equipment or License Areas will be able to
operate without interference or disturbance and Tenant agrees that Landlord
shall not be liable to Tenant therefor.
22.7 PROTECTIVE INSTALLATIONS. Tenant, at Tenant's sole cost and
expense, shall install such fencing and other protective equipment on or about
the Supplemental Equipment and License Areas as Landlord may reasonably
determine.
22.8 DAMAGE TO SUPPLEMENTAL EQUIPMENT/TAXES ON SUPPLEMENTAL
EQUIPMENT. Notwithstanding anything in Article 11 to the contrary, Tenant shall
(i) be solely responsible for any damage caused as a result of and/or to the
Supplemental Equipment, (ii) promptly pay any tax, license or permit fees
charged pursuant to any requirements in connection with the installation,
maintenance or use of the Supplemental Equipment and comply with all precautions
and safeguards recommended by all governmental authorities, and (iii) make
necessary repairs, replacements or to maintenance of the Supplemental Equipment
and License Areas (unless and to the extent Landlord has elected in Section 11.1
to repair the Supplemental Equipment) or License Areas.
22.9 LANDLORD'S RIGHTS. This license shall be coupled with Tenant's
leasehold interest hereunder, and shall be terminated if (i) any of the
conditions set forth in this Article 22 are not complied with by Tenant, (ii)
Tenant's use of the Supplemental Equipment is interfering with the activity or
occupancy of any other tenant in the Building, or (iii) Tenant is in default of
its obligations under this Lease beyond any applicable notice and cure period.
In the event of the occurrence of any of items (i)-(iii) of this Section 22.9
above, then without limiting Landlord's
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rights and remedies it may otherwise have under this Lease, Tenant shall, upon
written notice from Landlord, have the option either to (i) immediately
discontinue its use of the Supplemental Equipment and License Areas, remove the
same, and make such repairs and restoration as required under Section 22.10
below, (ii) reposition any Supplemental Equipment to a location designated by
Landlord if Landlord elects to permit such repositioning, and make such repairs
and restorations as required under Section 22.10 below, or (iii) correct such
noncompliance within thirty (30) days after receipt of notice. If Tenant fails
to correct noncompliance within thirty (30) days after receipt of notice, then,
subject to Section 22.10 below, Tenant shall immediately discontinue its use of
the applicable Supplemental Equipment and remove the same and discontinue use of
the related License Areas. Tenant acknowledges and agrees that any exercise by
Landlord of its rights under this Section 22.9 shall not relieve Tenant of any
of its obligations under the Lease.
22.10 REMOVAL OF SUPPLEMENTAL EQUIPMENT. Notwithstanding anything in
this Lease to the contrary (including without limitation Article 15), upon the
expiration of the Lease Term or upon any earlier termination of this Lease,
Landlord shall have the option of requiring that Tenant, subject to the control
of and direction from Landlord, remove all or any portion of the Supplemental
Equipment, repair any damage caused thereby, and restore the License Areas and
other facilities of the Building and Project to their condition existing prior
to the installation of the Supplemental Equipment.
ARTICLE 23
SIGNS
23.1 FULL FLOORS. Subject to Landlord's prior written approval, in
its sole discretion, and provided all signs are in keeping with the quality,
design and style of the Building and Project, Tenant, if the Premises comprise
an entire floor of the Building, at its sole cost and expense, may install
identification signage anywhere in the Premises including in the elevator lobby
of the Premises, provided that such signs must not be visible from the exterior
of the Building.
23.2 MULTI-TENANT FLOORS. If other tenants occupy space on the floor
on which the Premises is located, Tenant's identifying signage shall be provided
by Landlord, at Tenant's cost, and such signage shall be comparable to that used
by Landlord for other similar floors in the Building and shall comply with
Landlord's Building standard signage program.
23.3 PROHIBITED SIGNAGE AND OTHER ITEMS. Any signs, notices, logos,
pictures, names or advertisements which are installed and that have not been
separately approved by Landlord may be removed without notice by Landlord at the
sole expense of Tenant. Tenant may not install any signs on the exterior or roof
of the Project or the Common Areas. Any signs, window coverings, or blinds (even
if the same are located behind the Landlord-approved window coverings for the
Building), or other items visible from the exterior of the Premises or Building,
shall be subject to the prior approval of Landlord, in its sole discretion.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about
the Premises or the Project which will in any way conflict with any law,
statute, ordinance or other governmental rule, regulation or requirement now in
force or which may hereafter be enacted or promulgated. At its sole cost and
expense, Tenant shall promptly comply with all such governmental measures.
Should any standard or regulation now or hereafter be imposed on the Project (or
on Landlord as owner of the Project) to the extent such responsibility is not
expressly made the responsibility of Landlord hereunder, or Tenant by a state,
federal or local governmental body charged with the establishment, regulation
and enforcement of occupational, health or safety standards for employers,
employees, landlords or tenants, then Tenant agrees, at its sole cost and
expense, to comply promptly with such standards or regulations. Tenant shall be
responsible, at its sole cost and expense, to make all alterations to the
Premises as are required to comply with the
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governmental rules, regulations, requirements or standards described in this
Article 24. The judgment of any court of competent jurisdiction or the admission
of Tenant in any judicial action, regardless of whether Landlord is a party
thereto, that Tenant has violated any of said governmental measures, shall be
conclusive of that fact as between Landlord and Tenant.
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the overdue amount plus any reasonable attorneys' fees incurred
by Landlord by reason of Tenant's failure to pay Rent and/or other charges when
due hereunder. The late charge shall be deemed Additional Rent and the right to
require it shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. In addition to the late charge
described above, any Rent or other amounts owing hereunder which are not paid
within ten (10) days after the date they are due shall bear interest from the
date when due until paid at a rate per annum equal to the lesser of (i) the
Interest Rate, and (ii) the highest rate permitted by applicable law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under Section 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided
to the contrary in this Lease, Tenant shall pay to Landlord, upon delivery by
Landlord to Tenant of statements therefor: (i) sums equal to expenditures
reasonably made and obligations incurred by Landlord in connection with the
remedying by Landlord of Tenant's defaults pursuant to the provisions of Section
26.1; (ii) sums equal to all losses, costs, liabilities, damages and expenses
referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all reasonable legal fees and other amounts so expended. Tenant's
obligations under this Section 26.2 shall survive the expiration or sooner
termination of the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant (except in the case of an emergency) to enter the Premises
accompanied by a representative of Tenant made reasonably available by Tenant,
to (i) inspect them; (ii) show the Premises to prospective purchasers,
mortgagees or tenants, or to current or prospective mortgagees, ground or
underlying lessors or insurers; (iii) post notices of nonresponsibility; or (iv)
alter, improve or repair the Premises or the Building, or for structural
alterations, repairs or improvements to the Building or the Building's systems
and equipment, provided that Landlord shall use commercially reasonable efforts
to ensure that such entry does not materially interfere with or disturb Tenant's
use and occupancy of the Premises. Notwithstanding anything to the contrary
contained in this Article 27, Landlord may enter the Premises at any time to (A)
perform services required of Landlord; (B) take possession due to any breach of
this Lease in the manner provided herein; and (C) perform any covenants of
Tenant which Tenant fails to perform. Landlord may
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make any such entries without the abatement of Rent and may take such reasonable
steps as required to accomplish the stated purposes. Tenant hereby waives any
claims for damages or for any injuries or inconvenience to or interference with
Tenant's business, lost profits, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the above purposes,
Landlord shall at all times have a key with which to unlock all the doors in the
Premises, excluding Tenant's vaults, safes and special security areas designated
in advance by Tenant. In an emergency, Landlord shall have the right to use any
means that Landlord may deem proper to open the doors in and to the Premises.
Any entry into the Premises by Landlord in the manner hereinbefore described
shall not be deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an actual or constructive eviction of Tenant from any portion
of the Premises. No provision of this Lease shall be construed as obligating
Landlord to perform any repairs, alterations or decorations except as otherwise
expressly agreed to be performed by Landlord herein.
ARTICLE 28
SUBSTITUTION OF OTHER PREMISES
At any time prior to Tenant's commencement of construction in the
Premises under the Tenant Work Letter, Landlord shall have the right to move
Tenant to other comparable space located on the seventh (7th) floor of the
Project, and all terms hereof shall apply to the new space with equal force. In
such event, Landlord shall give Tenant prior notice, shall provide Tenant, at
Landlord's sole cost and expense, with tenant improvements at least equal in
quality to those in the Premises and shall move Tenant's effects to the new
space at Landlord's sole cost and expense at such time and in such manner as to
inconvenience Tenant as little as reasonably practicable. In addition, Landlord
shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant
in connection with such relocation, within thirty (30) days of Landlord's
receipt of an invoice therefor. Simultaneously with such relocation of the
Premises, the parties shall immediately execute an amendment to this Lease
stating the relocation of the Premises.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. The necessary
grammatical changes required to make the provisions hereof apply either to
corporations or partnerships or individuals, men or women, as the case may
require, shall in all cases be assumed as though in each case fully expressed.
The captions of Articles and Sections are for convenience only and shall not be
deemed to limit, construe, affect or alter the meaning of such Articles and
Sections.
29.2 BINDING EFFECT. Subject to all other provisions of this Lease,
each of the covenants, conditions and provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of Article 14 of this Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Project, the same shall be
without liability to Landlord and without any reduction or diminution of
Tenant's obligations under this Lease.
29.4 MODIFICATION OF LEASE. Should any current or prospective
mortgagee or ground lessor for the Building or Project require a modification of
this Lease, which modification will not cause an increased cost or expense to
Tenant or in any other way materially and adversely change the rights and
obligations of Tenant hereunder, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are reasonably
required therefor and to deliver the same to Landlord within ten (10) business
days following a request therefor. At the request of Landlord or any mortgagee
or ground lessor, Tenant agrees to
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execute a short form of Lease and deliver the same to Landlord within ten (10)
business days following the request therefor.
29.5 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that
Landlord has the right to transfer all or any portion of its interest in the
Project or Building and in this Lease, and Tenant agrees that in the event of
any such transfer, Landlord shall automatically be released from all liability
under this Lease for acts or omissions arising on or subsequent to such transfer
and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of transfer and such transferee
shall be deemed to have fully assumed and be liable for all obligations of this
Lease to be performed by Landlord, including the return of any Security Deposit,
and Tenant shall attorn to such transferee. Tenant further acknowledges that
Landlord may assign its interest in this Lease to a mortgage lender as
additional security and agrees that such an assignment shall not release
Landlord from its obligations hereunder and that Tenant shall continue to look
to Landlord for the performance of its obligations hereunder.
29.6 PROHIBITION AGAINST RECORDING. Except as provided in Section
29.4 of this Lease, neither this Lease, nor any memorandum, affidavit or other
writing with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant.
29.7 LANDLORD'S TITLE. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower Tenant
to do any act which can, shall or may encumber the title of Landlord.
29.8 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.9 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.10 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
29.11 PARTIAL INVALIDITY. If any term, provision or condition
contained in this Lease shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term, provision or condition
to persons or circumstances other than those with respect to which it is invalid
or unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.12 NO WARRANTY. In executing and delivering this Lease, Tenant has
not relied on any representations, including, but not limited to, any
representation as to the amount of any item comprising Additional Rent or the
amount of the Additional Rent in the aggregate or that Landlord is furnishing
the same services to other tenants, at all, on the same level or on the same
basis, or any warranty or any statement of Landlord which is not set forth
herein or in one or more of the exhibits attached hereto.
29.13 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the lesser of (a) the interest of Landlord in the Building or (b) the equity
interest Landlord would have in the Building if the Building were encumbered by
third-party debt in an amount equal to eighty percent (80%) of the value of the
Building (as such value is determined by Landlord), provided that in no event
shall such liability extend to any sales or insurance proceeds received by
Landlord or the Landlord Parties in connection with the Project, Building or
Premises. Neither Landlord, nor any of the Landlord Parties shall have any
personal liability therefor, and Tenant hereby expressly waives and releases
such personal liability on behalf of itself and all persons claiming by, through
or under Tenant. The limitations of liability contained
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in this Section 29.13 shall inure to the benefit of Landlord's and the Landlord
Parties' present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future partner of Landlord (if Landlord is a partnership), or trustee or
beneficiary (if Landlord or any partner of Landlord is a trust), have any
liability for the performance of Landlord's obligations under this Lease.
Notwithstanding any contrary provision herein, neither Landlord nor the Landlord
Parties shall be liable under any circumstances for injury or damage to, or
interference with, Tenant's business, including but not limited to, loss of
profits, loss of rents or other revenues, loss of business opportunity, loss of
goodwill or loss of use, in each case, however occurring.
29.14 ENTIRE AGREEMENT. It is understood and acknowledged that there
are no oral agreements between the parties hereto affecting this Lease and this
Lease and the Exhibits hereto, constitute the parties' entire agreement with
respect to the leasing of the Premises and supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and understandings,
if any, between the parties hereto or displayed by Landlord to Tenant with
respect to the subject matter thereof, and none thereof shall be used to
interpret or construe this Lease. None of the terms, covenants, conditions or
provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto.
29.15 RIGHT TO LEASE. Landlord reserves the absolute right to effect
such other tenancies in the Project as Landlord in the exercise of its sole
business judgment shall determine to best promote the interests of the Building
or Project. Tenant does not rely on the fact, nor does Landlord represent, that
any specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
29.16 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease and except as to Tenant's obligations under Articles 5 of
this Lease (collectively, a "FORCE MAJEURE"), notwithstanding anything to the
contrary contained in this Lease, shall excuse the performance of such party for
a period equal to any such prevention, delay or stoppage and, therefore, if this
Lease specifies a time period for performance of an obligation of either party,
that time period shall be extended by the period of any delay in such party's
performance caused by a Force Majeure.
29.17 WAIVER OF REDEMPTION BY TENANT. Tenant hereby waives, for Tenant
and for all those claiming under Tenant, any and all rights now or hereafter
existing to redeem by order or judgment of any court or by any legal process or
writ, Tenant's right of occupancy of the Premises after any termination of this
Lease.
29.18 NOTICES. All notices, demands, statements, designations,
approvals or other communications (collectively, "NOTICES") given or required to
be given by either party to the other hereunder or by law shall be in writing,
shall be (A) sent by United States certified or registered mail, postage
prepaid, return receipt requested ("Mail"), (B) transmitted by telecopy, if such
telecopy is promptly followed by a Notice sent by Mail, (C) delivered by a
nationally recognized overnight courier, or (D) delivered personally. Any Notice
shall be sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in Section 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be deemed
given (i) three (3) days after the date it is posted if sent by Mail, (ii) the
date the telecopy is transmitted, (iii) the date the overnight courier delivery
is made or attempted to be made, or (iv) the date personal delivery is made or
attempted to be made. If Tenant is notified of the identity and address of
Landlord's mortgagee or ground or underlying lessor, Tenant shall give to such
mortgagee or ground or underlying lessor written notice of any default by
Landlord under the terms of this Lease by registered or certified mail, and such
mortgagee or ground or underlying lessor shall be given a reasonable opportunity
to cure such default (provided that such
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opportunity to cure shall not exceed 90 days unless the nature of the default is
such that the same cannot reasonably be cured within a ninety (90) day period,
in which event such mortgagee or ground or underlying lessor shall diligently
commence such cure within such period and thereafter diligently proceeds to
rectify and cure such default)prior to Tenant's exercising any remedy available
to Tenant. As of the date of this Lease, any Notices to Landlord must be sent,
transmitted, or delivered, as the case may be, to the following addresses:
Dallas Center Associates, Ltd.
c/o Telecom Real Estate Services, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With copy to:
Allen, Matkins, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
29.19 JOINT AND SEVERAL. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
29.20 AUTHORITY. If Tenant is a corporation, trust or partnership,
each individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in Texas and that Tenant has full right and authority to execute and
deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so. In such event, Tenant shall, within ten (10) days after
execution of this Lease, deliver to Landlord satisfactory evidence of such
authority and, if a corporation, upon demand by Landlord, also deliver to
Landlord satisfactory evidence of (i) good standing in Tenant's state of
incorporation and (ii) qualification to do business in Texas.
29.21 ATTORNEYS' FEES. In the event that either Landlord or Tenant
should bring suit for the possession of the Premises, for the recovery of any
sum due under this Lease, or because of the breach of any provision of this
Lease or for any other relief against the other, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein
shall be paid by the other party, which obligation on the part of the other
party shall be deemed to have accrued on the date of the commencement of such
action and shall be enforceable whether or not the action is prosecuted to
judgment.
29.22 GOVERNING LAW; WAIVER OF TRIAL BY JURY. This Lease shall be
construed and enforced in accordance with the laws of the State of Texas. IN ANY
ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I)
THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF TEXAS, (II) SERVICE
OF PROCESS BY ANY MEANS AUTHORIZED BY TEXAS LAW, AND (III) IN THE INTEREST OF
SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR THEIR
SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY. IN THE EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR
NONPAYMENT OF BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE
MANDATORY) IN ANY SUCH PROCEEDING OR ACTION, BUT SHALL BE RELEGATED TO AN
INDEPENDENT ACTION AT LAW.
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29.23 SUBMISSION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of, option
for or option to lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
29.24 BROKERS. Landlord shall be responsible for the initial Brokerage
commission to be paid to Broker (defined below) in connection with this Lease.
Landlord and Tenant hereby warrant to each other that they have had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease, excepting only the real estate brokers or agents specified in Section 12
of the Summary (the "BROKERS"), and that they know of no other real estate
broker or agent who is entitled to a commission in connection with this Lease.
Each party agrees to indemnify and defend the other party against and hold the
other party harmless from any and all claims, demands, losses, liabilities,
lawsuits, judgments, costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of any dealings with any real estate
broker or agent, other than the Brokers, occurring by, through, or under the
indemnifying party.
29.25 INDEPENDENT COVENANTS. This Lease shall be construed as though
the covenants herein between Landlord and Tenant are independent and not
dependent and Tenant hereby expressly waives the benefit of any statute to the
contrary and agrees that if Landlord fails to perform its obligations set forth
herein, Tenant shall not be entitled to make any repairs or perform any acts
hereunder at Landlord's expense or to any setoff of the Rent or other amounts
owing hereunder against Landlord.
29.26 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the
right at any time to change the name of the Project or Building and to install,
affix and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.
29.27 COUNTERPARTS. This Lease may be executed in counterparts with
the same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
29.28 CONFIDENTIALITY. Landlord and Tenant acknowledges that the
content of this Lease and any related documents are confidential information.
Landlord and Tenant shall keep such confidential information strictly
confidential and shall not disclose such confidential information to any person
or entity other than such party's financial, legal, space planning consultants
and prospective sublessees, transferees or assignees of and except as otherwise
required by law.
29.29 TRANSPORTATION MANAGEMENT. Tenant shall fully comply with all
present or future programs intended to manage parking, transportation or traffic
in and around the Building, and in connection therewith, Tenant shall take
responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other
transportation-related committees or entities.
29.30 BUILDING RENOVATIONS. It is specifically understood and agreed
that Landlord has made no representation or warranty to Tenant and has no
obligation and has made no promises to alter, remodel, improve, renovate, repair
or decorate the Premises, Building, the Project or any part thereof and that no
representations respecting the condition of the Premises, the Building, the
Project or any part thereof have been made by Landlord to Tenant except as
specifically set forth herein or in the Tenant Work Letter. However, Tenant
hereby acknowledges that Landlord is currently renovating or may during the
Lease Term renovate, improve, alter, or modify (collectively, the "RENOVATIONS")
the Project, the Building and/or the Premises including without limitation the
parking structure, common areas, systems and equipment, roof, and structural
portions of the same, which Renovations may include, without limitation, (i)
installing sprinklers in the Building common areas and tenant spaces, (ii)
modifying the common areas and tenant spaces to comply with applicable laws and
regulations, including regulations relating to the physically disabled, seismic
conditions, and building safety and security, and (iii) installing new
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floor covering, lighting, and wall coverings in the Building common areas, and
in connection with any Renovations, Landlord may, among other things, erect
scaffolding or other necessary structures in the Building, limit or eliminate
access to portions of the Project, including portions of the common areas, or
perform work in the Building, which work may create noise, dust or leave debris
in the Building; provided that Landlord shall use commercially reasonable
efforts to ensure that such Renovations do not materially interfere with or
unreasonably disturb Tenant's use and occupancy of the Premises. Tenant hereby
agrees that such Renovations and Landlord's actions in connection with such
Renovations shall in no way constitute a constructive eviction of Tenant nor
entitle Tenant to any abatement of Rent. Landlord shall have no responsibility
or for any reason be liable to Tenant for any direct or indirect injury to or
interference with Tenant's business arising from the Renovations, nor shall
Tenant be entitled to any compensation or damages from Landlord for loss of the
use of the whole or any part of the Premises or the License Areas or of Tenant's
personal property or improvements (including the Supplemental Equipment)
resulting from the Renovations or Landlord's actions in connection with such
Renovations, or for any inconvenience or annoyance occasioned by such
Renovations or Landlord's actions.
29.31 NO VIOLATION. Tenant hereby warrants and represents that neither
its execution of nor performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or regulation by
which Tenant is bound, and Tenant shall protect, defend, indemnify and hold
Landlord harmless against any claims, demands, losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, arising from Tenant's breach of this warranty and representation.
29.32 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
acknowledges that portions of the Project may be under construction following
Tenant's occupancy of the Premises, and that such construction may result in
levels of noise, dust, obstruction of access, etc. which are in excess of that
present in a fully constructed project. Tenant hereby waives any and all rent
offsets or claims of constructive eviction which may arise in connection with
such construction; provided that Landlord shall use commercially reasonable
efforts to ensure that such construction do not materially interfere with or
unreasonably disturb Tenant's use and occupancy of the Premises.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"Landlord":
DALLAS CARRIER ASSOCIATES, Ltd., a Texas
limited partnership
By: Dallas Center, Inc., a Texas corporation;
Its: Sole Managing Partner
By: /s/ Signature Illegible
▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
"Tenant":
UNIVERSAL ACCESS,
an Illinois corporation
By: /s/ Signature Illegible
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Chief Operating Officer
-----------------------------------
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EXHIBIT A
CARRIER CENTER DALLAS
OUTLINE OF PREMISES
[TO BE PROVIDED]
EXHIBIT A
Page 1
49
EXHIBIT B
CARRIER CENTER DALLAS
TENANT WORK LETTER
This Work Letter for Tenant Improvements, including any schedules and
exhibits attached hereto (the "Tenant Work Letter"), is attached to and forms a
part of that certain Lease of even date herewith, by and between DALLAS CARRIER
ASSOCIATES, LTD., a Texas limited partnership, as Landlord, and UNIVERSAL
ACCESS, an Illinois corporation, as Tenant (the "Lease"). Unless otherwise
specified, "Article" and "Section" references herein are to Articles and
Sections of the body of the Lease and "Paragraph" references are to paragraphs
of this Tenant Work Letter.
1. DEFINITIONS. All capitalized terms used herein and not defined
shall have the meanings set forth in the body of the Lease. As used in the body
of the Lease and in this Tenant Work Letter:
1.1 Code. The term "code" means all applicable electrical, building,
architectural barrier, zoning, health, safety, seismic, fire, energy and other
codes, ordinances, regulations, rulings, interpretations, requirements and
relevant provisions of law issued or adopted by the City of Dallas, County of
Dallas, State of Texas, the United States Government or any other governmental
authority.
1.2 Allowance. "ALLOWANCE" means the total sum of $200,000 (i.e.
$25.00 per rentable square foot of the Premises).
2. BASE PREMISES WORK.
2.1 Base Building Items. Landlord has previously constructed the
Building Structure and those portions of the Building Systems located in the
internal core of the Building. Landlord has previously constructed, or will
construct, at Landlord's sole cost and expense, certain base components of the
Premises and the floor on which the Premises are located (the "BASE PREMISES
WORK"). Tenant shall, except as otherwise set forth in this Lease or in this
Tenant Work Letter, accept the Building Structure, Building Systems, the
Premises, and the Base Premises Work in their "as-is" condition as of the date
of this Lease (or the date such incomplete items of the Building Premises Work,
if any, are completed by Landlord, as the case may be), subject to the terms of
this Tenant Work Letter and this Paragraph 2. The Base Premises Work shall
include only the following items: (i) Building standard core doors for
stairwells, electrical, mechanical and janitorial and telephone rooms and
washrooms all installed; such doors shall be complete with frame, trim and
hardware, locking devices, electrical door releases and/or magnetic hold-open
devices where applicable and closers; (ii) completed telephone, electrical,
janitorial and mechanical rooms to the extent located on the floor on which the
Premises are located; (iii) a completed unisex washroom on each floor in
compliance with all applicable laws, including, without limitation, the ADA;
(iv) telephone lines stubbed to a central distribution panel; (v) stud framing
for all demising walls separating the Premises from the common corridors, with
drywall on the exterior (corridor) sides of all such demising walls; (vi)
Building standard elevator lobby and corridors; (vii) sheet rock on columns, and
interior columns taped and spackled ready for painting; (viii) Building Standard
HVAC in its "AS-IS" condition; (ix) Building standard vinyl flooring on all
primary floors of the Premises; (x) the abatement of all friable and assessable
asbestos in the Premises; and (xi) an existing automatic sprinkler system grid
in the Building common areas in its "as is" condition on an unoccupied basis.
2.2 Substantial Completion. For purposes of this Lease, Landlord's
obligations under this Paragraph 2 shall be satisfied upon (i) the substantial
completion of construction of items (i) through (xi) listed in Paragraph 2.1 of
this Tenant Work Letter, with the exception of (x) any minor or decorative punch
list items or Code compliance items which do not or will not materially
interfere with Tenant's commencement of construction of the Tenant Improvements
EXHIBIT B
Page 1
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(which punch list and Code items shall be completed by Landlord in a diligent
manner), and (y) any Base Premises Work which Tenant has agreed to complete as
part of Tenant's Work.
2.3 Notwithstanding the foregoing, Landlord shall complete items
(v), (vi), (vii), (ix) and (x) of the Base Premises Work described in Section
2.1 of this Tenant Work Letter within thirty (30) days of the Effective Date,
subject to any delays caused by Tenant; provided that if Landlord has not
substantially completed items (v), (vi), (vii), and (x) of the Base Premises
Work within such thirty (30) day period, the Lease Commencement Date shall be
extended one (1) day for every one (1) day after the expiration of such thirty
(30) day period Landlord requires to substantially complete such items.
2.4 Notwithstanding anything in this Lease to the contrary, if
Landlord has not substantial completed removal of any asbestos containing floor
tiles on or before the date which is ninety (90) days following the Effective
Date (the "OUTSIDE DATE"), as such Outside Date shall be extended for each day
substantial completion of such removal is delayed by any Tenant Delays and any
force majeure described in Section 29.16, and the Commencement Date has not
already occurred, then Tenant shall have the right to terminate this Lease by
delivering written notice thereof to Landlord within ten (10) days after the
Outside Date.
3. TENANT'S WORK.
3.1 Definition. Except for the Base Premises Work provided by
Landlord, all tenant improvements in the Premises, to prepare the Premises for
occupancy by Tenant, will be performed by Tenant at Tenant's sole expense,
subject to Tenant's Allowance. The improvements to be constructed by Tenant are
referred to in this Tenant Work Letter as "Tenant's Work
3.2 Requirements. All Tenant's Work is subject to the reasonable
approval of Landlord and must meet the Building construction standards. Tenant
shall be responsible for the design, function and maintenance of all Tenant's
Work. Tenant shall not specify uses or materials that are subject to an
insurance hazard rate different from the rate assigned to the Building as a
whole.
3.3 Heating, Ventilation and Air-Conditioning. Tenant shall be
required to furnish and install as Tenant's Work all HVAC and related apparatus
not included as part of the Base Premises Work, including all additional duct,
pipe, electrical and mechanical work.
3.4 Sprinkler System. Subject to Tenant's right to install and/or
convert to a "pre-action" design as permitted in Section 22.1.2 of this Lease,
Tenant shall install as part of Tenant's Work all portions of the sprinkler
system for the Premises not included as part of the Base Premises Work,
including, any raising, lowering, moving or adding of sprinkler heads.
3.5 Life-Safety System. All emergency lighting, exit signs, branch
wiring, alarms, smoke detectors, speakers and other devices required by code or
desired by Tenant for the life-safety system in the Premises but not included as
part of the Base Premises Work, shall be installed as Tenant's Work.
3.6 Window, Wall and Floor Coverings. All window, wall and floor
coverings shall be installed as Tenant's Work. Tenant may utilize any existing
window coverings, if any, which are in place in all perimeter windows of
Tenant's Premises in "AS IS" condition, and will not install any other types of
window coverings without Landlord's prior consent, which shall not be
unreasonably withheld, conditioned, or delayed.
3.7 Floor Loading. Specific sections of the Premises may require
loading to a maximum of 200 lbs. per square foot. If Tenant wishes to design and
install structural and/or non-structural modifications to the Premises to
accommodate floor loads greater than the existing capacity of 100 pounds per
square foot, all of such work shall be considered to be an Alteration
EXHIBIT B
Page 2
51
which, consistent with the terms of Article 8, shall be, subject to Landlord's
approval and subject to all applicable code and engineering design standards. If
reinforcing is required, Tenant, at Tenant's sole cost and expense, shall
reinforce the floors in the areas as specified and designed by Tenant's
structural engineer and approved by Landlord. Tenant shall be granted, with
reasonable notice, floor access to the space below the Premises for
reinforcement of Tenant's Premises during construction of Tenant's Work, if
required. All charges for additional security and other services needed to
accommodate such entry shall be at the sole cost and expense of Tenant.
4. TENANT'S PLANS.
4.1 Description. Tenant shall have an architect licensed by the
State of Texas ("TENANT'S ARCHITECT") and pre-approved by Landlord prepare
architectural plans and specifications for the layout and improvements of the
Premises and Tenant's Work ("Tenant's Plans"), all in such form and detail as
reasonably required by Landlord. Tenant's Plans shall be in form and content
sufficient to secure all required governmental approvals for Tenant's Work.
Tenant shall pay all of the fees and charges of Tenant's Architect for all of
the work required by this Tenant Work Letter. Tenant's Architect shall
coordinate with the architect of Landlord if Tenant does not use Landlord's
designated architect for the Building for all stages of construction of Tenant's
Work ("LANDLORD'S ARCHITECT") and Landlord's engineers to assure the consistency
of Tenant's Plans with the plans and specifications for the Base Premises Work.
Tenant's Plans shall include the following:
(a) Space Plan: The "SPACE PLAN" shall be a schematic space
plan for the Premises, including a full and accurate description of the size and
location of all partitions, doors, furniture and equipment line ups. Before
submission to Landlord, the Space Plan shall have been reviewed and approved by
the Dallas Building and Fire Departments, and shall be on file with the Building
Department, registered with a preliminary plan check number:
(b) Final Plans: The "FINAL PLANS" shall consist of all
plans and specifications necessary to construct Tenant's Work, including
mechanical and electrical working drawings.
4.2 Mechanical and Electrical. Tenant's Plans shall contain all
mechanical and electrical working drawings. Mechanical and electrical working
drawings shall be prepared at Tenant's expense by engineers reasonably approved
by Landlord. Tenant's Architect shall be responsible for coordination of all
engineering work with Tenant's Plans.
4.3 Approval by Landlord. Tenant's Plans shall be subject to
Landlord's reasonable approval. Landlord shall have ten (10) business days
following receipt of Tenant's Plans to approve or disapprove the submissions by
Tenant. If Landlord reasonably disapproves of any of Tenant's Plans, Landlord
shall advise Tenant of the required revisions concurrently with such
disapproval. After being so advised by Landlord, Tenant shall promptly submit a
redesign, addressing the revisions required by Landlord, for Landlord's
reasonable approval. Landlord shall then have five (5) business days to approve
or disapprove any re-submittal of Tenant's plans, and failure to respond within
such 5-business day period shall be deemed Landlord's approval of such
re-submitted plans and specifications. If Tenant's Plans have not been approved
within sixty (60) days from the date of this Lease, the parties agree to
promptly meet in good faith to attempt to reach agreement regarding Tenant's
Plans. Approval by Landlord shall not be deemed to be a representation or
warranty by Landlord with respect to the safety, adequacy, correctness,
efficiency or compliance with law of Tenant's Plans.
4.4 Permits. Tenant's Architect shall be responsible for submission
of Tenant's Plans for plan check by the City of Dallas. Any changes required by
the City of Dallas shall be submitted to Landlord for Landlord's review and
reasonable approval. Tenant's contractor shall apply for the building permit for
Tenant's Work and Tenant shall be responsible for and shall pay all fees and
expenses for securing the building permit and all other permits necessary for
construction of the tenant improvements.
EXHIBIT B
Page 3
52
4.5 "As-Built" Plans. A set of "as-built" plans of the Premises, in
such form and detail as reasonably required by Landlord, shall be delivered to
Landlord within sixty (60) days after Tenant's occupancy.
5. CONSTRUCTION OF TENANT'S WORK.
5.1 Tenant's Contractor. Tenant will enter into a construction
contract with a contractor selected from a list preapproved by Landlord for
construction of Tenant's Work ("TENANT'S CONTRACTOR"). Except as otherwise
provided in the Lease, during the construction of Tenant's Work prior to the
Commencement Date, Tenant shall not be charged for normal building services
provided to the tenants of the Building during Business Hours.
5.2 Performance. Tenant shall perform, through Tenant's Contractor,
all work shown on the approved Tenant's Plans, in strict accordance with such
plans, and in a professional and workmanlike manner and in strict accordance
with code. Tenant shall comply, and will cause its agents, contractors and
employees to comply, with all construction rules and regulations of the Building
as set forth in Schedule 1 attached hereto (which rules shall be subject to
change from time to time upon reasonable advance notice to Tenant and its
contractors). Tenant represents and warrants to Landlord that it shall not cause
or permit Tenant's Contractor to do any work in the Project that is not in
strict accordance with the approved Tenant's Plans, without first obtaining
Landlord's prior written consent.
5.3 Deliveries. Tenant's Contractor shall coordinate the scheduling
of deliveries of materials with Landlord, and the timing of such deliveries
shall be subject to Landlord's reasonable approval. Landlord may require that
delivery of construction materials be made at a time other than during Building
Hours.
5.4 Insurance. Throughout the performance of Tenant's Work, Tenant,
at its expense, shall carry, or cause to be carried, workers' compensation
insurance as required by law and general liability insurance, with completed
operations endorsements, for any occurrence in or about the Building, in such
coverage limits and with insurers in each case meeting the requirements of
Article 10 of the Lease. The Landlord Parties shall be designated as additional
insured parties on the insurance policies. Tenant shall furnish Landlord with
evidence satisfactory to Landlord that such insurance is in effect before the
commencement of Tenant's Work, and, on request of Landlord during construction,
Tenant shall provide evidence satisfactory to Landlord that the insurance
remains in effect.
5.5 Liens and Violations. Tenant, at its expense, and with diligence
and dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Tenant's Work, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant, which shall be issued by the Building and
Safety Department of the City of Dallas or any other public authority. Tenant
shall not utilize materials in Tenant's Work (except with respect to Tenant's
Property) that are subject to security interests or liens. Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all mechanics'
liens, stop notices and other liens and encumbrances or claims of liens or
encumbrances filed in connection with Tenant's Work, Alterations, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant, including, without limitation, security
interests in any materials, fixtures or articles installed in the Premises; and
against all costs, expenses and liabilities incurred in connection with any such
lien or encumbrance, or claim of lien or encumbrance, its removal or any related
action or proceeding. Tenant, at its expense, shall satisfy or discharge of
record each stop notice, lien or encumbrance within 30 days after it is filed.
If Tenant fails to do so, Landlord shall have the right to satisfy or discharge
the stop notice, lien or encumbrance by payment to the claimant on whose behalf
it was filed, by the posting of a bond, or by other action. Tenant shall
reimburse Landlord on demand for the costs and expenses so incurred by Landlord,
as Additional Charges, and without regard for any defense or offset that Tenant
may have had against the claimant, but neither Landlord's curative action nor
the reimbursement of Landlord by Tenant shall cure Tenant's default in failing
to satisfy or discharge the lien or encumbrance.
EXHIBIT B
Page 4
53
5.6 Indemnity. Tenant will be directly responsible to Landlord for
the performance of Tenant's Contractor, and will indemnify, defend and hold
harmless Landlord, Landlord's Affiliates and Landlord's managing agent from any
cost, expense, claim, lien, loss, damage or liability in connection with (i) the
construction contract with Tenant's Contractor, (ii) with the performance of
Tenant's Work, and (iii) any defects in the Tenant Improvements, Base Building,
or Building systems and equipment which Landlord elects in its reasonable
discretion to repair that arise as a result of Tenant's Work.
5.7 Inspection by Landlord. Landlord shall have the right to inspect
Tenant's Work at any reasonable time, and may reasonably reject work that does
not conform with applicable laws or Tenant's Plans.
5.8 Code Requirements. Tenant shall bear all costs and expenses of
constructing Tenant's Work in compliance with code and shall be responsible, at
its expense, for obtaining, and, if requested by Landlord, furnishing copies to
Landlord of, all governmental permits, certificates, and approvals necessary for
the commencement and prosecution of Tenant's Work and for final approval thereof
upon completion.
5.9 Construction Supervision Fee. Landlord may, at its option,
retain a construction supervisor to oversee the construction and performance of
Tenant's Work and Tenant agrees to reimburse Landlord for Landlord's actual
costs incurred as a result of Landlord's review and involvement with Tenant's
Work.
5.10 Contractor's Warranties and Guaranties. Tenant hereby assigns to
Tenant all warranties and guaranties by Tenant's Contractor relating to the
Tenant's Work, and Tenant hereby waives all claims against Landlord relating to,
or arising out of the construction of, the Tenant's Work. Such warranties and
guaranties of Tenant's Contractor shall guarantee that Tenant's Work shall be
free from any defects in workmanship and materials for a period of not less than
one (1) year from the date of completion thereof, and Tenant's Contractor shall
be responsible for the replacement or repair, without additional charge, of the
Tenant Improvements that shall become defective within one (1) year after
completion of Tenant's Work. The correction of such work shall include, without
additional charge, all additional expenses and damages in connection with such
removal or replacement of all or any part of the Tenant's Work.
6. TENANT'S ALLOWANCE.
6.1 Amount. Tenant shall receive an Allowance in the amount
specified in Paragraph 1.2 above. The Allowance shall be used for the costs of
construction of Tenant's Work, including hard and soft costs; provided that in
no event shall the Allowance be used by Tenant for any portion of the cost of
Tenant's property and equipment to be installed within the Premises or License
Areas.
6.2 Payment of Allowance. The Allowance shall be paid in one lump
sum payment following completion of Tenant's Work and satisfaction of each of
the following terms and conditions. Following completion of Tenant's Work,
Tenant shall submit each of the following: (i) invoices for the Tenant's Work,
with sufficient back-up ▇▇▇▇▇▇▇▇ from subcontractors, suppliers and providers of
services to give Landlord a complete financial accounting regarding each invoice
to be reimbursed by Landlord, (ii) a certificate signed by Tenant's Architect
and an authorized representative of Tenant certifying that the Tenant's Work
represented by the aforesaid invoices has been satisfactorily completed in
accordance with Tenant's Plans and confirming that all of Tenant's Work is
complete, (iii) lien waivers by Tenant's contractors, subcontractors and
materialmen for all such work, (iv) a general release from the contractor,
subcontractors and materialmen regarding Tenant's Work along with final
governmental approvals of Tenant's Work and (v) a certificate signed by Tenant
and Tenant's Architect certifying that no portion of the Allowance was applied
to the costs of Tenant's property or equipment. Landlord shall pay to Tenant the
amounts specified in such invoices, not to exceed the Allowance, within 30 days
after receipt of all of the information and documentation specified above.
Landlord shall have the right to inspect the Premises to confirm the completion
of the
EXHIBIT B
Page 5
54
work covered by such invoices. Appropriate procedures shall be followed by
Tenant to assure satisfaction or waiver of any potential mechanics' lien claims.
Landlord shall have no obligation to disburse the Allowance to Tenant upon the
occurrence and during the continuance of a breach or default by Tenant under the
terms of this Tenant Work Letter or the Lease.
EXHIBIT B
Page 6
55
SCHEDULE 1 TO EXHIBIT B
BUILDING CONSTRUCTION RULES
The following are general rules and regulations governing all work in
the Building, including Tenant's Work and any Alterations (collectively,
"TENANT'S WORK"). The manager for the Building ("BUILDING MANAGER") will be
Landlord's representative in coordinating and supervising Tenant's work. Nothing
contained in these Construction Rules shall (i) create any contractual
obligations for Landlord or Building Manager in connection with Tenant's work or
(ii) in any way affect, modify or supersede any of the terms set forth in this
Lease. The Construction Rules may be modified and supplemented from time to time
as Landlord may reasonably require for the proper monitoring and control of
construction at the Building.
1. Neither Building Manager nor Landlord will be responsible for
any material, equipment, tools or other property belonging to Tenant's general
contractor for Tenant's work, or any subcontractors, employees, agents or others
associated in any way with Tenant's work.
2. The Building is equipped with a freight elevator serving all
floors. The contractor and all construction personnel must use only the freight
elevator for transportation of workers, materials and equipment. No contractor
or any construction personnel, nor any materials or equipment, are permitted in,
nor shall any of the foregoing be transported in, the passenger elevators. If
the contractor or any construction personnel are found in the passenger
elevators, the contractor or subcontractor may be removed from the job and the
elevators will be immediately inspected for damage. All damage resulting from
such use shall be corrected by Building Manager at Tenant's expense.
3. The contractor shall furnish Building Manager with a list of
subcontractors prior to commencement of Tenant's work. This list will include
phone numbers and contacts for the contractor and each subcontractor, including
home and emergency telephone numbers. Any persons not on the approved contractor
list will be denied access to the Premises. NO EXCEPTIONS. Access badges,
authorizing access to the Premises, will be issued by Building Manager to all
personnel designated by the contractor on such list. The contractor and all
construction personnel working over the weekend and after the normal hours shall
provide Building Manager with a list of workers 24 hours prior to the worker
being on site or they will be denied access. The list should also include an
estimated time the contractor and all construction personnel will be working,
the location of the work to be done, the number of employees and the working
supervisor who will be present in the Building during the performance of the
work. Any deviation will require Building Manager's approval.
4. Unless Building Manager requires otherwise, all contractors and
other construction personnel shall enter and exit through the loading dock or
main lobby at all times. Additionally, all contractors and subcontractors shall
sign in and sign out at the security desk. Building security personnel have the
right to inspect all tool boxes of any and all construction personnel upon
departure from the Building. Loading dock and freight elevator procedures and
hours will be provided by Building Manager.
5. When working on a tenant-occupied floor, all deliveries are to
be accepted, moved and delivered to the contracted suite by 7:30 a.m. All
equipment and material deliveries shall be made at the loading dock or service
entry between the hours of 6:00 p.m. and 6:00 a.m. Monday through Friday or all
day Saturday and Sunday via a freight reservation. If deliveries are to be made
at other times, prior approval must be obtained from Building Manager. At no
other time will material be transported through the Building lobby or public
areas unless specifically authorized in writing. When making deliveries,
reinforced, non-staining masonite board acceptable to Building Manager must be
installed by the contractor (in a manner approved by Building Manager) to
protect all wall and floor finishes, including the freight elevator. The
contractor and subcontractors shall consult with Building Manager for complete
rules and procedures relating to corridor, elevator and public area protection.
All contractors and other construction personnel shall leave the Building lobby
and other public areas in a neat and clean
SCHEDULE 1 TO EXHIBIT B
Page 1
56
condition consistent with other Comparable Buildings (including, without
limitation, sweeping and mopping the lobby floors, dusting all furniture in the
lobby and otherwise removing all debris and dust) and otherwise in a condition
satisfactory to Building Manager and Landlord. Tenant shall be responsible for
all costs incurred by Building Manager if this clean-up work is not performed
satisfactorily.
6. The contractor must notify Building Manager prior to conducting
any of Tenant's work that will require ceiling access, specifying the areas that
will be worked on and the length of time needed to complete or perform work in
the space.
7. No drilling, hammering, loud noise, vibrations or disturbances
of any nature will be allowed during the business day (i.e., from 8:00 a.m. to
7:00 p.m., Monday through Friday, and from 9:00 a.m. to 2:00 p.m. on Saturday).
8. The contractor shall keep all spaces affected by Tenant's work
clean at all times, including all public areas such as corridors, restrooms,
janitor's closets, etc. The contractor shall erect and maintain dust barriers at
all exit areas of construction and proper dust covers (including walk-off mats)
on the floors at exit areas of construction and at the doors to the freight
elevator. The contractor is responsible for taking all extra precautions to
safeguard the floors, walls and/or elevators from damage which may be caused by
the movement of materials, equipment or debris.
9. Sprinkler shut down and construction procedures:
a. The contractor or the subcontractor requiring
the shutdown and draining of the fire sprinkler system on any floor must follow
the Building's procedures for this process.
b. All work performed on fire sprinklers and/or
fire standpipes must be scheduled with The Building Chief Engineer at least 24
hours in advance.
c. Isolation and draining of the sprinkler system
must be done by the Building Engineering Department.
d. Prior to start of work, the contractor must
report to Building Manager on the loading dock, and the contractor will be given
instructions and assistance. Building supplied shut-off tags are to be placed on
all closed valves.
10. Construction personnel shall at all times maintain the highest
level of project cleanliness. All construction waste and debris shall be removed
via the freight elevator or stairs to the loading dock on a daily basis and
shall not be allowed to accumulate or produce a fire hazard. No construction
waste or debris may be placed in the Building dumpster/compactor. The contractor
and all construction personnel shall provide for removal of waste and debris
from the Building at their own expense, and shall dispose of all waste and
debris in an environmentally safe manner and in full compliance with all laws
and ordinances. If a dumpster is required (space allowing), the location must be
approved by Building Manager. If the contractor fails or refuses to keep such
spaces free of accumulated waste, debris, dust, etc., Building Manager reserves
the right to enter such spaces (including the Premises) and to clean and remove
the debris, dust, etc. at Tenant's expense. In addition, all public areas, i.e.,
corridors, restrooms, janitor's closets, etc. shall be maintained and kept free
of construction debris, dust, etc.
11. Removal of combustible objects such as cardboard, empty paint
cans, paint rags and other combustible materials shall occur on a daily basis;
such objects shall be disposed of in an approved receptacle and in an
environmentally safe manner in full compliance with all laws and ordinances. The
storage of all flammable liquids (paint, lacquer thinners, paint thinners, etc.)
shall be in UL approved fire rated (for flammable liquids) storage cabinets or
the liquids are to be removed from the Building daily. If such liquids are to be
stored in the proper storage cabinets, Building Manager shall be notified of
their existence, location and quantity. Upon completion of Tenant's work, all
remaining flammable liquids shall be removed from the Building and disposed
SCHEDULE 1 TO EXHIBIT B
Page 2
57
of in an environmentally safe manner in full compliance with all laws and
ordinances. Any flammable or hazardous materials (i.e. paint) may only be stored
on the Premises with permission of Building Manager who shall designate an area
for such storage. No gasoline operated devices (e.g., concrete saws, coring
machines, welding machines, etc.) shall be permitted within the Building. All
work requiring such devices shall be performed by means of electrically operated
substitutes. All approved gas and oxygen canisters shall be properly chained and
supported to eliminate all potential hazards. At the completion of use, said
containers shall be promptly removed from the Building.
12. All electrical and telephone rooms on construction floors are to
be kept clean and orderly at all times and must be locked at the end of each
workday. These rooms cannot be used as storage for tools or supplies. At the end
of each day, all garbage and wire remnants are to be removed and a clear pathway
maintained to all panels. Initial access to electrical and telephone equipment
rooms must be arranged through Building Manager. Keys will be issued by Building
security. Doors to electrical and telephone equipment rooms may not be propped
or blocked open in any way. Tenant equipment may not be installed in electrical
rooms. All panels are to be replaced and properly labeled upon completion of
work. All penetrations through floors, walls and ceilings shall be properly fire
rated upon completion.
13. Upon completion and termination of all electrical circuits, and
before energizing, the contractor must notify the Building's engineer so that a
neutral to ground bonding test can be performed.
14. Specific restrooms will be designated for use by construction
personnel. The contractor is responsible for maintenance while using such
designated restrooms. Upon completion of Tenant's work, the contractor will be
responsible for restoring all designated restrooms to their original state.
Anyone found using restrooms other than those specified, or anyone using the
janitorial closets, will be subject to dismissal. No one is permitted to use the
janitorial closets without Building Manager permission. Janitors' slop sinks
cannot be used for disposal of flammable material, hazardous waste or drywall.
15. Any use of telephone room chase way must be approved in advance
by the Building's engineer.
16. Construction personnel are not permitted to block open stairway
doors and electrical room doors. These doors provide the fire protection
required by code. Continued violation of this provision shall be subject to a
$300 fire. Janitorial doors shall be kept closed at all times on occupied tenant
floors. During construction of Tenant's work, stairwells and fire doors leading
to stairwells may not be blocked with materials, equipment, trash or debris of
any kind. Fire doors may not be propped or blocked open in any fashion or in any
way. Keys will be issued by Building security. Stairwells may not be used for
the storage of any equipment, materials, trash or debris of any kind and are to
be kept clear at all times. During construction of Tenant's work, air
conditioning smoke dampers may not be propped open.
17. All smoke detectors in the construction areas are to be
protected during construction, demolition, sweeping, clean-up or other
operations that may cause considerable dust or smoke. At the end of each work
day, after the dust has settled, each smoke detector that has been protected
during the day is to be uncovered to ensure proper operation.
18. Each contractor and all construction personnel are to take
adequate precautions to prevent the accidental tripping of the fire alarm
system. False alarms shall be fined at $400 per offense. All management and
other costs connected with resetting false alarms initiated by the contractor or
any construction personnel will be charged to the Tenant's account. At
completion of every work day, the fire-life-safety system shall be left trouble
and alarm free. The contractor must notify the Building's engineer of said
status before leaving the job site.
19. The contractor must provide and keep available at least four
currently certified 10 pound ABC fire extinguishers on each floor during
construction. They are to be placed inside
SCHEDULE 1 TO EXHIBIT B
Page 3
58
the controlled area, and all workers are to be informed as to their location and
proper use. In addition, construction personnel shall be informed by their
supervisors of the means of egress from the floor in case of an emergency,
location of fire pull stations and locations of wet stand pipes.
20. All "J" boxes and fire-life-safety conduits that are installed
during the construction of Tenant's work must be marked with red spray paint.
All fire-life-safety wiring must be done strictly in accordance with Building
specifications (contact the Building's engineer for such wire specifications).
Failure to adhere to the required color code may result in costly,
time-consuming rewiring. Only life-safety contractors designated or approved by
Building Manager will be allowed to install and/or connect life-safety devices
(i.e., speakers, pull stations and smoke detectors).
21. Prior to core drilling, the contractor must inform Building
Manager of the locations of the core drill for the review and approval of the
Building's engineer. All core drills are to be located from the underside to
prevent damage to any of the exposed fire-life-safety conduits on the underside
of the decking. If cores are to be wet-drilled, slurry run-off shall be
contained and must not be allowed to reach tenant areas below the construction.
Any slurry that does migrate to the floor below shall be cleaned by the
contractor at its expense. Coring hours will be 8:00 p.m. to 7:00 a.m. Any
penetrations made in steel structural beams are to be approved in advance by the
Building's engineer and permitted by government authorities, if applicable.
22. Any damage sustained during construction of Tenant's work to
electrical rooms, telephone rooms, storage closets, janitor closets, restrooms,
or freight lobbies is the responsibility of the Tenant. A list of pre-existing
damage to these areas should be submitted to Building Manager, and should be
acknowledged by Building Manager, prior to commencement of Tenant's work.
23. The contractor must notify Building Manager at least 24 hours
prior to commencing any painting or varnishing. Any spray painting with solvent
based paints must be preapproved by the Dallas Fire Department. Painting of
elevator doors is to be supervised by the elevator maintenance company
appropriate to the Building.
24. Building Manager shall at all time have access to the areas in
which Tenant's work is ongoing regardless of its state, preparation and
progress. Building Manager reserves the right to inspect work, stop work and/or
have a worker removed from the job at any time during Tenant's work if these
Rules and Regulations are not being followed.
25. The Building shall provide electrical service consisting of 120V
outlets with 15A/20A capacity. Any power requirements in excess of that listed
per the Lease shall be the responsibility of the contractor. The contractor
shall provide temporary electrical devices within the Premises for its
subcontractors' use. The contractor will not be permitted to run extension cords
through public space. The contractor shall use reasonable measures to minimize
energy consumption in the construction area when possible. The Building shall
pay for normal electrical consumption during the construction process. All
lights and equipment must be turned off at the end of the contractor's business
day. If the contractor or any construction personnel leave lights or equipment
on during off hours, Building Manager reserves the right to receive from Tenant
just compensation for excessive electrical consumption.
26. The contractor and each subcontractor shall implement and
maintain an accident prevention program and an employee safety training program.
All persons on the job, regardless of whose direct payroll they are on, are
required to respond to safety instructions from the contractor's supervisor.
Persons who do not respond shall be removed from the job.
27. The contractor shall cover all return air transfers when working
next to a tenant-occupied space to control the transmission of dust and dirt.
Covering must be removed at the completion of daily construction. The contractor
shall keep all tenant entrance and exit doors
SCHEDULE 1 TO EXHIBIT B
Page 4
59
closed to restrict the movement of dust or dirt and shall close-off temporary
openings with polyurethane approved by the Dallas Fire Department. Due to local
fire codes, no openings may be made on a tenant-occupied floor to the corridor
unless materials are being delivered. All HVAC filters in fan rooms shall also
be delivered in operable condition at time of completion (thus temporary filter
should be added to the existing filter). Pre-filters should be installed over
all return air openings until finished floors are installed. If Building filters
or equipment require replacement or cleaning due to construction dust, the
contractor will be charged. The contractor shall verify with the Building's
engineer prior to installation of pre-filters.
28. Upon completion of Tenant's work, the contractor shall submit
complete sets of marked-up as-built drawings and record documents to the
architect (or space planner) for approval. Upon approval, these shall be
forwarded to Building Manager. In addition, Building Manager shall be allowed to
obtain, at no cost to Tenant or the contractor, copies of manuals for each item
of equipment and apparatus furnished in connection with the Tenant's work.
29. At the completion of Tenant's work, the contractor and each
subcontractor, along with Building Manager's Building maintenance personnel,
shall direct the checkout of utilities, operation systems and equipment for
readiness, shall assist in their initial start-up and testing by subcontractors
and shall provide general familiarization training for Building Manager
personnel during the checkout and startup period.
30. No tobacco smoking or chewing will be permitted in occupied or
public areas. Smoking is allowed only in designated areas approved by Building
Manager. It is understood that Building Manager, in its sole discretion, may
choose not to designate any approved areas in the Building for smoking.
31. No radios or other non-functional sound producing equipment will
be permitted on any floor (unless required by code).
32. Respect must be shown to the Building tenants at all times. Rude
and obscene behavior, including foul and abusive language, will be not be
tolerated. Offenders will be asked to remove themselves from the Premises and
shall not be permitted to return.
33. All work performed within the Building's conduits, risers and
pathways (including, without limitation, cabling or wiring to the rooftop of the
Building), work on the rooftop and work which affects or may reasonably be
expected to affect Building systems (such as plumbing, electrical, HVAC,
fire-life-safety, emergency power or the like) must be performed by bonded
contractors or subcontractors specifically approved in advance by Landlord. Upon
request, the Building Manager will provide Tenant with a list of approved
contractors or subcontractors for certain types of projects. Access to the
rooftop shall be scheduled in advance with the Building Manager. A Building
engineer shall accompany all persons performing work or inspecting equipment on
the rooftop, including in the case of emergency, except as otherwise agreed in
Tenant's Lease. If rooftop access is required during other than Building Hours,
Tenant shall pay the cost of the Building's engineer for the time spent
accompanying Tenant's contractor or other agent to the rooftop.
34. No one shall be allowed to endanger the Building, its premises
or its occupants in any manner whatsoever. If such a situation occurs, the
contractor, any subcontractor, supplier, etc., shall immediately take steps to
correct and eliminate the hazardous condition. In the event that the
contractor's personnel fail to perform in a satisfactory manner, the Building
Manager reserves the right to immediately take steps to remedy the hazard at the
contractor's expense.
35. All corrective work or work performed in occupied spaces at any
time must be scheduled and approved by Building Manager and must be immediately
cleaned up by the workmen prior to their leaving the job or at the end of the
business day if the project is on-going. The contractor shall be responsible for
all costs incurred by Building Manager if this clean-up work is not performed
satisfactorily.
SCHEDULE 1 TO EXHIBIT B
Page 5
60
36. All traffic control, flagmen, barricades, etc., as may be
necessary or required by any agency having jurisdiction shall be the sole
responsibility of and at the expense of the contractor.
37. Tenant shall contact the Building Manager to schedule work on
the following Building systems: (Any disruption of services will be scheduled at
Building Manager's discretion.)
A. Domestic water.
B. Fire alarm or speaker.
C. Electrical tie-ins to Base Building or the
addition of equipment to any suite other than the Tenant suite except subpanels
located within the Tenant premises.
D. Sprinkler system.
E. Any work that will take place outside the
demised Premises.
F. Any tie-ins that may affect other Tenant spaces.
If a Building alarm is turned off for the contractor's work, the
contractor must notify Building Manager upon completion so the system can be
tuned back on as soon as possible.
38. No graffiti or vandalism will be tolerated. Any individual
caught in the act shall be immediately removed from the Premises and will not be
allowed to return. In addition, all repairs will be at the contractor's expense.
39. Wet paint signs must be posted in all public areas when
appropriate.
40. The contractor/subcontractors may park in designated spaces
only. Any vehicles found in unauthorized spaces will be subject to towing.
41. No contractor shall be allowed to start any work in the Building
without having a current certificate of insurance on file with Building Manager.
The contractor must keep current insurance certificates on all subcontractors.
Any contractor or subcontractor performing work found not to have current
insurance will be immediately ordered off the Premises.
General contractors shall list the following as additionally insured:
Dallas Carrier Associates, Ltd.
Dallas Carrier, Inc.
42. The contractor/subcontractors shall obtain and pay for a City of
Dallas business license.
43. The contractor/subcontractors shall obtain at their expense, all
permits and licenses necessary to perform the work and shall obtain at their
expense, all permits and licenses necessary to perform the work and shall comply
will all laws, ordinances, State and Federal government regulations, and all
rules or regulations of any board or commission or other duly qualified body.
44. All work shall be performed in accordance with all applicable
laws and the rules and regulations of all City, State and Federal agencies
having jurisdiction over the work.
45. No work is to be performed, nor materials stored in public
areas. No staging of trucks or materials will be allowed in areas which may
affect traffic flow to the surrounding properties or ingress and egress to
Building entrances, fire lanes, reserved parking areas, etc.
SCHEDULE 1 TO EXHIBIT B
Page 6
61
46. Rubber wheels are required on all vehicles transporting
materials in the Building.
47. All equipment and material will be designed and attached for
seismic loading in accordance with governmental agencies having jurisdiction
over the work.
48. Material storage shall be limited to the Premises.
49. The contractor, or its agent, shall provide safety barricades or
cables at floor penetrations.
50. Tenant shall take such action as is necessary to confirm that
all contractors, subcontractors and other construction personnel are aware of
these construction rules, including, if necessary, requiring each to sign a copy
hereof.
SCHEDULE 1 TO EXHIBIT B
Page 7
62
EXHIBIT C
CARRIER CENTER DALLAS
NOTICE OF LEASE TERM DATES
To: _________________________________
_________________________________
_________________________________
_________________________________
Re: Office Lease dated _____________, 19___ between Dallas Carrier
Associates, Ltd., a Texas limited partnership ("Landlord"), and
_____________________, a __________________________ ("Tenant")
concerning Suite ___________ on floor(s) _______________ of the
office building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
Gentlemen:
In accordance with the Office Lease (the "Lease"), we wish to advise you
and/or confirm as follows:
1. The Lease Term shall commence on or has commenced on
________________ for a term of _____________________ ending on _______________.
2. Rent commenced to accrue on ________________, in the amount of
___________________.
3. If the Lease Commencement Date is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4. Your rent checks should be made payable to ______________ at
____________________.
5. The exact number of rentable square feet within the Premises is
____________ square feet.
6. Tenant's Share as adjusted based upon the exact number of
rentable square feet within the Premises is ________%.
"Landlord":
DALLAS CARRIER ASSOCIATES, LTD.,
a Texas limited partnership
By: Dallas Carrier, Inc., a Texas corporation;
Its: Sole Managing Partner
By: _____________________________________
Its: ________________________________
Agreed to and Accepted
as of ________________, 19___.
"Tenant":
By: _____________________________
Its: ________________________
EXHIBIT C
Page 1
63
EXHIBIT D
CARRIER CENTER DALLAS
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Project. In the event of any
conflict between the Rules and Regulations and the other provisions of this
Lease, the latter shall control.
1. Tenant shall not alter any lock or install any new or additional
locks or bolts on any doors or windows of the Premises without obtaining
Landlord's prior written consent. Tenant shall bear the cost of any lock changes
or repairs required by Tenant. Two keys will be furnished by Landlord for the
Premises, and any additional keys required by Tenant must be obtained from
Landlord at a reasonable cost to be established by Landlord. Upon the
termination of this Lease, Tenant shall restore to Landlord all keys of stores,
offices, and toilet rooms, either furnished to, or otherwise procured by, Tenant
and in the event of the loss of keys so furnished, Tenant shall pay to Landlord
the cost of replacing same or of changing the lock or locks opened by such lost
key if Landlord shall deem it necessary to make such changes.
2. All doors opening to public corridors shall be kept closed at
all times except for normal ingress and egress to the Premises.
3. Landlord reserves the right to close and keep locked all
entrance and exit doors of the Building during such hours as are customary for
comparable buildings in the vicinity of the Building. Tenant, its employees and
agents must be sure that the doors to the Building are securely closed and
locked when leaving the Premises if it is after the normal hours of business for
the Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is
considered to be after normal business hours for the Building, may be required
to sign the Building register. Access to the Building may be refused unless the
person seeking access has proper identification or has a previously arranged
pass for access to the Building. Landlord will furnish passes to persons for
whom Tenant requests same in writing. Tenant shall be responsible for all
persons for whom Tenant requests passes and shall be liable to Landlord for all
acts of such persons. The Landlord and his agents shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the Building
or the Project during the continuance thereof by any means it deems appropriate
for the safety and protection of life and property.
4. No furniture, freight or equipment of any kind shall be brought
into the Building without prior notice to Landlord. All moving activity into or
out of the Building shall be scheduled with Landlord and done only at such time
and in such manner as Landlord designates. Landlord shall have the right to
prescribe the weight, size and position of all safes and other heavy property
brought into the Building and also the times and manner of moving the same in
and out of the Building. Safes and other heavy objects shall, if considered
necessary by Landlord, stand on supports of such thickness as is necessary to
properly distribute the weight. Landlord will not be responsible for loss of or
damage to any such safe or property in any case. Any damage to any part of the
Building, its contents, occupants or visitors by moving or maintaining any such
safe or other property shall be the sole responsibility and expense of Tenant.
5. No furniture, packages, supplies, equipment or merchandise will
be received in the Building or carried up or down in the elevators, except
between such hours, in such specific elevator and by such personnel as shall be
designated by Landlord.
6. The requirements of Tenant will be attended to only upon
application at the management office for the Project or at such office location
designated by Landlord. Employees
EXHIBIT D
Page 1
64
of Landlord shall not perform any work or do anything outside their regular
duties unless under special instructions from Landlord.
7. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by Tenant on any part of the Premises or the
Building without the prior written consent of the Landlord. Tenant shall not
disturb, solicit, peddle, or canvass any occupant of the Project and shall
cooperate with Landlord and its agents of Landlord to prevent same.
8. The toilet rooms, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed, and
no foreign substance of any kind whatsoever shall be thrown therein. The expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose servants, employees, agents, visitors
or licensees shall have caused same.
9. Tenant shall not overload the floor of the Premises, nor ▇▇▇▇,
drive nails or screws, or drill into the partitions, woodwork or drywall or in
any way deface the Premises or any part thereof without Landlord's prior written
consent.
10. Except for vending machines intended for the sole use of
Tenant's employees and invitees, no vending machine or machines other than
fractional horsepower office machines shall be installed, maintained or operated
upon the Premises without the written consent of Landlord.
11. Tenant shall not use or keep in or on the Premises, the
Building, or the Project any kerosene, gasoline, explosive material, corrosive
material, material capable of emitting toxic fumes, or other inflammable or
combustible fluid chemical, substitute or material (other than the dry cell
batteries used in connection with Tenant's switching equipment). Tenant shall
provide material safety data sheets for any Hazardous Material used or kept on
the Premises.
12. Tenant shall not use, keep or permit to be used or kept, any
foul or noxious gas or substance in or on the Premises, or permit or allow the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Project by reason of noise, odors, or
vibrations, or interfere with other tenants or those having business therein,
whether by the use of any musical instrument, radio, phonograph, or in any other
way. Tenant shall not throw anything out of doors, windows or skylights or down
passageways.
13. Tenant shall not bring into or keep within the Project, the
Building or the Premises any animals, birds, aquariums, or, except in areas
designated by Landlord, bicycles or other vehicles.
14. No cooking shall be done or permitted on the Premises, nor shall
the Premises be used for the storage of merchandise, for lodging or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors, provided that such use is in accordance
with all applicable federal, state, county and city laws, codes, ordinances,
rules and regulations.
15. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
the Premises provided for in the Summary. Tenant shall not occupy or permit any
portion of the Premises to be occupied as an office for a messenger-type
operation or dispatch office, public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco in any form, or as a
medical office, or as a ▇▇▇▇▇▇ or manicure shop, or as an employment bureau
without the express prior written consent of Landlord. Tenant shall not engage
or pay any employees on the Premises except those actually working for such
tenant on the Premises nor advertise for laborers giving an address at the
Premises.
16. Landlord reserves the right to exclude or expel from the Project
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of these Rules and Regulations.
EXHIBIT D
Page 2
65
17. Tenant, its employees and agents shall not loiter in or on the
entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators,
vestibules or any Common Areas for the purpose of smoking tobacco products or
for any other purpose, nor in any way obstruct such areas, and shall use them
only as a means of ingress and egress for the Premises.
18. Tenant shall use reasonable best efforts to participate in
recycling programs undertaken by Landlord.
19. Tenant shall store all its trash and garbage within the interior
of the Premises. No material shall be placed in the trash boxes or receptacles
if such material is of such nature that it may not be disposed of in the
ordinary and customary manner of removing and disposing of trash and garbage in
Dallas, Texas without violation of any law or ordinance governing such disposal.
All trash, garbage and refuse disposal shall be made only through entry-ways and
elevators provided for such purposes at such times as Landlord shall designate.
If the Premises is or becomes infested with vermin as a result of the use or any
misuse or neglect of the Premises by Tenant, its agents, servants, employees,
contractors, visitors or licensees, Tenant shall forthwith, at Tenant's expense,
cause the Premises to be exterminated from time to time to the satisfaction of
Landlord and shall employ such licensed exterminators as shall be approved in
writing in advance by Landlord.
20. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
21. Any persons employed by Tenant to do janitorial work shall be
subject to the prior written approval of Landlord, and while in the Building and
outside of the Premises, shall be subject to and under the control and direction
of the Building manager (but not as an agent or servant of such manager or of
Landlord), and Tenant shall be responsible for all acts of such persons.
22. No awnings or other projection shall be attached to the outside
walls of the Building without the prior written consent of Landlord, and no
curtains, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises other than Landlord standard
drapes. All electrical ceiling fixtures hung in the Premises or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and a warm white bulb color approved in advance in writing by Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the prior written consent of Landlord. Tenant shall be
responsible for any damage to the window film on the exterior windows of the
Premises and shall promptly repair any such damage at Tenant's sole cost and
expense. Tenant shall keep its window coverings closed during any period of the
day when the sun is shining directly on the windows of the Premises. Prior to
leaving the Premises for the day, Tenant shall draw or lower window coverings
and extinguish all lights. Tenant shall abide by Landlord's regulations
concerning the opening and closing of window coverings which are attached to the
windows in the Premises, if any, which have a view of any interior portion of
the Building or Building Common Areas.
23. The sashes, sash doors, skylights, windows, and doors that
reflect or admit light and air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant, nor shall
any bottles, parcels or other articles be placed on the windowsills.
24. Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.
25. Intentionally Deleted.
26. Tenant hereby acknowledges that Landlord shall have no
obligation to provide guard service or other security measures for the benefit
of the Premises, the Building or the Project. Tenant hereby assumes all
responsibility for the protection of Tenant and its agents, employees,
contractors, invitees and guests, and the property thereof, from acts of third
parties, including keeping doors locked and other means of entry to the Premises
closed, whether or not Landlord, at its option, elects to provide security
protection for the Project or any portion thereof. Tenant further assumes the
risk that any safety and security devices, services and programs
EXHIBIT D
Page 3
66
which Landlord elects, in its sole discretion, to provide may not be effective,
or may malfunction or be circumvented by an unauthorized third party, and Tenant
shall, in addition to its other insurance obligations under this Lease, obtain
its own insurance coverage to the extent Tenant desires protection against
losses related to such occurrences. Tenant shall cooperate in any reasonable
safety or security program developed by Landlord or required by law.
27. All office equipment of any electrical or mechanical nature
shall be placed by Tenant in the Premises in settings approved by Landlord, to
absorb or prevent any vibration, noise and annoyance.
28. Tenant shall not use in any space or in the public halls of the
Building, any hand trucks except those equipped with rubber tires and rubber
side guards.
29. No auction, liquidation, fire sale, going-out-of-business or
bankruptcy sale shall be conducted in the Premises without the prior written
consent of Landlord.
30. No tenant shall use or permit the use of any portion of the
Premises for living quarters, sleeping apartments or lodging rooms.
31. Tenant shall not purchase spring water, towels, janitorial or
maintenance or other similar services from any company or persons not approved
by Landlord. Landlord shall approve a sufficient number of sources of such
services to provide Tenant with a reasonable selection, but only in such
instances and to such extent as Landlord in its judgment shall consider
consistent with the security and proper operation of the Building.
32. Tenant shall install and maintain, at Tenant's sole cost and
expense, an adequate, visibly marked and properly operational fire extinguisher
next to any duplicating or photocopying machines or similar heat producing
equipment, which may or may not contain combustible material, in the Premises.
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Premises,
Building, the Common Areas and the Project, and for the preservation of good
order therein, as well as for the convenience of other occupants and tenants
therein. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenants, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules or
Regulations against any or all tenants of the Project. Tenant shall be deemed to
have read these Rules and Regulations and to have agreed to abide by them as a
condition of its occupancy of the Premises.
EXHIBIT D
Page 4
67
EXHIBIT E
CARRIER CENTER DALLAS
FORM OF TENANT'S ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Office Lease (the "Lease")
made and entered into as of ________, 199__ by and between Dallas Carrier
Associates, Ltd., a Texas limited partnership as Landlord, and the undersigned
as Tenant, for Premises on the ________________ floor(s) of the office building
located at _________________, Dallas, Texas _____________, certifies as follows:
1. Attached hereto as EXHIBIT A is a true and correct copy of the
Lease and all amendments and modifications thereto. The documents contained in
EXHIBIT A represent the entire agreement between the parties as to the Premises
and the project of which the Premises are a part.
2. The undersigned currently occupies the Premises described in the
Lease, the Lease Term commenced on ___________, and the Lease Term expires on
___________, and the undersigned has no option to terminate or cancel the Lease
or to purchase all or any part of the Premises, the Building and/or the Project.
3. Base Rent became payable on ____________.
4. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in EXHIBIT A.
5. Tenant has not transferred, assigned, or sublet any portion of
the Premises nor entered into any license or concession agreements with respect
thereto except as follows:
6. Tenant shall not modify the documents contained in EXHIBIT A
without the prior written consent of Landlord's mortgagee.
7. All monthly installments of Base Rent, all Additional Rent and
all monthly installments of estimated Additional Rent have been paid when due
through _________. The current monthly installment of Base Rent is
$____________________.
8. To Tenant's knowledge, all conditions of the Lease to be
performed by Landlord necessary to the enforceability of the Lease have been
satisfied and Landlord is not in default thereunder. In addition, the
undersigned has not delivered any notice to Landlord regarding a default by
Landlord thereunder.
9. No rental has been paid more than thirty (30) days in advance
and no security has been deposited with Landlord except as provided in the
Lease.
10. As of the date hereof, there are no existing defenses or
offsets, to the undersigned's knowledge, claims or any basis for a claim, that
the undersigned has against Landlord.
11. If Tenant is a corporation or partnership, each individual
executing this Estoppel Certificate on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in Texas and that Tenant has full right and authority to execute and
deliver this Estoppel Certificate and that each person signing on behalf of
Tenant is authorized to do so.
12. There are no actions pending against the undersigned or any
guarantor of the Lease under the bankruptcy or similar laws of the United States
or any state.
13. Other than in compliance with all applicable laws and incidental
to the ordinary course of the use of the Premises, the undersigned has not used
or stored any hazardous substances in the Premises.
EXHIBIT E
Page 1
68
14. To the undersigned's knowledge, all tenant improvement work to
be performed by Landlord under the Lease has been completed in accordance with
the Lease and has been accepted by the undersigned and all reimbursements and
allowances due to the undersigned under the Lease in connection with any tenant
improvement work have been paid in full.
The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord or to a prospective mortgagee or prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making such loan or acquiring such property.
Executed at _______________ on the _____ day of __________, 19__.
"Tenant"
___________________________, a
___________________________
By: /s/ Signature Illegible
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Chief Operating Officer
---------------------------------
EXHIBIT E
Page 2
69
EXHIBIT F
CARRIER CENTER DALLAS
ANTENNA SPACE RIDER
1. Lease of Antenna Space. Tenant shall have a license to install
on the top roof of the Building (a) one telecommunications microwave line of
sight antenna as more particularly described below in this section (the
Antenna); and (b) one 2-inch conduit to connect such Antenna to the Premises
(the "Antenna Conduit"). The Antenna to be installed by Tenant under this Rider
shall be in the following sizes and quantities indicated:
x less than or equal to 2' diameter antennas
_____ 2' to 5' diameter antennas
The space to be occupied by the Antenna and its exact location on the
top roof of the Building shall be designated by Landlord in its sole, reasonable
discretion and is hereby referred to as the "Antenna Space." The exact location
of the Antenna Conduit and its precise route running from the Antenna Space to
the Premises shall be designated by Landlord in its sole, reasonable discretion.
The space within the Antenna Conduit is hereby referred to as the "Antenna
Conduit Space." Effective as of the date Landlord tenders possession of the
Antenna Space and the Antenna Conduit Space to Tenant (the "Antenna Space
Effective Date"), the Premises shall be expanded to include the Antenna Space
and the Antenna Conduit Space.
2. Use of Antenna Space and Antenna Conduit Space. The Antenna
Space shall be used by Tenant only for the installation and operation of the
Antenna. The Antenna Conduit Space shall be used by Tenant only for installing
the Antenna Conduit and running cable or connecting lines through the Antenna
Conduit to connect the Antenna to the Premises.
The installation of the Antenna, the Antenna Conduit, and cable and
connecting lines through the Antenna Conduit shall be performed by contractors
approved by Landlord in advance in writing, as described in more detail below.
Tenant shall pay all costs for such installation, including the cost of the
equipment and materials.
Landlord may elect to let the contract for such work itself, in which
event Tenant shall, within 15 days after written demand from Landlord, pay to
Landlord all amounts expended by Landlord for the installation of the Antenna
and the Antenna Conduit. Landlord may ▇▇▇▇ and collect such amounts, as
estimated by Landlord in good faith, from Tenant in advance as a condition to
proceeding with the work. In such event, Tenant shall pay Landlord such amounts
within 15 days after Tenant's receipt of Landlord's good faith estimate of the
cost of such work. If the actual cost of the work is different from Landlord's
good faith estimate, Tenant shall pay Landlord any additional cost, or Landlord
shall refund to Tenant the amount of any excess payment, as the case may be,
promptly following completion of the work and Landlord's receipt of all invoices
for the work.
All ongoing operation and maintenance of the Antenna and the Antenna
Conduit shall be at the sole cost and expense of Tenant (including, but not
limited to, costs of any electrical supply, which, if Landlord so elects, shall
be metered separately to Tenant at Tenant's expense). Such ongoing operation and
maintenance of the Antenna and the Antenna Conduit shall be conducted by Tenant
in accordance with the Lease, all applicable laws (including but not limited to
any requirements for obtaining conditional use permits) and all Landlord's
building rules in effect from time to time. Without limiting the foregoing, any
installation activities by Tenant regarding the Antenna or the Antenna Conduit,
and Tenant's ongoing use of the Antenna and the Antenna Conduit, shall require
Landlord's prior written approval of (i) the plans and specifications for any
installation work; (ii) a description of the areas of the Building to which
Tenant will require access both for the initial work and for ongoing maintenance
of the improvements or installations; (iii) the names and credentials of all
contractors and
70
subcontractors who will perform such work as selected from Landlord's list of
contractors and subcontractors currently approved by Landlord for work in the
Building; (iv) copies of all liability, casualty and worker's compensation
insurance applicable, to the construction, maintenance and ongoing operation of
the improvements and installations; and (v) copies of all governmental permits
(including conditional use permits) required for the work. Landlord's approval
shall not be unreasonably withheld or delayed.
To avoid interference with frequencies used by other tenants of the
Building or those in nearby buildings, Tenant and the respective Customer shall
deliver to Landlord prior to the installation of any equipment or the use
thereof in the Building, a copy of the FCC (or other agency) grant that awards
frequencies to Tenant or to its respective Customer plus a list of its
Customers' frequencies. Neither Tenant nor any of its Customers may change its
or their respective frequencies without Landlord's prior written consent, which
consent shall not be unreasonably withheld, provided, however, that withholding
consent because of the use of another tenant of a frequency that may be
interfered with by a change in frequency by Tenant or its respective Customers
shall not be deemed unreasonable. Given that Landlord does not have any
expertise in the determination of frequency interference, Landlord will use only
its reasonable efforts to prevent frequency interference by existing or future
tenants of the Building and has no obligation to perform any investigations of
any such interference. Landlord agrees to give Tenant, prior to the Lease
Commencement Date, a written list of the frequencies used by those parties using
the roof of the Building for telecommunications purposes as of such date,
provided, however, that Landlord specifically disclaims any warranty or
representation of the accuracy or completeness of any such list. Tenant and/or
its Customers shall perform any investigations of possible frequency
interference required hereunder at Tenant's and its Customers sole cost and
expense. Tenant represents and warrants to Landlord on behalf of Tenant and all
of its Customers that Tenant's or its Customers' use of the Tenant's or its
Customers' current frequencies shall not interfere with the frequencies of any
such existing tenant. Landlord agrees to allocate to the extent it may lawfully
do so, all future frequency wave bands using the Building's roof, on a first
come, first served basis.
In the event that the Antenna does interfere with such operation,
transmissions or reception, then (without limiting any other remedy of Landlord)
Tenant shall, promptly after written notice from Landlord, use commercially
reasonable efforts to curtail such interference.
3. Removal of Antenna, Cable and Connecting Lines. Tenant agrees
that, upon the expiration or termination of the Lease, Tenant (or, at Landlord's
election, the contractor designated by Landlord) shall promptly remove, at
Tenant's sole cost and expense, the Antenna and all cable, connecting lines, and
other installations installed under this Rider (excepting the Antenna Conduit
itself, which shall remain the property of Landlord), and restore those portions
of the Building damaged by such removal to their condition immediately prior to
the installation of such items. If Tenant fails to promptly remove all such
items pursuant to this Section 3, or if Landlord elects to have such work
performed by Landlord's contractor, Landlord may remove such items installed
hereunder, and restore those portions of the Building damaged by such removal to
their condition immediately prior to the installation, in which case Tenant
agrees promptly to pay Landlord's reasonable costs of removal and restoration,
including Landlord's administrative fee.
4. Miscellaneous. This Rider supersedes all prior or
contemporaneous understandings, negotiations or agreements between the parties,
whether written or oral, with respect to its subject matter. This Rider is part
of and shall be attached as an addendum to the Lease. All terms of the Lease
which have not been expressly altered by this Rider shall remain in full force
and effect.
71
IN WITNESS WHEREOF, Landlord and Tenant have caused this Rider to be
executed of even date with the Lease to which this Rider is attached as Exhibit
F.
"Landlord": "Tenant"
DALLAS CARRIER ASSOCIATES, Ltd., UNIVERSAL ACCESS, an Illinois
a Texas limited partnership corporation
By: Dallas Center, Inc., a Texas By: /s/ Signature Illegible
corporation;
Its: Sole Managing Partner Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Chief Operating Officer
---------------------------
By: /s/ Signature Illegible
▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President