OFFICE LEASE AGREEMENT BY AND BETWEEN PIEDMONT OPERATING PARTNERSHIP, L.P. AND EPSILON DATA MANAGEMENT, LLC BUILDING II, THE COMMONS OF LAS COLINAS

Exhibit 10.34

BY AND BETWEEN

PIEDMONT OPERATING PARTNERSHIP, L.P.

 

AND

 

EPSILON DATA MANAGEMENT, LLC

 

BUILDING II, THE COMMONS OF LAS COLINAS

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇

---

THIS OFFICE LEASE AGREEMENT (this "Lease") is dated as of the 1st day of August, 2013, by and between PIEDMONT OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Landlord"), and EPSILON DATA MANAGEMENT, LLC, a Delaware limited liability company ("Tenant").

 

*Based on twelve (12) full calendar months.  If the Lease Commencement Date is a day other than the first day of a calendar month, then the first month in the above chart shall include the partial month in which the Lease Commencement Date occurs and the first full calendar month occurring thereafter.  Each month shall thereafter commence on the first day of such calendar month.

---

---

---

vendors or any Agent of Tenant prior to the Lease Commencement Date shall be coordinated with Landlord and its general contractor to ensure that such activity does not unreasonably interfere with any other work.  Notwithstanding anything in this Lease to the contrary:  (a) Landlord shall have no responsibility with respect to any items placed in the Premises by Tenant, Tenant's vendors or any of Tenant's Agents prior to the Lease Commencement Date; and (b) all of the provisions of this Lease (including all insurance, indemnity and utility provisions (except, with respect to utility consumption during the Move-In Period, Tenant shall only be responsible for excess utilities or utilities used outside of Building Hours)) shall apply during the Move‑In Period, except that during such period (i) Tenant shall not be obligated to pay Rent, including, without limitation, Base Rent, Tenant's Proportionate Share of Operating Charges and Real Estate Taxes, and (ii) Landlord shall not be obligated to provide any utility, service or other item in excess of those customarily provided to or for the benefit of a premises in order for Landlord to perform its building standard initial improvement work and the completion of Landlord's Work (as defined in Exhibit B attached hereto).  Landlord shall make commercially reasonable efforts to minimize interference with Tenant's contractors and vendors during the Move-In Period.  Tenant's use of the Premises during the Move-In Period shall not, in any event, constitute occupancy of the Premises under this Lease for the purposes of determining the Lease Commencement Date.

Tenant may exercise its rights under this Section 3.1(c) by delivering written notice to Landlord (an "Early Occupancy Notice") specifying (i) the Early Occupancy Space, and (ii) the date that Tenant requires delivery of such Early Occupancy Space with the Landlord's Work substantially complete (the "Target Early Occupancy Delivery Date").  Within five (5) business days after receipt of an Early Occupancy Notice, Landlord shall prepare and deliver to Tenant a written notice (an "Early Occupancy Change Order") specifying the number of days following Tenant's acceptance of the Early Occupancy Change Order required to substantially complete the Landlord's Work in such Early Occupancy Space (which number of days shall also include, if applicable, the number of days required to recover the Early Occupancy Space from Nokia), and the number of days of Tenant's Move-In Period with respect to such Early Occupancy Space, which shall not be less than forty-five (45) days (the total number of days of such construction period and Move-In Period being the "Early Occupancy Construction Period").  During the ten (10) day period following Landlord's delivery of an Early Occupancy Change Order, Landlord shall cooperate with Tenant in good faith in order to reach agreement on the matters set forth in the Early Occupancy Change Order.  So long as Landlord has not delivered notice to Nokia requesting delivery of the Early Occupancy Space from Nokia (which notice shall not be delivered unless and until Tenant has agreed to an Early Occupancy Change Order requiring delivery of Early Occupancy Space by Nokia to Landlord prior to January 1, 2014), Tenant may revoke its Early Occupancy Notice in its sole discretion; provided, however, that upon Tenant's acceptance in writing of an Early Occupancy Change Order, Landlord shall complete the Landlord's Work in accordance with such Early Occupancy Change Order and the Work Letter attached hereto as Exhibit B.   If Tenant accepts an Early Occupancy Change Order, the "Anticipated Occupancy Date" for such Early Occupancy Space shall be the Target Early Occupancy Delivery Date (except to the extent it has been modified by the agreed-upon Early Occupancy Change Order), provided, however, that the Anticipated Occupancy Date shall be extended by Tenant Delay and each day that construction of the Landlord's Work with respect to the Early Occupancy Space is delayed beyond the Target Early Occupancy Delivery Date due to Tenant's failure to approve an Early Occupancy Change Order by the approval date stated in the Early Occupancy Change Order (which shall not be earlier than the expiration of the ten (10) day period set forth above).

---

Occupancy Space as determined by agreement between Landlord and Tenant and calculated pursuant to Section 26.5 of this Lease, but not to exceed  (  ) per square foot of rentable area (gross, net of electric) prior to January 1, 2014; and (ii) shall be    per square foot of rentable area (gross, net of electric) during the period of January 1, 2014 through June 30, 2014 (at which time the seven (7) month abatement of Base Rent shall apply to the entire Premises, including the Early Occupancy Space), in accordance with the provisions of this Lease. After delivery of any Early Occupancy Space, Landlord and Tenant shall enter into an amendment to this Lease which evidences the foregoing.

---

---

---

Costs and Real Estate Taxes for the immediately preceding calendar year and the Base Year (provided, that Tenant shall only be entitled to object to Base Year charges under this Section 5.6 in connection with the Reconciliation Statement delivered to Tenant for the first comparison year). Tenant must complete its audit and deliver to Landlord written notice of its results within ninety (90) days after delivery of its Audit Notice, or within ninety (90) days after Landlord has made available to Tenant the requested documentation, whichever is later.  Tenant shall (and shall cause its employees, agents and consultants to) keep the results of any such audit strictly confidential; provided, however, Tenant may disclose such results to its employees and advisors on a "need to know" basis and further provided that such individuals agree to keep the results confidential.  If such audit shows that the amounts paid by Tenant to Landlord on account of Operating Charges, Electrical Costs and Real Estate Taxes exceed the amounts to which Landlord is entitled hereunder, Landlord shall credit the amount of such excess toward the next monthly payments of Tenant's Proportionate Share of Operating Expenses, Electrical Costs and/or Real Estate Taxes due hereunder.  If the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days after the date it delivers the audit results to Landlord.  All costs and expenses of any such audit shall be paid by Tenant, unless Landlord's ▇▇▇▇▇▇▇▇ exceeded by   the actual Operating Charges, Electrical Costs and/or Real Estate Taxes attributable to Tenant, in which event Landlord will pay Tenant for the actual, reasonable expense incurred for an independent third-party in performing such audit.  Pending the completion of any audit of Landlord's records pursuant to this Section 5.6 (and as an additional condition for Tenant to be permitted to conduct such audit), Tenant shall be required to timely pay any amount due as set forth in the disputed Reconciliation Statement in accordance with the provisions of Sections 5.2 and 5.4.

---

---

and accounting costs) incurred by Landlord in connection with Tenant's request for Landlord to give its consent to any assignment, subletting, or mortgage (not to exceed   per any single request.  Any sublease or assignment shall, at Landlord's option, be effected on forms reasonably approved by Landlord.  Tenant shall deliver to Landlord a fully‑executed copy of each agreement evidencing a sublease or assignment within ten (10) business days after execution thereof.

---

condition that if the Lease Term is terminated or Landlord succeeds to Tenant's interest in the Premises by voluntary surrender or otherwise, at Landlord's option the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the then executory terms of such sublease.

---

be in material compliance with all Laws as of the Lease Commencement Date.  In addition, and notwithstanding anything to the contrary in this Lease, Landlord shall perform and construct (subject to inclusion of any costs therefor being included in Operating Charges, if permitted), and Tenant shall have no responsibility to perform or construct, any repair, maintenance or improvements (w) necessitated by the acts or omissions of Landlord, Landlord's Agents any other occupant of the Project, or their respective agents, employees or contractors, (x) for which Landlord has a right of reimbursement from others, (y) to the structural portions of the Premises, including foundations and areas beneath foundations and to any Common Areas of the Project exterior to the Building and (z) which are treated as a "capital expenditure" under generally accepted accounting principles.

---

---

the area of the Project, Building and monuments on which such signs were installed to their condition prior to the installation of Tenant's signs and flag poles.  The foregoing exterior and monument signs and flag poles shall be installed by Tenant at its sole cost and expense, which cost may be deducted from the Improvements Allowance.  In the event that Tenant does not Lease the entire Building, then the Building Monument Sign shall become a multi-tenant monument sign.  Landlord shall use commercially reasonable efforts, at Tenant's sole cost and expense, to assist with Tenant's efforts to obtain approval for Building top signage from the governing authorities prior to and during the Lease Term.

---

---

for extra service needed on Saturday or Sunday), provided, however, that Landlord will cooperate in good faith to accommodate Tenant's needs in the event Tenant is unable to satisfy the 2:00 p.m. notice requirements.  Tenant shall pay for such extra service at a charge of   per hour per floor (with a two (2) hour minimum) during the initial Lease Term; provided, however, Landlord shall provide up to one hundred (100) hours of overtime HVAC to the Premises per Lease Year at no charge to Tenant.  To the extent Tenant provides or contracts for any services relating to any Building Structure or System or any service or utility being provided by Landlord to the Premises directly from the supplier (which Tenant shall not be permitted to do without Landlord's prior written consent, which consent shall not be unreasonably withheld conditioned or delayed), Tenant shall enter into and maintain a service contract therefor with a contractor licensed to do business in the jurisdiction in which the Building is located and otherwise approved by Landlord.  Tenant shall have access to the Building twenty‑four (24) hours per day each day of the year (except in the event of an emergency).  Landlord shall provide a card key (or similar type of) access system to provide access to the Building and the Parking Facility at times other than Building Hours.  A reasonable number of access cards or other means of access (not to exceed the Access Card Allotment shall be provided to Tenant at no cost to Tenant (except that Landlord may charge Tenant for replacement cards).  Such access cards shall be issued by Landlord to the specific individuals that are designated by Tenant.  Tenant shall not permit anyone, except for Tenant's Agents, employees, permitted subtenants and assigns and authorized guests, to enter the Building at times other than the Building Hours.  All persons entering or exiting the Building at times other than the normal hours of operation of the Building shall, at Landlord's discretion, be required to sign in and out.

---

Representatives (nor any past, present or future board member, partner, trustee, director, member, officer, employee, agent, representative or advisor of any of them) under any circumstances be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business) in connection with or relating to this Lease, except for Tenant's liability under Article XXII.

---

judgment such repair and restoration cannot be completed within three hundred sixty (360) days after the occurrence of such damage or destruction (taking into account the time needed for effecting a satisfactory settlement with any insurance company involved, removal of debris, preparation of plans and issuance of all required governmental permits), then Landlord shall have the right to terminate this Lease by giving written notice of termination within forty‑five (45) days after the occurrence of such damage or destruction.  If this Lease is terminated pursuant to this Article, then rent shall be apportioned and paid to the earlier of the date of termination or the date Tenant completely vacates and abandons the Premises on account of such damage and Landlord shall be entitled to any insurance proceeds received by Tenant that are attributable to improvements required to be insured by Tenant that would remain in the Premises at the end of the Lease Term.  If this Lease is not terminated as a result of such damage or destruction, then until such repair and restoration of the Premises are substantially complete, Tenant shall receive an equitable abatement of rent equitably abated based upon the extent to which Tenant's use of the Premises is diminished; provided, however, that if Tenant fails to immediately pay over to Landlord insurance proceeds (which Tenant is required to pay to Landlord pursuant to the terms of this Lease) when received from Tenant's insurance any such rent abatement shall end on the date when Landlord would have been able to substantially complete repair and restoration of the Premises had Tenant timely paid Landlord such insurance proceeds.  Tenant shall have no obligation to pay to Landlord any insurance proceeds received by Tenant which are on account of business interruption or Alterations to the Premises which Landlord is not required to restore pursuant to the terms of this Section.  After receipt of all available insurance proceeds (including proceeds of insurance maintained by Tenant and required to be paid to Landlord hereunder), Landlord shall proceed with and bear the expenses of such repair and restoration of the Premises and the Building; provided, however, that (a)  Tenant shall pay the amount by which the cost of restoring any item which Landlord is required to restore and Tenant is required to insure exceeds the insurance proceeds received with respect thereto, and (b) Landlord shall not be required to repair or restore any Alterations or any other contents of the Premises (including any Tenant Items).  Notwithstanding anything herein to the contrary, Landlord shall have the right to terminate this Lease if (1) insurance proceeds plus deductibles equal less than    of the value of the Building as of the date of the casualty (so long as Landlord maintains the insurance required by Section 13.3), (2) the holder of any Mortgage applies such insurance proceeds to the payment of outstanding indebtedness such that the remaining proceeds available for such repair and restoration equal less than   of the value of the Building as of the date of the casualty, or (3) zoning or other applicable Laws or regulations do not permit such repair and restoration in a manner that permits general office use of the Premises; provided, however, that as to (1) and (2) Tenant shall have the right to void such termination, by delivering to Landlord, within thirty (30) days after receipt of Landlord's notice of termination, any shortfall in funds in excess of the foregoing   threshold.  Any monies provided to Landlord in accordance with the foregoing sentence shall not be recoverable by Tenant from Landlord.

---

day prior to the date title thereto vests in such authority and rent shall be apportioned as of such date.  If less than one‑third of the Premises or occupancy thereof is condemned, and if Tenant's use of the Premises is commercially feasible after such taking or condemnation, then this Lease shall continue in full force and effect as to the part of the Premises not so condemned, except that as of the date title vests in such authority Tenant shall not be required to pay rent with respect to the part of the Premises so condemned.  Landlord shall notify Tenant of any condemnation contemplated by this Section promptly after Landlord receives notice thereof.  Within ten (10) days after receipt of such notice, Tenant shall have the right to terminate this Lease with respect to the remainder of the Premises not so condemned as of the date title vests in such authority if such condemnation renders said remainder of the Premises reasonably unusable for their intended purpose.  Notwithstanding anything herein to the contrary, if   or more of the parking areas is condemned, and if Landlord is unable to promptly provide alternative parking which is reasonably proximate to the Premises, then whether or not any portion of the Premises is condemned, Tenant shall have the right to terminate this Lease as of the date title vests in such authority.

---

result of any failure of such other person to perform any of its obligations to Landlord), which amount shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default, it being understood that separate suits may be brought from time to time to collect any such damages for any month(s) (and any such separate suit shall not in any manner prejudice the right of Landlord to collect any damages for any subsequent month(s)), or Landlord may defer initiating any such suit until after the expiration of the Lease Term (in which event such deferral shall not be construed as a waiver of Landlord's rights as set forth herein and Landlord's cause of action shall be deemed not to have accrued until the expiration of the Lease Term) and it being further understood that if Landlord elects to bring suits from time to time prior to reletting the Premises, Landlord shall be entitled to its full damages through the date of the award of damages without regard to any Base Rent, additional rent or other sums that are or may be projected to be received by Landlord upon reletting of the Premises; or (b) an amount equal to the difference between (i) all Base Rent, additional rent and other sums due or which would be due and payable under this Lease as of the date of Tenant's default through the end of the scheduled Lease Term, and (ii) the fair market value rental of the Premises over the same period (net of all expenses (including attorneys' fees) and all vacancy periods reasonably projected by Landlord to be incurred in connection with the reletting of the Premises), as determined by Landlord in its sole and absolute discretion, which difference shall be discounted at a rate equal to one (1) whole percentage point above the discount rate in effect on the date of payment at the Federal Reserve Bank nearest the Building, and which resulting amount shall be payable to Landlord in a lump sum on demand, it being understood that upon payment of such liquidated and agreed final damages, Tenant shall be released from further liability under this Lease, and that Landlord may bring suit to collect any such damages at any time after an Event of Default shall have occurred.  Tenant shall pay all reasonable expenses (including attorneys' fees) incurred by Landlord in connection with or as a result of any Event of Default whether or not a suit is instituted.  The provisions contained in this Section shall be in addition to, and shall not prevent the enforcement of, any claim Landlord may have against Tenant for anticipatory breach of this Lease (including, the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for herein).  Nothing herein shall be construed to affect or prejudice Landlord's right to prove, and claim in full, unpaid rent accrued prior to termination of this Lease.  If Landlord is entitled, or Tenant is required, pursuant to any provision hereof to take any action upon the termination of the Lease Term, then Landlord shall be entitled, and Tenant shall be required, to take such action also upon the termination of Tenant's right of possession.

---

---

assignment of this Lease.  If Trustee fails to assume or assume and assign this Lease in accordance with the requirements of the Bankruptcy Code within sixty (60) days after the initiation of the Case (or such other period as may be provided by the Bankruptcy Code or allowed by the United States Bankruptcy Court for same), then Trustee shall be deemed to have rejected this Lease.  If this Lease is rejected or deemed rejected, then Landlord shall have all rights and remedies available to it pursuant to Article XIX.  At any time during the Term, upon not less than five (5) days prior written notice, Tenant shall provide Landlord with the most current financial statement for Tenant and any such person and financial statements for the two (2) years prior to the current financial statement year.  Such statements are to be certified by Tenant to be true, correct and complete, prepared in accordance with generally accepted accounting principles and, if it is the normal practice of Tenant, audited by any independent certified public accountant.

---

pursuant to the provisions of this Lease if the Lease Term had continued during such holdover period; provided, however, that if Tenant delivers written notice to Landlord at least ninety (90) days prior to the expiration of the Term that it wishes to continue to occupy the Premises, then damages shall be waived for the first thirty (30) days of holdover and the rent payable by Tenant hereunder shall be increased to the following percentages of the Base Rent that would have been payable pursuant to the provisions of this Lease if the Lease Term had continued during such holdover period:    for the first thirty (30) days;    for the thirty-first (31^st) through ninetieth (90^th) days of such holdover; and    thereafter.  In any cases under this Section 22.1 Tenant shall continue to pay    of additional rent and other sums that would have been payable pursuant to the provisions of this Lease.  Such rent shall be computed by Landlord and paid by Tenant on a monthly basis and shall be payable on the first day of such holdover period and the first day of each calendar month thereafter during such holdover period until the Premises have been vacated.  Notwithstanding any other provision of this Lease, Landlord's acceptance of such rent shall not in any manner adversely affect Landlord's other rights and remedies, including Landlord's right to evict Tenant and, except as provided above, to recover all damages.  Any such holdover shall be deemed to be a tenancy‑at‑sufferance and not a tenancy‑at‑will or tenancy from month‑to‑month.  In no event shall any holdover be deemed a permitted extension or renewal of the Lease Term, and nothing contained herein shall be construed to constitute Landlord's consent to any holdover or to give Tenant any right with respect thereto.

---

de minimis basis, except to the extent such designated or assigned parking spaces exist in the leases of other tenants in the Project as of the date of this Lease.  Tenant and its employees shall observe reasonable safety precautions in the use of the Parking Facility or any other parking area and shall at all times abide by all rules and regulations governing the use of the Parking Facility.  Landlord reserves the right to close the Parking Facility or any other parking area during periods of unusually inclement weather or for alterations, improvements or repairs, provided that Landlord shall use reasonable efforts to minimize interference with Tenant's normal business operations in the Premises.  Landlord does not assume any responsibility, and shall not be held liable, for any damage or loss to any automobile or personal property in or about the Parking Facility or any other parking area, or for any injury sustained by any person in or about the Parking Facility or any other parking area.  Landlord shall not be liable to Tenant and, except as otherwise provided herein, this Lease shall not be affected if any parking rights hereunder are impaired by any Law imposed after the Lease Commencement Date.  Notwithstanding anything to the contrary contained in this Article XXIV, subject to availability, Tenant will have the right to use up to four and one-half (4.5) parking spaces per one thousand (1,000) rentable square feet in the Premises; provided, however, that Tenant's right to use such additional parking spaces shall continue only so long as such additional parking spaces are available, as determined by Landlord.  Subject to obtaining Landlord's prior written approval as to the location of spaces, which shall not be unreasonably withheld, conditioned or delayed, Tenant shall have the right to convert three (3) spaces in front of the Building for priority parking for car pool and van pool vehicles.

---

---

---

 

 

 

Tenant shall have the one-time right to terminate the Lease on June 30, 2023 (the "Early Termination Date"), provided:  (a) Tenant delivers a written notice ("Early Termination Notice") to Landlord of its intention to terminate no later than December 31, 2021, time being of the essence; (b) Tenant is not in default (beyond applicable cure periods) at the time the Early Termination Notice is delivered; and (c) Tenant delivers to Landlord, a payment ("Termination Fee") equal to    .

---

maintain up to three (3) satellite dishes or similar antennae devices not exceeding 2 feet in diameter (each, a "Satellite Dish" or, collectively, the "Satellite Dishes") on the roof of the Building for use in connection with Tenant's business in the Premises.  Notwithstanding anything in this Article to the contrary, Tenant shall not be permitted to install the Satellite Dishes unless (i) each Satellite Dish conforms to the specifications and requirements set forth in the drawings and specifications prepared by a licensed professional (the "Satellite Dish Drawings"), which Satellite Dish Drawings shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld or delayed, (ii) Landlord approves, which approval shall not be unreasonably withheld conditioned or delayed, the capacity, power, location and proposed placement and method of installation of each Satellite Dish, and (iii) Tenant obtains, at its sole cost and expense, and provides copies to Landlord of all necessary governmental permits and approvals, including, without limitation, those of the Las Colinas Association and special exception permits, if applicable, for the installation of the Satellite Dish equipment upon the Building.  Tenant, at Landlord's direction, shall cause the Satellite Dishes to be painted in a nonmetallic paint.  In addition, if the installation of any Satellite Dish on the roof of the Building would penetrate the roof of the Building, then Tenant shall not be permitted to install such Satellite Dish unless Tenant warrants and guaranties the roof to the extent that Landlord will lose its existing roof warranty or guaranty and unless Landlord approves, in writing, any such effect on the Building's structure or service systems or any such structural alteration, which approval may be granted or withheld by Landlord in its sole discretion.  The Satellite Dishes shall be installed by a contractor reasonably acceptable to both Landlord and Tenant and thereafter shall be properly maintained by Tenant, all at Tenant's sole expense.  At the expiration or earlier termination of the Term, the Satellite Dishes shall be removed from the roof of the Building at Tenant's sole cost and expense and that portion of the roof of the Building that has been affected by the Satellite Dishes shall be returned to the condition it was in prior to the installation of the Satellite Dishes.  Tenant shall pay all subscription fees, usage charges and hookup and disconnection fees associated with Tenant's use of the Satellite Dishes and Landlord shall have no liability therefor.  All of the applicable provisions of this Lease, including, without limitation, the insurance, maintenance, repair, release and indemnification provisions shall apply to Tenant's installation, operation, maintenance and removal of the Satellite Dishes.

---

necessary or desirable.  Any such relocation shall be performed by Tenant at Landlord's expense, and in accordance with all of the requirements of this Section.  Nothing in this Section shall be construed as granting Tenant any line of sight easement with respect to any such Satellite Dish; provided, however, that if Landlord requires that any such Satellite Dish be relocated in accordance with the preceding two (2) sentences, then Landlord shall use reasonable efforts to provide either (a) the same line of sight for such Satellite Dish as was available prior to such relocation, or (b) a line of sight for such Satellite Dish which is functionally equivalent to that available prior to such relocation.

---

have the right to elect to have either or both Generators remain at the Building in which event such equipment shall be the property of Landlord and Tenant shall deliver to Landlord an executed ▇▇▇▇ of sale for the New Generator upon Landlord's request. Landlord shall not be deemed to make such election unless Landlord delivers its written notice of such election to Tenant.

---

Landlord with copies of all paid invoices evidencing that such work has been undertaken by Tenant.  The frequency of cleaning shall be increased upon thirty (30) days' prior written notice from Landlord if Landlord's chief engineer reasonably determines that the same is necessary.  Tenant shall be responsible for all repairs and replacements of all exhaust equipment within the cafeteria and also for the roof exhaust fan unit.

---

IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal as of the day and year first above written.

---

Access Card Allotment:  Four and one-half (4.5) access cards per 1,000 square feet of rentable area in the Premises.  Tenant shall reimburse Landlord for the cost to replace lost or stolen access cards or to provide additional access cards for new employees at Landlord's then standard charge, currently  per access card.

 

ADA:  the Americans with Disabilities Act and the regulations promulgated thereunder, as the same may be amended from time to time.

 

Affiliate of Tenant:  (i) a corporation or other business entity (a "successor corporation") into or with which Tenant shall be merged or consolidated, or to which substantially all of the assets of Tenant (or a beneficial interest therein) may be transferred or sold, provided that the successor corporation (unless Tenant is the successor corporation) shall assume in writing all of the obligations and liabilities of Tenant under this Lease and the proposed use of the Premises is in compliance with Article VI; or (ii) a corporation or other business entity (a "related corporation") which shall control, be controlled by or be under common control with Tenant, provided that such related corporation shall assume in writing all of the obligations and liabilities of Tenant under this Lease (without relieving Tenant therefrom) and the proposed use of the Premises is in compliance with Article VI.  For purposes of clause (ii) above, "control" shall be deemed to be ownership of more than   of the stock or other voting interest of the controlled corporation or other business entity.

 

Agents:  any agent, employee, subtenant, assignee, contractor, client, family member, licensee, customer, invitee or guest of a party.

 

Alterations:  any structural or other alterations, decorations, additions, installations, demolitions, improvements or other changes.

 

Approved Space Plan:  a space plan, approved by both Landlord and Tenant, drawn to scale which shall include, as Landlord deems reasonably necessary, all partition types and locations; all doors and hardware requirements; all light fixtures and exit lights; all finish materials including glass, wall and floor finishes; all special ceiling conditions; all cabinetry and millwork with elevations and details; all modifications to existing base building HVAC equipment, all electrical receptacles; all data and voice locations; all floor load requirements which exceed eighty (80) pounds per square foot live load and twenty (20) pounds per square foot dead load; and the seating capacity of all conference rooms and furniture workstation areas; and all other necessary information requested by Landlord.  Any plans prepared by Tenant shall be prepared by a licensed architect approved by Landlord (which approval shall not be unreasonably withheld or delayed) and in a form sufficient to secure approvals of applicable governmental authorities.

 

Bankruptcy Code:  Title 11 of the United States Code, as amended.

 

Building Directory Share:  one (1) listing.

 

Building Structure and Systems:  the exterior and common area walls, main lobby in the Building, slab floors, exterior windows, load bearing elements, foundations, all other structural elements, roof and common areas that form a part of the Building, and the building mechanical, electrical, lighting, HVAC, life safety (including sprinklers) and plumbing systems, pipes and conduits that are provided by Landlord in the operation of the Building.

 

Cabling:  telephone, computer and other communications and data systems and cabling.

 

Case:  a formal proceeding in which Tenant is the subject debtor under the Bankruptcy Code.

 

Common Areas:  (i) the areas identified as Building Common Areas on Exhibit J attached to this Lease and (ii) the common and public areas and facilities and improvements to the Land outside of the Building which are from time to time provided by Landlord for the use or benefit of all tenants in the Project or for use or benefit by the public in general, including (a) any and all non-exclusive grounds, parks, landscaped areas, plazas, outside sitting areas, sidewalks, tunnels, pedestrian ways, sky bridges, loading docks, and (b) generally all other common and public improvements on the Land, including the Parking Facilities.

 

Construction Drawings:  the architectural, mechanical and engineering working drawings that define the total scope of work to be performed by Landlord or Tenant, as applicable, in sufficient detail to secure required permits from the local jurisdiction and that include, without limitation:  key plan; all legends and schedules; construction plan; reflected ceiling plan; telephone and electrical outlet location plan; finish plan; and all architectural details, elevations and specifications necessary to construct the Premises.

 

Cosmetic Changes:  those minor, non‑structural Alterations of a decorative nature consistent with a first-class office building for which a building permit is not required and which cost (including installation) in the aggregate less than   per project or series of related projects (as reasonably determined by Landlord), such as painting, carpeting and hanging pictures.

 

Costs:  any costs, damages, claims, liabilities, expenses (including reasonable attorneys' fees), losses, penalties and court costs.

 

 

---

Default Rate:  the greater of  per annum or the rate per annum which is   than the Prime Rate published in the Money Rates section of the Wall Street Journal.

 

Environmental Default:  any of the following by Tenant or any Agent of Tenant:  a violation of an Environmental Law or a release, spill or discharge of a Hazardous Material on or from the Premises, the Land or the Building.

 

Environmental Law:  any present and future Law and any amendments (whether common law, statute, rule, order, regulation or otherwise), permits and other requirements or guidelines of governmental authorities applicable to the Building or the Land and relating to the environment and environmental conditions or to any Hazardous Material (including CERCLA, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., the Emergency Planning and Community Right‑To‑Know Act, 42 U.S.C. § 1101 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and any so‑called "Super Fund" or "Super Lien" law, any Law requiring the filing of reports and notices relating to hazardous substances, environmental laws administered by the Environmental Protection Agency, and any similar state and local Laws, all amendments thereto and all regulations, orders, decisions, and decrees now or hereafter promulgated thereunder concerning the environment, industrial hygiene or public health or safety).

 

ERISA: the Employee Retirement Income Security Act of 1974, as amended.

 

Event of Bankruptcy:  the occurrence with respect to any of Tenant, any Guarantor or any other person liable for Tenant's obligations hereunder (including any general partner of Tenant) of any of the following:  (a) such person becoming insolvent, as that term is defined in the Bankruptcy Code or Insolvency Laws; (b) appointment of a receiver or custodian for any property of such person, or the institution of a foreclosure or attachment action upon any property of such person; (c) filing by such person of a voluntary petition under the provisions of the Bankruptcy Code or Insolvency Laws which is not dismissed within sixty (60) days after filing; (d) filing of an involuntary petition against such person as the subject debtor under the Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within sixty (60) days after filing, or (2) results in the issuance of an order for relief against the debtor; or (e) such person making or consenting to an assignment for the benefit of creditors or a composition of creditors, or (f) an admission by Tenant or Guarantor of its inability to pay debts as they become due.

 

Event of Default:  any of the following:  (a) Tenant's failure to make when due any payment of the Base Rent, additional rent or other sum, which failure shall continue for a period of five (5) days after Tenant's receipt or refusal of Landlord's written notice thereof; (b) Tenant's material failure to perform or observe any covenant or condition of this Lease not otherwise specifically described in Section 19.1, which failure shall continue for a period of thirty (30) days after Landlord sends Tenant written notice thereof (or such shorter period as is appropriate if such failure is capable of being cured sooner); provided, however, that if such cure cannot reasonably be effected within such thirty (30) day period and Tenant begins such cure promptly within such thirty (30) day period and is pursuing such cure in good faith and with diligence and continuity during such thirty (30) day period, then Tenant shall have such additional time as is reasonably necessary to effect such cure; (c) an Event of Bankruptcy; (d) Tenant's dissolution or liquidation; or (e) any Environmental Default.

 

Final Construction Drawings: the Construction Drawings as approved (or deemed approved pursuant to Exhibit B) by Tenant and Landlord.

 

Hazardous Materials:  (a) asbestos and any asbestos containing material and any substance that is then defined or listed in, or otherwise classified pursuant to, any Environmental Law or any other applicable Law as a "hazardous substance," "hazardous material," "hazardous waste," "infectious waste," "toxic substance," "toxic pollutant" or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic Leaching Procedure (TCLP) toxicity, (b) any petroleum and drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources, (c) toxic mold, mildew or any substance that reasonably can be expected to give rise to toxic mold or mildew, or (d) any petroleum product, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive material (including any source, special nuclear, or by‑product material), medical waste, chlorofluorocarbon, lead or lead‑based product, and any other substance whose presence could be detrimental to the Building or the Land or hazardous to health or the environment.

 

including:  including, but not limited to; including, without limitation; and words of similar import.

 

Insolvency Laws:  the insolvency Laws of any state.

 

IRC:  Internal Revenue Code of 1986, as amended.

 

Land:  the site upon which the Building is constructed.

 

 

---

Landlord Insured Parties:  Landlord's advisors, the managing agent of the Building and the holder of any Mortgage, in each case of whom Landlord shall have given notice to Tenant, and any other party that Landlord may reasonably designate in writing from time to time.

 

Landlord's Representatives:  Landlord's affiliates, shareholders, partners, directors, officers, employees, agents and representatives.

 

Landlord's Work:  As defined in Exhibit B.

 

Laws:  all present and future laws, ordinances (including zoning ordinances and land use requirements), regulations, orders and recommendations (including those made by any public or private agency having authority over insurance rates).

 

Lease Year:  a period of twelve (12) consecutive months commencing on the Lease Commencement Date as to the entire Premises, and each successive twelve (12) month period thereafter; provided, however, that if the Lease Commencement Date as to the entire Premises is not the first day of a month, then the second Lease Year shall commence on the first day of the month following the month in which the first anniversary of the Lease Commencement Date as to the entire Premises occurs.

 

Mortgages:  all mortgages, deeds of trust, ground leases or other security instruments which may now or hereafter encumber any portion of the Building or the Land.

 

Operating Charges: all expenses, charges and fees actually incurred by or on behalf of Landlord in connection with the management, operation, maintenance, servicing, insuring and repair of the Project, in each case, determined in accordance with generally accepted accounting principles (GAAP), including the following:  (1) electricity, gas, water, HVAC (including chilled condenser water), sewer and other utility and service costs, reasonable charges and fees (including any tap fees and connection and switching fees) of every type and nature; (2) premiums, deductibles (up to  ) and other charges for insurance; (3) management fees of not more than   of the gross revenues of the Building (management fees shall not exceed similar fees charged in connection with the operation of similar Class A multi-tenant projects in the Las Colinas/Urban Center submarket area); (4) personnel costs of the Building (including all fringe benefits, workers' compensation insurance premiums and payroll taxes) (5) costs of service, equipment rental, access control, landscaping and maintenance contracts; (6) maintenance, repair and replacement expenses and supplies; (7) depreciation/amortization for capital expenditures made by Landlord to the extent that same actually reduce operating expenses, which shall be charged in annual installments equal to the greater of the savings realized or the amortized amount based upon the useful life of the items for which such costs are incurred, each calendar year such costs are charged to Operating Charges, together with interest, on the unamortized balance at interest rates charged for long term mortgages by institutional lenders; (8) charges for janitorial and cleaning services and supplies; (9) any business, professional or occupational license tax payable by Landlord with respect to the Building and any association fees; (10) sales, use and personal property taxes payable in connection with tangible personal property and services purchased for and used in connection with the Building; (11) reasonable third party accounting and audit fees relating to the determination of Operating Charges (and tenants' proportionate shares thereof) and the preparation of statements required by tenant leases; (12) expenses incurred in connection with concierge services provided to the Building (if any); (13) the fair market rental value of any on and off-site management office (of reasonable and customary size), pro-rated to the extent that such office provides services to buildings other than the Building; (14) special assessments, fees,  penalties and other charges and costs for transit, transit encouragement traffic reduction programs, or any similar purpose; (15) all costs of operating, maintaining, repairing and replacing equipment in any function room or other amenity of the Building; (16) payments required in connection with a reciprocal easement or similar agreement to which the Landlord is bound; (17) costs incurred related to complying with Laws enacted after the Lease Commencement Date; and (18) any other expense incurred by Landlord in arm's-length transactions in connection with maintaining, repairing or operating the Building.  Where applicable, Operating Charges shall be equitably allocated among the three (3) Buildings in the Project.  Notwithstanding any provision contained in this Lease to the contrary, Operating Charges shall not include:  

1)

leasing commissions, fees and costs, advertising and promotional expenses and other costs incurred in procuring tenants or in selling the Building, Project or the real property upon which the Building is located;

2)

legal fees or other expenses incurred in connection with enforcing leases with tenants in the Building;

3)

costs of renovating or otherwise improving or decorating space for any tenant or other occupant of the Building or the Project, including Tenant, or relocating any tenant;

4)

financing costs including interest and principal amortization of debts and the costs of providing the same;

 

 

---

5)

except as otherwise expressly provided above, depreciation;

6)

rental on ground leases or other underlying leases and the costs of providing the same;

7)

wages, bonuses and other compensation of employees above the grade of Senior Property Manager, Building Manager or equivalent.

8)

any liabilities, costs or expenses associated with or incurred in connection with the removal, enclosure, encapsulation or other handling of Hazardous Materials (as defined in Rider 1 ) and the cost of defending against claims in regard to the existence or release of Hazardous Materials at the Building or the Project (except with respect to those costs for which Tenant is otherwise responsible pursuant to the express terms of this Lease);

9)

costs of any items for which Landlord is or is entitled to be paid or reimbursed by insurance;

10)

increased insurance or Real Estate Taxes assessed specifically to any tenant of the Building or the Project for which Landlord is entitled to reimbursement from any other tenant;

11)

charges for electricity, water, or other utilities, services or goods and applicable taxes for which Tenant or any other tenant, occupant, person or other party is obligated to reimburse Landlord or to pay to third parties;

12)

cost of any HVAC, janitorial or other services provided to tenants on an extra cost basis after regular business hours;

13)

the  cost of installing, operating and maintaining any specialty service, such as a cafeteria, observatory, broadcasting facilities, child or daycare, for so long as Tenant is operating and maintaining any such service;

14)

cost of correcting defects in the design, construction or equipment of, or latent defects in, the Building or the Project; due to the original construction.

15)

cost of any work or service performed on an extra cost basis for any tenant in the Building or the Project to a materially greater extent or in a materially more favorable manner than furnished generally to the tenants and other occupants;

16)

any cost representing an amount paid to a person firm, corporation or other entity related to Landlord that is in excess of the amount which would have been paid in the absence of such relationship;

17)

cost of initial cleaning and rubbish removal from the Building or the Project to be performed before final completion of the Building or tenant space;

18)

cost of initial landscaping of the Building or the Project;

19)

except as expressly provided above in clause (7) of the first paragraph of the definition of Operating Charges, cost of any item that, under generally accepted accounting principles, are properly classified as capital expenses;

20)

lease payments for rental equipment (other than equipment for which depreciation is properly charged as an expense) that would constitute a capital expenditure if the equipment were purchased;

21)

cost of the initial stock  of tools and equipment for operation, repair and maintenance of the Building or the Project;

22)

late fees or charges incurred by Landlord due to late payment of expenses, except to the extent attributable to Tenant's actions or inactions;

23)

cost of acquiring, securing sculptures, paintings and other works of art;

24)

real estate taxes or taxes on Landlord's business (such as income, excess profits, franchise, capital stock, estate, inheritance, etc.);

25)

charitable or political contributions;

 

 

---

26)

reserve funds;

27)

all other items for which another party compensates or pays so that Landlord shall not recover any item of cost more than once;

28)

Landlord's general overhead and any other expenses not directly attributable to the operation and management of the Building and the Project (e.g. the activities of Landlord's officers and executives or professional development expenditures), except to the extent such expenses are equitably allocated among all buildings receiving services therefor;

29)

costs and expenses incurred in connection with compliance with or contesting or settlement of any claimed violation of law or requirements of law, except to the extent attributable to Tenant's actions or inactions;

30)

costs of mitigation or impact fees or subsidies (however characterized), imposed or incurred prior to the date of the Lease or imposed or incurred solely as a result of another tenant's or tenants' use of the Project or their respective premises.

31)

cost of any work or services performed for any facility other than the Building or Site (except to the extent any Project costs are allocated to the Building);

32)

to the extent that Landlord voluntarily institutes same, any costs related to public transportation, transit or vanpools, unless Tenant shall elect to participate in any such service;

33)

costs occasioned by casualties (except to the extent of any deductible up to   ) or condemnation; and

34)

increases in insurance costs caused by the activities of another occupant of the Project, and insurance deductibles and co-insurance payments in excess of   .

Operating Charges Base Amount:  the Operating Charges incurred during the Operating Charges Base Year, grossed-up to reflect a fully occupied Building.  If Landlord carries a specific type of insurance on the Building or the Project that was not carried during the entire Operating Charges Base Year, then the Operating Charges Base Amount shall be increased to reflect the cost of such insurance if it had been carried during the entire Operating Charges Base Year.

 

Parking Facility:  the parking facility adjacent to and in the garage of the Building

 

Permitted Recipient:  the officers, partners and senior level employees of Tenant who are involved in lease administration, Tenant's certified public accountants who have responsibilities related to Operating Charges, Tenant's attorney if involved in the dispute, any employees of Tenant's auditor involved with the review, or any person or entity to whom disclosure is required by applicable judicial or governmental authority.

 

Prime Rate:  the prime rate published in the Money Rates section of the Wall Street Journal.

 

Proposed Sublease Commencement Date:  the anticipated commencement date of the proposed assignment, subletting or other transaction.

 

Proposed Sublet Space:  the area proposed to be assigned, sublet or otherwise encumbered.

 

Real Estate Taxes Base Amount:  the Real Estate Taxes incurred during the Real Estate Taxes Base Year which shall reflect a fully occupied and fully assessed Building.

 

Real Estate Taxes:  (1) all real estate taxes, vault and/or public space rentals, business district or arena taxes, special user fees, rates and assessments (including general and special assessments, if any), ordinary and extraordinary, foreseen and unforeseen, which are imposed upon Landlord or assessed against the Building or the Land, or Landlord's personal property used in connection therewith; (2) any other present or future taxes or charges that are imposed upon Landlord or assessed against the Building which are in the nature of or in substitution for real estate taxes, including any tax levied on or measured by the gross rents payable by tenants of the Building, any public safety fee or similar charge, any transit, sales, rental, use, receipts or occupancy tax or fee, and any assessment imposed in connection with business improvement or similar districts; (3) the Texas margin tax and/or any other business tax imposed under Texas Tax Code Chapter 171 and/or any successor statutory provision; and (4) reasonable expenses (including reasonable attorneys' and consultants' fees and court costs) incurred in reviewing, protesting or seeking a reduction or abatement of, or defending or otherwise participating in any challenge to, real estate taxes, whether or not such protest or reduction is ultimately successful (provided, however, that such review, protest, or reduction attempt is undertaken in good faith by Landlord with the reasonable expectation to reduce Real Estate Taxes for the Building).  For purposes of calculating increases in Real

 

 

---

Estate Taxes, the amount "incurred" by Landlord shall mean the amount which would be payable for Real Estate Taxes assuming Landlord receives the benefit of any early payment discounts.  For property tax purposes, Tenant waives all rights to protest or appeal the appraised value of the Premises, as well as the Project, and all rights to receive notices of reappraisement as set forth in Sections 41.413 and 42.015 of the Texas Tax Code.  Real Estate Taxes shall not include any inheritance, estate, gift, franchise, corporation, net income or net profits tax assessed against Landlord from the operation of the Building, any taxes assessed on improvements to the Building after the Lease Commencement Date (other than capital improvements for the benefit of Tenant) or any interest charges or penalties incurred as a result of Landlord's failure to timely pay Real Estate Taxes (provided that if the taxing authority permits a taxpayer to elect to pay in installments over more than one year, then, for purposes of determining the amount of Real Estate Taxes, Landlord shall be deemed to have elected to pay in installments over the longest possible term, and all interest charges and installments attributable to the Lease Term shall be deemed Real Estate Taxes).  Real Estate Taxes shall not include any late payment fees.

 

Reconciliation Statement: a reasonably detailed written statement showing (1) Tenant's Proportionate Share of the amount by which Operating Charges, Electricity Costs or Real Estate Taxes, as applicable, incurred during the preceding calendar year exceeded, respectively, the Operating Charges Base Amount or the Real Estate Taxes Base Amount and (2) the aggregate amount of Tenant's estimated payments made on account of Operating Charges, Electricity Costs and Real Estate Taxes during such year

 

Retail Area Charges: those expenses, if any, that are solely attributable to and payable by tenants of the Retail Area (for example, expenses relating to janitorial, bussing and cleaning services; storage and removal of trash; maintenance and replacement of tables, chairs, trash receptacles and other furnishings or facilities; and electricity, gas, water, sewer and other utility service furnished solely to such space, to the extent applicable).

Structural and System Alterations:  any Alteration that will or may necessitate any changes, replacements or additions to the load-bearing or exterior walls, non-drop ceilings, load-bearing partitions, columns or floor, or to the fire protection, water, sewer, electrical, mechanical, plumbing, HVAC or other base building systems, of the Premises or the Building.

 

Substantially Complete:  Landlord's Work shall be substantially complete when (i) the work to be performed by Landlord in the Premises in accordance with Exhibit B to this Lease shall have been substantially completed notwithstanding that certain details of construction, mechanical adjustment or decoration remain to be performed, the noncompletion of which would not materially interfere with the permitted use of the Premises; and (ii) a Certificate of Occupancy has been issued for the Premises.

 

Tenant Items:  all non-Building standard supplemental heating, ventilation and air conditioning equipment and systems installed by Tenant serving exclusively the Premises and any special tenant areas, facilities and finishes installed by Tenant, any special fire protection equipment, any telecommunications, security, data, computer and similar equipment installed or utilized by Tenant, cabling and wiring, kitchen/galley equipment and fixtures installed or utilized by Tenant, all other furniture, furnishings, equipment and systems of Tenant and all Alterations installed or utilized by Tenant.

 

Tenant's Sublease Request Notice:  a notice to Landlord containing: the identity of a proposed assignee, subtenant or other party and its business; the terms of the proposed assignment, subletting or other transaction (including a copy of the proposed document for same); the Proposed Sublease Commencement Date; the Proposed Sublet Space; and a certification executed by Tenant and such party stating whether or not any premium or other consideration is being paid for the assignment, sublease or other transaction.

 

Trustee:  a trustee-in-bankruptcy of Tenant under a Case.

---

This Certificate is being provided pursuant to that certain Lease Agreement dated as of August 1, 2013 (the "Lease"), by and between PIEDMONT OPERATING PARTNERSHIP, LP, a Delaware limited partnership ("Landlord") and EPSILON DATA MANAGEMENT, LLC, a Delaware limited liability company ("Tenant").  The parties to the Lease desire to confirm the following:

IN WITNESS WHEREOF, Landlord and Tenant have executed this Certificate under seal on July 15, 2014.

 

 

---