DAL02:136713.10
TABLE OF CONTENTS
Basic Lease Information
Page
Lease Date iii
Tenant iii
Tenant's Address iii
Tenant's Contact iii
Landlord iii
▇▇▇▇▇▇▇▇'s Address iii
Landlord's Contact iii
Premises iii
Term iii
Basic Rental iii
Security Deposit iii
Rent iii
Permitted Use iii
Tenant's Proportionate Share iii
Construction Allowance iv
Comparable Buildings iv
Lease Agreement
Definitions and Basic Provisions 1
Lease Grant 1
Term 1
Rent 1
Security Deposit 2
Landlord's Obligations 2
Improvements; Alterations; Repairs; Maintenance 4
Use 5
Assignment and Subletting 6
Insurance; Waivers; Subrogation; Indemnity 7
Subordination; Attornment; Notice to Landlord's Mortgagee 7
Rules and Regulations 8
Condemnation 8
Fire or Other Casualty 9
Events of Defaul 9
Remedies 10
Payment; Non-Waiver 11
Landlord's Lien 11
Surrender of Premises 12
Holding Over 12
Certain Rights Reserved by Landlord 12
Substitution Space 13
Miscellaneous 14
Exhibits
Exhibit A Outline of the Premises
Exhibit A-1 Legal Description of the Land
Exhibit B Building Rules and Regulations
Exhibit C Operating Expenses
Exhibit D Tenant Finish Work: Plans
Exhibit D-1 Plans/Specifications
Exhibit E Renewal Option
Exhibit F Parking
Exhibit G Janitorial Specifications
Exhibit H Signage Criteria
List of Defined Terms
Page
ADA 4
Annual Electrical Cost Statement 1
Annual Operating Statement Exh. C
Basic Cost Exh. C
Basic Lease Information 1
BOMA iii
Building iii
Building Systems 3
Casualty 9
Commencement Date iii, 1
Comparable Buildings iv
Construction Hard Costs Exh. D
Construction Allowance iv, Exh. D
Controllable Expenses Exh. C
Damage Notice 9
Electrical Costs 1
Event of Default 9
Excess Exh. C
Expense Stop Exh. C
Initial Liability Insurance Amount 7
Land iii
Landlord iii, 1
Landlord's Mortgagee 8
Lease 1
Loss 6
Mortgage 7
Park iii
Parking Area Exh. F
Permitted Transfer 6
Premises iii
Primary Lease 7
Project iii
Rentable Square Feet iii
Rentable Square Foot iii
Security Deposit iv, 2
Shell Construction Exh. D
Substantial Completion Exh. D
Substitution Effective Date 12
Substitution Notice 12
Substitution Space 12
Taking 8
Taxes 2, Exh. C
Tenant iii, 1
Total Construction Costs Exh. D
Total Rentable Square Feet iii
Total Rentable Square Foot iii
Transfer 6
Work Exh. D
Working Drawings Exh. D
BASIC LEASE INFORMATION
Lease Date: January________, 1999
Tenant: Ethos Communications Corp.
Tenant's Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
2200 Plano, Texas
75093
Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Landlord: CB Parkway Business Center II, Ltd., a Texas limited
partnership
Landlord's Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
Texas 75201
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Premises: Suite No.2200, in the office building (the "Building") located or to
be -------- located on the land described as International Business Park, Plano,
Collin County, Texas, and whose street address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as particularly described in Exhibit A-1 (the "Land"). The
---- Building and Land together comprise the "Project". The Premises are
outlined ------- on the plan attached to the Lease as Exhibit A and shall
contain approximately 3,349 square feet of rentable area ("Rentable Square Feet"
or singularly --------------------- "Rentable Square Foot"). The Building
contains approximately 117,654 of total --------------------- square feet of
rentable area ("Total Rentable Square Feet" or singularly
-------------------------- "Total Rentable Square Foot"). As soon as reasonably
practicable, the --------------------------- rentable area shall be calculated
and confirmed by ▇▇▇▇▇▇▇▇'s architect utilizing the American National Standard
Method for Measuring Floor Area in Office Buildings, ANSI Z65.1 - 1996, as
adopted by the Building Owners and Managers Association International ("BOMA")
and the actual Rentable Square Feet, Total Rentable Square Feet and Tenant's
Proportionate Share shall be adjusted as necessary based upon such calculations.
In the event of any adjustment to Rentable Square Feet, Total Rentable Square
Feet or Tenant's Proportionate Share, Landlord and Tenant shall execute an
amendment to the Lease confirming the adjusted Rentable Square Feet, Total
Rentable Square Feet and Tenant's Proportionate Share.
Term: Commencing March 15, 1999 (the "Commencement Date"), and ending at 5:00
p.m. ----------------- March 31, 2005, subject to earlier termination and
extension as provided in the Lease.
Basic Rental: Months Annual Rate per Basic Monthly Rental
------ --------------------
Rentable Square Foot
1-72 $21.00 $5,860.75
Security Deposit: $5,860.75 due upon execution of the Lease as referenced in
Section 5 of the Lease
Rent: Basic Rental, Tenant's share of Electrical Costs, Excess (if any), and all
other sums that Tenant may owe to Landlord under the Lease.
Permitted Use: General office use.
Tenant's 2.84648% (which is the percentage obtained by dividing the Rentable
Proportionate Share: Square Feet by the Total Rentable Square Feet; Tenant's
Proportionate Share is subject to adjustment upon confirmation of the Rentable
Square Feet and Total Rentable Square Feet as provided above)
Construction Allowance: Turn key per plans attached as Exhibit "D-1"
Comparable Buildings: As used herein or in the Lease,
the term "Comparable Buildings" shall mean
those low-rise garden style, multi-tenant,
commercial office buildings completed on or
after January 1, 1997, which are comparable
to the Building in size, design, quality,
use, and tenant mix, and which are located
in the same market area (i.e., Plano area
North of Frankford, East of I-▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ and South of State Hwy. 121).
The foregoing Basic Lease Information is incorporated into and made a part of
the related lease (the "Lease"). If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
CB PARKWAY BUSINESS CENTER II, LTD.,
a Texas limited partnership
By: 14BCO, Inc., a Texas corporation, its
general partner
By:
Name:
Title:
TENANT:
ETHOS COMMUNICATIONS CORP.
By:
---
Name:
Title:
THIS LEASE AGREEMENT (this "Lease") is entered into as of January
_____, 1999 between ----- CB PARKWAY BUSINESS CENTER II, LTD., a Texas
limited partnership ("Landlord"), and Ethos -------- Communications Corp.
("Tenant"). ------
DEFINITIONS 1. The definitions and basic provisions set forth in the Basic Lease
Information AND BASIC (the "Basic Lease Information") executed by Landlord and
Tenant contemporaneously
-----------------------
PROVISIONS herewith are incorporated herein by reference for all purposes. To
the extent of any conflict between the Basic Lease Information and any provision
contained in this Lease, this Lease shall control.
LEASE GRANT 2. Subject to the terms of this Lease, Landlord leases to Tenant,
and Tenant leases from Landlord, the Premises.
TERM 3. The Term shall commence March 15, 1999 (the "Commencement Date"), and
end at ----------------- 5:00 p.m. March 31, 2005 subject to adjustment due to
delays caused by Landlord as provided in Exhibit D or renewal as provided in
Exhibit E. Landlord shall deliver possession of the Premises to Tenant upon
execution hereof. By occupying the Premises, Tenant shall be deemed to have
accepted the Premises in their condition as of the date of such occupancy,
subject to Landlord's completion of any related punch-list items. Tenant shall
execute and deliver to Landlord, within ten (10) days after ▇▇▇▇▇▇▇▇ has
requested same, a letter confirming (1) the Commencement Date, (2) that Tenant
has accepted the Premises, and (3) that ▇▇▇▇▇▇▇▇ has performed all of its
obligations with respect to the Premises.
RENT 4. (a) Payment. Tenant shall timely pay to Landlord the Rent -------------
without deduction or set off (except as otherwise expressly provided herein), at
Landlord's Address (or such other address as Landlord may from time to time
designate in writing to Tenant). Basic Rental, adjusted as herein provided,
shall be payable monthly in advance. The first full monthly installment of Basic
Rental shall be payable contemporaneously with the execution of this Lease;
thereafter, monthly installments of Basic Rental shall be due on the first day
of each succeeding calendar month during the Term. Basic Rental for any partial
month at the beginning or end of the Term shall be prorated based upon the
number of days within the Term during the partial month multiplied by 1/365 of
the then current annual Basic Rental and shall be due on or before the fifth day
immediately preceding the Commencement Date, or first day of the last calendar
month of the Term, as applicable.
(b) Electrical Costs. Tenant shall pay to
Landlord an amount equal to the product of (1) the cost of all
electricity used by the Project ("Electrical Costs"),
multiplied by (2) Tenant's Proportionate Share. Such amount
shall be payable monthly based on Landlord's reasonable
estimate of the amount due for each month, and shall be due on
the Commencement Date and on the first day of each calendar
month thereafter.
(c) Annual Electrical Cost Statement. By
April 1 of each calendar year, or as soon thereafter as
practicable, Landlord shall furnish to Tenant a statement of
Landlord's actual Electrical Costs (the "Annual Electrical
Cost Statement") for the previous year adjusted as provided in
Section 4.(d), which shall include a reconciliation of the
actual amount Tenant owes for its share of Electrical Costs
against the estimated amount collected from Tenant. If such
reconciliation shows that Tenant paid more than owed, then
Landlord shall reimburse Tenant by check or cash for such
excess within thirty (30) days after delivery of the Annual
Electrical Cost Statement; conversely, if Tenant paid less
than it owed, then Tenant shall pay Landlord such deficiency
within thirty (30) days after delivery of the Annual
Electrical Cost Statement.
(d) Adjustments to Electrical Costs. With
respect to any calendar year or partial calendar year in which
the Building is not occupied to the extent of 95% of the
rentable area thereof, the Electrical Costs for such period
shall, for the purposes hereof, be increased to the amount
which would have been incurred had the Building been occupied
to the extent of 95% of the rentable area thereof.
(e) Delinquent Payment. If any payment required by Tenant under
------------------
this Lease is not paid when due, Landlord may charge Tenant a
fee equal to 5% of the delinquent payment to reimburse
Landlord for its cost and inconvenience incurred as a
consequence of Tenant's delinquency. In no event shall the
charges permitted under this section 4(e) or elsewhere in this
Lease, to the extent the same are considered to be interest
under applicable law, exceed the maximum lawful rate of
interest.
(f) Taxes. Tenant shall be liable for all
taxes levied or assessed against personal property, furniture,
or fixtures placed by Tenant in the Premises. If any taxes for
which Tenant is liable are levied or assessed against Landlord
or Landlord's property and Landlord elects to pay the same, or
if the assessed value of Landlord's property is increased by
inclusion of such personal property, furniture or fixtures and
Landlord elects to pay the taxes based on such increase, then
Tenant shall pay to Landlord, within ten (10) days of demand,
that part of such taxes for which Tenant is primarily liable.
(g) Excess. Tenant shall pay the Excess in the Basic Cost over
------
the Expense Stop as such terms are defined in Exhibit C.
SECURITY 5. Contemporaneously with the execution of this Lease, Tenant shall pay
to DEPOSIT Landlord, in immediately available funds, the Security Deposit, which
shall be held by Landlord without liability for interest and as security for
performance by Tenant of its obligations under this Lease. The Security Deposit
is not an advance payment of Rent or a measure or limit of Landlord's damages
upon an Event of Default (defined below). Landlord may, from time to time upon
notice to Tenant and without prejudice to any other remedy, use all or a part of
the Security Deposit to perform any obligation which ▇▇▇▇▇▇ was obligated, but
failed to perform hereunder. Following any such application of the Security
Deposit, Tenant shall pay to Landlord on demand the amount so applied in order
to restore the Security Deposit to its original amount. Within a reasonable time
after the expiration of the Term, as may have been extended, provided ▇▇▇▇▇▇ has
performed all of its obligations hereunder, Landlord shall return to Tenant the
balance of the Security Deposit not applied to satisfy Tenant's obligations. If
Landlord transfers its interest in the Premises, then Landlord may assign the
Security Deposit to the transferee and Landlord thereafter shall have no further
liability for the return of the Security Deposit.
LANDLORD'S 6. (a) Services; Maintenance. Landlord shall furnish to Tenant (1)
water
---------------------
OBLIGATIONS (hot and cold) at those points of supply provided for general use of
tenants of the Building; (2) heated and refrigerated air conditioning from 7
a.m. to 7 p.m. Monday through Friday and 7 a.m. to 1 p.m. on Saturday (except
for New Years Day. Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and the Friday following Thanksgiving Day and Christmas Day which days shall be
collectively referred to herein as Holidays) sufficient to maintain temperatures
during these hours in the range of from 70 degrees Fahrenheit to 78 degrees
Fahrenheit; (3) janitorial service to the Premises on weekdays other than
holidays (Landlord reserves the right to bill Tenant separately for extra
janitorial service required for any special improvements installed by or at the
request of Tenant) such janitorial services to be generally in accordance with
those services described on Exhibit G; (4) non-exclusive elevator for ingress
and egress to the floors on which the Premises are located; (5) replacement of
Building-standard light bulbs and fluorescent tubes, provided that Landlord's
standard charge for such bulbs and tubes shall be paid by Tenant; and (6)
electrical current (subject to Tenant's obligation to pay its share of
Electrical Costs as provided herein). If Tenant desires heat and air
conditioning at any time other than times herein designated, such services shall
be supplied to Tenant upon reasonable advance notice and Tenant shall pay to
Landlord $40.00 per hour (minimum two hours) for each additional hour (prorated
and rounded up to the nearest quarter hour) such services are provided, such
amount being payable within ten (10) days of receipt of an invoice therefor.
Landlord's obligation to furnish services under this Section shall be subject to
the rules, regulations and other conditions or requirements of the supplier of
such services
and any applicable governmental entity or agency.
(b) Maintenance. Landlord shall maintain all Shell Construction items,
-----------
Building Systems (defined below), and Building common areas including all
parking areas and landscaping, in good order and condition as customary for
Comparable Buildings. "Building Systems" shall include all electrical, plumbing,
and air conditioning systems within the Building which either were included in
the Shell Construction or which were installed by Tenant pursuant to this Lease
and which meet the following requirements: (i) properly approved by Landlord;
(ii) installed in conformance with all plans and specifications as approved by
Landlord; (iii) Tenant shall have informed Landlord in writing of the name,
address, phone number and contact person of the contractor responsible for the
installation of such system; (iv) Tenant shall have assigned in writing all
contractor's and manufacturer's warranties received by Tenant in connection with
such system; and (v) in connection with ▇▇▇▇▇▇'s contracting for the
installation thereof, Landlord shall have been expressly named as a third party
beneficiary to, and shall have been provided copies of, such contract and any
related warranties. Notwithstanding the foregoing, "Building Systems" shall not
include any improvements made to or within the Premises which differ from the
base building systems or are otherwise specialized to Tenant's use and occupancy
of the Premises and not customary for office tenants in Comparable Buildings.
(c) Excess Electrical Use. Landlord shall use reasonable
---------------------
efforts to furnish electrical current for computers,
electronic data processing equipment, special lighting, or
other equipment that requires more than 120 volts, or other
equipment whose electrical energy consumption exceeds normal
office usage, through any existing feeders and risers serving
the Building and the Premises. Tenant shall not install any
electrical equipment requiring special wiring or requiring
voltage in excess of 120 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. The use of
electricity in the Premises shall not exceed the capacity of
existing feeders and risers to or wiring in the Premises. Any
risers or wiring required to meet Tenant's excess electrical
requirements shall, upon ▇▇▇▇▇▇'s request, be installed by
Landlord (unless otherwise agreed by Landlord) at Tenant's
expense, if, in Landlord's sole and absolute judgment, the
same are necessary and shall not cause permanent damage or
injury to the Building or the Premises, cause or create a
dangerous or hazardous condition, entail excessive or
unreasonable alterations, repairs, or expenses, or interfere
with or disturb other tenants of the Building. If Tenant uses
machines or equipment (other than general office machines,
excluding computers and electronic data processing equipment)
in the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air
conditioning units or other supplemental equipment in the
Premises, and the cost thereof, including the cost of
installation, operation, use, and maintenance, shall be paid
by Tenant to Landlord within ten (10) days after Landlord has
delivered to Tenant an invoice therefor. At the time of
Tenant's submission of plans and specifications for Landlord's
approval pursuant to Section 7 herein or Exhibit D to this
Lease, Landlord and Tenant shall cooperate in good faith to
identify any fixtures, equipment and/or appliances to be
installed or placed in the Premises which fixtures, equipment
or appliances would exceed the normal and customary electrical
use and consumption of typical office tenants in Comparable
Buildings, would affect the temperature otherwise maintained
by the air conditioning system, or would require electric
capacity in excess of any planned or existing feeders, risers,
or wiring to the Premises. Landlord shall install as part of
the original Tenant Improvements described in Exhibit "D" a
separate meter for the supplemental air conditioning unit in
Tenant's computer room.
(d) Restoration of Services; Abatement.
Landlord shall use reasonable efforts to restore any service
that becomes unavailable; however, such unavailability shall
not render Landlord liable for any damages caused thereby, be
a constructive eviction of Tenant, constitute a breach of any
implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of ▇▇▇▇▇▇'s obligations
hereunder. However, if Tenant is prevented from making
reasonable use of all or a portion of the Premises for more
than thirty (30) consecutive days because of the
unavailability of any such service, Tenant shall, as its
exclusive remedy therefor, be entitled to abatement of Rent,
or the pro rata portion thereof equivalent to the portion of
the Premises rendered unusable to the entire Premises, for
each consecutive day (after such thirty (30) day period) that
Tenant is so prevented from making reasonable use of the
Premises or the applicable portion thereof.
(e) Access. Subject to any Building rules
and regulations, necessary repairs and maintenance, and any
events beyond Landlord's reasonable control which would
prevent access, Tenant shall have access to the Premises
twenty-four (24) hours a day, seven (7) days a week. The
Building shall include twenty-four (24) hour access by
security card which cards shall be provided to Tenant upon
payment of a $10 refundable deposit per card.
IMPROVEMENTS; 7. (a) Improvements; Alterations. No improvements or alterations
in or ------------------------- ALTERATIONS; upon the Premises, including not by
limitation paint, wall coverings, floor coverings, light REPAIRS ; fixtures,
window treatments, signs, advertising, or promotional lettering or other media,
shall MAINTENANCE be installed or made by Tenant except in accordance with plans
and specifications which have been previously submitted to and approved in
writing by Landlord, which approval shall not be unreasonably withheld or
delayed except that Landlord may withhold approval of any improvements or
alterations which it determines, in its sole opinion, will materially and
adversely affect any structural or aesthetic (only to the extent visible from
outside the Premises or common areas) aspect of the Building or Building
Systems. All improvements and alterations (whether temporary or permanent in
character) made in or upon the Premises, either by Landlord or Tenant, shall (i)
comply with all applicable laws, ordinances, rules and regulations, and (ii) be
Landlord's property at the end of the Term and shall remain on the Premises
without compensation to Tenant unless prior to installation, Tenant provides
Landlord with written notice of all items which may be removed by Tenant and
Landlord consents to such removal in advance. Such consent shall not be
unreasonably withheld provided Landlord may condition such consent as it deems
reasonably necessary including not by limitation requiring Tenant to replace any
items upon removal with similar items comparable to any such items in the
Building or, if not applicable, then Comparable Buildings. Approval by Landlord
of any of Tenant's drawings and plans and specifications prepared in connection
with any improvements in the Premises shall not constitute a representation or
warranty of Landlord as to the adequacy or sufficiency of such drawings, plans
and specifications, or the improvements to which they relate, for any use,
purpose, or condition, but such approval shall merely be the consent of Landlord
as required hereunder. Landlord warrants and agrees that it shall complete the
Building Shell Construction in compliance with all then applicable governmental
laws, rules and regulations, including not by limitation the Americans with
Disabilities Act of 1990 ("ADA"). Thereafter, notwithstanding --- anything in
this Lease to the contrary, Tenant shall be responsible for all costs incurred
to cause the Premises to comply with any such laws, rules or regulations,
including not by limitation the retrofit requirements of ADA, as may be amended.
(b) Tenant Repairs; Maintenance. Except for
those janitorial services to be provided by Landlord as
expressly provided in this Lease, Tenant shall maintain its
personal property and all improvements or alterations to the
Premises other than those items included in Shell Construction
(which shall be maintained by Landlord) in a clean, safe,
operable, attractive condition, and shall not permit or allow
to remain any waste or damage to any portion of the Premises.
Tenant shall repair or replace, subject to Landlord's
direction and supervision, any damage to the Project caused by
Tenant or Tenant's agents, contractors, or invitees. If Tenant
fails to make such repairs or replacements within fifteen (15)
days after the occurrence of such damage, then Landlord, upon
written notice to Tenant, may make the same at Tenant's
expense, which shall be payable to Landlord within ten (10)
days after Landlord has delivered to Tenant an invoice
therefor.
(c) Performance of Work. All work described
in this Section 7 shall be performed only by Landlord or by
contractors and subcontractors approved in writing by
Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage
against such risks, in such amounts, and with such companies
as Landlord may reasonably require. All such work shall be
performed in accordance with all legal requirements and in a
good and workmanlike manner so as not to damage the Premises,
the structure of the Building, or plumbing, electrical lines,
or other utility transmission facilities or Building
mechanical systems. All such work which may affect the
Building's electrical, mechanical, plumbing or other systems
must be approved by the Building's engineer of record.
(d) ▇▇▇▇▇▇▇▇'s Liens. Tenant shall not
permit any mechanic's liens to be filed against the Project
for any work performed, materials furnished, or obligation
incurred by or at the request of Tenant. If such a lien is
filed, then Tenant shall, within thirty (30) days after
Landlord has delivered notice of the filing to Tenant, either
pay the amount of the lien or diligently contest such lien and
deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant fails to timely take
either such action, then Landlord may pay the lien claim
without inquiry as to the validity thereof, and any amounts so
paid, including expenses and interest, shall be paid by Tenant
to Landlord within ten (10) days after Landlord has delivered
to Tenant an invoice therefor.
USE 8. Tenant shall occupy and use the Premises only for the Permitted Use and
shall comply with all laws, orders, rules, and regulations relating to the use,
condition, and occupancy of the Premises. The Premises shall not be used for (i)
any use which is disreputable, (ii) creates extraordinary fire hazards, (iii)
results in an increased rate of insurance on the Building or its contents, or
(iv) the storage of any hazardous materials or substances. If, because of
Tenant's acts, the rate of insurance on the Building or its contents increases,
Tenant shall pay to Landlord the amount of such increase on demand, and
acceptance of such payment shall not constitute a waiver of any of Landlord's
other rights. Tenant shall conduct its business and control its agents,
employees, and invitees in such a manner as not to create any nuisance or
interfere with other tenants or Landlord in its management of the Project.
ASSIGNMENT 9. (a) Transfers; Consent. Other than permitted transfers as
described
------------------
AND SUBLETTING below, Tenant shall not, without the prior written consent of
Landlord, (1) advertise that any portion of the Premises is available for lease,
(2) assign,
transfer, or encumber this Lease or any estate or interest
herein whether directly or by operation of law, (3) if Tenant
is an entity other than a corporation whose stock is publicly
traded, permit the transfer of an ownership interest in Tenant
so as to result in a change in the current control of Tenant,
(4) sublet any portion of the Premises, (5) grant any license,
concession, or other right of occupancy of any portion of the
Premises, or (6) permit the use of the Premises by any parties
other than Tenant (any of the events listed in Sections
9.(a)(2) through 9.(a)(6) being a "Transfer"). If Tenant
requests ▇▇▇▇▇▇▇▇'s consent to a Transfer, then Tenant shall
provide Landlord with a written description of all terms and
conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the
proposed transferee: name and address; reasonably satisfactory
information about its business and business history; its
proposed use of the Premises; and general references
sufficient to enable Landlord to determine the proposed
transferee's reputation and character. ▇▇▇▇▇▇▇▇ shall respond
in writing to ▇▇▇▇▇▇'s request for a Transfer within ten (10)
business days of receipt of written request therefor. Tenant
shall reimburse Landlord for its attorneys' fees (not to
exceed $1,000 per request) and other expenses incurred in
connection with considering any request for its consent to a
Transfer. Landlord shall not unreasonably withhold, delay or
condition its consent except that Landlord may withhold or
condition its consent if it reasonably determines that the
proposed transferee or its use (including not by limitation
the number of employees, hours of operation, parking
requirements, electrical or other Building system
requirements, conflicts or competition with existing tenants)
is unacceptable, would burden the Building, or are
incompatible with the Building or its occupants. If Landlord
consents to a proposed Transfer, then the proposed transferee
shall deliver to Landlord a written agreement whereby it
expressly assumes the Tenant's obligations hereunder; however,
any transferee of less than all of the space in the Premises
shall be liable only for obligations under this Lease that are
properly allocable to the space subject to the Transfer, and
only to the extent of the rent it has agreed to pay Tenant
therefor. ▇▇▇▇▇▇▇▇'s consent to a Transfer shall not release
Tenant from performing its obligations under this Lease, but
rather Tenant and its transferee shall be jointly and
severally liable therefor. ▇▇▇▇▇▇▇▇'s consent to any Transfer
shall not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or
any part thereof are subject to a Transfer, then Landlord, in
addition to its other remedies, may collect directly from such
transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant authorizes its transferees to make
payments of rent directly to Landlord upon ▇▇▇▇▇▇'s receipt of
notice from Landlord to do so; however, Landlord shall not be
obligated to accept separate Rent payments from any
transferees and may require that all Rent be paid directly by
▇▇▇▇▇▇.
(i) Permitted Transfers. Tenant shall be permitted to
-------------------
periodically sublet portions of the Premises or to assign its
rights to any parent or wholly-owned subsidiary entity, any
organization resulting from a merger or a consolidation with
the Tenant, or any organization succeeding to the business
assets of the Tenant, provided the Premises continue to be
used solely for the Permitted Use, the business and parking
requirements of the subtenant or assignee are substantially
the same as Tenant and the net worth of the subtenant or
assignee is at least $100,000,000. Tenant shall promptly
notify Landlord in writing within ten (10) days after such
assignment or subletting.
(b) Additional Compensation. Tenant shall
pay to Landlord, immediately upon receipt thereof, all
compensation received by Tenant for a Transfer that exceeds
the Rent allocable to the portion of the Premises covered
thereby. Tenant shall hold such amounts in trust for Landlord
and pay them to Landlord within ten (10) days after receipt.
(c) Cancellation. Landlord may, within
twenty (20) days after submission of ▇▇▇▇▇▇'s written request
for ▇▇▇▇▇▇▇▇'s consent to a Transfer (excluding Permitted
Transfers), cancel this Lease (or, as to a subletting or
assignment, cancel as to the portion of the Premises proposed
to be sublet or assigned) as of the date the proposed Transfer
was to be effective. If Landlord cancels this Lease as to any
portion of the Premises, then this Lease shall cease for such
portion of the Premises and Tenant shall pay to Landlord all
Rent accrued through the cancellation date relating to the
portion of the Premises covered by the proposed Transfer, all
unamortized tenant improvements and unamortized brokerage
commissions (amortized on a straight-line basis over the
initial Term of the Lease) paid or payable by Landlord in
connection with this Lease to the brokerage firms listed in
Section 23. (d) that are allocable to such portion of the
Premises. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other
person) without liability to Tenant. In such event, prior to
the effective date of such termination, and subject to
Landlord's direction and supervision, Tenant shall be solely
responsible for the cost and construction of a wall demising
the remaining Premises from the portion of the Premises as to
which the Lease is terminated.
INSURANCE; 10. (a) Insurance. Tenant shall at its expense procure and maintain
WAIVERS; --------- throughout the Term the following insurance policies: (1)
comprehensive general liability SUBROGATION; insurance in amounts of not less
than a combined single limit of $2,000,000 (the INDEMNITY "Initial Liability
Insurance Amount") or such other amounts as Landlord may from time
----------------------------------- to time reasonably require, insuring Tenant,
Landlord, Landlord's agents, and their respective affiliates against all
liability for injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises, and (2) insurance covering
the full value of Tenant's property and improvements, and other property
(including property of others), in the Premises. Tenant's insurance shall
provide primary coverage to Landlord when any policy issued to Landlord provides
duplicate or similar coverage, and in such circumstance Landlord's policy will
be excess over Tenant's policy. Tenant shall furnish certificates of such
insurance and such other evidence satisfactory to Landlord of the maintenance of
all insurance coverage required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to notify Landlord at least
thirty (30) days before cancellation or a material change of any such insurance.
All such insurance policies shall be in form, and be issued by companies,
reasonably satisfactory to Landlord. The term "affiliate" shall mean any person
or entity which, directly or indirectly, controls, is controlled by, or is under
common control with the party in question.
(b) Waiver of Claims; No Subrogation. Neither
Landlord nor Tenant shall have any liability to the other for
any damage or injury to the property of Landlord or Tenant,
including the Building and Tenant Improvements in the
Premises, arising from or caused by any cause customarily
insured against under a standard fire and extended casualty
insurance policy, even if caused by the negligence of
Landlord, Tenant, or their shareholders, partners, officers,
or employees, and no insurer shall have any rights to
subrogation with respect to the foregoing. Landlord shall not
be liable or responsible to Tenant for any loss or damage to
any property or person occasioned by theft, fire, casualty,
vandalism, acts of God, public enemy, injunction, riot,
strike, inability to procure materials, insurrection, war,
court order, requisition or order of governmental body or
authority, or for any other causes beyond Landlord's control.
All goods, property or personal effects stored or placed by
Tenant in or about the Building or Premises shall be at the
sole risk of Tenant.
(c) Indemnity. Each party shall indemnify
and hold harmless the other from and against any and all
claims, demands, liabilities, causes of action, suits,
judgments, and expenses (including attorney's fees) arising
from and for injury to third persons or damage of property
owned by third persons and caused by the negligence or
intentional torts of the indemnifying party.
SUBORDINATION; 11. (a) Subordination. This Lease shall be subordinate to any
deed of trust, ------------- ATTORNMENT; mortgage, or other security instrument
(a "Mortgage"), or any ground lease, -------- master NOTICE TO lease, or primary
lease (a "Primary Lease"), that now or ------- ----- hereafter covers all or any
LANDLORD'S part of the Premises (the mortgagee under any Mortgage or the lessor
under any Primary MORTGAGEE Lease is referred to herein as "Landlord's
---------- Mortgagee"). Landlord shall use reasonable efforts to obtain from
--------- Landlord's Mortgagee, both existing and future, and deliver to Tenant
a non-disturbance agreement for the benefit of Tenant in a form reasonably
acceptable to Landlord, Landlord's Mortgagee, and Tenant.
(b) Attornment. Tenant shall attorn to any
party succeeding to Landlord's interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming
such attornment as such party may reasonably request.
(c) Notice to Landlord's Mortgagee. Tenant
shall not seek to enforce any remedy it may have for any
default on the part of the Landlord without first giving
written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's
Mortgagee whose address has been given to Tenant, and
affording such Landlord's Mortgagee a period to perform
Landlord's obligations hereunder, which period shall equal the
cure period applicable to Landlord hereunder.
RULES AND 12. Tenant shall comply with the rules and regulations of
the Building which are REGULATIONS attached hereto as Exhibit
B. Landlord may, from time to time, change such rules and
regulations for the safety, care, or cleanliness of the
Building and related facilities, provided that such changes
are applicable to all tenants of the Building and will not
unreasonably interfere with ▇▇▇▇▇▇'s use of the Premises.
Tenant shall be responsible for the compliance with such rules
and regulations by its employees, agents, and invitees.
CONDEMNATION 13. (a) Taking - Landlord's and ▇▇▇▇▇▇'s Rights. If any part of the
Project
---------------------------------------
(including parking) is taken by right of eminent domain for a period exceeding
ninety (90) days or conveyed in lieu thereof (a "Taking"), and such Taking
prevents Tenant from conducting
------
its business from the Premises in a manner reasonably comparable to that
conducted immediately before such Taking, then Landlord may, at its expense,
relocate Tenant to similar office space within any Comparable Building owned or
under the control of Landlord. Landlord shall notify Tenant of its intention to
do so within thirty (30) days after the Taking. Rent shall be abated on a
reasonable basis as to that portion of the Premises rendered untenantable by the
Taking until relocation. Such relocation may be for a portion of the remaining
Term or the entire Term. Landlord shall complete any such relocation within 180
days after Landlord has notified Tenant of its intention to relocate Tenant. If
Landlord does not elect to relocate Tenant following such Taking, then Tenant
may terminate this Lease as of the date of such Taking by giving written notice
to Landlord within sixty (60) days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If Landlord does not relocate Tenant
and Tenant does not terminate this Lease, then Rent shall be abated on a
reasonable basis as to that portion of the Premises rendered untenantable by the
Taking. Upon the occurrence of a Taking, Rent shall be adjusted on a reasonable
basis from the first day of the Taking until
such termination.
(b) Taking - Landlord's Rights. If any
material portion, but less than all, of the Project or related
parking becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to
Landlord's Mortgagee, then this Lease, at the option of
Landlord, exercised by written notice to Tenant within thirty
(30) days after such Taking, shall terminate and Rent shall be
apportioned as of the date of such Taking. Upon the occurrence
of a Taking, Rent shall be adjusted on a reasonable basis from
the first day of the Taking until such termination.
(c) Award. If any Taking occurs, all
proceeds shall belong to and be paid to Landlord, and Tenant
shall not be entitled to any portion thereof except that
Tenant shall have all rights permitted under the laws of the
State of Texas to appear, claim and prove in proceedings
relative to such taking (i) the value of any fixtures,
furnishings, and other personal property which are taken but
which under the terms of this Lease Tenant is permitted to
remove at the end of the Term, (ii) the unamortized cost (such
costs having been amortized on a straight-line basis over the
Term excluding any renewal terms) of Tenant's leasehold
improvements which are taken that Tenant is not permitted to
remove at the end of the Term and which were installed solely
at Tenant's expense (i.e., not made or paid for by Landlord
from the Construction Allowance or otherwise), and (iii)
relocation and moving expenses, but not the value of Tenant's
leasehold estate created by this Lease and only so long as
such claims in no way diminish the award Landlord is entitled
to from the condemning authority as provided hereunder.
FIRE OR OTHER 14. (a) Repair Estimate. If the Premises or the Building
are damaged by fire --------------- CASUALTY or other casualty (a
"Casualty"), Landlord shall, within sixty (60) days after -------- such
Casualty, deliver to Tenant a good faith estimate (the "Damage Notice") of
the time needed ------------- to repair or replace the damage caused by
such Casualty.
(b) ▇▇▇▇▇▇▇▇'s and ▇▇▇▇▇▇'s Rights. If a
material portion of the Premises or the Building is damaged by
Casualty such that Tenant is prevented from conducting its
business in the Premises in a manner reasonably comparable to
that conducted immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be repaired
within one hundred eighty (180) days after the date of
casualty, then Landlord may, at its expense, relocate Tenant
to similar office space within any Comparable Building owned
or under the control of Landlord. Landlord shall notify Tenant
of its intention to do so in the Damage Notice. Rent for the
portion of the Premises rendered untenantable by the damage
shall be abated on a reasonable basis from the date of damage
until relocation. Such relocation may be for a portion of the
remaining Term or the entire Term. Landlord shall complete any
such relocation within one hundred eighty (180) days after
Landlord has delivered the Damage Notice to Tenant. If
Landlord does not elect to relocate Tenant following such
Casualty, then Tenant may terminate this Lease by delivering
written notice to Landlord of its election to terminate within
thirty (30) days after the Damage Notice has been delivered to
Tenant. If Landlord does not relocate Tenant and Tenant does
not terminate this Lease, then (subject to Landlord's rights
under Section 14.(c)) Landlord shall repair the Building or
the Premises, as the case may be, as provided below. Upon the
occurrence of a Casualty, Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on a
reasonable basis from the date of damage until the completion
of the repair or until such termination.
(c) Landlord's Rights. If a Casualty damages
a material portion of the Building, and Landlord makes a good
faith determination that restoring the Premises would be
uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the Casualty to Landlord's Mortgagee,
then Landlord may terminate this Lease by giving written
notice of its election to terminate within thirty (30) days
after the Damage Notice has been delivered to Tenant, and Rent
hereunder shall be abated as of the date of the Casualty.
(d) Repair Obligation. If neither party elects to terminate this Lease
-----------------
following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, commence to repair the Building and the Premises and shall proceed
with reasonable diligence to restore the Building and Premises to substantially
the same condition as they existed immediately before such Casualty; however,
Landlord shall not be required to repair or replace any part of the furniture,
equipment, fixtures, and other improvements which may have been placed by, or at
the request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question.
EVENTS OF 15. Events of Default. Each of the following occurrences shall
-----------------
constitute an
DEFAULT "Event of Default" by Tenant:
----------------
(a) Tenant's failure to pay Rent, or any
other sums due from Tenant to Landlord under the Lease (or any
other lease executed by Tenant for space in the Building),
when due;
(b) Tenant's failure to perform, comply
with, or observe any other agreement or obligation of Tenant
under this Lease (or any other lease executed by Tenant for
space in the Building);
(c) The filing of a petition by or against Tenant (the term "Tenant" shall
include, for the purpose of this Section 15.(c), any guarantor of the Tenant's
obligations hereunder) (i) in any bankruptcy or other insolvency proceeding;
(ii) seeking any relief under any state or federal debtor relief law; (iii) for
the appointment of a liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease; or (iv) for the
reorganization or modification of Tenant's capital structure; and provided that
in the case of any of the foregoing which is filed against Tenant, the same is
not dismissed within ninety (90) days after it is filed;
(d) The admission by Tenant that it cannot meet its obligations as they become
due or the making by Tenant of an assignment for the benefit of its creditors;
and
(e) Tenant vacates the Premises or fails to
continuously operate its business at the Premises for a period
of ninety (90) days or more.
REMEDIES 16. (a) Landlord's Remedies. Upon any Event of Default by
Tenant, Landlord may, subject to any judicial process and
notice to the extent required by Title 4, Chapter 24 of the
Texas Property Code, as may be amended, in addition to all
other rights and remedies afforded Landlord hereunder or by
law or equity, take any of the following actions:
(i) Terminate this Lease by giving Tenant written notice thereof, in which
event, Tenant shall pay to Landlord the sum of (1) all Rent accrued hereunder
through the date of termination, (2) all amounts due under Section 15.(a), and
(3) an amount equal to (A) the total Rent that Tenant would have
been required to pay for the remainder of the Term discounted
to present value at a per annum rate equal to the "Prime Rate"
as published on the date this Lease is terminated by The Wall
Street Journal, Southwest Edition, in its listing of "Money
Rates", minus (B) the then present fair rental value of the
Premises for such period, similarly discounted; or
(ii) Terminate Tenant's right to possession of the Premises
without terminating this Lease by giving written notice
thereof to Tenant, in which event Tenant shall pay to Landlord
(1) all Rent and other amounts accrued hereunder to the date
of termination of possession, (2) all amounts due from time to
time under Section 15.(a), and (3) all Rent and other sums
required hereunder to be paid by Tenant during the remainder
of the Term, diminished by any net sums thereafter received by
Landlord through reletting the Premises during such period.
Landlord shall use reasonable efforts to relet the Premises on
such terms and conditions as Landlord in its sole discretion
may determine (including a term different from the Term,
rental concessions, and alterations to, and improvement of ,
the Premises); however, Landlord shall not be obligated to
relet the Premises before leasing other portions of the
Building. Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, ▇▇▇▇▇▇▇▇'s
failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any
consideration obtained by reletting over the Rent due
hereunder. Re-entry by Landlord in the Premises shall not
affect ▇▇▇▇▇▇'s obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring action against
Tenant to collect amounts due by ▇▇▇▇▇▇, without the necessity
of Landlord's waiting until the expiration of the Term. Unless
Landlord delivers written notice to Tenant expressly stating
that it has elected to terminate this Lease, all actions taken
by Landlord to exclude or dispossess Tenant of the Premises
shall be deemed to be taken under this Section 16.(a)(ii). If
Landlord elects to proceed under this Section 16.(a)(ii), it
may at any time elect to terminate this Lease under Section
16.(a)(i).
(iii) Notwithstanding anything to the contrary herein, Tenant shall not be
deemed to have waived any requirements of Landlord to mitigate damages upon an
Event of Default as required by law.
(b) Tenant's Remedies.
(i) Notice and Cure. If Landlord should fail to
---------------
perform or observe any covenant, term, provision or condition
of this Lease and such default should continue beyond a period
of ten (10) days as to a monetary default or thirty (30) days
(or such longer period as is reasonably necessary to remedy
such default, provided Landlord shall diligently pursue such
remedy until such default is cured) as to a non-monetary
default, after in each instance written notice thereof is
given by Tenant to Landlord and ▇▇▇▇▇▇▇▇'s Mortgagee, then, in
any such event Tenant shall have the right (but no obligation)
to cure the default, and Landlord shall reimburse Tenant for
all reasonable sums expended in so curing said default. Tenant
specifically agrees that Landlord's Mortgagee may enter the
Premises upon reasonable notice to Tenant to cure any such
default and that the cure of any default by Landlord's
Mortgagee shall be deemed a cure by Landlord under this Lease.
(ii) Set-off. If ▇▇▇▇▇▇ obtains a judgment against ------- Landlord or any
assignee for any default by Landlord under this Lease and (i) Tenant provided
Landlord's Mortgagee notice and opportunity to cure as described in Section
16(b)(i) above, (ii) said judgment is final and all rights of appeal have been
exercised or have expired, and (iii) such judgment remains unsatisfied upon
thirty (30) days written notice thereof to Landlord's Mortgagee, Tenant may set
off such judgment against Rent.
PAYMENT; 17. (a) Payment. Upon any Event of Default by Tenant, Tenant shall pay
to -------
NON-WAIVER Landlord all costs incurred by Landlord (including court costs and
reasonable attorney's fees
and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's
property, (3) repairing, restoring, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a
new tenant, (4) if Tenant is dispossessed of the Premises and
this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant
finish work, and other costs incidental to such reletting),
(5) performing Tenant's obligations which ▇▇▇▇▇▇ failed to
perform, and (6) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the Event of
Default.
(b) No Waiver. Acceptance or payment of Rent
following any Event of Default shall not waive any rights
regarding such Event of Default. No waiver by any party of any
violation or breach of any of the terms contained herein shall
waive any rights regarding any future violation of such term
or violation of any other term.
▇▇▇▇▇▇▇▇'S INTENTIONALLY DELETED
LIEN
SURRENDER OF 19. No act by Landlord shall be deemed an acceptance of a surrender
of the PREMISES Premises, and no agreement to accept a surrender of the Premises
shall be valid unless the same is made in writing and signed by Landlord. At the
expiration or termination of this Lease, subject to Landlord's obligation to
maintain the Building, Tenant shall deliver to Landlord the Premises with all
improvements located thereon in good repair and condition, reasonable wear and
tear (and condemnation and fire or other casualty damage not caused by Tenant,
as to which Sections 13 and 14 shall control) excepted, and shall deliver to
Landlord all keys and/or access cards to the Premises. Provided that ▇▇▇▇▇▇ has
performed all of its obligations hereunder, Tenant may remove all unattached
trade fixtures, furniture, and personal property placed in the Premises by
Tenant (but Tenant shall not remove any such item which was paid for, in whole
or in part, by Landlord). Additionally, Tenant may remove such additional items
as Landlord may have agreed. Tenant shall repair all damage caused by removal of
any items. All items not so removed shall be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed
of by Landlord without notice to Tenant and without any obligation to account
for such items. The provisions of this Section 19 shall survive the end of the
Term.
HOLDING OVER 20. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in
addition to all other damages and remedies to which Landlord
may be entitled for such holding over, Tenant shall pay, in
addition to the other Rent, a daily Basic Rental equal to the
greater of (a) 150% of the daily Basic Rental payable during
the last month of the Term, or (b) the then prevailing market
rental rate for leases then being entered into for similar
space in Comparable Buildings.
CERTAIN RIGHTS 21. Provided that the exercise of such rights does not
unreasonably interfere with RESERVED BY ▇▇▇▇▇▇'s occupancy of the Premises, and
upon reasonable advance notice provided by LANDLORD Landlord to Tenant (except
in case of emergency), Landlord shall have the following rights:
(a) to decorate and to make inspections,
repairs, alterations, additions, changes, or improvements,
whether structural or otherwise, in and about the Building, or
any part thereof; for such purposes, to enter upon the
Premises and, during the continuance of any such work, to
temporarily close doors, entryways, public space, and
corridors in the Building; to interrupt or temporarily suspend
Building services and facilities (Landlord shall use
reasonable efforts to complete any work requiring the
suspension of Building services and facilities during
off-business hours when reasonably and commercially
practicable to do so); and to change the arrangement and
location of entrances or passageways, doors, and doorways,
corridors, elevators, stairs, restrooms, or other public parts
of the Building;
(b) to take such reasonable measures as
Landlord deems advisable for the security of the Building and
its occupants, including without limitation searching all
items entering or leaving the Building; evacuating the
Building for cause, suspected cause, or for drill purposes;
temporarily denying access to the Building; and closing the
Building after normal business hours and on Saturdays,
Sundays, and holidays, subject, however, to Tenant's right to
enter when the Building is closed after normal business hours
under such reasonable regulations as Landlord may prescribe
from time to time which may include by way of example, but not
of limitation, that persons entering or leaving the Building,
whether or not during normal business hours, identify
themselves to a security officer by registration or otherwise
and that such persons establish their right to enter or leave
the Building;
(c) to change the name by which the Building is designated; and
(d) upon reasonable advance notice, to enter
the Premises during Tenant's regular business hours (or at any
time when accompanied by a representative of Tenant) to show
the Premises to prospective purchasers or lenders, and within
the last six months of the Term to show the Premises to
prospective tenants.
SUBSTITUTION 22. (a) From time to time during the Term, Landlord may
substitute for the SPACE Premises other substantially
comparable space that has an area at least equal but not
greater than 105% of that of the Premises and is located in
the Building or in any building located in International
Business Park which is owned or managed by Landlord or an
affiliate of Landlord (the "Substitution Space");
(b) If Landlord exercises such right by
giving Tenant notice thereof ("Substitution Notice") at least
60 days before the effective date of such substitution, then
(1) the description of the Premises shall be replaced by the
description of the Substitution Space; and (2) all of the
terms and conditions of this Lease shall apply to the
Substitution Space except that (A) if the then unexpired
balance of the Term shall be less than one year, then the Term
shall be extended so that the Term shall be one year from the
Substitution Effective Date (defined below), and (B) if the
Substitution Space contains more square footage than the
Premises, then the Basic Rental then in effect shall be
increased proportionately (provided that such increase shall
not exceed 105% of the Basic Rental due for the Premises) and
shall be subject to adjustment as herein provided. The
effective date of such substitution (the "Substitution
Effective Date") shall be the date specified in the
Substitution Notice or, if Landlord is required to perform
tenant finish work to the Substitution Space under Section
22.(c), then the date on which Landlord substantially
completes such tenant finish work. If Landlord is delayed in
performing the tenant finish work by ▇▇▇▇▇▇'s actions (either
by ▇▇▇▇▇▇'s change in plans and specifications for such work
or otherwise), then the Substitution Effective Date shall not
be extended and Tenant shall pay Rent for the Substitution
Space beginning on the date specified in the Substitution
Notice;
(c) Tenant may either accept possession of
the Substitution Space in its "as is" condition as of the
Substitution Effective Date or require Landlord to alter the
Substitution Space in the same manner as the Premises were
altered or were to be altered. Tenant shall deliver to
Landlord written notice of its election within ten (10) days
after the Substitution Notice has been delivered to Tenant. If
Tenant fails to timely deliver notice of its election or if an
Event of Default then exists, then Tenant shall be deemed to
have elected to accept possession of the Substitution Space in
its "as is" condition. If Tenant timely elects to require
Landlord to alter the Substitution Space, then (1)
notwithstanding Section 22.(b), if the then unexpired balance
of the Term is less than three years, then the Term shall be
extended so that it continues for three years from the
Substitution Effective Date, and (2) Tenant shall continue to
occupy the Premises (upon all of the terms of this Lease)
until the Substitution Effective Date;
(d) Tenant shall move from the Premises into
the Substitution Space and shall surrender possession of the
Premises as provided in Section 19 by the Substitution
Effective Date. If Tenant occupies the Premises after the
Substitution Effective Date, then ▇▇▇▇▇▇'s occupancy of the
Premises shall be a tenancy at will (and, without limiting all
other rights and remedies available to Landlord, including
instituting a forcible detainer suit), Tenant shall pay Basic
Rental for the Premises as provided in Section 20 and all
other Rent due therefor until such occupancy ends; such
amounts shall be in addition to the Rent due for the
Substitution Space; and
(e) If Landlord exercises its substitution
right, then Landlord shall reimburse Tenant for Tenant's
reasonable out-of-pocket expenses for moving Tenant's
furniture, equipment, supplies , telephone equipment,
telephone lines, computer lines, wiring, data circuits,
special wiring, and lieberts units. from the Premises to the
Substitution Space and for reprinting Tenant's stationery of
the same quality and quantity of Tenant's stationery supply on
hand immediately prior to Landlord's notice to Tenant of the
exercise of this relocation right. If the Substitution Space
contains more square footage than the Premises, and if the
Premises were carpeted, Landlord shall supply and install an
equal amount of carpeting of the same or equivalent quality
and color.
MISCELLANEOUS 23. (a) Landlord Transfer. Landlord may transfer, in whole or in
part, the ----------------- Project and any of its rights under this Lease. If
Landlord assigns its rights under this Lease and such assignee assumes
Landlord's obligations hereunder, then Landlord shall thereby be released from
any further obligations hereunder.
(b) Landlord's Liability. The liability of Landlord to Tenant for any
--------------------
default by Landlord under the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages therefor and shall be recoverable
from the interest of Landlord in the Project (including any rents, profits, or
other proceeds therefrom), and Landlord shall not be personally liable for any
deficiency. This section shall not be deemed to limit or deny any remedies which
Tenant may have in the event of default by Landlord hereunder which do not
involve the personal liability of Landlord.
(c) Force Majeure. Other than for Tenant's
monetary obligations under this Lease and obligations which
can be cured by the payment of money (e.g., maintaining
insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall
not be liable or responsible for, and there shall be excluded
from the computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind whatsoever which
are beyond the control of such party.
(d) Brokerage. Landlord and Tenant each
warrant to the other that it has not dealt with any broker or
agent in connection with the negotiation or execution of this
Lease, other than ▇▇▇▇▇▇▇▇ ▇▇▇▇ D/FW and Colliers
International, whose commissions shall be paid by Landlord.
Tenant and Landlord shall each indemnify the other against all
costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or
agent claiming the same by, through, or under the indemnifying
party.
(e) Estoppel Certificates. From time to
time, either Landlord or Tenant shall furnish, within ten (10)
business days after request therefor, a signed certificate
confirming and containing such factual certifications and
representations as to this Lease as the requesting party may
reasonably request.
(f) Notices. All notices and other
communications given pursuant to this Lease shall be in
writing and shall be (1) mailed by first class, United States
Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address
specified in the Basic Lease Information, (2) hand delivered
to the intended address, or (3) sent by prepaid telegram,
cable, facsimile transmission, or telex followed by a
confirmatory letter. Notice sent by certified mail, postage
prepaid, shall be effective three business days after being
deposited in the United States Mail; all other notices shall
be effective upon delivery to the address of the addressee.
The parties hereto may change their addresses by giving notice
thereof to the other in conformity with this provision.
(g) Separability. If any clause or provision
of this Lease is illegal, invalid, or unenforceable under
present or future laws, then the remainder of this Lease shall
not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a
clause or provision as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be
possible and be legal, valid, and enforceable.
(h) Amendments; and ▇▇▇▇▇▇▇ Effect. This
Lease may not be amended except by instrument in writing
signed by Landlord and ▇▇▇▇▇▇. No provision of this Lease
shall be deemed to have been waived by Landlord or Tenant
unless such waiver is in writing signed by Landlord or Tenant,
and no custom or practice which may evolve between the parties
in the administration of the terms hereof shall waive or
diminish the right of Landlord or Tenant to insist upon the
performance by Landlord or Tenant in strict accordance with
the terms hereof. The terms and conditions contained in this
Lease shall inure to the benefit of and be binding upon the
parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein
expressly provided. This Lease is for the sole benefit of
Landlord and Tenant, and, other than Landlord's Mortgagee, no
third party shall be deemed a third party beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has
performed all of the terms and conditions of this Lease to be
performed by ▇▇▇▇▇▇, Tenant shall peaceably and quietly hold
and enjoy the Premises for the Term, without hindrance from
Landlord or any party claiming by, through, or under Landlord,
subject to the terms and conditions of this Lease.
(j) Joint and Several Liability. If there is
more than one Tenant, then the obligations hereunder imposed
upon Tenant shall be joint and several. If there is a
guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the joint
and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant before
proceeding against such guarantor nor shall any such guarantor
be released from its guaranty for any reason whatsoever.
(k) Use of Lobby and/or Common Areas. During the term, and only
--------------------------------
on
weekends, holidays, and between the hours of 6:00 p.m. and
7:00 a.m. on weekends (other than holidays), Tenant shall have
the right to use the building lobby and/or common areas,
without charge, for any Tenant-sponsored special event,
provided (a) Tenant gives Landlord reasonable prior written
notice of the date, time and nature of the event, (b) the date
and time of the event do not conflict with another previously
scheduled event, (c) Tenant reimburses Landlord for all
out-of-pocket expenses Landlord incurs in connection with the
event, (d) Tenant indemnifies and holds Landlord harmless from
and against any and all claims, actions, damages or liens
resulting from ▇▇▇▇▇▇'s use of lobby and/or common areas,
including any reasonable attorney's fees incurred by Landlord,
(e) Tenant complies in all respects with applicable law, (f)
Landlord approves, in its sole discretion, all aspects of
Tenant's intended use of the Building lobby and/or common
areas, and (g) Tenant shall not use the Building lobby and/or
common areas for such events for more than twelve (12) days in
any calendar year.
(l) Captions. The captions contained in this Lease are for convenience
--------
of reference only, and do not limit or enlarge the terms and
conditions of this Lease.
(m) No Merger. There shall be no merger of
the leasehold estate hereby created with the fee estate in the
Premises or any part thereof if the same person acquires or
holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(n) No Offer. The submission of this Lease
to Tenant shall not be construed as an offer, nor shall Tenant
have any rights under this Lease unless Landlord executes a
copy of this Lease and delivers it to Tenant.
(o) Exhibits. The following exhibits hereto are incorporated herein by
--------
this reference:
Exhibit A - Outline of Premises
Exhibit A-1 - Legal Description of
the Land Exhibit B - Building Rules
and Regulations Exhibit C -
Operating Expenses Exhibit D -
Tenant Finish Work: Plans Exhibit
D-1 - Plans/Specifications Exhibit E
- Renewal Option Exhibit F - Parking
Exhibit G - Janitorial
Specifications Exhibit H - Signage
Criteria
(o) Entire Agreement. This Lease constitutes
the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements and
prior writings relating thereto. Except for those set forth in
this Lease, no representations, warranties, or agreements have
been made by Landlord or Tenant to the other with respect to
this Lease or the obligations of Landlord or Tenant in
connection therewith.
(p) Representations and Warranties. Landlord and Tenant each represent
------------------------------
and warrant that the person executing this Lease on its behalf is acting in his
or her capacity as an officer or partner, as applicable, with due authorization
and authority to bind Landlord or Tenant, as applicable, to this Lease. Landlord
represents and warrants that it has good title to the Project so to fully and
properly lease the Premises to Tenant as provided herein. Landlord represents
and warrants that the Project conforms in all material respects to all
applicable laws, ordinances, rules and regulations generally applicable to
commercial office buildings in Plano, Texas, as of the date hereof. Further,
Landlord represents and warrants that, to Landlord's knowledge, the Project
contains no hazardous substances as currently defined under applicable law,
except those used in the operation of the Building and which are being used in
compliance with applicable law. Other than any express warranties contained
herein, neither Landlord nor Tenant make any implied warranties of any kind or
nature, and the parties hereby waive any claims upon any such implied
warranties.
DATED as of the date first above written.
LANDLORD: TENANT:
CB PARKWAY BUSINESS CENTER II, LTD., ETHOS COMMUNICATIONS CORP.
a Texas limited partnership
By: 14BCO, Inc., general partner
By:
By:
Name:
---------
Name:
Title:
Title:
DAL02:136713.10
EXHIBIT A
OUTLINE OF THE PREMISES
EXHIBIT A-1
LEGAL DESCRIPTION OF THE LAND
BEING a 7.1557 acre tract of land situated in the ▇▇▇▇ ▇. ▇▇▇▇▇▇ Survey,
Abstract No. 897 and the ▇▇▇▇▇ ▇▇▇▇▇ Survey, Abstract No. 8, City of Plano,
Collin County, Texas and being part of that certain tract of land conveyed to
▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ #30, Ltd. as recorded in Volume 1690, Page 296 and further
being part of that certain tract of land conveyed to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as
recorded in Collin County Clerk #▇▇-▇▇▇▇▇▇▇ Deed Records, Collin County, Texas
and being more particularly described as follows:
COMMENCING at a point for corner in the center line of Midway Road (100'
R.O.W.), said corner also being in the South line of International Parkway (110'
R.O.W.);
THENCE South 89 degrees 3 minutes 56 seconds East, departing said center line, a
distance of 1135.46 feet to a point for corner at the beginning of a curve to
the right having a central angle of 04 degrees 40 minutes 24 seconds, a radius
of 945.00 feet, a tangent of 38.56 feet and a chord bearing and distance of
South 86 degrees 43 minutes 34 seconds East, 77.06 feet;
THENCE along said curve to the right and along the said south line of
International Parkway, an arc distance of 77.08 feet to a 5/8" iron set for the
POINT OF BEGINNING of the above mentioned 7.1557 acre tract;
THENCE continuing along said curve to the right and along said South line of
International Parkway, said curve having a central angle of 22 degrees 24
minutes 51 seconds, a radius of 945.00, a tangent of 187.24 feet and a chord
bearing and distance of South 73 degrees 07 minutes 11 seconds East, 367.33
feet, and an arc distance of 369.69 feet to a 5/8" iron rod set for corner;
THENCE South 00 degrees 25 minutes 34 seconds West, departing said South line
and along the East line of said 7.1557 acre tract, a distance of 836.11 feet to
a 5/8" iron rod set for corner in the North line of the Kansas City South
Railroad Company (150' R.O.W.);
THENCE North 84 degrees 38 minutes 45 seconds West, along said North line, a
distance of 353.10 feet to a 5/8" iron rod set for corner, said corner being the
Southwest corner of said 7.1557 acre tract;
THENCE North 00 degrees 23 minutes 14 seconds East, along the West line of said
tract, a distance of 909.43 feet to the POINT OF BEGINNING and containing
311,702 square feet or 7.1557 acres of land, more or less, and also being all of
those certain tracts of land conveyed to CB PARKWAY BUSINESS CENTER II, LTD. by
▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ #30 and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as recorded in Collin County Clerk
#97-0018434 and 97-0018433 Deed Records, Collin County, Texas, respectively.
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Project and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws (other than those which
are necessary to hang paintings, prints, pictures, or other similar items on the
Premises' interior walls) shall be driven or inserted in any part of the
Building except by Building maintenance personnel. No curtains or other window
treatments shall be placed between the glass and any Building standard window
treatments.
4. Landlord shall provide and maintain an alphabetical directory for all tenants
in the main lobby
of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant three keys to such tenant's leased
premises free of charge, with additional keys provided at such tenant's cost,
and no tenant shall make a duplicate thereof. Security Building access cards
shall be provided by Landlord to tenants after receipt of a $10.00 deposit per
card.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby, shall be conducted so not to unreasonably interfere
with the use of the Building by Landlord and other tenants, and if reasonably
required by Landlord, under its supervision and control. Tenant assumes all
risks of and shall be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
7. All damage to the Building caused by the installation, placement, or
removal of any property of a tenant, or done by a tenant's property while in the
Building, shall be repaired at the expense of such tenant. No tenant shall be
liable for any damage resulting solely from the weight of any items placed in
the Building by such tenant provided such items do not, in the aggregate, exceed
the building weight loads specified by Landlord.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals other than animals assisting the disabled shall be brought into
or kept in, on or about any tenant's leased premises. No portion of any tenant's
leased premises shall at any time be used or occupied as sleeping or lodging
quarters.
9. Tenant shall cooperate with Landlord's employees in keeping the
Building and its leased premises neat and clean. Tenants shall not employ any
person for the purpose of such cleaning other than the Building's cleaning and
maintenance personnel.
10. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
11. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance not approved in writing in advance by Landlord.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. In the event any vending machines are maintained in the Building
for common use by all tenants, no vending or dispensing machines of any kind may
be maintained in any leased premises without the prior written permission of
Landlord, which consent shall not be unreasonably delayed, withheld or
conditioned. Any vending machines contained in any leased premises shall be for
the sole use of the applicable tenant, its employees and guests.
15. All mail chutes located in the Building shall be available for use
by Landlord and all tenants of the Building according to the rules of the United
States Postal Service.
16. No smoking of any type is permitted in any portion of the Building,
including any portion thereof leased by tenants. Landlord shall designate
smoking areas outside of the Building.
17. No firearms or weapons of any type are permitted upon the Land or within the
Project.
18. While at the Project, Tenant, its employees, agents and guests
shall behave in a manner consistent with that expected in a Class A office
building located in North Dallas.
19. Tenant shall notify Landlord before holding an event in a common area of the
Project or serving alcohol.
EXHIBIT C
OPERATING EXPENSES
1. Tenant shall pay from time to time an amount (the "Excess")
calculated by multiplying (a) the amount by which the Basic Cost (defined
below), divided by the Total Rentable Square Feet, exceeds $5.50 (the "Expense
Stop"), by (b) the Rentable Square Feet. The Excess may be calculated and
collected annually in arrears on a calendar year basis and, in such event, shall
be due within thirty (30) days after Landlord furnishes to Tenant a written
statement (the "Annual Operating Statement") reflecting the Basic Cost for the
calendar year (as may be adjusted as provided herein) and calculating the
Excess, if any. Said statement shall be furnished by April 1 immediately
following the applicable calendar year, or as soon thereafter as practicable.
Alternatively, Excess may be estimated and collected monthly and then reconciled
against Basic Costs at calendar year end. In such event, Landlord shall make and
notify Tenant of its good faith estimate of the Excess for the applicable
calendar year (or part thereof), whereafter, Tenant shall pay to Landlord, in
advance on the first day of each calendar month of such year (or part thereof),
an amount equal to the estimated Excess divided by 12 (or such lesser number of
months as applicable). From time to time during any calendar year, Landlord may
re-estimate the Excess for that calendar year and the monthly installments of
Excess payable by Tenant shall be adjusted accordingly so that, by the end of
the calendar year in question, Tenant shall have paid the full Excess as
estimated by Landlord for such year. The Basic Cost (other than the first year
in which the Building is occupied) and Expense Stop shall be prorated for any
portion of the Term which is less than a full calendar year.
2. The term "Basic Cost" shall mean all expenses and disbursements of
every kind (subject to the limitations set forth below) which Landlord incurs,
pays or becomes obligated to pay in connection with the ownership, operation,
and maintenance of the Project (including the associated parking facilities),
determined in accordance with generally accepted federal income tax basis
accounting principles consistently applied, including but not limited to the
following:
(a) Wages and salaries of all employees engaged on-site in the
Project in the operation, repair, replacement, maintenance, landscaping and
security of the Project, including taxes, insurance and benefits relating
thereto, such costs to be allocated based on the relative rentable square
footage of the buildings directly managed by these personnel if they are
providing services to multiple buildings;
(b) All supplies and materials used in the operation, maintenance, landscaping,
repair,
replacement, and security of the Project;
(c) Annual cost of all capital improvements made to the
Project which although capital in nature can reasonably be expected to reduce
the normal operating costs of the Project, as well as all capital improvements
made in order to comply with any law hereafter promulgated by any governmental
authority, as amortized over the useful economic life of such improvements as
determined in accordance with generally accepted federal income tax basis
accounting principles consistently applied;
(d) Cost of all utilities, other than the cost of utilities
paid directly by ▇▇▇▇▇▇ or actually reimbursed to Landlord by Tenant or other
Building tenants (including Tenant under Section 4 (b) of the Lease);
(e) Cost of any insurance or insurance related expense applicable to the Project
and Landlord's personal property used in connection therewith;
(f) All taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by taxing or management
districts or authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments attributable to the Project (or
its operation), excluding, however, federal and state taxes on income
(collectively, "Taxes") (and Landlord shall make reasonable and diligent
efforts, as deemed necessary or appropriate in Landlord's reasonable discretion,
to contest property valuations and otherwise minimize Taxes which may include
retaining a tax consultant to assist in determining the fair tax valuation of
the Project and protesting any unfair valuations, with all associated costs
being a Basic Cost). Notwithstanding the above, if the present method of
taxation changes so that in lieu of the whole or any part of any Taxes levied on
the Project, there is levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Building, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be included within the
term "Taxes" for the purposes hereof;
(g) Cost of repairs, replacements, and general maintenance of the Project, other
than replacement of the roof, foundation and exterior walls of the Building;
(h) Cost of service or maintenance contracts with independent
contractors for the operation, maintenance, landscaping, repair, replacement, or
security of the Project (including, without limitation, alarm service, window
cleaning, and elevator maintenance);
(i) A management fee, which may be paid to Landlord or any affiliates thereof,
as a percentage of the gross scheduled rent of the Building;
(j) Costs for landscaping and maintaining the medians within
the Park, such costs to be allocated based on a fraction of which the numerator
is the linear footage of frontage of the Project to International Parkway and
the denominator which is the total linear footage of frontage in the Park
bounded by the medians;
(k) Security for the Project, such costs to be allocated to
each building based on relative rentable square footage when multiple buildings
are covered by one contract; and
(l) A pro rata portion of the salary and benefits (including
taxes and insurance) of the employees located off-site at Landlord's corporate
offices providing services to the Project, such costs to be allocated among all
buildings managed by such employees based on rentable square footage.
Any Basic Cost incurred in connection with any work performed,
or services provided, to or for the benefit of one or more of the buildings
located in the office park of which the Project is a part and commonly referred
to as the International Business Park shall be allocated between all such
buildings, including the Building, on a per square foot of rentable area basis.
There are specifically excluded from the definition of the term "Basic Cost"
costs (1) for capital improvements made to the Project, other than capital
improvements described in Section 2.(c) above and except for items which, though
capital for accounting purposes, are properly considered maintenance and repair
items, such as painting of common areas, replacement of carpet in elevator
lobbies, and the like; (2) for repair, replacements and general maintenance paid
by proceeds of insurance or by Tenant or other third parties, and alterations
attributable solely to tenants of the Building other than Tenant; (3) for
interest, amortization or other payments on loans to Landlord; (4) for
depreciation of the Building; (5) for leasing commissions; (6) for legal
expenses, other than those incurred for the general benefit of the Building's
tenants (e.g., tax disputes); (7) for renovating or otherwise improving space
for occupants of the Building or vacant space in the Building; (8) for
correcting defects in the construction of the Building; (9) for overtime or
other expenses of Landlord in curing defaults or performing work expressly
provided in this Lease to be borne at Landlord's expense; (10) for federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Project; (11) repairs or replacements necessitated by Landlord's gross
negligence or willful misconduct; (12) amounts reimbursed to Landlord pursuant
to any warranty or by any other tenant or third party; (13) reserves for future
expenses; (14) late charges or penalties incurred as a result of Landlord's
failure to pay any bills or charges when due; (15) general overhead of Landlord
(not including any goods or services used or provided directly for the benefit
of the Project); (16) amounts incurred to remediate any hazardous substances as
defined by applicable environmental law unless caused in whole or in part by
Tenant, its officers, employees, agents, contractors or customers; and (17) for
rent or other payment due under any ground lease for any or all the Land.
3. The Annual Operating Expense Statement shall include a statement of
Landlord's actual Basic Cost for the previous year adjusted as provided in
Section 4 of this Exhibit. If Tenant has paid estimated Excess and the Annual
Operating Expense Statement reveals that Tenant paid more for Basic Cost than
the actual Excess in the year for which such statement was prepared, then
Landlord shall credit or reimburse Tenant for such excess within thirty (30)
days after delivery of the Annual Operating Expense Statement; conversely, if
Tenant paid less than the actual Excess, then Tenant shall pay Landlord such
deficiency within thirty (30) days after delivery of the Annual Operating
Expense Statement.
4. With respect to any calendar year or partial calendar year in which
the Building is not occupied to the extent of 95% of the rentable area thereof,
the Variable Basic Costs (defined below) for such period shall, for the purposes
hereof, be increased to the amount which would have been incurred had the
Building been occupied to the extent of 95% of the rentable area thereof. As
used herein, "Variable Basic Costs" means any Basic Cost that is variable in
correlation with the level of occupancy of the Building.
EXHIBIT D
TENANT FINISH-WORK: PLANS
DAL02:136713.10
1. Except as set forth in this Exhibit, ▇▇▇▇▇▇ accepts the Premises in their "as
is" condition on the date that this Lease is entered into.
2. On or before January 13, 1999, Landlord shall provide to Tenant for its
approval final working drawings, prepared in accordance with the Space Plans
approved by Tenant and attached hereto as Exhibit "D-1", of all improvements
that Landlord proposes to install in the Premises; such working drawings shall
include the partition layout, ceiling plan, electrical outlets and switches,
telephone outlets, drawings for any modifications to the mechanical and plumbing
systems of the Building, and detailed plans and specifications for the
construction of the improvements called for under this Exhibit in accordance
with all applicable governmental laws, codes, rules, and regulations. Landlord
shall require Tenant's written approval of such plans within three (3) business
days after delivery to Tenant. Further, if any of Tenant's proposed construction
work will affect the Building's heating, ventilation and air conditioning,
electrical, mechanical, or plumbing systems, then the working drawings
pertaining thereto shall be prepared by the Building's engineer of record. As
used herein, "Working Drawings " shall mean the final working drawings provided
by ▇▇▇▇▇▇▇▇, as amended from time to time by any approved changes thereto, and
"Work " shall mean all improvements to be constructed in accordance with and as
indicated on the Working Drawings. ▇▇▇▇▇▇▇▇'s preparation and delivery of the
Working Drawings shall not be a representation or warranty of Landlord that such
drawings are adequate for any use, purpose, or condition, or that such drawings
comply with any applicable law or code, but shall merely be the consent of
Landlord to the performance of the Work. Tenant shall, at ▇▇▇▇▇▇▇▇'s request,
sign the Working Drawings to evidence its review and approval thereof. All
changes in the Work must receive the prior written approval of Landlord. After
the Working Drawings have been approved, Landlord shall cause the Work to be
performed in accordance with the Working Drawings.
(c) If a delay in the performance of the Work occurs because of any change by
Tenant to the Space Plans or the Working Drawings, because of any specification
by Tenant of materials or installations in addition to or other than Landlord's
standard finish-out materials, or if Tenant otherwise delays completion of the
Work, then, notwithstanding any provision to the contrary in this Lease,
Tenant's obligation to pay Basic Rental and Tenant's share of Excess and
Electrical Costs hereunder shall commence on the scheduled Commencement Date. If
the Premises are not ready for occupancy and the Work is not substantially
completed (as reasonably determined by Landlord) on the scheduled Commencement
Date for any reason other than the reasons specified in the immediately
preceding sentence, then the obligations of Landlord and Tenant shall continue
in full force and Basic Rental and Tenant's share of Excess and Electrical Costs
shall be abated until the date the Work is substantially completed, which date
shall be the Commencement Date.
4. Landlord shall bear the entire cost of performing the Work depicted on the
Space Plans initially submitted to and approved by ▇▇▇▇▇▇. Tenant shall bear the
entire additional costs incurred by Landlord in performing the Work because of
an event specified in clauses , , or of this Exhibit. Tenant shall pay Landlord
an amount equal to 50% of the estimated additional costs of any change to the
Space Plans or the Working Drawings at the time of such change; Tenant shall pay
to Landlord the remaining portion of additional costs incurred in performing the
Work because of an event specified in clauses , , or of this Exhibit upon
Substantial Completion of the Work and before Tenant occupies the Premises to
conduct business therein.
5. To the extent not inconsistent with this Exhibit, Section 7 of this Lease
shall govern the performance of the Work and the Landlord's and ▇▇▇▇▇▇'s
respective rights and obligations regarding the improvements installed pursuant
thereto.
EXHIBIT E
RENEWAL OPTION
1. Provided no Event of Default exists and Tenant (or any permitted or
approved assignee or subtenant) is occupying the entire Premises at the time of
such election, Tenant may renew this Lease for one (1) additional period of five
(5) years on the same terms provided in this Lease (except as set forth below),
by delivering written notice of the exercise thereof to Landlord not later than
twelve (12) months before the expiration of the initial Term. On or before the
expiration of the initial Term, Landlord and Tenant shall execute an amendment
to this Lease extending the Term on the same terms provided in this Lease,
except as follows:
(a) The Basic Rental payable for each month during each such extended Term shall
be as provided below;
(b) Tenant shall have no further renewal options unless expressly granted by
▇▇▇▇▇▇▇▇ in writing; and
2. Basic Rental during the extended Term shall be equal to the then
prevailing market rate for leases then being renewed or for new leases of second
generation space then being entered into of equivalent quality, size, utility
and location in Comparable Buildings, with the length of the extended Term, the
credit standing of the Tenant, and any tenant inducements (e.g., tenant
improvement allowance) taken into account.
3. Tenant's rights under this Exhibit shall terminate if (a) this Lease
or Tenant's right to possession of the Premises is terminated, (b) Tenant
wrongfully assigns any of its interest in this Lease or wrongfully sublets any
portion of the Premises, or (c) Tenant fails to timely exercise its option under
this Exhibit, time being of the essence with respect to Tenant's exercise
thereof.
EXHIBIT F
PARKING
Landlord shall provide and Tenant shall be permitted the non-exclusive
use of one parking space for every 247 square feet of Rentable Square Feet
during the initial Term at no cost. Such parking shall be located in the parking
area associated with the Project (the "Parking Area") and shall be unassigned.
EXHIBIT G
JANITORIAL SPECIFICATIONS
6.JANITORIAL SERVICE SPECIFICATIONS FOR TENANT SUITES, COMMON AREAS ON
TENANT-OCCUPIED FLOORS AND TENANT COMPUTER ROOMS.
(a) Nightly Services
(1) All surface areas, desks, file cabinets, counter tops, book shelves,
credenzas, computer screens and other equipment will be dusted. Desk tops will
be wiped down but no papers will be moved. All ashtrays and urns will be emptied
and wiped.
(2) All carpeted areas will be vacuumed. Carpets will be spot cleaned where
needed. All hard surface floors will be swept with a dust mop then damp mopped.
(3) All trash receptacles will be emptied and wiped down. Liners will be changed
whenever necessary. Garbage will be taken to the designated areas for trash
removal. (4) All magazines will be straightened. Glass top desks, glass doors,
partitions, light switches and walls will be cleaned to remove smudges and
fingerprints.
(5) All stairwells will be vacuumed and swept as well as dusted. (6) The
elevator will be vacuumed and fingerprints removed from wall surfaces. (7) All
kitchen countertops, tables and cupboard doors in break rooms will be cleaned
and disinfected. Hand prints and smudges will be removed from the exterior of
the refrigerator as well as any other appliances. Microwaves will be cleaned
inside and out. Sinks and other chrome areas will be cleaned and polished. (8)
Mugs, plates and glasses will be placed in the dishwasher and washed only if
they are placed in the break room sink by company employees. Dishes will not be
removed from the dishwasher. (9) All fixtures and appliances in the restrooms
will be cleaned and sanitized. All chrome and mirrors will be cleaned and
polished.
(10) All commodes and urinals will be cleaned with a germicidal
disinfectant. The use of an
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emulsion bowl cleaner will be used whenever necessary.
(11) Restroom floors will be cleaned using a germicidal disinfectant.
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(12) Light bulbs will be replaced as needed.
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(b) Weekly Services
(1) All pictures and door frames will be dusted.
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(2) Partitions and walls in the restrooms will be completely
wiped down with a germicidal
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disinfectant.
(3) All VCT floors will be buffed.
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c. Monthly Services
i. All mini-blinds and A/C vents will be dusted.
ii. All interior windows will be cleaned.
iii. All VCT floors will be waxed (more often as
necessary).
d. Quarterly Services
i. All exterior windows will be cleaned.
EXHIBIT H
SIGNAGE CRITERIA
SIGN CRITERIA
The purpose of this sign criteria is to create a graphic environment that is
individual and distinctive in identity for the Tenant and also compatible with
other signs on this and future buildings. The total concept should give an
impression of quality, professionalism and instill a good business image.
Lettering shall be well proportioned and its design, spacing and legibility
shall be a major criterion for approval.
The following specifications are to be used for the design of your sign;
however, in all cases, final written approval must be obtained from the lessor
prior to the manufacturing or installation of any signage. Lessor shall make all
final and controlling determinations concerning any questions of interpretations
of this sign policy.
NOTICE: Written approval and conformance with these specifications does not
imply conformance with local City and County sign ordinances. Please have your
sign company check with local authorities to avoid non-compliance with local
codes.
Exterior Signs
A. REQUIRED SIGNS
1. Tenant shall be requested to identify its premises by erecting
one (1) sign which shall be attached directly to the building
parapet as described hereinafter.
B. TYPE OF SIGN
1. Internally illuminated acrylic faced, individual letters raceway mounted on
building face. Letters shall appear black when not illuminated, white when
illuminated.
C. SIZE OF SIGN
1. Placement: All signs shall be designed to fit entirely within a horizontal
band 48 inches high, from 12 inches below the top of parapet to 60 inches below
the top of parapet, ascending and descending characters included.
2. Sign locations for individual tenants are to be as agreed with Owner. Maximum
allowable areas per building elevation:
North elevation, north wing (aggregate): 67.5' maximum length, 180 sf. area
North elevation, south wing (aggregate): 67.5' maximum length, 180 sf. area
East elevation, north wing (aggregate):135.0' maximum length, 360 sf. area
East elevation, south wing (aggregate):225.0' maximum length, 600 sf. area
West elevation, north wing (aggregate):225.0' maximum length, 600 sf. area
3. Depth - 6" minimum, or as required to diffuse neon stroke
for uniform appearance.
4. Height - not to exceed 40" . Multiple Rows - not to exceed 40" in total
height including spaces between rows; Minimum Letter Size - 10" .
D. TYPE OF SIGN
1. Any style (block or script) may be used. Upper and lower case letters are
allowed. Lessor will have final review over height increases for script letters.
2. Logos in addition to signage must be approved. They must be proportionate to
height of parapet and sign and in same color as signage.
3. Box type signs will not be permitted.
E. COLOR OR SIGN
1. Signs are to appear black when not illuminated,
and white when illuminated.
2. Face is to be Rohm & ▇▇▇▇ Plexiglass. Color permitted: as
required to provide day black/night
white effect.
3. Returns: Flat Black.
4. Trim Cap: 1" Flat Black Jewel Lite.
F. CONSTRUCTION OF LETTERS
1. Individual channel letters up to 40" high to have 1/8"
plexiglass faces.
2. Returns: .063 aluminum gauge (minimum).
3. Backs: .080 aluminum gauge (minimum).
4. No armor plate or wood in the manufactured returns may be used
5. Letter fabrication to be welded. Riveted construction not
acceptable.
G. ILLUMINATION AND WIRING
1. All signs must be UL labeled.
2. Illumination shall be with 15mm and 30mm 6500 degree white
neon tubing, and shall be uniform. Provide number of neon
strokes adequate to provide uniform lighting across width and
length of letter stroke.
3. Secondary Wiring - All transformers and secondary wiring are
to be concealed behind parapets or
within ceiling plenum.
4. Electrical power shall be brought to required location at Tenant's expense.
Routing and location of conduit and other required items shall not be visible on
front of parapet.
5. Final electrical connection of sign to transformer box will be performed by a
licensed electrician approved by Landlord. Sign timer controls for all tenants
to be set per Landlord requirements.
H. PLACEMENT AND INSTALLATION
1. General Notes
a. Letters are to be located on signage area of building
as determined by Landlord.
b. Attachment of signage to meet U.L. Standards. No
exposed wiring is permitted.
c. All fasteners used are to be non-corrosive.
d. Tenant will be responsible for all damage to the
building incurred during sign
installation or removal.
e. Tenant submittals for lighting approval shall
indicate methods of attachment to
building face. Tenants should be aware that building
face is 8" concrete tilt wall.
I. SUBMITTAL FOR APPROVAL
1. Prior to awarding a contract for fabrication and installation,
Tenant shall submit three (3)
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sealed drawings for final review and approval to:
▇▇▇▇▇▇▇▇▇▇▇ Property Services
Texas Commerce Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Property Manager
2. Elevation of building fascia and sign shall be drawn using a
minimum 1/4" = 1' - 0" scale.
3. Drawing shall indicate the following specifications: Type,
color and thickness of plexiglass, type of materials, finish
used on return, type of illumination and mounting method.
Tenant's sign contractor shall first visit the site to verify
existing conditions prior to preparation of shop drawings,
information needed to prepare submittals shall also be
obtained during the visit.
4. Drawings must include fascia cross section showing electrical
connections.
J. PERMITS
1. All City permits and approvals from the landlord are required
prior to sign fabrication.
K. WINDOW SIGNS
1. No window signs are permitted.
L. MONUMENT SIGNS
1. Tenants shall provide identification signs per Owner's
criteria for mounting on monument sign.
2. All single-tenant buildings, signs shall be 10" high metal
letters with black baked-on gloss finish, in Universe 67
letter style.
3. At multi-tenant buildings, signs shall be 6" high metal letters with black
baked-on gloss finish, in Universe 67 letter style.
M. SECONDARY ENTRY SIGNS
1. Not allowed.
N. THE FOLLOWING ARE NOT PERMITTED:
1. Roof signs or box signs
2. Cloth signs hanging in front of business
3. Exposed seam tubing
4. Animated or moving components
5. Intermittent or flashing illumination
6. Iridescent painted signs
7. Letters mounted or painted directly on illuminated panels
8. Signs or letters painted directly on any surface except
as herein provided
9. The names, stamps or decals of manufacturers or installers
shall not be visible except for
technical data (if any) required by governing authorities.
Interior Signs
A. Interior signs identifying fixed building elements, and two building
directions identifying Tenant Names
and Suite Numbers, will be provided by Landlord.
1. Signs Included:
a. Building Directory (Lobby)
b. Building Directory (South Vestibule)
c. Suite Number Identification
d. Stair Identification
e. Toilet Room Identification
f. Identification of Mechanical Spaces
g. Emergency Egress Directions
B. Tenant Identification signs for suite entries are to be provided by each
tenant. These are to be wall mounted adjacent to entrance doors. Sign size and
location shall comply with all local codes and ordinances, as well as ADA/TAS.
1. Size: 24 inches high maximum; 48 inches wide maximum; 4 sf. maximum overall,
as defined by a rectangle surrounding a regularly shaped sign, or as defined in
the case of an irregularly shaped sign by a rectilinear perimeter of not more
than eight (8) straight lines enclosing the extreme limits of any figure or
character.
2. Color: At tenant's option subject to approval by Landlord.
3. Illumination: Not Allowed. 4. Content: Text and logos acceptable, subject to
size limitations.
C. Tenant signs within tenant space provided by tenant if desired. Size, color,
configuration, illumination and content at Tenant's option subject to approval
by Landlord.
July 23, 1997