1
EXHIBIT 10.58
ADDISON CIRCLE ONE
OFFICE LEASE AGREEMENT
BETWEEN
CHAMPION ADDISON ONE LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
AS LANDLORD
AND
CAPROCK COMMUNICATIONS CORP., A TEXAS CORPORATION,
AS TENANT
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TABLE OF CONTENTS
PAGE NO.
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1. Definitions ............................................................. 1
(a) "Applicable Laws" ............................................. 1
(b) "Base Amount" ................................................. 1
(c) "Base Building Plans" ......................................... 1
(d) "Base Rental".................................................. 1
(e) "Basic Operating Costs"........................................ 1
(f) "Broker"....................................................... 1
(g) "Building" .................................................... 1
(h) "Building Standard"............................................ 1
(i) "Commencement Date"............................................ 1
(j) "Common Areas" ................................................ 2
(k) "Complex" ..................................................... 2
(l) "Default Rate" ................................................ 2
(m) "Delivery Date" ............................................... 2
(n) "Design Criteria" ............................................ 2
(o) "Effective Date" .............................................. 2
(p) "Final Phase" ................................................. 2
(q) "Final Stage" ................................................. 2
(r) "Initial Improvements" ........................................ 2
(s) "Initial Premises" ............................................ 2
(t) "Initial Stage" ............................................... 2
(u) "Landlord Related Party" ...................................... 2
(v) "Lease Term" .................................................. 2
(w) "Lease Year" .................................................. 2
(x) "Market Area" ................................................. 2
(y) "Normal Business Holidays" .................................... 2
(z) "Normal Business Hours" ....................................... 3
(aa) "Office Portion of the Parking Garage" ........................ 3
(ab) "Parking Agreement" ........................................... 3
(ac) "Parking Areas" ............................................... 3
(ad) "Parking Garage" .............................................. 3
(ae) "Premises" ................................................... 3
(af) "Property" ................................................... 3
(ag) "Punchlist Items" ............................................ 3
(ah) "Ready for Tenant's Work" .................................... 3
(ai) "Rent" ........................................................ 3
(aj) "Rentable Area" ............................................... 3
(ak) "Rentable Area of the Building" ............................... 3
(al) "Rentable Area of the Premises" ............................... 3
(am) "Rules and Regulations" ....................................... 3
(an) "Second Phase" ................................................ 4
(ao) "Second Stage" ................................................ 4
(ap) "Security Deposit" ............................................ 4
(aq) "Service Areas" ............................................... 4
(ar) "Stage" ....................................................... 4
(as) "Substantially Complete" ...................................... 4
(at) "Taxes" ....................................................... 4
(au) "Tenant Delay" ................................................ 4
(av) "Tenant Improvements" ......................................... 4
(aw) "Tenant Improvements Agreement" ............................... 4
(ax) "Tenant Related Party" ........................................ 4
(ay) "Tenant's Share" .............................................. 4
(az) "Tenant's Share of Basic Operating Costs" ..................... 5
2. Lease Grant ............................................................. 5
3. Lease Term; Acceptance of Premises ...................................... 5
4. Use ..................................................................... 6
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TABLE OF CONTENTS
(continued)
PAGE NO.
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5. Payment of Rent ......................................................... 6
6. Electricity and Basic Operating Costs .................................. 6
7. Late Payments; Dishonored Checks ........................................ 11
8. Security Deposit ........................................................ 11
9. Services to be Furnished by Landlord ................................... 12
10. Graphics; Signage ....................................................... 13
11. Telecommunications ...................................................... 14
12. Repair and Maintenance by Landlord ...................................... 15
13. Maintenance by Tenant ................................................... 15
14. Repairs by Tenant ....................................................... 15
15. Alterations, Additions, Improvements .................................... 15
16. Laws and Regulations; Disability Laws; Building Rules and Regulations ... 16
17. Entry by Landlord ....................................................... 17
18. Assignment and Subletting ............................................... 17
19. Mechanic's Liens ........................................................ 19
20. Property Insurance ...................................................... 19
21. Liability Insurance ..................................................... 20
22. INDEMNITY .............................................................. 20
23. WAIVER OF SUBROGATION RIGHTS ............................................ 21
24. Casualty Damage ......................................................... 21
25. Condemnation ........................................................... 22
26. DAMAGES FROM CERTAIN CAUSES ............................................. 22
27. Default by Tenant ....................................................... 23
28. Default by Landlord ..................................................... 24
29. Quiet Enjoyment ........................................................ 25
30. Holding Over ........................................................... 25
31. Change of Building Name or Common Areas ................................ 25
32. Subordination to Mortgage; Estoppel Agreement .......................... 25
33. Waiver of Landlord's Lien .............................................. 26
34. Attorney's Fees ......................................................... 26
35. No Implied Waiver ....................................................... 26
36. Independent Obligations ................................................. 27
37. Recourse Limitation ..................................................... 27
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TABLE OF CONTENTS
(continued)
PAGE NO.
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38. Notices ................................................................. 27
39. Severability ........................................................... 27
40. Recordation ............................................................ 27
41. Governing Law ........................................................... 27
42. Force Majeure ........................................................... 27
43. Time of Performance ..................................................... 27
44. Transfers by Landlord .................................................. 27
45. Commissions ............................................................. 27
46. Effect of Delivery of This Lease ....................................... 28
47. WAIVER OF WARRANTIES AND ACCEPTANCE OF CONDITION ....................... 28
48. Merger of Estates ...................................................... 28
49. Survival of Indemnities and Covenants .................................. 28
50. Headings ................................................................ 28
51. Entire Agreement; Amendments .......................................... 28
52. Exhibits ................................................................ 29
53. Joint and Several Liability ............................................ 29
54. Multiple Counterparts .................................................. 29
55. Building Signage ........................................................ 29
56. Satellite Dish ......................................................... 30
57. Warranty of Title ....................................................... 30
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ONE
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is executed effective as of
___________, 1998 (the "Effective Date"), between CHAMPION ADDISON ONE LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord"), and CAPROCK
COMMUNICATIONS CORP., a Texas corporation ("Tenant").
W I T N E S S E T H:
0.1. Definitions. As used in this Lease, the following terms shall have
the meanings set forth below:
0.1.0.0.1. "APPLICABLE LAWS" MEANS ALL CURRENT AND FUTURE
LAWS, ORDINANCES, ORDERS, RULES AND REQUIREMENTS OF ALL FEDERAL, STATE
AND MUNICIPAL AUTHORITIES (INCLUDING, WITHOUT LIMITATION, THE AMERICANS
WITH DISABILITIES ACT OF 1990, THE TEXAS ARCHITECTURAL BARRIERS ACT
[TEX. REV. CIV. STAT. ▇▇▇. ART. 9102] AND THE REGULATIONS PROMULGATED
THEREUNDER, AND LOCAL ZONING ORDINANCES AND BUILDING CODES) AND OF ANY
AND ALL OF THEIR DEPARTMENTS AND BUREAUS, AND OF THE LOCAL BOARD OF
FIRE UNDERWRITERS OR ANY OTHER BODY EXERCISING SIMILAR FUNCTIONS, AND
ALL PRIVATE SUBDIVISION REQUIREMENTS AND GUIDELINES APPLICABLE TO THE
PREMISES AND TENANT'S USE THEREOF.
0.1.0.0.2. "BASE AMOUNT" MEANS $6.25 PER SQUARE FOOT OF
RENTABLE AREA CONTAINED IN THE PREMISES.
0.1.0.0.3. "BASE BUILDING PLANS" MEANS LANDLORD'S FINAL PLANS
AND SPECIFICATIONS FOR THE CONSTRUCTION OF THE INITIAL IMPROVEMENTS,
WHICH BASE BUILDING PLANS ARE MORE PARTICULARLY DESCRIBED ON EXHIBIT
"I" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES.
0.1.0.0.4. "BASE RENTAL" MEANS (I) DURING THE INITIAL STAGE OF
OCCUPANCY, AN ANNUAL SUM OF $689,606.40, PAYABLE IN MONTHLY
INSTALLMENTS OF $57,467.20 (BUT SUBJECT TO THE ABATEMENT DESCRIBED IN
SECTION 5 HEREOF), (ii) DURING THE SECOND STAGE OF OCCUPANCY, AN ANNUAL
SUM OF $1,034,409.60, PAYABLE IN MONTHLY INSTALLMENTS OF $86,200.80,
AND (iii) DURING THE FINAL STAGE OF OCCUPANCY, AN ANNUAL SUM OF
$1,379,212.80, PAYABLE IN MONTHLY INSTALLMENTS OF $114,934.40. THE BASE
RENTAL FOR ANY PARTIAL MONTHS DURING THE LEASE TERM OR ANY APPLICABLE
STAGE SHALL BE PRO-RATED AND PAID AT THE RENTAL RATE APPLICABLE DURING
SUCH MONTH OF THE LEASE TERM OR THE APPLICABLE STAGE. ANY SUCH
PRO-RATED BASE RENTAL SHALL BE DUE UPON RECEIPT OF AN INVOICE FROM
LANDLORD. UPON COMPLETION OF THE IMPROVEMENTS, THE ARCHITECT (THE
"BUILDING ARCHITECT") WHO PREPARED THE BASE BUILDING PLANS SHALL
RE-MEASURE THE PREMISES TO DETERMINE THE RENTABLE AREA OF THE PREMISES
AND IF SUCH RE-MEASUREMENT YIELDS A DIFFERENT RENTABLE AREA THAN 61,572
SQUARE FEET, THEN BASE RENTAL SHALL BE ADJUSTED, UPWARD OR DOWNWARD AS
THE CASE MAY, TO REFLECT AN ANNUAL RENTAL RATE OF $22.40 PER SQUARE
FOOT OF RENTABLE AREA AND A CORRESPONDING ADJUSTMENT SHALL BE MADE TO
THE CONSTRUCTION ALLOWANCE (AS DEFINED IN EXHIBIT D) AND THE TENANT'S
SHARE. WITHIN THIRTY (30) DAYS AFTER THE DELIVERY DATE, TENANT'S
ARCHITECT (AS DEFINED IN THE TENANT IMPROVEMENTS AGREEMENT) SHALL HAVE
THE RIGHT TO VERIFY THE MEASUREMENTS OF THE PREMISES AND IN THE EVENT
TENANT'S ARCHITECT FAILS TO VERIFY SUCH MEASUREMENTS ON OR BEFORE SUCH
DATE, THE MEASUREMENTS OF THE BUILDING ARCHITECT SHALL BE CONCLUSIVE.
0.1.0.0.5. "BASIC OPERATING COSTS" SHALL HAVE THE MEANING
GIVEN TO SUCH TERM IN SECTION 6.
0.1.0.0.6. "BROKER" MEANS ▇▇▇▇▇▇▇ & WAKEFIELD OF TEXAS, INC.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 1
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0.1.0.0.7. "BUILDING" MEANS THE OFFICE BUILDING LOCATED UPON
THE PROPERTY. THE ADDRESS OF THE BUILDING IS ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
0.1.0.0.8. "BUILDING STANDARD" MEANS THE LEVEL OF SERVICE OR
TYPE OF EQUIPMENT STANDARD IN THE BUILDING OR THE TYPE, BRAND AND/OR
QUALITY OF MATERIALS DESIGNATED IN THE DESIGN CRITERIA.
0.1.0.0.9. "COMMENCEMENT DATE" MEANS THE EARLIER OF (1) THE
DATE THAT TENANT ACTUALLY OCCUPIES THE INITIAL PREMISES FOR THE CONDUCT
OF ITS BUSINESS, OR (2) MARCH 15, 1999 UNLESS DELAYED PURSUANT TO THE
PROVISIONS OF SECTION 3(b).
0.1.0.0.10. "COMMON AREAS" MEANS ALL AREAS, SPACES, FACILITIES
AND EQUIPMENT (WHETHER OR NOT LOCATED WITHIN THE BUILDING) MADE
AVAILABLE BY LANDLORD FOR THE COMMON AND JOINT USE OF LANDLORD, TENANT
AND OTHERS DESIGNATED BY LANDLORD USING OR OCCUPYING SPACE IN THE
BUILDING, INCLUDING, BUT NOT LIMITED TO, TUNNELS, LOADING DOCKS,
WALKWAYS, SIDEWALKS AND DRIVEWAYS NECESSARY FOR ACCESS TO THE BUILDING,
PARKING AREAS, BUILDING LOBBIES, ATRIUMS, LANDSCAPED AREAS, PUBLIC
CORRIDORS, PUBLIC REST ROOMS, BUILDING STAIRS, ELEVATORS OPEN TO THE
PUBLIC, SERVICE ELEVATORS (PROVIDED THAT SUCH SERVICE ELEVATORS SHALL
BE AVAILABLE ONLY FOR TENANTS OF THE BUILDING AND OTHERS DESIGNATED BY
LANDLORD), AND DRINKING FOUNTAINS, INCLUDING, BUT NOT LIMITED TO, ANY
SUCH AREAS SO DESIGNATED BY LANDLORD ON A SINGLE-TENANT FLOOR OF THE
BUILDING, WITH RESTROOMS AND WATER FOUNTAINS ON SINGLE TENANT FLOORS
BEING SO DESIGNATED.
0.1.0.0.11. "COMPLEX" MEANS THE PROPERTY, THE BUILDING AND THE
PARKING AREAS.
0.1.0.0.12. "DEFAULT RATE" MEANS THE LESSER OF (1) THE RATE OF
EIGHTEEN PERCENT (18%) PER ANNUM, AND (2) THE MAXIMUM RATE OF INTEREST
THEN PERMISSIBLE FOR A COMMERCIAL LOAN TO TENANT IN THE STATE OF TEXAS.
0.1.0.0.13. "DELIVERY DATE" MEANS THE DATE ON WHICH LANDLORD
DELIVERS THE INITIAL PREMISES TO TENANT WITH THE INITIAL IMPROVEMENTS
READY FOR TENANT'S WORK, WHICH DATE SHALL BE NOT LATER THAN DECEMBER 8,
1998, SUBJECT TO TENANT DELAYS AND FORCE MAJEURE DELAYS.
0.1.0.0.14. "DESIGN CRITERIA" MEANS THE DESIGN CRITERIA FOR
THE CONSTRUCTION OF THE INITIAL IMPROVEMENTS, WHICH DESIGN CRITERIA IS
MORE PARTICULARLY DESCRIBED IN EXHIBIT "J" ATTACHED HERETO AND MADE A
PART HEREOF FOR ALL PURPOSES.
0.1.0.0.15. "EFFECTIVE DATE" MEANS THE DATE SET FORTH IN THE
INITIAL PARAGRAPH OF THIS LEASE.
0.1.0.0.16. "FINAL PHASE" MEANS THE FINAL PHASE OF THE
PREMISES, KNOWN AS SUITE NO.650, LOCATED ON THE SIXTH (6TH) FLOOR OF
THE BUILDING AND OUTLINED ON THE FLOOR PLAN(S) ATTACHED TO THIS LEASE
AS EXHIBIT "B" AND INCORPORATED HEREIN BY REFERENCE, WHICH FINAL PHASE
CONSISTS OF 15,393 SQUARE FEET OF RENTABLE AREA.
0.1.0.0.17. "FINAL STAGE" MEANS THE PERIOD COMMENCING ON THE
EARLIER TO OCCUR OF (i) THE FIRST (1ST) DAY OF THE SECOND (2ND) LEASE
YEAR AND (ii) THE DATE TENANT ACTUALLY OCCUPIES THE FINAL PHASE AND
CONTINUING UNTIL THE END OF THE INITIAL LEASE TERM.
0.1.0.0.18. "INITIAL IMPROVEMENTS" MEANS THE BASE BUILDING
IMPROVEMENTS TO BE CONSTRUCTED IN ACCORDANCE WITH THE DESIGN CRITERIA,
THE BASE BUILDING PLANS AND ALL APPLICABLE LAWS.
0.1.0.0.19. "INITIAL PREMISES" MEANS THE SUITE OF OFFICES
KNOWN AS SUITE NO. 700 LOCATED UPON THE SEVENTH (7TH) FLOOR OF THE
BUILDING AND OUTLINED ON THE FLOOR PLAN ATTACHED TO THIS LEASE AS
EXHIBIT "B", WHICH INITIAL PREMISES CONSISTS OF 30,786 SQUARE FEET OF
RENTABLE AREA.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 2
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0.1.0.0.20. "INITIAL STAGE" MEANS THE PERIOD COMMENCING ON THE
COMMENCEMENT DATE AND CONTINUING UNTIL THE EARLIER TO OCCUR OF (i) THE
END OF THE SIXTH (6TH) FULL CALENDAR MONTH AFTER THE COMMENCEMENT DATE
AND (ii) THE DATE TENANT ACTUALLY OCCUPIES THE SECOND PHASE.
0.1.0.0.21. "LANDLORD RELATED PARTY" MEANS ANY OFFICER,
DIRECTOR, PARTNER, EMPLOYEE, CONTRACTOR OR AGENT OF LANDLORD.
0.1.0.0.22. "LEASE TERM" MEANS SIXTY-ONE (61) MONTHS, PLUS ANY
PARTIAL MONTH AT THE BEGINNING OF THE LEASE TERM.
0.1.0.0.23. "LEASE YEAR" MEANS A PERIOD OF TWELVE (12)
CONSECUTIVE CALENDAR MONTHS. THE FIRST LEASE YEAR SHALL BEGIN ON THE
1ST DAY OF THE MONTH FOLLOWING THE COMMENCEMENT DATE UNLESS THE
COMMENCEMENT DATE OCCURS ON THE 1ST DAY OF A MONTH, IN WHICH EVENT THE
FIRST LEASE YEAR SHALL BEGIN ON THE COMMENCEMENT DATE.
0.1.0.0.24. "MARKET AREA" MEANS THE NORTH DALLAS TOLLWAY
OFFICE SUB-MARKET OF THE DALLAS, TEXAS, METROPOLITAN AREA.
0.1.0.0.25. "NORMAL BUSINESS HOLIDAYS" MEANS NEW YEARS DAY,
MEMORIAL DAY, JULY 4TH (INDEPENDENCE DAY), LABOR DAY, THANKSGIVING,
CHRISTMAS DAY AND ANY OTHER DAY WHICH SHALL BE RECOGNIZED BY OFFICE
TENANTS GENERALLY (EXCLUDING FEDERAL OR STATE BANKING INSTITUTIONS) AS
A NATIONAL HOLIDAY ON WHICH EMPLOYEES ARE NOT REQUIRED TO WORK.
0.1.0.0.26. "NORMAL BUSINESS HOURS" FOR THE BUILDING MEANS
7:00 A.M. TO 6:00 P.M. ON MONDAY THROUGH FRIDAY, AND 8:00 A.M. TO 1:00
P.M. ON SATURDAY, EXCLUSIVE OF NORMAL BUSINESS HOLIDAYS.
0.1.0.0.27. "OFFICE PORTION OF THE PARKING GARAGE" MEANS THAT
PORTION OF THE PARKING GARAGE DESIGNATED BY LANDLORD, FROM TIME TO
TIME, TO BE THE PORTION OF THE PARKING GARAGE DEDICATED FOR USE BY
TENANTS OF THE BUILDING.
0.1.0.0.28. "PARKING AGREEMENT" MEANS THE PARKING AGREEMENT
ATTACHED TO THIS LEASE AS EXHIBIT "E" AND INCORPORATED HEREIN BY
REFERENCE.
0.1.0.0.29. "PARKING AREAS" MEANS THOSE AREAS LOCATED UPON THE
PROPERTY DESIGNATED BY LANDLORD, FROM TIME TO TIME, TO BE PARKING AREAS
(INCLUDING, WITHOUT LIMITATION, THE OFFICE PORTION OF THE PARKING
GARAGE).
0.1.0.0.30. "PARKING GARAGE" MEANS THAT CERTAIN 6-LEVEL
PARKING GARAGE LOCATED ON THE PROPERTY AND SERVICING BOTH THE BUILDING
AND THE ADJACENT RETAIL AND RESIDENTIAL BUILDINGS IN THE ADDISON CIRCLE
DEVELOPMENT.
0.1.0.0.31. "PREMISES" MEANS THE INITIAL PREMISES, THE SECOND
PHASE AND THE FINAL PHASE, WHICH COLLECTIVELY SHALL CONSTITUTE THE
ENTIRE SIXTH (6TH) AND SEVENTH (7TH) FLOORS OF THE BUILDING.
0.1.0.0.32. "PROPERTY" MEANS THE LAND DESCRIBED IN EXHIBIT "A"
ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.
0.1.0.0.33. "PUNCHLIST ITEMS" MEANS TOUCH-UP, MINOR FINISH,
MECHANICAL ADJUSTMENT, OR DECORATION WORK REQUIRED TO BE PERFORMED IN
CONNECTION WITH THE INITIAL IMPROVEMENTS THAT DOES NOT UNREASONABLY
INTERFERE WITH OCCUPANCY OF THE PREMISES BY TENANT.
0.1.0.0.34. "READY FOR TENANT'S WORK" MEANS THE INITIAL
IMPROVEMENTS ARE SUBSTANTIALLY COMPLETE (AS DEFINED BELOW).
0.1.0.0.35. "RENT" MEANS, COLLECTIVELY, THE BASE RENTAL, THE
TENANT'S SHARE OF BASIC OPERATING COSTS (AS PROVIDED IN SECTION 6), THE
AMOUNTS TO BE PAID BY TENANT PURSUANT TO THE TENANT IMPROVEMENTS
AGREEMENT (IF ANY), AND ALL OTHER SUMS OF MONEY BECOMING DUE AND
PAYABLE TO LANDLORD UNDER THIS LEASE.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 3
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0.1.0.0.36. "RENTABLE AREA" MEANS (1) THE "USABLE AREA" WITHIN
ANY LEASED PREMISES (I.E., THE GROSS AREA ENCLOSED BY THE SURFACE OF
THE EXTERIOR GLASS WALLS, THE MID-POINT OF ANY WALLS SEPARATING
PORTIONS OF THE PREMISES FROM THOSE OF ADJACENT TENANTS, THE SLAB
PENETRATION LINE OF ALL WALLS SEPARATING SUCH LEASED PREMISES FROM
SERVICE AREAS AND THE CORRIDOR SIDE OF WALLS SEPARATING SUCH LEASED
PREMISES FROM COMMON AREAS), PLUS (2) A PRO-RATA PART OF THE COMMON
AREAS AND SERVICE AREAS WITHIN THE BUILDING, INCLUDING THE AREA
ENCOMPASSED BY ANY COLUMNS OR OTHER STRUCTURAL ELEMENTS WHICH PROVIDE
SUPPORT TO SUCH LEASED PREMISES AND/OR THE BUILDING, BUT EXCLUDING
PERMANENT VERTICAL PENETRATIONS, SUCH AS FIRE STAIRS, ELEVATOR SHAFTS,
FLUES, PIPE SHAFTS AND VERTICAL DUCTS. THE "RENTABLE AREA" SHALL BE
CALCULATED IN ACCORDANCE WITH ANSI Z65.1-1996, AS PROMULGATED BY THE
BUILDING OWNERS AND MANAGERS ASSOCIATION (BOMA).
0.1.0.0.37. "RENTABLE AREA OF THE BUILDING" MEANS 293,414
SQUARE FEET OF RENTABLE AREA. UPON COMPLETION OF THE INITIAL
IMPROVEMENTS, THE BUILDING ARCHITECT SHALL RE-MEASURE THE BUILDING TO
DETERMINE THE RENTABLE AREA OF THE BUILDING AND IF SUCH RE-MEASUREMENT
YIELDS A DIFFERENT RENTABLE AREA THAN 293,414 SQUARE FEET, THEN THE
"RENTABLE AREA OF THE BUILDING" SHALL BE ADJUSTED, UPWARD OR DOWNWARD
AS THE CASE MAY BE, TO REFLECT THE ACTUAL RENTABLE AREA OF THE
BUILDING, AND A CORRESPONDING ADJUSTMENT SHALL BE MADE TO THE "TENANT'S
SHARE."
0.1.0.0.38. "RENTABLE AREA OF THE PREMISES" MEANS (AND IS
HEREBY DEEMED TO BE) (i) 30,786 SQUARE FEET OF RENTABLE AREA
(REPRESENTING THE INITIAL PREMISES) DURING THE INITIAL STAGE OF
OCCUPANCY, (ii) 46,179 SQUARE FEET OF RENTABLE AREA (REPRESENTING THE
INITIAL PREMISES AND THE SECOND PHASE) DURING THE SECOND STAGE OF
OCCUPANCY, AND (iii) 61,572 SQUARE FEET OF RENTABLE AREA (REPRESENTING
THE INITIAL PREMISES, THE SECOND PHASE AND THE FINAL PHASE) DURING THE
FINAL STAGE OF OCCUPANCY. THE FOREGOING MEASUREMENTS MAY BE ADJUSTED AS
PROVIDED IN SECTION 1(d).
0.1.0.0.39. "RULES AND REGULATIONS" MEANS THE RULES AND
REGULATIONS FOR THE COMPLEX SET FORTH ON EXHIBIT "C" ATTACHED HERETO
AND INCORPORATED HEREIN BY REFERENCE, AND THE RULES AND REGULATIONS FOR
THE PARKING AREAS SET FORTH IN SECTION 5 OF EXHIBIT "E", AND ANY RULES
AND REGULATIONS THAT MAY BE ADOPTED OR ALTERED BY LANDLORD IN
ACCORDANCE WITH SECTION 26 OF EXHIBIT "C".
0.1.0.0.40. "SECOND PHASE" MEANS THE SECOND PHASE OF THE
PREMISES, KNOWN AS SUITE NO. 600, LOCATED ON THE SIXTH (6TH) FLOOR OF
THE BUILDING AND OUTLINED ON THE FLOOR PLAN(S) ATTACHED TO THIS LEASE,
AS EXHIBIT "B", WHICH SECOND PHASE SHALL CONSIST OF 15,393 SQUARE FEET
OF RENTABLE AREA.
0.1.0.0.41. "SECOND STAGE" MEANS THE PERIOD COMMENCING ON THE
EARLIER TO OCCUR OF (i) THE FIRST (1ST) DAY OF THE SEVENTH (7TH) FULL
CALENDAR MONTH AFTER THE COMMENCEMENT DATE AND (ii) THE DATE TENANT
ACTUALLY OCCUPIES THE SECOND PHASE, AND CONTINUING UNTIL THE EARLIER TO
OCCUR OF (x) THE END OF THE FIRST (1ST) LEASE YEAR AND (y) THE DATE
TENANT ACTUALLY OCCUPIES THE FINAL PHASE.
0.1.0.0.42. "SECURITY DEPOSIT" MEANS THE SUM OF $229,868.80,
WHICH MAY BE IN THE FORM OF A SIGHT DRAFT IRREVOCABLE LETTER OF CREDIT
FOR THE BENEFIT OF LANDLORD, ISSUED BY AN INSTITUTION REASONABLY
SATISFACTORY TO LANDLORD IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO LANDLORD.
0.1.0.0.43. "SERVICE AREAS" MEANS THOSE AREAS, SPACES,
FACILITIES AND EQUIPMENT SERVING THE BUILDING (WHETHER OR NOT LOCATED
WITHIN THE BUILDING), BUT TO WHICH TENANT AND OTHER OCCUPANTS OF THE
BUILDING WILL NOT HAVE ACCESS, INCLUDING, BUT NOT LIMITED TO, SERVICE
ELEVATORS, MECHANICAL, TELEPHONE, ELECTRICAL, JANITORIAL AND SIMILAR
ROOMS AND AIR AND WATER REFRIGERATION EQUIPMENT.
0.1.0.0.44. "STAGE" SHALL MEAN THE INITIAL STAGE, THE SECOND
STAGE OR THE FINAL STAGE, AS THE CASE MAY BE.
0.1.0.0.45. "SUBSTANTIALLY COMPLETE" MEANS THAT (i) WITH
RESPECT TO THE INITIAL IMPROVEMENTS, THE INITIAL IMPROVEMENTS HAVE BEEN
COMPLETED SUBSTANTIALLY IN ACCORDANCE WITH THE BASE BUILDINGS PLANS,
THE DESIGN CRITERIA AND ALL APPLICABLE LAWS (EXCLUDING PUNCHLIST ITEMS)
AND (ii) WITH RESPECT TO THE TENANT IMPROVEMENTS, THE TENANT
IMPROVEMENTS HAVE BEEN COMPLETED SUBSTANTIALLY IN ACCORDANCE WITH THE
TENANT'S FINAL PLANS (AS DEFINED IN THE TENANT IMPROVEMENTS AGREEMENT)
AND ALL APPLICABLE LAWS, AND TENANT'S ARCHITECT (AS DEFINED IN THE
TENANT IMPROVEMENTS AGREEMENT) HAS DELIVERED TO LANDLORD A CERTIFICATE
OF SUBSTANTIAL COMPLETION FOR TENANT'S WORK (AS DEFINED IN THE
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 4
9
TENANT IMPROVEMENTS AGREEMENT) CERTIFYING THAT THE CONSTRUCTION OF
TENANT'S WORK HAS BEEN SUBSTANTIALLY COMPLETED IN ACCORDANCE WITH
TENANT'S FINAL PLANS AND ALL APPLICABLE LAWS, SUBJECT TO MINOR
PUNCHLIST ITEMS.
0.1.0.0.46. "TAXES" MEANS ALL TAXES, ASSESSMENTS AND
GOVERNMENTAL CHARGES, WHETHER FEDERAL, STATE, COUNTY OR MUNICIPAL, AND
WHETHER THEY BE BY TAXING DISTRICTS OR AUTHORITIES PRESENTLY TAXING THE
COMPLEX OR BY OTHERS, SUBSEQUENTLY CREATED OR OTHERWISE AND ANY OTHER
TAXES, ASSOCIATION DUES AND ASSESSMENTS ATTRIBUTABLE TO THE COMPLEX OR
ITS OPERATION, EXCLUDING, HOWEVER, (i) FEDERAL AND STATE INCOME TAXES,
(ii) FRANCHISE TAXES, (iii) INHERITANCE, ESTATE, GIFT, CORPORATION, NET
PROFITS OR ANY SIMILAR TAX FOR WHICH LANDLORD BECOMES LIABLE AND/OR
WHICH MAY BE IMPOSED UPON OR ASSESSED AGAINST LANDLORD AND (iv) TAXES
OR ASSESSMENTS ATTRIBUTABLE TO THE COMPLEX FOR WHICH LANDLORD IS
REIMBURSED BY POST PROPERTIES, INC. ("POST").
0.1.0.0.47. "TENANT DELAY" MEANS ANY DELAY IN THE PERFORMANCE
OF ANY OF LANDLORD'S OBLIGATIONS HEREUNDER (INCLUDING, WITHOUT
LIMITATION, ANY DELAY IN THE CONSTRUCTION OF THE INITIAL IMPROVEMENTS
OR ANY DELAY IN THE COMMENCEMENT DATE) WHICH IS CAUSED BY ANY ACT,
OMISSION, DELAY OR DEFAULT BY TENANT, ANY TENANT RELATED PARTY OR ANY
OTHER PARTY ACTING BY, THROUGH OR UNDER TENANT OR DUE TO ANY OTHER
CAUSE DESCRIBED AS A TENANT DELAY IN THE TENANT IMPROVEMENTS AGREEMENT.
0.1.0.0.48. "TENANT IMPROVEMENTS" MEANS THOSE IMPROVEMENTS TO
BE MADE BY TENANT TO THE INITIAL IMPROVEMENTS IN ACCORDANCE WITH THE
TENANT IMPROVEMENTS AGREEMENT.
0.1.0.0.49. "TENANT IMPROVEMENTS AGREEMENT" MEANS THE TENANT
IMPROVEMENTS AGREEMENT (IF ANY) ATTACHED TO THIS LEASE AS EXHIBIT "D"
AND INCORPORATED HEREIN BY REFERENCE.
0.1.0.0.50. "TENANT RELATED PARTY" MEANS ANY OFFICER,
DIRECTOR, PARTNER, EMPLOYEE, CONTRACTOR OR AGENT OF TENANT.
0.1.0.0.51. "TENANT'S SHARE" MEANS (i) DURING THE INITIAL
STAGE OF OCCUPANCY, 10.49%, (ii) DURING THE SECOND STAGE OF OCCUPANCY,
15.74%, AND (iii) DURING THE FINAL STAGE OF OCCUPANCY, 20.98%, WHICH IN
EACH CASE IS THE PROPORTION WHICH THE RENTABLE AREA OF THE PREMISES
BEARS TO THE RENTABLE AREA OF THE BUILDING, AND IN EACH CASE SHALL BE
SUBJECT TO RECALCULATION PURSUANT TO SECTION 1(d) HEREOF.
0.1.0.0.52. "TENANT'S SHARE OF BASIC OPERATING COSTS" MEANS
THE TENANT'S SHARE OF THE AMOUNT, IF ANY, BY WHICH THE BASIC OPERATING
COSTS DURING ANY CALENDAR YEAR OF THE LEASE TERM EXCEED THE BASE
AMOUNT.
0.2. Lease Grant. Upon the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises and the non-exclusive
right to use the Common Areas, subject to all of the terms and conditions of
this Lease (including the Rules and Regulations). Notwithstanding the foregoing,
Landlord and Tenant agree that Tenant will occupy the Premises in three (3)
stages and, therefore, (i) during the Initial Stage, the Premises shall be
deemed to consist only of (and Tenant shall only be entitled to occupy) the
Initial Premises, (ii) during the Second Stage, the Premises shall be deemed to
consist only of (and Tenant shall only be entitled to occupy) the Initial
Premises and the Second Phase, and (iii) during the Final Stage, the Premises
shall be deemed to consist of (and Tenant shall be entitled to occupy) the
entire Premises upon terms and conditions set forth in this Lease. Landlord
shall deliver the Second Phase of the Premises to Tenant upon the earlier to
occur of: (i) the commencement of the Second Stage of occupancy; and (ii) the
date Tenant actually occupies the Second Phase (with Landlord agreeing to make
the Second Phase available for early occupancy). Landlord shall deliver the
Final Phase of the Premises to Tenant upon the earlier to occur of: (i) the
commencement of the Final Stage of occupancy; and (ii) the date Tenant actually
occupies the Final Phase (with Landlord agreeing to make the Final Phase
available for early occupancy). Landlord's delivery obligations with respect to
the Second Phase and the Final Phase shall be satisfied at such time as the
Initial Improvements are Ready for Tenant's Work. Tenant shall be deemed to have
"actually occupied" a particular Stage of the Premises at such time as Tenant
takes possession of such Stage of the Premises and commences business operations
therefrom.
0.3. Lease Term; Acceptance of Premises.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 5
10
0.3.0.0.1. THIS LEASE SHALL CONTINUE IN FORCE DURING A PERIOD
BEGINNING ON THE EFFECTIVE DATE OF THIS LEASE (THOUGH THE LEASE TERM
SHALL NOT COMMENCE AND NO RENT SHALL ACCRUE UNTIL THE COMMENCEMENT
DATE) AND ENDING ON THE EXPIRATION OF THE LEASE TERM, UNLESS THIS LEASE
IS TERMINATED EARLY (PURSUANT TO A RIGHT TO SO TERMINATE SPECIFICALLY
SET FORTH IN THIS LEASE) OR EXTENDED TO A LATER DATE PURSUANT TO ANY
OTHER TERM OR PROVISION HEREOF.
0.3.0.0.2. IF THE COMMENCEMENT DATE IS DELAYED DUE TO ANY
TENANT DELAY, LANDLORD SHALL HAVE NO LIABILITY FOR SUCH DELAY, AND THE
OBLIGATIONS OF TENANT UNDER THIS LEASE (INCLUDING, WITHOUT LIMITATION,
THE OBLIGATION TO PAY RENT) SHALL NONETHELESS COMMENCE AS OF THE DATE
THAT THE COMMENCEMENT DATE WOULD HAVE OCCURRED BUT FOR SUCH TENANT
DELAY. IF, HOWEVER, THE COMMENCEMENT DATE IS DELAYED DUE TO ANY REASON
OTHER THAN A TENANT DELAY (INCLUDING, WITHOUT LIMITATION, LANDLORD'S
FAILURE TO TIMELY DELIVER THE INITIAL PREMISES AS PROVIDED IN SECTION
3(d) BELOW), THEN, AS TENANT'S SOLE REMEDY FOR THE DELAY IN TENANT'S
OCCUPANCY OF THE PREMISES, THE COMMENCEMENT DATE SHALL BE DELAYED AND
THE OBLIGATION TO PAY RENT SHALL NOT COMMENCE UNTIL THE EARLIER TO
OCCUR OF (1) THE DATE OF ACTUAL OCCUPANCY BY TENANT OF THE PREMISES FOR
THE CONDUCT OF ITS BUSINESS OR (2) THE DATE SIXTY-EIGHT (68) BUSINESS
DAYS FOLLOWING THE DATE ON WHICH THE PREMISES ARE READY FOR TENANT'S
WORK. NOTWITHSTANDING THE FOREGOING, LANDLORD AGREES THAT IF THE
COMMENCEMENT DATE IS DELAYED DUE TO ANY REASON OTHER THAN A TENANT
DELAY OR FORCE MAJEURE (AS DEFINED IN SECTION 42 OF THIS LEASE) PAST
AUGUST 1, 1999, TENANT MAY AT ITS OPTION TERMINATE THIS LEASE BY
DELIVERING A WRITTEN NOTICE OF TERMINATION TO LANDLORD, IN WHICH EVENT
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THIS
LEASE.
0.3.0.0.3. LANDLORD SHALL DILIGENTLY PURSUE AND COMPLETE
CONSTRUCTION OF THE INITIAL IMPROVEMENTS IN A GOOD AND WORKMANLIKE
MANNER AND IN ACCORDANCE WITH THE DESIGN CRITERIA, THE BASE BUILDING
PLANS AND ALL APPLICABLE LAWS. LANDLORD SHALL USE REASONABLE EFFORTS TO
SUBSTANTIALLY COMPLETE THE CONSTRUCTION OF THE INITIAL IMPROVEMENTS IN
ORDER THAT THE INITIAL PREMISES SHALL BE READY FOR TENANT'S WORK ON OR
BEFORE THE DELIVERY DATE. LANDLORD SHALL DELIVER THE SECOND PHASE OF
THE PREMISES TO TENANT NOT LATER THAN SIXTY (60) DAYS PRIOR TO THE
COMMENCEMENT OF THE SECOND STAGE OF OCCUPANCY, AND SHALL DELIVER THE
FINAL PHASE OF THE PREMISES NOT LATER THAN SIXTY (60) DAYS PRIOR TO THE
COMMENCEMENT OF THE FINAL STAGE OF OCCUPANCY.
0.3.0.0.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
LEASE, IN THE EVENT THE DELIVERY DATE HAS NOT OCCURRED ON OR BEFORE
DECEMBER 8, 1998 (SUBJECT TO TENANT DELAYS AND FORCE MAJEURE DELAYS),
LANDLORD'S OBLIGATION TO DELIVER THE INITIAL PREMISES SHALL BE EXTENDED
ON A DAY-TO-DAY BASIS UNTIL SUCH DATE AS LANDLORD SATISFIES ITS
DELIVERY DATE OBLIGATIONS. IN SUCH EVENT, ALL FUTURE TAKE-DOWN DATES
FOR THE SECOND PHASE OF THE PREMISES AND THE FINAL PHASE OF THE
PREMISES SHALL ALSO BE EXTENDED ON THE SAME DAY-TO-DAY BASIS.
0.3.0.0.5. ON OR ABOUT THE COMMENCEMENT DATE, LANDLORD AND
TENANT SHALL EXECUTE AN ACCEPTANCE OF PREMISES MEMORANDUM CONFIRMING
THE COMMENCEMENT DATE AND THE ACCEPTANCE BY TENANT OF THE PREMISES,
SUBJECT TO THE COMPLETION OF THE PUNCHLIST ITEMS, IF ANY.
0.4. Use. The Premises shall be used solely for the following purposes,
to wit: (a) general office purposes; (b) use of kitchens, pantries and dining
rooms for the feeding of employees and guests of Tenant (and not to the extent
so as to require grease traps, venting or other heavy kitchen facilities); (c)
lounge area (including rights for T.V. area for employees of Tenant); (d)
vending machine and snack bars for the sale of food, beverage and other
convenience items to employees and guests of Tenant; (e) ordinary business
machines, equipment for printing, producing, and reproducing forms, and
equipment for the production of such photostats and other material as Tenant may
require for the transaction of business (provided such machines and equipment
shall require Landlord's prior consent, if the same require extraordinary
ventilation); (f) computer and other electronic data processing equipment; (g)
meeting rooms and conference rooms; and (h) facilities for storage of equipment
and supplies in connection with the foregoing.
Except for the general office use, Landlord makes no representation or
warranty that any of the foregoing uses will be permitted by Applicable Laws and
the failure of Tenant to be able to use the Premises for any such purposes other
than general office use shall not constitute a default by Landlord hereunder,
nor allow Tenant any diminution of Rent.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 6
11
0.5. Payment of Rent. Except as otherwise expressly provided in this
Lease, the Rent shall be due and payable to Landlord in advance in monthly
installments on the first (1st) day of each calendar month during the Lease
Term, at Landlord's address as provided on the signature page of this Lease or
to such other person or at such other address as Landlord may from time to time
designate in writing. Landlord may, at its option, ▇▇▇▇ Tenant for Rent, but no
delay or failure by Landlord in providing such a ▇▇▇▇ shall relieve Tenant from
the obligation to pay the Base Rental on the first (1st) day of each month as
provided herein. All payments shall be in the form of a check unless otherwise
agreed by Landlord, provided that payment by check shall not be deemed made if
the check is not duly honored with good funds. The Rent shall be paid without
notice, demand, abatement, deduction or offset, except as otherwise expressly
provided in this Lease. Notwithstanding to the contrary set forth herein, Base
Rental for the first (1st) full calendar month during the Lease Term shall be
abated. If the Lease Term commences on other than the first (1st) day of a
calendar month, then the Base Rental for such partial month shall be prorated
and paid at the rental rate applicable during the second (2nd) full month of the
Lease Term. Any such prorated Base Rental, plus the Base Rental due for the
second (2nd) full month of the Lease Term, shall be due and payable on the first
(1st) day of the second (2nd) calendar month during the Lease Term. If the Lease
Term commences or ends at any time other than the first day of a calendar year,
the Tenant's Share of Basic Operating Costs shall be prorated for such year
according to the number of days of the Lease Term in such year.
0.6. Electricity and Basic Operating Costs.
0.6.0.0.1. IN ADDITION TO THE BASE RENTAL, TENANT SHALL PAY TO
LANDLORD THE COST OF ALL ELECTRICITY CONSUMED ON THE PREMISES DURING
THE LEASE TERM (AS DETERMINED BY A SEPARATE METER TO BE PLACED IN THE
PREMISES AS PART OF THE TENANT IMPROVEMENTS). EACH MONTH, LANDLORD
SHALL DELIVER TO TENANT A STATEMENT SHOWING THE COST OF THE ELECTRICITY
CONSUMED ON THE PREMISES BY TENANT FOR THE PRECEDING CALENDAR MONTH AND
TENANT SHALL PAY SUCH STATEMENT PROMPTLY (BUT IN NO EVENT LESS THAN TEN
[10] DAYS) AFTER TENANT'S RECEIPT OF SUCH STATEMENT.
0.6.0.0.2. IN ADDITION TO THE BASE RENTAL, TENANT SHALL ALSO
PAY TENANT'S SHARE OF BASIC OPERATING COSTS. PRIOR TO THE COMMENCEMENT
OF EACH CALENDAR YEAR DURING THE LEASE TERM AFTER THE CALENDAR YEAR IN
WHICH THE LEASE TERM COMMENCES, LANDLORD MAY, AT ITS OPTION, PROVIDE
TENANT WITH A THEN CURRENT ESTIMATE OF BASIC OPERATING COSTS FOR THE
UPCOMING CALENDAR YEAR, AND THEREAFTER TENANT SHALL PAY, AS ADDITIONAL
RENTAL, IN MONTHLY INSTALLMENTS IN ACCORDANCE WITH SECTION 5, THE
ESTIMATED TENANT'S SHARE OF BASIC OPERATING COSTS FOR THE CALENDAR YEAR
IN QUESTION. THE FAILURE OF LANDLORD TO ESTIMATE BASIC OPERATING COSTS
AND ▇▇▇▇ TENANT ON A MONTHLY BASIS SHALL IN NO EVENT RELIEVE TENANT OF
ITS OBLIGATION TO PAY TENANT'S SHARE OF BASIC OPERATING COSTS. IN THE
EVENT THE BUILDING IS NOT AT LEAST NINETY-FIVE PERCENT (95%) OCCUPIED
DURING ANY YEAR OF THE LEASE TERM (INCLUDING THE CALENDAR YEAR IN WHICH
THE LEASE TERM COMMENCES), THE BASIC OPERATING COSTS SHALL BE "GROSSED
UP" BY INCREASING THE VARIABLE COMPONENTS OF BASIC OPERATING COSTS TO
THE AMOUNT WHICH LANDLORD PROJECTS WOULD HAVE BEEN INCURRED HAD THE
BUILDING BEEN NINETY-FIVE PERCENT (95%) OCCUPIED DURING SUCH YEAR, SUCH
AMOUNT TO BE ANNUALIZED FOR ANY PARTIAL YEAR.
0.6.0.0.3. BY APRIL 1 OF EACH CALENDAR YEAR DURING TENANT'S
OCCUPANCY (INCLUDING THE CALENDAR YEAR FOLLOWING THE YEAR IN WHICH THE
LEASE TERM IS TERMINATED), OR AS SOON THEREAFTER AS POSSIBLE, LANDLORD
SHALL FURNISH TO TENANT A STATEMENT OF TENANT'S SHARE OF BASIC
OPERATING COSTS (THE "STATEMENT") FOR THE PRIOR CALENDAR YEAR. IN THE
EVENT OF AN UNDERPAYMENT BY TENANT BECAUSE OF ANY DIFFERENCE BETWEEN
THE AMOUNT, IF ANY, COLLECTED BY LANDLORD FROM TENANT FOR THE ESTIMATED
TENANT'S SHARE OF BASIC OPERATING COSTS AND THE ACTUAL AMOUNT OF
TENANT'S SHARE OF BASIC OPERATING COSTS, TENANT SHALL PAY THE AMOUNT OF
SUCH UNDERPAYMENT TO LANDLORD WITHIN THIRTY (30) DAYS FOLLOWING
DELIVERY OF THE STATEMENT. IN THE EVENT OF AN OVERPAYMENT BY TENANT
BECAUSE OF ANY DIFFERENCE BETWEEN THE AMOUNT, IF ANY, COLLECTED BY
LANDLORD FROM TENANT FOR THE ESTIMATED TENANT'S SHARE OF BASIC
OPERATING COSTS AND THE ACTUAL AMOUNT OF TENANT'S SHARE OF BASIC
OPERATING COSTS, LANDLORD SHALL, WITHIN THIRTY (30) DAYS FOLLOWING THE
DELIVERY OF THE STATEMENT, IF NO EVENT OF DEFAULT EXISTS HEREUNDER,
MAKE A CASH PAYMENT TO TENANT IN THE AMOUNT OF SUCH OVERPAYMENT, OR, IF
AN EVENT OF DEFAULT EXISTS HEREUNDER, CREDIT SUCH OVERPAYMENT AGAINST
DELINQUENT RENT AND MAKE A CASH PAYMENT TO TENANT FOR THE BALANCE.
0.6.0.0.4. "BASIC OPERATING COSTS" MEANS ALL DIRECT AND, TO
THE EXTENT PROVIDED IN SECTION 6(d)(1), INDIRECT COSTS AND EXPENSES
INCURRED IN EACH CALENDAR YEAR OF OPERATING, MAINTAINING, REPAIRING,
MANAGING AND, TO THE EXTENT SPECIFICALLY PROVIDED BELOW, OWNING THE
COMPLEX, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING:
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 7
12
0.6.0.0.4.1. Wages, salaries and other compensation
of all employees engaged in the direct operation and
maintenance of the Complex, employer's social security taxes,
unemployment taxes or insurance and any other taxes which may
be levied on such wages, salaries and other compensation, and
the cost of medical, disability and life insurance and pension
or retirement benefits for such employees; provided, however,
with respect to employees engaged in the operation and
maintenance of other buildings owned by Landlord (or an
affiliate of Landlord), other than the Complex, such items
shall be fairly apportioned among all such buildings;
0.6.0.0.4.2. Cost of leasing or purchasing all
supplies, tools, equipment and materials used in the
operation, maintenance, repair and management of the Complex;
0.6.0.0.4.3. Except to the extent the same are paid
directly or separately by Tenant or any other tenant to the
applicable provider or to Landlord, the cost of all utilities
for the Complex (both interior and exterior), including,
without limitation, the cost of water and power, electrical
utilities, sewage, heating, lighting, air conditioning and
ventilation for the Complex;
0.6.0.0.4.4. Cost of all maintenance and service
agreements for the Complex, including, but not limited to,
janitorial service, pest control, security service, equipment
leasing, energy management system leasing, landscape
maintenance, alarm service, window cleaning, metal finishing
and elevator maintenance;
0.6.0.0.4.5. Cost of all insurance relating to the
Complex, including, but not limited to, fire and extended
coverage insurance, rental interruption insurance and
liability insurance applicable to the Complex and Landlord's
personal property used in connection therewith, plus the cost
of all deductible payments made by Landlord in connection
therewith (but only to the extent not already deducted as a
Basic Operating Cost);
0.6.0.0.4.6. All Taxes (if the amount of Taxes
payable for any calendar year, including the amount of Taxes
included in the Base Amount, is changed by final determination
of legal proceedings, settlement, or otherwise, such changed
amount shall be the Taxes for such year);
0.6.0.0.4.7. Cost of repairs and general maintenance
for the Complex (excluding such repairs and general
maintenance paid by insurance proceeds or by Tenant or other
third parties);
0.6.0.0.4.8. Legal expenses incurred with respect to
the Complex which relate directly to the operation of the
Complex and which benefit all of the tenants of the Complex
generally, such as legal proceedings to ▇▇▇▇▇ offensive
activities or uses or reduce property taxes, but excluding
legal expenses by Landlord due to Landlord's violations of the
ADA relating to the Initial Improvements related to the
collection of Rent or to the sale, leasing or financing of the
Complex;
0.6.0.0.4.9. Fees for management services, whether
provided by an independent management company, by Landlord or
by any affiliate of Landlord, but only to the extent that the
costs of such services do not exceed competitive costs for
comparable services in comparable buildings of the class,
type, size, age and location of the Building in the Market
Area;
0.6.0.0.4.10. Expenses incurred in order to comply
with any federal, state or municipal law, code or ordinance,
or regulation which was not promulgated, or which was
promulgated but not in effect or applicable to the Complex, as
of the Effective Date of this Lease;
0.6.0.0.4.11. Amortization of the cost of
installation of capital investment items which (A) Landlord
reasonably believes will either (i) reduce (or avoid increases
in) Basic Operating Costs, or (ii) promote safety, or (B) may
be required in order to comply with any federal, state or
municipal law, code or ordinance, or regulation which was not
promulgated, or which was promulgated but was not in effect or
applicable to the Complex, as of the Effective Date of this
Lease. All costs of such capital investment items shall be
amortized, together with an amount equal to interest at twelve
percent (12%) per annum, with the amortization schedule being
determined in accordance with generally accepted accounting
principles and in no event to extend beyond the remaining
useful life of the Building; and
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 8
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0.6.0.0.4.12. Costs of ad valorem tax consultants.
0.6.0.0.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
LEASE, BASIC OPERATING COSTS SHALL NOT INCLUDE ANY EXPENSES OR COSTS
FOR THE FOLLOWING ITEMS:
0.6.0.0.5.1. Except as provided in Section 6(d)(11),
costs that under generally accepted accounting principles are
classified as capital expenditures, and related amortization
thereof;
0.6.0.0.5.2. Except as provided in Section 6(d)(11),
depreciation or amortization of the Building or its contents
or components;
0.6.0.0.5.3. Expenses for the preparation of space
(including tenant finish out costs) or other similar type work
which Landlord performs for any tenant or prospective tenant
of the Building;
0.6.0.0.5.4. Expenses incurred in leasing or
obtaining new tenants or retaining existing tenants,
including, but not limited to, marketing costs and leasing
commissions;
0.6.0.0.5.5. Except as provided in Section 6(d)(8),
legal expenses;
0.6.0.0.5.6. Interest, amortization or other costs
associated with any mortgage, loan or refinancing of the
Complex;
0.6.0.0.5.7. Any ground rent incurred for the
Complex;
0.6.0.0.5.8. Expenses incurred by Landlord to make
the Building Year 2000 Compliant (hereinafter defined). All
equipment, products, systems and processes provided by
Landlord in the Building shall be Year 2000 Compliant so that
the failure to be Year 2000 Compliant shall not materially
adversely impair Tenant's use and occupancy of the Premises.
"Year 2000 Compliant" shall mean that neither performance nor
functionality is materially affected by dates prior to, during
or after the year 2000, and, in particular, but without
prejudice to the generality of the foregoing, no value for
current date will cause any material adverse interruption in
operation. Landlord's liability for a breach of this Section
6(e)(8) shall be limited to Tenant's actual out-of-pocket
costs, and Landlord shall not be liable for any other damages,
including consequential or punitive damages;
0.6.0.0.5.9. Cost of repairs occasioned by fire,
windstorm or other casualty (but only to the extent reimbursed
by insurance proceeds);
0.6.0.0.5.10. Wages, salaries, or other compensation
paid to any executive above the grade of building manager
(i.e., with the director of engineering and/or operations not
being deemed to be included in this proscription);
0.6.0.0.5.11. Expenses for repair, replacement and
general maintenance paid by proceeds of insurance or by Tenant
or other third parties;
0.6.0.0.5.12. Alterations, concessions, services,
improvements and decorations for other tenants of the
Building;
0.6.0.0.5.13. Income, excess profits or franchise
taxes, or other such taxes imposed on or measured by the
income of the Landlord for the operation of the Building;
0.6.0.0.5.14. Advertising and promotional expenses
(but excluding tenant relations parties and the like);
0.6.0.0.5.15. The cost of art work such as sculptures
or paintings used to decorate the Building; 0.6.0.0.5.16.
Interest and penalties due to payment of taxes, utility bills
or other such costs after the later of the delinquent date
therefor or thirty (30) days following the receipt of the ▇▇▇▇
therefor;
0.6.0.0.5.17. Contributions to operating expense
reserves;
0.6.0.0.5.18. Contributions to charitable
organizations;
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 9
14
0.6.0.0.5.19. Costs incurred in removing the property
of former tenants or other occupants of the Building;
0.6.0.0.5.20. Auditing, consulting and professional
fees (other than those fees incurred in connection with the
maintenance and operation of the Building and/or the Property)
paid or incurred in connection with the negotiation of leases,
financings, refinancings, sales, or acquisitions of the
Property;
0.6.0.0.5.21. The cost of correcting latent defects
in the Initial Improvements during the Warranty Period (as
defined in Section 47 hereof), but not otherwise; and
0.6.0.0.5.22. Any expenses incurred by Landlord with
respect to the Parking Garage which would otherwise constitute
Basic Operating Costs but for which Landlord is reimbursed by
Post.
0.6.0.0.6. IF THERE EXISTS ANY DISPUTE AS TO THE CALCULATION
OF TENANT'S SHARE OF BASIC OPERATING COSTS (A "DISPUTE"), THE EVENTS,
ERRORS, ACTS OR OMISSIONS GIVING RISE TO THE DISPUTE SHALL NOT
CONSTITUTE A BREACH OR DEFAULT BY LANDLORD NOR SHALL LANDLORD BE LIABLE
TO TENANT, EXCEPT AS SPECIFICALLY PROVIDED BELOW. IF THERE IS A
DISPUTE, TENANT SHALL SO NOTIFY LANDLORD IN WRITING WITHIN NINETY (90)
DAYS AFTER RECEIPT OF THE STATEMENT. SUCH NOTICE SHALL SPECIFY THE
ITEMS IN DISPUTE. NOTWITHSTANDING THE EXISTENCE OF A DISPUTE, TENANT
SHALL TIMELY PAY THE AMOUNT IN DISPUTE AS AND WHEN REQUIRED UNDER THIS
LEASE, PROVIDED SUCH PAYMENT SHALL BE WITHOUT PREJUDICE TO TENANT'S
POSITION. UPON RECEIPT OF SUCH PAYMENT, LANDLORD SHALL THEREAFTER
PROVIDE TENANT WITH SUCH SUPPLEMENTARY INFORMATION REGARDING THE ITEMS
IN DISPUTE AS MAY BE REASONABLY REQUESTED BY TENANT IN AN EFFORT TO
RESOLVE SUCH DISPUTE; PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE
REQUIRED TO PROVIDE ANY SUPPLEMENTARY INFORMATION TO TENANT UNLESS ALL
SUMS SHOWN TO BE DUE BY TENANT ON THE STATEMENT ARE PAID IN FULL. IF
LANDLORD AND TENANT ARE UNABLE TO RESOLVE SUCH DISPUTE, SUCH DISPUTE
SHALL BE REFERRED TO A MUTUALLY SATISFACTORY THIRD PARTY CERTIFIED
PUBLIC ACCOUNTANT FOR FINAL RESOLUTION, SUBJECT TO THE AUDIT RIGHTS OF
TENANT CONTAINED IN SECTION 6(g). IF THE CERTIFIED PUBLIC ACCOUNTANT
DETERMINES THAT TENANT'S SHARE OF BASIC OPERATING COSTS IS OVERSTATED
BY FIVE PERCENT (5%) OR MORE, THEN LANDLORD SHALL PAY THE COST OF THE
CERTIFIED PUBLIC ACCOUNTANT. OTHERWISE, TENANT SHALL PAY THE COST OF
THE CERTIFIED PUBLIC ACCOUNTANT. IF A DISPUTE IS RESOLVED IN FAVOR OF
TENANT, LANDLORD SHALL, WITHIN THIRTY (30) DAYS THEREAFTER, REFUND ANY
OVERPAYMENT TO TENANT. THE DETERMINATION OF SUCH CERTIFIED PUBLIC
ACCOUNTANT SHALL BE FINAL AND BINDING, SUBJECT TO THE AUDIT RIGHTS OF
TENANT CONTAINED IN SECTION 6(g), AND FINAL SETTLEMENT SHALL BE MADE
WITHIN THIRTY (30) DAYS AFTER RECEIPT OF SUCH ACCOUNTANT'S DECISION. IF
TENANT FAILS TO DISPUTE THE CALCULATION OF TENANT'S SHARE OF BASIC
OPERATING COSTS IN ACCORDANCE WITH THE PROCEDURES AND WITHIN THE TIME
PERIODS SPECIFIED IN THIS SECTION 6(f), OR REQUEST AN AUDIT OF THE
BASIC OPERATING COSTS IN ACCORDANCE WITH THE PROCEDURES AND WITHIN THE
TIME PERIODS SPECIFIED IN SECTION 6(g), THE STATEMENT SHALL BE
CONSIDERED FINAL AND BINDING FOR THE CALENDAR YEAR IN QUESTION.
0.6.0.0.7. TENANT, AT TENANT'S EXPENSE, SHALL HAVE THE RIGHT,
NO MORE FREQUENTLY THAN ONCE PER CALENDAR YEAR, FOLLOWING THIRTY (30)
DAYS' PRIOR WRITTEN NOTICE (SUCH WRITTEN NOTICE TO BE GIVEN WITHIN
NINETY [90] DAYS FOLLOWING TENANT'S RECEIPT OF LANDLORD'S STATEMENT
DELIVERED IN ACCORDANCE WITH SECTION 6(c)) TO LANDLORD, TO AUDIT
LANDLORD'S BOOKS AND RECORDS RELATING TO BASIC OPERATING COSTS FOR THE
IMMEDIATELY PRECEDING CALENDAR YEAR ONLY; PROVIDED THAT SUCH AUDIT MUST
BE CONCLUDED WITHIN NINETY (90) DAYS AFTER TENANT'S RECEIPT OF
LANDLORD'S STATEMENT FOR THE YEAR TO WHICH SUCH AUDIT RELATES; AND
PROVIDED FURTHER THAT THE CONDUCT OF SUCH AUDIT MUST NOT UNREASONABLY
INTERFERE WITH THE CONDUCT OF LANDLORD'S BUSINESS. WITHOUT LIMITATION
UPON THE FOREGOING, TENANT'S RIGHT TO AUDIT LANDLORD'S BOOKS AND
RECORDS SHALL BE SUBJECT TO THE FOLLOWING CONDITIONS:
0.6.0.0.7.1. No audit shall be allowed unless Basic
Operating Costs for the calendar year in question have
increased by more than five percent (5%) over Basic Operating
Costs for the immediately preceding calendar year;
0.6.0.0.7.2. Such audit shall be conducted during
Normal Business Hours and at the location where Landlord
maintains its books and records;
0.6.0.0.7.3. Tenant shall deliver to Landlord a copy
of the results of such audit within five (5) days after its
receipt by Tenant;
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 10
15
0.6.0.0.7.4. No audit shall be permitted if an Event
of Default by Tenant under Section 27(a)(1) hereof has
occurred and is continuing under this Lease, including any
failure by Tenant to pay an amount in Dispute;
0.6.0.0.7.5. Tenant shall reimburse Landlord within
ten (10) days following written demand for the cost of all
copies requested by Tenant's auditor;
0.6.0.0.7.6. Such audit must be conducted by an
independent, nationally-recognized accounting firm or a local
accounting firm reasonably acceptable to Landlord that is not
being compensated by Tenant primarily on a contingency fee
basis (i.e. not more than fifty percent [50%] of such
auditor's compensation is contingent upon the results of the
audit) and which has agreed with Landlord in writing to keep
the results of such audit confidential by executing and
delivering to Landlord a confidentiality agreement in the form
of Exhibit "F" attached to this Lease, such confidentiality
agreement to also be signed and delivered to Landlord by
Tenant;
0.6.0.0.7.7. No subtenant shall have the right to
audit;
0.6.0.0.7.8. If, for any calendar year, an assignee
of Tenant (as permitted by this Lease) has audited or given
notice of an audit, Tenant will be prohibited from auditing
such calendar year, unless in the case of an audit having been
noticed but not yet performed by such assignee, the assignee
withdraws its audit notice, and, similarly, if Tenant has
audited such calendar year or given such notice, the foregoing
restrictions of this Section 6(g)(8) will apply to the
assignee's right to audit; and
0.6.0.0.7.9. Any assignee's audit right will be
limited to the period after the effective date of the
assignment.
Unless Landlord in good faith disputes the results of such audit, an appropriate
adjustment shall be made between Landlord and Tenant to reflect any overpayment
or underpayment of Tenant's Share of Basic Operating Costs within thirty (30)
days after delivery of such audit to Landlord. In the event of an overpayment by
Tenant, within thirty (30) days following the delivery of such audit, Landlord
shall, if no Event of Default exists hereunder, make a cash payment to Tenant in
the amount of such overpayment, or, if an Event of Default exists hereunder,
credit such overpayment against delinquent Rent and make a cash payment to
Tenant for the balance. If the amount evidenced by the audit evidences that
Tenant was overcharged by more than five percent (5%) of the total amount for
Tenant's Share of Base Operating Expenses, then, unless Landlord disputes such
finding pursuant to the procedures set forth below, Landlord will pay all of
Tenant's reasonable costs of Tenant's audit. In the event Landlord in good faith
disputes the results of any such audit, the parties shall in good faith attempt
to resolve any disputed items. If Landlord and Tenant are able to resolve such
dispute, final settlement shall be made within thirty (30) days after resolution
of the dispute. If the parties are unable to resolve any such dispute, any sum
on which there is no longer dispute shall be paid and any remaining disputed
items shall be referred to a mutually satisfactory third party certified public
accountant for final resolution. If such certified public accountant determines
that Tenant's Share of Basic Operating Costs is overstated by more than five
percent (5%), then Landlord shall pay the cost of the certified public
accountant. Otherwise Tenant shall pay the cost of the certified public
accountant. The determination of such certified public accountant shall be final
and binding and final settlement shall be made within thirty (30) days after
receipt of such accountant's decision.
0.6.0.0.8. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, TENANT'S OBLIGATION TO PAY THE CONTROLLABLE COSTS (HEREINAFTER
DEFINED) COMPONENT OF TENANT'S SHARE OF BASIC OPERATING COSTS SHALL BE
LIMITED TO A 7% ANNUAL INCREASE ON A CUMULATIVE BASIS. FOR PURPOSES
HEREOF, THE TERM "CONTROLLABLE COSTS" SHALL MEAN ALL BASIC OPERATING
COSTS, EXCEPT UTILITY COSTS, TAXES AND INSURANCE PREMIUMS.
0.7. Late Payments; Dishonored Checks.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 11
16
0.7.0.0.1. IN THE EVENT ANY INSTALLMENT OF RENT IS NOT
RECEIVED WITHIN FIVE (5) BUSINESS DAYS AFTER LANDLORD DELIVERS WRITTEN
NOTICE IN ACCORDANCE WITH SECTION 38 HEREOF TO THE ATTENTION OF
TENANT'S CHIEF FINANCIAL OFFICER AND TO HIERSCHE, MARTENS, HAYWARD,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ. THAT SUCH
INSTALLMENT IS PAST DUE (WITHOUT IN ANY WAY IMPLYING LANDLORD'S CONSENT
TO SUCH LATE PAYMENT), TENANT, TO THE EXTENT PERMITTED BY LAW, AGREES
TO PAY, IN ADDITION TO SAID INSTALLMENT OF RENT, A LATE PAYMENT CHARGE
EQUAL TO FIVE PERCENT (5%) OF THE INSTALLMENT OF RENT DUE, IT BEING
UNDERSTOOD THAT SAID LATE PAYMENT CHARGE SHALL BE FOR THE PURPOSE OF
REIMBURSING LANDLORD FOR THE ADDITIONAL COSTS AND EXPENSES WHICH
LANDLORD PRESENTLY EXPECTS TO INCUR IN CONNECTION WITH THE HANDLING AND
PROCESSING OF LATE PAYMENTS. NOTWITHSTANDING THE FOREGOING, THE LATE
PAYMENT CHARGE SHALL INCREASE TO TEN PERCENT (10%) OF THE INSTALLMENT
OF RENT DUE IF TENANT BECOMES RESPONSIBLE FOR A LATE PAYMENT CHARGE
MORE THAN TWICE DURING ANY CONSECUTIVE TWELVE (12) MONTH PERIOD. SUCH
CHARGE SHALL REVERT TO FIVE PERCENT (5%) AFTER TENANT HAS PAID RENT FOR
TWELVE (12) CONSECUTIVE MONTHS WITHOUT INCURRING A LATE CHARGE. IN THE
EVENT OF ANY SUCH LATE PAYMENT(S) BY TENANT, THE ADDITIONAL COSTS AND
EXPENSES SO RESULTING TO LANDLORD WILL BE DIFFICULT TO ASCERTAIN
PRECISELY AND THE FOREGOING CHARGE CONSTITUTES A REASONABLE AND GOOD
FAITH ESTIMATE BY THE PARTIES OF THE EXTENT OF SUCH ADDITIONAL COSTS
AND EXPENSES. ACCEPTANCE OF SUCH LATE CHARGE BY LANDLORD SHALL IN NO
EVENT CONSTITUTE A WAIVER OF TENANT'S DEFAULT WITH RESPECT TO SUCH
OVERDUE AMOUNT, NOR PREVENT LANDLORD FROM EXERCISING ANY OTHER RIGHTS
OR REMEDIES GRANTED HEREUNDER UNLESS SUCH DEFAULT IS OTHERWISE CURED
WITHIN THE TIME PERIOD PROVIDED IN THIS LEASE.
0.7.0.0.2. IN ADDITION TO THE LATE PAYMENT CHARGE CONTAINED IN
SECTION 7(a), ALL RENT, IF NOT PAID WITHIN THIRTY (30) DAYS OF THE DATE
DUE, SHALL, AT THE OPTION OF LANDLORD, AND TO THE EXTENT PERMITTED BY
LAW, BEAR INTEREST FROM THE DATE DUE UNTIL PAID AT THE DEFAULT RATE.
0.7.0.0.3. IF ANY CHECK IS TENDERED BY TENANT AND NOT DULY
HONORED WITH GOOD FUNDS, TENANT SHALL, IN ADDITION TO ANY OTHER
REMEDIES AVAILABLE TO LANDLORD UNDER THIS LEASE, PAY LANDLORD A "NSF"
FEE OF $25.00.
0.8. Security Deposit.
0.8.0.0.1. THE SECURITY DEPOSIT SHALL BE DEPOSITED WITH
LANDLORD BY TENANT CONTEMPORANEOUSLY WITH THE DELIVERY BY TENANT TO
LANDLORD OF THIS LEASE. THE SECURITY DEPOSIT SHALL BE HELD BY LANDLORD,
WITHOUT LIABILITY FOR INTEREST, AS SECURITY FOR THE PERFORMANCE BY
TENANT OF TENANT'S COVENANTS AND OBLIGATIONS UNDER THIS LEASE, IT BEING
EXPRESSLY UNDERSTOOD THAT THE SECURITY DEPOSIT SHALL NOT BE CONSIDERED
AN ADVANCE PAYMENT OF RENT OR A MEASURE OF TENANT'S LIABILITY FOR
DAMAGES IN CASE OF DEFAULT BY TENANT. LANDLORD MAY, FROM TIME TO TIME,
WITHOUT PREJUDICE TO ANY OTHER REMEDY, USE THE SECURITY DEPOSIT TO THE
EXTENT NECESSARY TO MAKE GOOD ANY ARREARAGE OF RENT OR TO SATISFY ANY
OTHER COVENANT OR OBLIGATION OF TENANT 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. IF TENANT IS NOT IN DEFAULT AT THE TERMINATION
OF THIS LEASE, THE BALANCE OF THE SECURITY DEPOSIT REMAINING AFTER ANY
SUCH APPLICATION SHALL BE RETURNED BY LANDLORD TO TENANT WITHIN THIRTY
(30) DAYS FOLLOWING THE TERMINATION OF THIS LEASE. IF LANDLORD
TRANSFERS ITS INTEREST IN THE COMPLEX DURING THE TERM OF THIS LEASE,
LANDLORD MAY ASSIGN THE SECURITY DEPOSIT TO THE TRANSFEREE AND UPON
ASSUMPTION BY SUCH TRANSFEREE OF LIABILITY FOR THE SECURITY DEPOSIT,
LANDLORD SHALL HAVE NO FURTHER LIABILITY FOR THE RETURN OF SUCH
SECURITY DEPOSIT.
0.8.0.0.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, THE SECURITY DEPOSIT SHALL BE RETURNED TO TENANT AT SUCH TIME
AS TENANT DELIVERS EVIDENCE TO LANDLORD REASONABLY SATISFACTORY TO
LANDLORD THAT TENANT'S SHAREHOLDERS' EQUITY (DETERMINED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED)
HAS EQUALED OR EXCEEDED $50,000,000.00 FOR THE PREVIOUS TWO CALENDAR
QUARTERS. NOTWITHSTANDING THE FOREGOING, IF LANDLORD RETURNS THE
SECURITY DEPOSIT TO TENANT PURSUANT TO THE IMMEDIATELY PRECEDING
SENTENCE, AND TENANT'S SHAREHOLDERS' EQUITY (DETERMINED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED)
SUBSEQUENTLY DROPS BELOW $50,000,000.00, TENANT SHALL ONCE AGAIN
DEPOSIT WITH LANDLORD THE SECURITY DEPOSIT WITHIN FIVE (5) DAYS AFTER
DEMAND BY LANDLORD.
0.8.0.0.3. TENANT SHALL PROVIDE SUCH INFORMATION TO LANDLORD
AND MAKE SUCH RECORDS AVAILABLE TO LANDLORD AS ARE REASONABLY NECESSARY
TO ENABLE LANDLORD TO
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 12
17
DETERMINE TENANT'S SHAREHOLDERS' EQUITY ON A QUARTERLY BASIS SO LONG AS
TENANT IS A PUBLICLY TRADED COMPANY, OR FROM TIME TO TIME UPON THE
WRITTEN REQUEST OF LANDLORD (BUT IN NO EVENT MORE OFTEN THAN MONTHLY),
IF TENANT IS NO LONGER A PUBLICLY TRADED COMPANY.
0.9. Services to be Furnished by Landlord.
0.9.0.0.1. DURING THE TERM OF THIS LEASE, LANDLORD AGREES TO
FURNISH TENANT THE FOLLOWING SERVICES:
0.9.0.0.1.1. Facilities for hot and cold water at
those points of supply provided for general use of other
tenants in the Building and as necessary to service any
kitchen facilities within the Premises approved by Landlord
and provided solely for the use of Tenant and its employees,
and central heat and air conditioning in season (the cost of
such service to be paid by Tenant and other tenants of the
Complex in accordance with Section 6(d)(3), and the cost of
such service during other than Normal Business Hours to be
paid as set forth in Section 9(a)(8)), during Normal Business
Hours, at such temperatures and in such amounts as are
considered to be standard for similar class office buildings
within a three (3) mile radius of the Building or as required
by governmental authorities (including energy conservation
requirements). If Tenant will require water supply other than
as provided in the preceding sentence, or if Tenant requires
chilled water in connection with any supplemental air
conditioning equipment servicing the Premises, Landlord may
install separate meters at the cost of Tenant. In the event
separate utility meters are provided to the Premises, Landlord
may elect to have all charges for the water services
(including chilled water) that are separately metered to the
Premises billed directly to Tenant and Landlord shall make a
corresponding adjustment to Tenant's Share of Basic Operating
Costs.
0.9.0.0.1.2. Routine maintenance for all Common Areas
and Service Areas of the Building in the manner and to the
extent deemed by Landlord to be standard.
0.9.0.0.1.3. Janitorial service, five (5) days per
week, exclusive of Normal Business Holidays, at a level
comparable to that provided in similar class office buildings
within a three (3) mile radius of the Building.
0.9.0.0.1.4. All Building Standard fluorescent and
incandescent bulb and ballast replacement in the Premises, the
Common Areas and the Service Areas.
0.9.0.0.1.5. Limited access to the Building (or to
the floor on which the Premises are located) during other than
Normal Business Hours through the use of master entry cards
and/or keys. Tenant shall receive one (1) master entry card
and/or key for each two hundred fifty (250) square feet of
Rentable Area in the Premises. Tenant shall reimburse Landlord
for the cost of each additional card and/or key and for each
replacement card and/or key for any card and/or key lost by or
stolen from Tenant. The cost of additional keys shall be $3.50
per key and the cost of additional cards shall be $20.00 per
card. Tenant agrees to surrender all master entry cards and/or
keys in its possession upon the expiration or earlier
termination of this Lease. Any lost cards and/or keys shall be
canceled. LANDLORD SHALL HAVE NO LIABILITY TO TENANT, ITS
EMPLOYEES, AGENTS, CONTRACTORS, INVITEES, OR LICENSEES FOR
LOSSES DUE TO THEFT OR BURGLARY (OTHER THAN THEFT OR BURGLARY
COMMITTED BY EMPLOYEES OF LANDLORD), OR FOR DAMAGES DONE BY
UNAUTHORIZED PERSONS IN THE PREMISES OR ON THE COMPLEX. Tenant
shall cooperate fully in Landlord's efforts to control access
in the Building and shall follow all regulations promulgated
by Landlord with respect thereto which are adopted in
accordance with Exhibit "C".
0.9.0.0.1.6. Electricity and proper facilities to
furnish (A) Building Standard lighting (which shall be defined
as an average connected load of two [2] ▇▇▇▇▇ per square foot
of Rentable Area of the Premises multiplied by the number of
Normal Business Hours in each month), and (B) sufficient
electrical power for normal office machines (including
electric typewriters, desk-top computer facilities and
desk-top word processing facilities) and other machines of
similar electrical consumption ("Miscellaneous Power"),
provided that Tenant's Miscellaneous Power requirements shall
not exceed six (6) ▇▇▇▇▇ per square foot of Rentable Area of
the Premises, of connected load or four (4) ▇▇▇▇▇ per square
foot of Rentable Area of the Premises of demand load
multiplied by the number of Normal Business Hours in each
month (as measured by one or more separate watt hour meters),
or require a voltage greater than 120/208 volts 3-phase or
require more than 500 ▇▇▇▇▇ for any piece of equipment (the
"Building Standard Electrical Design Load"). In the event
Landlord determines that Tenant will require, or is consuming,
special lighting in excess of Building Standard or
Miscellaneous Power in excess of the Building Standard
Electrical Design Load, Tenant shall reimburse Landlord for
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 13
18
the cost of any additional equipment, such as transformers,
risers and supplemental air conditioning equipment, which
Landlord's engineer reasonably deems necessary to accommodate
such above-standard consumption (without implying any
obligation on the part of Landlord to accommodate such use),
and Landlord may install separate meters to all or a portion
of the Premises at the cost of Tenant.
0.9.0.0.1.7. Passenger elevator service in common
with other tenants of the Building for ingress to and egress
from the floor(s) upon which the Premises are situated,
twenty-four (24) hours a day, seven (7) days a week, and
non-exclusive freight elevator service to the Premises during
Normal Business Hours and at other times upon reasonable prior
notice to Landlord and approval of the Building manager. Any
passenger or freight elevator use shall be subject to the
Rules and Regulations for the Building and shall be subject to
temporary cessation for ordinary repair and maintenance and
during times when life safety systems override normal Building
operating systems.
0.9.0.0.1.8. Heating and air conditioning during
other than Normal Business Hours shall be furnished only upon
the prior request of Tenant made in accordance with such
procedures as are, from time to time, prescribed by the
Building manager, and Tenant shall bear the cost of such
heating and air conditioning service at a rate equal to the
cost incurred by Landlord to provide such service (such cost
incurred not to include any additional administrative fee or
charge for turning on or arranging for the turn-on of the
HVAC; provided, however, there shall be a two (2) hour minimum
charge when such service is requested and the after-hours HVAC
rate may be adjusted, from time to time, to reflect increases
in the costs incurred by Landlord in providing such service.
In the event any other tenant within the same HVAC zone as the
Premises also requests after-hours heating or air conditioning
during the same period as Tenant, Landlord shall equitably
allocate the cost thereof among all tenants within the same
HVAC zone requesting such service.
0.9.0.0.1.9. All necessary risers and conduits for
Tenant's own telephone services shall be provided by Landlord
at no cost to Tenant, which shall include, but not be limited
to, two (2) four (4) inch conduits.
0.9.0.0.2. IN THE EVENT LANDLORD AGREES TO PROVIDE ANY
ADDITIONAL SERVICES AT THE SPECIFIC REQUEST OF TENANT, WITHOUT IMPLYING
ANY OBLIGATION ON THE PART OF LANDLORD TO DO SO, THE PROVISION OF SUCH
SERVICES SHALL, UNLESS OTHERWISE SPECIFICALLY AGREED IN WRITING, BE
SUBJECT TO THE AVAILABILITY OF BUILDING PERSONNEL, AND, IF THE
PROVISION OF ANY SUCH SERVICE REQUIRES LANDLORD TO INCUR ANY
OUT-OF-POCKET COST, TENANT SHALL REIMBURSE LANDLORD FOR THE COST OF
PROVIDING SUCH SERVICE (PLUS AN ADMINISTRATIVE CHARGE EQUAL TO FIVE
PERCENT [5%] OF SUCH COST, PLUS APPLICABLE SALES TAX) WITHIN TEN (10)
DAYS FOLLOWING RECEIPT OF AN INVOICE FROM LANDLORD. UNLESS LANDLORD HAS
AGREED WITH TENANT TO THE CONTRARY IN WRITING, LANDLORD MAY DISCONTINUE
THE PROVISION OF SUCH ADDITIONAL SERVICE AT ANY TIME UPON THIRTY (30)
DAYS ADVANCE WRITTEN NOTICE (OR IMMEDIATELY UPON THE OCCURRENCE OF AN
EVENT OF DEFAULT).
0.9.0.0.3. THE UNINTENTIONAL FAILURE BY LANDLORD, TO ANY
EXTENT, TO FURNISH SERVICES REQUIRED TO BE FURNISHED BY LANDLORD
HEREUNDER, OR ANY CESSATION THEREOF, SHALL NOT RENDER LANDLORD LIABLE
IN ANY RESPECT FOR DAMAGES (INCLUDING, WITHOUT LIMITATION, BUSINESS
INTERRUPTION DAMAGES) TO PERSONS OR PROPERTY, NOR BE CONSTRUED AS AN
EVICTION OF TENANT, NOR WORK AN ABATEMENT OF RENT, NOR RELIEVE TENANT
FROM FULFILLMENT OF ANY COVENANT OR AGREEMENT SET FORTH IN THIS LEASE.
SHOULD ANY OF SUCH SERVICES BE INTERRUPTED, LANDLORD SHALL USE
REASONABLE DILIGENCE TO RESTORE THE SAME PROMPTLY, BUT TENANT SHALL
HAVE NO CLAIM FOR REBATE OF RENT, DAMAGES OR EVICTION ON ACCOUNT
THEREOF. NOTWITHSTANDING THE FOREGOING, SUBJECT TO SECTION 24 (CASUALTY
DAMAGE) AND SECTION 25 (CONDEMNATION), IF ANY PORTION OF THE PREMISES
BECOMES UNFIT FOR OCCUPANCY BECAUSE LANDLORD FAILS TO DELIVER ANY
SERVICE REQUIRED UNDER THIS SECTION 9 FOR ANY PERIOD EXCEEDING FIVE (5)
CONSECUTIVE BUSINESS DAYS (EXCLUDING NORMAL BUSINESS HOLIDAYS) AFTER
RECEIPT OF NOTICE OF SUCH FAILURE FROM TENANT, AND PROVIDED SUCH
FAILURE IS NOT CAUSED BY TENANT OR ANY TENANT RELATED PARTY, LANDLORD
SHALL ALLOW TENANT AN EQUITABLE ABATEMENT OF RENT (BASED ON THE
SEVERITY OF THE INTERRUPTION AND THE AMOUNT OF SPACE UNFIT FOR
OCCUPANCY) EFFECTIVE FROM THE SIXTH (6TH) BUSINESS DAY (EXCLUDING
NORMAL BUSINESS HOLIDAYS) FOLLOWING THE EARLIER TO OCCUR OF (i) THE
DATE ON WHICH TENANT FIRST PROVIDED LANDLORD WITH WRITTEN NOTICE OF THE
INTERRUPTION OF SUCH SERVICE, AND (ii) THE DATE ON WHICH LANDLORD FIRST
ACQUIRED ACTUAL KNOWLEDGE OF THE INTERRUPTION OF SUCH SERVICE, UNTIL
SUCH PORTION OF THE PREMISES IS AGAIN FIT FOR OCCUPANCY AND SUCH
SERVICE IS RESTORED; PROVIDED FURTHER, THAT IF (a) ANY MATERIAL PORTION
OF THE PREMISES REMAINS UNFIT FOR THE CONDUCT OF TENANT'S BUSINESS
BECAUSE LANDLORD FAILS TO DELIVER ANY ESSENTIAL SERVICE (HEREINAFTER
DEFINED) FOR ANY PERIOD EXCEEDING ONE HUNDRED
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 14
19
TWENTY (120) CONSECUTIVE DAYS AND (b) SUCH FAILURE IS NOT CAUSED BY
TENANT OR ANY OF TENANT'S AGENTS, EMPLOYEES, CONTRACTORS OR INVITEES,
TENANT SHALL DIRECT TO TERMINATE THIS LEASE UPON THIRTY (30) DAYS
WRITTEN NOTICE TO LANDLORD (PROVIDED, HOWEVER, THAT IF LANDLORD IS ABLE
TO CAUSE SUCH SERVICE TO BE RESTORED PRIOR TO THE EFFECTIVE DATE OF
SUCH TERMINATION, SUCH TERMINATION SHALL BECOME VOID AND WITHOUT
FURTHER FORCE OR EFFECT AND THIS LEASE SHALL CONTINUE IN EFFECT UPON
THE TERMS AND CONDITIONS SET FORTH HEREIN). FOR PURPOSES HEREOF, THE
TERM "ESSENTIAL SERVICE" SHALL MEAN THE PROVISION OF SANITARY SEWER,
WATER, ELECTRICITY OR CENTRAL HEAT AND AIR CONDITIONING IN SEASON TO
THE PREMISES.
0.10. Graphics; Signage. Landlord shall, at Landlord's sole cost,
provide and install one (1) Building Standard identification sign per floor
within the Premises and add Tenant's name (including the names of not more than
three (3) of Tenant's affiliated or subsidiary companies) and suite number to
the Building directory in the lobby (the "Base Building Signage"). Any other
signage requested by Tenant in addition to the Base Building Signage shall be
subject to the prior approval of Landlord and shall be provided, constructed and
installed by Landlord; provided, however, Tenant shall reimburse Landlord for
Landlord's cost of providing such service, plus an administrative charge equal
to five percent (5%) of Landlord's cost. All such additional signage shall be in
the standard graphics for the Building and no others shall be used or permitted
without Landlord's prior written consent. Tenant, at its sole cost and expense,
shall remove all non-Building Standard signage (if such non-Building Standard
signage was permitted by Landlord) upon the termination of this Lease and repair
any damage caused by such removal.
0.11. Telecommunications.
0.11.0.0.1. IN THE EVENT THAT TENANT WISHES TO UTILIZE THE
SERVICES OF A TELEPHONE OR TELECOMMUNICATIONS PROVIDER WHOSE EQUIPMENT
IS NOT SERVICING THE BUILDING AS OF THE DATE OF TENANT'S EXECUTION OF
THIS LEASE ("PROVIDER"), SUCH PROVIDER SHALL BE REQUIRED TO OBTAIN THE
PRIOR WRITTEN CONSENT OF LANDLORD, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED, BEFORE INSTALLING ITS LINES OR
EQUIPMENT WITHIN THE COMPLEX. IN NO EVENT SHALL THE PROVIDER BE
PERMITTED TO PROVIDE SERVICE TO ANY OCCUPANT OF THE COMPLEX OTHER THAN
TENANT, WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
0.11.0.0.2. LANDLORD'S REFUSAL TO GIVE ITS CONSENT TO THE
INSTALLATION OF LINES OR EQUIPMENT BY THE PROVIDER SHALL BE DEEMED
REASONABLE UNLESS ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED TO
LANDLORD'S SATISFACTION, THE SATISFACTION OF SUCH CONDITIONS TO BE
EVIDENCED BY A WRITTEN AGREEMENT BETWEEN PROVIDER AND LANDLORD OR BY
ANY OTHER MEANS ACCEPTABLE TO LANDLORD IN ITS REASONABLE JUDGMENT:
0.11.0.0.2.1. Landlord shall incur no expense
whatsoever with respect to any aspect of Provider's provision
of its services, including, without limitation, the costs of
installation, materials, utilities (including the cost of any
separate meters) and service;
0.11.0.0.2.2. Prior to commencement of any work in or
about the Building by Provider, Provider shall supply Landlord
with such written indemnities, insurance verifications,
financial statements, and such other items as Landlord
reasonably deems to be necessary to protect its financial
interests and the interests of the Building relating to the
proposed activities of the Provider;
0.11.0.0.2.3. Prior to the commencement of any work
in or about the Building by the Provider, the Provider shall
agree to abide by the Rules and Regulations and such other
requirements as are reasonably determined by Landlord to be
necessary to protect the interests of the Building, the
tenants in the Building, and the Landlord, including, without
limitation, providing security in such form and amount as
determined by Landlord;
0.11.0.0.2.4. Landlord reasonably determines that
there is sufficient space in the Building for the placement of
all of the Provider's equipment and materials;
0.11.0.0.2.5. The Provider is licensed and reputable;
and
0.11.0.0.2.6. The Provider agrees to compensate
Landlord for space used in the Building for the storage and
maintenance of the Provider's equipment and for all costs that
may be incurred by Landlord in arranging for access by the
Provider's personnel, security for Provider's equipment, and
any other such costs as Landlord may reasonably expect to
incur.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 15
20
0.11.0.0.3. LANDLORD'S CONSENT UNDER THIS SECTION SHALL NOT BE
DEEMED ANY KIND OF WARRANTY OR REPRESENTATION BY LANDLORD, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO THE
SUITABILITY, COMPETENCE, OR FINANCIAL STRENGTH OF PROVIDER.
0.11.0.0.4. TENANT ACKNOWLEDGES AND AGREES THAT ALL TELEPHONE
AND TELECOMMUNICATIONS SERVICES DESIRED BY TENANT SHALL BE ORDERED AND
UTILIZED AT THE SOLE RISK AND EXPENSE OF TENANT.
0.11.0.0.5. TENANT AGREES THAT, TO THE EXTENT SERVICE BY
PROVIDER IS INTERRUPTED, CURTAILED, OR DISCONTINUED, LANDLORD SHALL
HAVE NO OBLIGATION OR LIABILITY WITH RESPECT THERETO AND IT SHALL BE
THE SOLE OBLIGATION OF TENANT AT ITS EXPENSE TO OBTAIN SUBSTITUTE
SERVICE.
0.11.0.0.6. THE PROVISIONS OF THIS SECTION 11 MAY BE ENFORCED
SOLELY BY THE TENANT AND LANDLORD, AND ARE NOT FOR THE BENEFIT OF ANY
OTHER PARTY. NO PROVIDER SHALL BE DEEMED A THIRD PARTY BENEFICIARY OF
THIS LEASE.
0.12. Repair and Maintenance by Landlord. Except as provided in Section
14, Landlord shall be responsible for the maintenance and repair, and
replacement when necessary, of exterior and load-bearing walls, floors (but not
floor coverings), mechanical, electrical, plumbing and HVAC systems and
equipment which are Building Standard, the roof of the Building, the Common
Areas (including restrooms located on any full floors leased by Tenant), the
Service Areas and the Parking Areas. In no event shall Landlord be responsible
for the maintenance or repair of improvements made by or at the request of
Tenant which are not Building Standard. All requests for repairs must be
submitted to Landlord in writing, except in the case of an emergency. Repairs
and maintenance by Landlord pursuant to this Section 12 are included in Basic
Operating Costs, except to the extent excluded by Section 6(e).
0.13. Maintenance by Tenant. Tenant shall maintain the Premises in a
clean and orderly condition and shall not commit or allow any waste to be
committed on any portion of the Premises. At the expiration or early termination
of this Lease, Tenant shall deliver up the Premises to Landlord in as good
condition as at the Commencement Date, ordinary wear and tear and damage by fire
or casualty loss (unless caused by Tenant) excepted.
0.14. Repairs by Tenant. Tenant shall, at Tenant's cost, repair or
replace any damage to the Premises (including doors and door frames, interior
windows and any kitchen equipment, such as dishwashers, sinks, refrigerators,
trash compactors and plumbing and other mechanical systems related thereto) that
is not caused by Landlord or that is within the responsibility of Landlord under
the Tenant Improvements Agreement, if any, and any damage to the Complex, or any
part thereof, caused by Tenant or any employee, officer, contractor, agent,
subtenant, guest, licensee or invitee of Tenant (except that with respect to any
such damage outside of the Premises or below floor coverings, above ceilings or
behind walls or columns, such damage shall be repaired by Landlord), and Tenant
shall reimburse Landlord for the cost of such repairs or replacements, plus an
administrative charge equal to five percent (5%) of the cost of such repairs or
replacements. If Tenant fails to make such repairs or replacements within thirty
(30) days after receipt of written notice from Landlord, Landlord may, at
Landlord's option, make such repairs or replacements, and Tenant shall reimburse
Landlord for the cost of such repairs or replacements, plus an administrative
charge equal to five percent (5%) of the cost of such repairs or replacements.
Reimbursement for all repairs performed by Landlord pursuant to this Section 14
shall be payable as additional Rent by Tenant to Landlord within ten (10) days
following Tenant's receipt of an invoice from Landlord. Notwithstanding anything
contained herein to the contrary, if any such damage is covered by Landlord's
insurance, in whole or in part, Tenant's liability under this Section 14 shall
be limited to the deductible payable by Landlord and any portion of the cost of
repairing such damage not covered by Landlord's insurance. In connection with
repairs or replacements made by Tenant, Tenant shall provide Landlord with a
copy of the contractor agreement regarding such repairs, copies of certificates
of insurance evidencing contractor coverage satisfactory to Landlord, copies of
"as-built" Tenant's Final Plans and other information or documentation
reasonably required by Landlord, including evidence of the lien-free completion
of such repairs or replacements.
0.15. Alterations, Additions, Improvements.
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21
0.15.0.0.1. TENANT WILL MAKE NO ALTERATION, CHANGE,
IMPROVEMENT, REPLACEMENT OR ADDITION TO THE PREMISES (COLLECTIVELY,
"ALTERATIONS"), WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD.
NOTWITHSTANDING THE FOREGOING, (i) TENANT MAY MAKE, WITHOUT THE PRIOR
WRITTEN CONSENT OF LANDLORD, INTERIOR ALTERATIONS WHICH WILL NOT
AFFECT, IN ANY WAY, THE MECHANICAL, ELECTRICAL, PLUMBING, HVAC, FIRE
AND LIFE SAFETY AND/OR STRUCTURAL COMPONENTS OF THE BUILDING
("NON-STRUCTURAL ALTERATIONS"), SO LONG AS (A) TENANT PROVIDES LANDLORD
PRIOR WRITTEN NOTICE THAT TENANT INTENDS TO MAKE SUCH NON-STRUCTURAL
ALTERATIONS AND (B) SUCH NON-STRUCTURAL ALTERATIONS DO NOT, WITH
RESPECT TO ANY GIVEN SET OF ALTERATIONS PERFORMED AT THE SAME TIME OR
PURSUANT TO THE SAME CONTRACT, EXCEED THE SUM OF TWENTY-FIVE THOUSAND
DOLLARS ($25,000) AND (ii) LANDLORD SHALL NOT UNREASONABLY WITHHOLD OR
DELAY ITS CONSENT TO NON-STRUCTURAL ALTERATIONS WHICH ARE GENERALLY
CONSISTENT WITH THE OTHER TENANT IMPROVEMENTS WITHIN THE PREMISES.
LANDLORD MAY, AT ITS OPTION, REQUIRE TENANT TO SUBMIT PLANS AND
SPECIFICATIONS TO LANDLORD FOR APPROVAL PRIOR TO COMMENCING ANY
ALTERATIONS. ALL ALTERATIONS (OTHER THAN NON-STRUCTURAL ALTERATIONS)
SHALL BE PERFORMED BY A CONTRACTOR ON LANDLORD'S APPROVED LIST (A COPY
OF WHICH MAY BE OBTAINED FROM THE BUILDING MANAGER). ALL ALTERATIONS
SHALL BE DONE IN A GOOD AND WORKMANLIKE MANNER AND IN COMPLIANCE WITH
ALL APPLICABLE LAWS AND ORDINANCES, INCLUDING, BUT NOT LIMITED TO,
TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990 OR TEX. CIV.
STAT. ▇▇▇. ART. 9102 (COLLECTIVELY, THE "DISABILITY LAWS") AND THE
TEXAS ARCHITECTURAL BARRIERS STATUTE. TENANT SHALL REQUIRE THAT ANY
CONTRACTORS USED BY TENANT CARRY A COMPREHENSIVE LIABILITY (INCLUDING
BUILDER'S RISK) INSURANCE POLICY IN SUCH AMOUNTS AS LANDLORD MAY
REASONABLY REQUIRE AND PROVIDE PROOF OF SUCH INSURANCE TO LANDLORD
PRIOR TO THE COMMENCEMENT OF ANY ALTERATIONS. TENANT SHALL INDEMNIFY
AND HOLD LANDLORD HARMLESS FROM, AND REIMBURSE LANDLORD FOR AND WITH
RESPECT TO, ANY AND ALL COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES), DEMANDS, CLAIMS, CAUSES OF ACTION AND LIENS ARISING
FROM AND IN CONNECTION WITH ANY ALTERATIONS PERFORMED BY TENANT. ALL
PERSONS PERFORMING WORK IN THE BUILDING AT THE REQUEST OF TENANT SHALL
REGISTER WITH THE BUILDING MANAGER PRIOR TO INITIATING ANY WORK. UPON
COMPLETION OF ANY ALTERATIONS, TENANT SHALL PROVIDE LANDLORD WITH A
COPY OF ITS BUILDING PERMIT, FINAL INSPECTION TAG AND, IF PLANS AND
SPECIFICATIONS WERE REQUIRED BY LANDLORD, FINAL "AS BUILT" PLANS AND
SPECIFICATIONS, TOGETHER WITH EVIDENCE OF THE LIEN-FREE COMPLETION OF
SUCH ALTERATIONS. EXCEPT FOR THE INITIAL IMPROVEMENTS (WHICH SHALL BE
GOVERNED BY THE TENANT IMPROVEMENTS AGREEMENT), ALL ALTERATIONS NOW OR
HEREAFTER PLACED OR CONSTRUCTED ON THE PREMISES AT THE REQUEST OF
TENANT SHALL BE AT TENANT'S COST. IF LANDLORD PERFORMS SUCH ALTERATIONS
ON TENANT'S BEHALF, THE COST OF SUCH ALTERATIONS (PLUS A CONSTRUCTION
MANAGEMENT FEE EQUAL TO FIVE PERCENT [5%] OF HARD COSTS) SHALL BE
PAYABLE AS ADDITIONAL RENT BY TENANT TO LANDLORD WITHIN TEN (10) DAYS
FOLLOWING TENANT'S RECEIPT OF AN INVOICE FROM LANDLORD.
0.15.0.0.2. UPON THE EXPIRATION OR EARLY TERMINATION OF THIS
LEASE, TENANT MAY REMOVE ITS TRADE FIXTURES, OFFICE SUPPLIES AND
MOVABLE OFFICE FURNITURE AND EQUIPMENT NOT ATTACHED TO THE BUILDING
PROVIDED (1) SUCH REMOVAL IS MADE PRIOR TO THE TERMINATION OR
EXPIRATION OF THE LEASE TERM; (2) TENANT IS NOT THEN IN DEFAULT IN THE
TIMELY PERFORMANCE OF ANY OBLIGATION OR COVENANT UNDER THIS LEASE; AND
(3) TENANT PROMPTLY REPAIRS ALL DAMAGE CAUSED BY SUCH REMOVAL. ALL
OTHER PROPERTY AT THE PREMISES, ANY ALTERATIONS TO THE PREMISES, AND
ANY OTHER ARTICLES ATTACHED OR AFFIXED TO THE FLOOR, WALL, OR CEILING
OF THE PREMISES SHALL, IMMEDIATELY UPON INSTALLATION, BE DEEMED THE
PROPERTY OF LANDLORD AND SHALL BE SURRENDERED WITH THE PREMISES AT THE
TERMINATION OR EXPIRATION OF THIS LEASE, WITHOUT PAYMENT OR
COMPENSATION THEREFOR. IF, HOWEVER, LANDLORD SO REQUESTS IN WRITING,
TENANT WILL, AT TENANT'S SOLE COST AND EXPENSE, PRIOR TO THE
TERMINATION OR EXPIRATION OF THE LEASE TERM, REMOVE ANY AND ALL TRADE
FIXTURES, OFFICE SUPPLIES AND OFFICE FURNITURE AND EQUIPMENT PLACED OR
INSTALLED BY TENANT IN THE PREMISES, AND ANY NON-BUILDING STANDARD
ALTERATIONS (OTHER THAN THE INITIAL IMPROVEMENTS) INSTALLED BY TENANT
OR INSTALLED BY LANDLORD AT TENANT'S REQUEST IN THE PREMISES AND WHICH
LANDLORD DESIGNATED AS BEING SUBJECT TO REMOVAL AT THE TIME OF
APPROVAL, AND WILL REPAIR ANY DAMAGE CAUSED BY SUCH REMOVAL.
0.15.0.0.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, TENANT MAY, SUBJECT TO ALL APPLICABLE LAWS, INSTALL KEY
PAD-TYPE SECURITY DEVICES (THE "SECURITY DEVICE") WITHIN THE PREMISES
(AND IN THE STAIRWAYS CONNECTING THE 5TH, 6TH, 7TH, AND 8TH FLOORS OF
THE BUILDING, BUT ONLY TO THE EXTENT TENANT OCCUPIES SUCH ENTIRE
FLOORS), WHICH SECURITY DEVICE SHALL BE SUBJECT TO LANDLORD'S PRIOR
WRITTEN APPROVAL (WHICH APPROVAL SHALL NOT UNREASONABLY WITHHELD OR
DELAYED). PRIOR TO INSTALLING SUCH SECURITY DEVICE, TENANT SHALL OBTAIN
LANDLORD'S APPROVAL OF THE PLANS AND SPECIFICATIONS FOR THE
INSTALLATION OF SUCH SECURITY DEVICE, AND LANDLORD AND TENANT SHALL
COOPERATE TO ENSURE
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 17
22
THAT SUCH SECURITY DEVICE DOES NOT INTERFERE WITH THE USE AND OCCUPANCY
OF THE BUILDING BY OTHER TENANTS OR OTHERWISE DISRUPT THE OPERATION OF
THE BUILDING. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, THE SECURITY DEVICE SHALL BE INSTALLED WITH ELECTRIC LOCKS
CONNECTED TO THE BUILDING CENTRAL FIRE CONTROL PANEL. ELECTRIC STRIKES
AND MAGNETIC LOCKS SHALL NOT BE PERMITTED.
0.16. Laws and Regulations; Disability Laws; Building Rules and
Regulations.
0.16.0.0.1. TENANT, AT TENANT'S SOLE COST AND EXPENSE, SHALL
COMPLY WITH ALL CURRENT AND FUTURE FEDERAL, STATE, MUNICIPAL AND OTHER
LAWS AND ORDINANCES APPLICABLE TO THE USE OF THE PREMISES, THE
EMPLOYEES, AGENTS, VISITORS AND INVITEES OF TENANT, AND THE BUSINESS
CONDUCTED IN THE PREMISES BY TENANT, INCLUDING, WITHOUT LIMITATION, ALL
ENVIRONMENTAL LAWS AND REGULATIONS; WILL NOT ENGAGE IN ANY ACTIVITY
WHICH WOULD CAUSE LANDLORD'S FIRE AND EXTENDED COVERAGE INSURANCE TO BE
CANCELED OR THE RATE INCREASED (OR, AT LANDLORD'S OPTION, LANDLORD MAY
ALLOW TENANT TO ENGAGE IN SUCH ACTIVITY PROVIDED TENANT PAYS FOR ANY
SUCH INCREASE IN THE INSURANCE RATE); AND WILL NOT COMMIT ANY ACT WHICH
IS A NUISANCE OR ANNOYANCE TO LANDLORD OR TO OTHER TENANTS IN THE
BUILDING OR WHICH MIGHT, IN THE REASONABLE JUDGMENT OF LANDLORD,
APPRECIABLY DAMAGE LANDLORD'S GOODWILL OR REPUTATION, OR TEND TO INJURE
OR DEPRECIATE THE VALUE OF THE BUILDING. WITHOUT LIMITING THE
FOREGOING, TENANT SHALL NOT PLACE OR PERMIT TO REMAIN WITHIN THE
PREMISES ANY "HAZARDOUS MATERIALS" AS SUCH TERM IS NOW OR HEREAFTER
DEFINED UNDER APPLICABLE ENVIRONMENTAL LAWS, EXCEPT CLEANING SUPPLIES,
COPIER TONER OR OTHER SIMILAR TYPE PRODUCTS COMMONLY FOUND IN
COMMERCIAL OFFICE SPACE, PROVIDED SUCH ITEMS ARE PROPERLY LABELED,
STORED AND DISPOSED OF IN ACCORDANCE WITH ALL APPLICABLE GOVERNMENTAL
REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION
16(a) SHALL BE CONSTRUED AS REQUIRING TENANT TO BE RESPONSIBLE FOR ANY
LEGAL REQUIREMENTS APPLICABLE TO THE STRUCTURAL PORTIONS OF THE
PREMISES, ANY RESTROOMS WITHIN THE BUILDING (OTHER THAN RESTROOMS
CONSTRUCTED BY OR AT THE SPECIAL REQUEST OF TENANT) OR THE BUILDING
STANDARD MECHANICAL, ELECTRICAL, PLUMBING OR HVAC SYSTEMS, UNLESS THE
FAILURE TO COMPLY WITH ANY SUCH LEGAL REQUIREMENTS IS CAUSED BY TENANT
OR ANYONE ACTING FOR TENANT.
0.16.0.0.2. TENANT, AT ITS SOLE COST, SHALL BE RESPONSIBLE FOR
COMPLIANCE WITH DISABILITY LAWS WITH RESPECT TO (1) THE PREMISES, (2)
THE TENANT IMPROVEMENTS, (3) ALL ALTERATIONS MADE TO THE PREMISES OR
ANY OTHER ACTS OF TENANT AFTER THE COMMENCEMENT DATE, (4) ALL
REQUIREMENTS OF DISABILITY LAWS THAT RELATE TO THE EMPLOYER-EMPLOYEE
RELATIONSHIP OR THAT ARE NECESSITATED BY THE SPECIAL NEEDS OF ANY
EMPLOYEE, AGENT, VISITOR OR INVITEE OF TENANT AND THAT ARE NOT REQUIRED
TO BE PROVIDED GENERALLY, INCLUDING, WITHOUT LIMITATION, REQUIREMENTS
RELATED TO AUXILIARY AIDS AND GRAPHICS INSTALLED BY OR ON BEHALF OF
TENANT (OTHER THAN BASE BUILDING SIGNAGE), AND (5) ALL REQUIREMENTS OF
DISABILITY LAWS THAT RELATE TO PRIVATE RESTROOMS CONSTRUCTED BY OR AT
THE SPECIAL REQUEST OF TENANT. LANDLORD, AT ITS SOLE COST, SHALL BE
RESPONSIBLE FOR COMPLIANCE WITH DISABILITY LAWS WITH RESPECT TO THE
COMMON AREAS (INCLUDING RESTROOMS LOCATED UPON FULL FLOORS LEASED BY
TENANT) AND THE SERVICE AREAS AND THE INITIAL IMPROVEMENTS. NEITHER
PARTY SHALL BE IN DEFAULT UNDER THIS SECTION 16(B) FOR ITS FAILURE TO
COMPLY WITH DISABILITY LAWS SO LONG AS THE RESPONSIBLE PARTY IS EITHER
CONTESTING IN GOOD FAITH, AND BY LEGAL MEANS, THE ENFORCEMENT OF
DISABILITY LAWS, OR IS UNDERTAKING DILIGENT EFFORTS TO COMPLY WITH
DISABILITY LAWS.
0.16.0.0.3. TENANT SHALL COMPLY WITH THE RULES AND REGULATIONS
AND SHALL CAUSE ALL OF ITS AGENTS, EMPLOYEES, CONTRACTORS, INVITEES AND
VISITORS TO DO SO. ALL CHANGES TO SUCH RULES AND REGULATIONS SHALL BE
SENT BY LANDLORD TO TENANT IN WRITING. LANDLORD SHALL HAVE NO LIABILITY
TO TENANT OR ANY OTHER PERSON FOR ITS FAILURE TO ENFORCE THE RULES AND
REGULATIONS.
0.17. Entry by Landlord. Tenant agrees to permit Landlord and its
employees, agents, contractors or representatives to enter into and upon any
part of the Premises at all reasonable hours upon reasonable prior notice (and
in the case of emergencies at all times and without notice) to inspect the same,
or to show the Premises to prospective purchasers, mortgagees, insurers or (in
the last nine (9) months of the Lease Term or any renewal term) tenants, or to
clean or make repairs, alterations or additions thereto, and Tenant shall not be
entitled to any abatement or reduction of Rent by reason thereof. Landlord shall
use reasonable efforts to minimize any disruption to the conduct of Tenant's
business by reason of any such entry. No notice shall be required with respect
to entry by Landlord, or its employees, agents or contractors to perform
janitorial services.
0.18. Assignment and Subletting.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 18
23
0.18.0.0.1. TENANT SHALL NOT ASSIGN THIS LEASE OR SUBLEASE THE
PREMISES OR ANY PART THEREOF OR MORTGAGE, PLEDGE OR HYPOTHECATE ITS
LEASEHOLD INTEREST OR GRANT ANY CONCESSION OR LICENSE WITHIN THE
PREMISES (ANY SUCH ASSIGNMENT, SUBLEASE, MORTGAGE, PLEDGE,
HYPOTHECATION, OR GRANT OF A CONCESSION OR LICENSE BEING HEREINAFTER
REFERRED TO IN THIS SECTION 18 AS A "TRANSFER") WITHOUT THE PRIOR
WRITTEN CONSENT OF LANDLORD, AND ANY ATTEMPT TO EFFECT A TRANSFER
WITHOUT SUCH CONSENT OF LANDLORD SHALL BE VOID AND OF NO EFFECT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, LANDLORD
WILL NOT UNREASONABLY WITHHOLD OR DELAY ITS CONSENT TO ANY TRANSFER BY
TENANT TO ANY SERVICE PROVIDER OF TENANT OR OTHER ENTITY WHICH IS
INTEGRAL TO THE OPERATION OF TENANT'S BUSINESS FROM THE PREMISES SO
LONG AS SUCH TRANSFER AFFECTS NO MORE THAN 5,000 SQUARE FEET OF
RENTABLE AREA. IN ORDER FOR TENANT TO MAKE A TRANSFER, TENANT MUST
REQUEST IN WRITING LANDLORD'S CONSENT AT LEAST THIRTY (30) DAYS IN
ADVANCE OF THE DATE ON WHICH TENANT DESIRES TO MAKE A TRANSFER. SUCH
REQUEST SHALL INCLUDE THE NAME OF THE PROPOSED ASSIGNEE OR SUBLESSEE,
CURRENT FINANCIAL INFORMATION ON THE PROPOSED ASSIGNEE OR SUBLESSEE AND
THE TERMS OF THE PROPOSED TRANSFER. LANDLORD SHALL, WITHIN FIFTEEN (15)
DAYS FOLLOWING RECEIPT OF SUCH REQUEST, NOTIFY TENANT IN WRITING THAT
LANDLORD ELECTS (1) TO TERMINATE THIS LEASE AS TO THE SPACE SO AFFECTED
AS OF THE DATE SO SPECIFIED BY TENANT, IN WHICH EVENT TENANT WILL BE
RELIEVED OF ALL FURTHER OBLIGATIONS HEREUNDER AS TO SUCH SPACE, (2) TO
PERMIT TENANT TO ASSIGN OR SUBLET SUCH SPACE IN ACCORDANCE WITH THE
TERMS PROVIDED TO LANDLORD, OR (3) TO REFUSE CONSENT TO TENANT'S
REQUESTED TRANSFER AND TO CONTINUE THIS LEASE IN FULL FORCE AND EFFECT
AS TO THE ENTIRE PREMISES. IF LANDLORD SHALL FAIL TO NOTIFY TENANT IN
WRITING OF SUCH ELECTION WITHIN SAID FIFTEEN (15) DAY PERIOD, LANDLORD
SHALL BE DEEMED TO HAVE ELECTED OPTION (3) ABOVE. IF LANDLORD ELECTS TO
EXERCISE OPTION (1) ABOVE, TENANT MAY, WITHIN FIVE (5) DAYS AFTER
TENANT'S RECEIPT OF NOTICE OF SUCH ELECTION, WITHDRAW ITS REQUEST FOR
SUCH TRANSFER, IN WHICH EVENT THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL CONTINUE IN FULL FORCE AND EFFECT. IF LANDLORD ELECTS
TO EXERCISE OPTION (2) ABOVE, TENANT AGREES TO PROVIDE, AT ITS EXPENSE,
DIRECT ACCESS FROM ANY SUBLET SPACE OR CONCESSION AREA TO A PUBLIC
CORRIDOR OF THE BUILDING, AND SUCH OTHER IMPROVEMENTS, ALTERATIONS OR
ADDITIONS AS MAY BE REQUIRED BY APPLICABLE LAWS. THE PROHIBITION
AGAINST A TRANSFER CONTAINED HEREIN SHALL BE CONSTRUED TO INCLUDE A
PROHIBITION AGAINST ANY TRANSFER BY MERGER, SALE OF ASSETS, SALE OF A
CONTROLLING INTEREST IN STOCK OR OPERATION OF LAW. NOTWITHSTANDING THE
FOREGOING OR ANYTHING ELSE TO THE CONTRARY IN THIS LEASE, TENANT SHALL
HAVE THE RIGHT, SUBJECT TO SECTION 18(B), WITHOUT LANDLORD'S CONSENT,
TO ASSIGN THIS LEASE OR SUBLET ALL OR ANY PORTION OF THE PREMISES TO
ANY PERSON OR ENTITY WHO CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON
CONTROL WITH THE ORIGINAL TENANT NAMED IN THIS LEASE (AN "AFFILIATE
TRANSFER"). THE TERM "CONTROL" SHALL MEAN WITH RESPECT TO A
CORPORATION, THE RIGHT TO EXERCISE, DIRECTLY OR INDIRECTLY, MORE THAN
FIFTY PERCENT (50%) OF THE VOTING RIGHTS ATTRIBUTABLE TO THE SHARES OF
THE CONTROLLED CORPORATION, AND WITH RESPECT TO A PERSON OR ENTITY THAT
IS NOT A CORPORATION, THE POSSESSION, DIRECTLY OR INDIRECTLY, OF THE
POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT OR POLICIES OF
THE CONTROLLED PERSON OR ENTITY. TENANT SHALL PROVIDE LANDLORD WITH
WRITTEN NOTICE OF ANY AFFILIATE TRANSFER WITHIN TEN (10) DAYS AFTER THE
EFFECTIVE DATE THEREOF.
0.18.0.0.2. NOTWITHSTANDING THAT THE PRIOR EXPRESS WRITTEN
CONSENT OF LANDLORD TO A TRANSFER MAY HAVE BEEN OBTAINED UNDER THE
PROVISIONS OF SECTION 18(a) OR THAT SUCH PERMISSION IS NOT REQUIRED,
THE FOLLOWING SHALL APPLY TO ALL TRANSFERS (INCLUDING AFFILIATE
TRANSFERS):
0.18.0.0.2.1. Tenant shall, in the case of an
assignment, cause the assignee to expressly assume in writing
and to agree to perform all of the covenants, duties and
obligations of Tenant hereunder, and such assignee shall be
jointly and severally liable therefor along with Tenant;
0.18.0.0.2.2. Tenant shall agree with Landlord that,
except in the case of an Affiliate Transfer, in the event that
the rent or other consideration due and payable by a sublessee
or assignee under any such permitted sublease or assignment
exceeds the Rent for the portion of the Premises so
transferred, then Tenant shall pay to Landlord, as additional
Rent, fifty percent (50%) of all Profit (hereinafter defined)
received in connection with such sublease or assignment. For
purposes of this paragraph, "Profit" shall mean the amount by
which all rent and consideration due and payable by any
sublessee or assignee under any such sublease or assignment
exceeds the Rent payable hereunder with respect to the portion
of the Premises so transferred, after deducting reasonable
out-of-pocket third party costs and expenses actually incurred
by Tenant under or in connection with such sublease or
assignment for (i) commercially reasonable brokers'
commissions paid by Tenant with regard to the transfer, (ii)
reasonable legal fees paid by Tenant with regard to the
transfer, and (iii) commercially reasonable expenses of
finishing out or renovation of the space involved [but
specifically excluding any charges payable
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 19
24
to partners, shareholders or employees of Tenant in connection
with such sublease or assignment];
0.18.0.0.2.3. No usage of the Premises different from
the usage herein provided to be made by Tenant shall be
permitted, and all of the terms and provisions of this Lease
shall continue to apply after a Transfer; and
0.18.0.0.2.4. Tenant will nevertheless remain
directly and primarily liable for the performance of all the
covenants, duties and obligations of Tenant hereunder
(including, without limitation, the obligation to pay Rent),
and Landlord shall be permitted to enforce the provisions of
this Lease against the undersigned Tenant or any transferee,
or both, without demand upon or proceeding in any way against
any other persons.
0.18.0.0.3. THE CONSENT BY LANDLORD TO A PARTICULAR TRANSFER
SHALL NOT BE DEEMED A CONSENT TO ANY OTHER SUBSEQUENT TRANSFER. IF THIS
LEASE, THE PREMISES OR THE TENANT'S LEASEHOLD INTEREST THEREIN, OR IF
ANY PORTION OF THE FOREGOING IS TRANSFERRED, OR IF THE PREMISES ARE
OCCUPIED IN WHOLE OR IN PART BY ANYONE OTHER THAN TENANT WITHOUT THE
PRIOR CONSENT OF LANDLORD AS PROVIDED HEREIN, LANDLORD MAY NEVERTHELESS
COLLECT RENT FROM THE TRANSFEREE OR OTHER OCCUPANT AND APPLY THE NET
AMOUNT COLLECTED TO THE RENT PAYABLE HEREUNDER, BUT NO SUCH TRANSACTION
OR COLLECTION OF RENT OR APPLICATION THEREOF BY LANDLORD SHALL BE
DEEMED A WAIVER OF THE PROVISIONS HEREOF OR A RELEASE OF TENANT FROM
THE FURTHER PERFORMANCE BY TENANT OF ITS COVENANTS, DUTIES AND
OBLIGATIONS HEREUNDER.
0.18.0.0.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, IF TENANT, AS A DEBTOR-IN-POSSESSION (THE "DIP"), OR A TRUSTEE
FOR THE ESTATE IN BANKRUPTCY OF TENANT (THE "TRUSTEE"), ASSUMES THIS
LEASE AND PROPOSES TO ASSIGN THIS LEASE, OR SUBLET THE PREMISES (OR ANY
PORTION THEREOF), PURSUANT TO THE PROVISIONS OF THE FEDERAL BANKRUPTCY
CODE, 11 U.S.C. SECTIONS 101 ET SEQ. (THE "BANKRUPTCY CODE") TO ANY
PERSON, PARTNERSHIP, CORPORATION OR OTHER ENTITY (THE "PROPOSED
ASSIGNEE"), THEN SUCH ASSUMPTION OF THIS LEASE AND ANY SUCH ASSIGNMENT
OR SUBLEASE SHALL BE SUBJECT TO ALL OF THE FOLLOWING:
0.18.0.0.4.1. If the rental agreed upon between the
DIP or the Trustee, as the case may be, and the Proposed
Assignee under any proposed assignment or sublease of the
Premises (or any part thereof) is greater than the rental rate
that Tenant must pay Landlord hereunder for that portion of
the Premises that is subject to such proposed assignment or
sublease, or if any consideration shall be received by the DIP
or the Trustee, as the case may be, in connection with any
such proposed assignment or sublease, then all such excess
rental or such consideration shall be paid or delivered to
Landlord, and shall not constitute property of the DIP, the
Trustee, or of the estate of Tenant, as the case may be,
within the meaning of the Bankruptcy Code; and
0.18.0.0.4.2. Any proposed assignment or sublease of
this Lease by the DIP or the Trustee, as the case may be,
pursuant to provisions of the Bankruptcy Code, shall provide
adequate assurance of future performance under this Lease by
the Proposed Assignee, which adequate assurance shall include,
as a minimum, the following: (A) any Proposed Assignee of the
Lease shall deliver to Landlord a security deposit in an
amount equal to at least three (3) months Base Rental accruing
under this Lease; (B) any Proposed Assignee of the Lease shall
provide to Landlord an unaudited financial statement,
certified to be accurate by such Proposed Assignee or by an
officer, director or partner thereof and dated no later than
six (6) months prior to the Effective Date of such proposed
assignment or sublease, which financial statement shall show
the Proposed Assignee to have a net worth equal to at least
the Rent that shall accrue under this Lease for the next year
of the Term; (C) any Proposed Assignee shall pay all Rent not
previously paid under this Lease including all payments which
have been suspended, mitigated, nullified or reduced to a
claim of any kind against Tenant or the Tenant's property, by
operation of law or otherwise; and (D) any Proposed Assignee
shall assume Tenant's obligation to pay Landlord's attorneys'
fees pursuant to Section 34.
This Section 18(d) shall not apply to any assignment or sublease other
than pursuant to the provisions of the Bankruptcy Code, nor shall it in any way
limit Landlord's rights to damages or other relief in a proceeding under the
Bankruptcy Code.
0.18.0.0.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, LANDLORD ACKNOWLEDGES THAT TENANT INTENDS TO SUBLEASE A PORTION
OF THE PREMISES TO RIVER ROCK ("RIVER ROCK"), WHICH IS AN ENTITY
PARTIALLY OWNED BY TENANT WHICH DEVELOPS PROPRIETARY SOFTWARE FOR
TENANT. LANDLORD HEREBY CONSENTS TO THE SUBLEASE TO RIVER ROCK UPON THE
TERMS AND CONDITIONS SET FORTH IN THIS SECTION 18, SO LONG AS
THROUGHOUT THE TERM OF
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 20
25
THE SUBLEASE (i) THE PORTION OF THE PREMISES SUBLEASED BY RIVER ROCK
DOES NOT EXCEED 5,000 SQUARE FEET OF RENTABLE AREA, (ii) TENANT
CONTINUES TO OWN NOT LESS THAN 49% OF THE OWNERSHIP INTEREST IN RIVER
ROCK AND (iii) RIVER ROCK MAINTAINS THE AFOREMENTIONED BUSINESS
RELATIONSHIP WITH TENANT. IN THE EVENT AT ANY TIME DURING THE TERM OF
THE SUBLEASE ANY OF THE FOREGOING CONDITIONS TO THE SUBLEASE FAILS TO
REMAIN SATISFIED, TENANT SHALL IMMEDIATELY TERMINATE THE SUBLEASE WITH
RIVER ROCK.
0.19. Mechanic's Liens. Tenant will not permit any mechanic's liens,
materialmen's liens or other liens to be placed upon the Premises or the Complex
for any work performed by or at the request of Tenant, or any assignee,
sublessee or licensee of Tenant, and nothing in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, express
or implied, by inference or otherwise, to any person for the performance of any
labor or the furnishing of any materials to the Premises, or any part thereof,
nor as giving Tenant any right, power, or authority to contract for or permit
the rendering of any services or the furnishing of any materials that would give
rise to any mechanic's or other liens against the Premises or the Complex. In
the event any such lien is attached to the Premises or the Complex and not
discharged by payment, bonding or otherwise within fifteen (15) days after
receipt of written notice from Landlord, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same. Any amount paid by Landlord for the aforesaid purpose shall be paid by
Tenant to Landlord on demand as additional Rent and shall bear interest at the
Default Rate from the date paid by Landlord until reimbursed by Tenant.
0.20. Property Insurance.
0.20.0.0.1. LANDLORD SHALL MAINTAIN A POLICY OR POLICIES OF
"ALL RISK" EXTENDED COVERAGE INSURANCE ON THE PORTION OF THE COMPLEX
THAT IS THE PROPERTY OF LANDLORD, INCLUDING ALTERATIONS BY TENANT THAT
HAVE BECOME THE PROPERTY OF LANDLORD, IN AN AMOUNT EQUAL TO NOT LESS
THAN NINETY PERCENT (90%) OF THE REPLACEMENT COST. SUCH INSURANCE SHALL
BE MAINTAINED AT THE EXPENSE OF LANDLORD (AS A PART OF THE BASIC
OPERATING COSTS), AND PAYMENTS FOR LOSSES THEREUNDER SHALL BE MADE
SOLELY TO LANDLORD OR THE MORTGAGEES OF LANDLORD AS THEIR INTERESTS
SHALL APPEAR. IF INSURANCE PREMIUMS FOR THE COMPLEX INCREASE DUE TO:
(1) THE TENANT IMPROVEMENTS TO THE PREMISES IN EXCESS OF BUILDING
STANDARD OR ANY SUBSEQUENT IMPROVEMENTS MADE BY TENANT TO THE PREMISES
(SUCH IMPROVEMENTS TO BE MADE ONLY IN ACCORDANCE WITH THIS LEASE) OR
MADE BY LANDLORD AT TENANT'S REQUEST, OR (2) AS A RESULT OF TENANT'S
USE OF THE PREMISES, LANDLORD MAY ELECT TO ▇▇▇▇ TENANT DIRECTLY FOR
SUCH INCREASED PREMIUMS RATHER THAN INCLUDING SUCH INCREASED PREMIUMS
IN BASIC OPERATING COSTS, IN WHICH EVENT, TENANT WILL PAY AS ADDITIONAL
RENT, WITHIN TEN (10) DAYS OF RECEIPT, THE AMOUNT SHOWN ON AN INVOICE
PREPARED BY LANDLORD.
0.20.0.0.2. TENANT SHALL MAINTAIN A POLICY OR POLICIES OF "ALL
RISK" EXTENDED COVERAGE INSURANCE ON ALL OF ITS PERSONAL PROPERTY,
INCLUDING REMOVABLE TRADE FIXTURES, OFFICE SUPPLIES AND MOVABLE OFFICE
FURNITURE AND EQUIPMENT, LOCATED ON THE PREMISES, IN AN AMOUNT EQUAL TO
FULL REPLACEMENT COST AND ENDORSED TO PROVIDE THAT TENANT'S INSURANCE
IS PRIMARY IN THE EVENT OF ANY OVERLAPPING COVERAGE WITH THE INSURANCE
CARRIED BY LANDLORD. SUCH INSURANCE SHALL BE MAINTAINED AT THE EXPENSE
OF TENANT AND PAYMENT FOR LOSSES THEREUNDER SHALL BE MADE SOLELY TO
TENANT OR THE MORTGAGEES OF TENANT (IF PERMITTED HEREUNDER) AS THEIR
INTERESTS SHALL APPEAR. TENANT SHALL, PRIOR TO OCCUPANCY OF THE
PREMISES AND AT LANDLORD'S REQUEST FROM TIME TO TIME, PROVIDE LANDLORD
WITH A CURRENT CERTIFICATE OF INSURANCE EVIDENCING TENANT'S COMPLIANCE
WITH THIS SECTION 20. ON OR BEFORE THE EARLIER TO OCCUR OF (i) TENANT'S
OCCUPANCY OF THE INITIAL PREMISES OR (ii) NOVEMBER 15, 1998 AND
CONTINUING THROUGHOUT THE TERM OF THE LEASE, TENANT SHALL OBTAIN THE
AGREEMENT OF TENANT'S INSURERS TO NOTIFY LANDLORD THAT A PROPERTY
INSURANCE POLICY IS DUE TO BE CANCELED OR EXPIRE AT LEAST THIRTY (30)
DAYS PRIOR TO SUCH CANCELLATION OR EXPIRATION.
0.21. Liability Insurance.
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26
0.21.0.0.1. LANDLORD SHALL MAINTAIN A POLICY OR POLICIES OF
COMMERCIAL GENERAL LIABILITY INSURANCE COVERING THE COMPLEX, BUT
EXCLUDING THE PREMISES, INSURING AGAINST CLAIMS FOR PERSONAL OR BODILY
INJURY OR DEATH OR PROPERTY DAMAGE (INCLUDING CONTRACTUAL INDEMNITY AND
LIABILITY COVERAGE) OCCURRING UPON, IN OR ABOUT THE COMPLEX, BUT
EXCLUDING THE PREMISES, AFFORDING PROTECTION TO THE LIMIT OF NOT LESS
THAN $2,000,000.00 COMBINED SINGLE LIMIT PER OCCURRENCE OF BODILY
INJURY, PROPERTY DAMAGE, OR COMBINATION THEREOF. SUCH INSURANCE SHALL
BE MAINTAINED AT THE EXPENSE OF LANDLORD (AS A PART OF THE BASIC
OPERATING COSTS), AND PAYMENTS FOR LOSSES THEREUNDER SHALL BE MADE
SOLELY TO LANDLORD OR THE MORTGAGEES OF LANDLORD AS THEIR INTERESTS
SHALL APPEAR. LANDLORD'S INSURANCE SHALL CONTAIN AN ENDORSEMENT THAT
LANDLORD'S INSURANCE IS PRIMARY FOR CLAIMS ARISING OUT OF AN INCIDENT
OR EVENT OCCURRING WITHIN THE COMMON AREAS. LANDLORD'S INSURANCE SHALL
INCLUDE COVERAGE FOR THE CONTRACTUAL LIABILITY OF LANDLORD TO INDEMNIFY
TENANT PURSUANT TO SECTION 22(b).
0.21.0.0.2. TENANT SHALL MAINTAIN A POLICY OR POLICIES OF
COMMERCIAL GENERAL LIABILITY INSURANCE COVERING THE PREMISES AND
TENANT'S USE THEREOF AGAINST CLAIMS FOR PERSONAL OR BODILY INJURY OR
DEATH OR PROPERTY DAMAGE (INCLUDING CONTRACTUAL INDEMNITY AND LIABILITY
COVERAGE) OCCURRING UPON, IN OR ABOUT THE PREMISES, WITH THE PREMIUMS
THEREON FULLY PAID ON OR BEFORE THE DUE DATE, ISSUED BY AND BINDING
UPON AN INSURANCE COMPANY LICENSED TO DO BUSINESS IN THE STATE OF TEXAS
AND HAVING AN A.M. BEST RATING OF "A-VI" OR BETTER. SUCH INSURANCE
SHALL PROVIDE MINIMUM PROTECTION OF NOT LESS THAN $2,000,000.00
COMBINED SINGLE LIMIT PRIMARY COVERAGE PER OCCURRENCE OF BODILY INJURY,
PROPERTY DAMAGE, OR COMBINATION THEREOF. TENANT'S INSURANCE SHALL
CONTAIN AN ENDORSEMENT THAT TENANT'S INSURANCE IS PRIMARY FOR CLAIMS
ARISING OUT OF AN INCIDENT OR EVENT OCCURRING WITHIN THE PREMISES.
TENANT'S INSURANCE SHALL CONTAIN A PROVISION NAMING LANDLORD (AND ANY
MORTGAGEE DESIGNATED BY LANDLORD) AS AN ADDITIONAL INSURED AND INCLUDE
COVERAGE FOR THE CONTRACTUAL LIABILITY OF TENANT TO INDEMNIFY LANDLORD
PURSUANT TO SECTION 22(a). TENANT SHALL, PRIOR TO OCCUPANCY OF THE
PREMISES AND AT LANDLORD'S REQUEST FROM TIME TO TIME, PROVIDE LANDLORD
WITH A CURRENT CERTIFICATE OF INSURANCE EVIDENCING TENANT'S COMPLIANCE
WITH THIS SECTION 21. ON OR BEFORE THE EARLIER TO OCCUR OF (i) TENANT'S
OCCUPANCY OF THE INITIAL PREMISES OR (ii) NOVEMBER 15, 1998 AND
CONTINUING THROUGHOUT THE TERM OF THE LEASE, TENANT SHALL OBTAIN THE
AGREEMENT OF TENANT'S INSURERS TO NOTIFY LANDLORD THAT A LIABILITY
INSURANCE POLICY IS DUE TO BE CANCELED OR EXPIRE AT LEAST THIRTY (30)
DAYS PRIOR TO SUCH CANCELLATION OR EXPIRATION.
0.22. INDEMNITY.
0.22.0.0.1. TENANT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
LANDLORD AND LANDLORD RELATED PARTY FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, DAMAGES, CLAIMS, SUITS, LOSSES, CAUSES OF
ACTION, LIENS, JUDGMENTS AND EXPENSES (INCLUDING COURT COSTS,
ATTORNEY'S FEES AND COSTS OF INVESTIGATION) OF ANY KIND, NATURE OR
DESCRIPTION RESULTING FROM ANY INJURIES TO OR DEATH OF ANY PERSON OR
ANY DAMAGE TO PROPERTY WHICH ARISES, OR IS CLAIMED TO ARISE FROM: (1)
AN INCIDENT OR EVENT WHICH OCCURRED WITHIN OR ON THE PREMISES; OR (2)
THE OPERATION OR CONDUCT OF TENANT'S BUSINESS WITHIN THE PREMISES
(COLLECTIVELY, THE "CLAIMS"), EVEN IF THE CLAIM IS THE RESULT OF OR
CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF LANDLORD OR ANY LANDLORD
RELATED PARTY. IF ANY SUCH CLAIM IS MADE AGAINST LANDLORD OR ANY
LANDLORD RELATED PARTY, TENANT SHALL, AT TENANT'S SOLE COST AND
EXPENSE, DEFEND SUCH CLAIM BY OR THROUGH ATTORNEYS REASONABLY
ACCEPTABLE TO LANDLORD. THE INDEMNITY OBLIGATIONS OF TENANT UNDER THIS
SECTION 22(a) SHALL NOT APPLY TO A CLAIM ARISING OUT OF THE GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF LANDLORD OR ANY LANDLORD
RELATED PARTY.
0.22.0.0.2. LANDLORD SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
TENANT AND TENANT RELATED PARTY FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, DAMAGES, CLAIMS, SUITS, LOSSES, CAUSES OF
ACTION, LIENS, JUDGEMENTS AND EXPENSES (INCLUDING COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION) OF ANY KIND, NATURE OR
DESCRIPTION RESULTING FROM ANY INJURIES TO OR DEATH OF ANY PERSON OR
ANY DAMAGE TO PROPERTY WHICH ARISES, OR IS CLAIMED TO ARISE FROM, (1)
AN INCIDENT OR EVENT WHICH OCCURRED WITHIN OR ON THE COMMON AREAS; OR
(2) THE OPERATION OR CONDUCT OF LANDLORD'S BUSINESS WITHIN THE COMMON
AREAS (COLLECTIVELY, THE "CLAIMS"), EVEN IF THE CLAIM IS THE
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 22
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RESULT OF OR CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF TENANT OR ANY
TENANT RELATED PARTY. IF ANY SUCH CLAIM IS MADE AGAINST TENANT OR ANY
TENANT RELATED PARTY, LANDLORD SHALL, AT LANDLORD'S SOLE COST AND
EXPENSE, DEFEND SUCH CLAIM BY OR THROUGH ATTORNEYS REASONABLY
ACCEPTABLE TO TENANT. THE INDEMNITY OBLIGATIONS OF LANDLORD UNDER THIS
SECTION 22(b) SHALL NOT APPLY TO A CLAIM ARISING OUT OF THE GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF TENANT OR ANY TENANT RELATED
PARTY.
0.23. WAIVER OF SUBROGATION RIGHTS. NOTWITHSTANDING ANYTHING IN THIS
LEASE TO THE CONTRARY, TO THE EXTENT THAT AND SO LONG AS THE SAME IS PERMITTED
UNDER THE LAWS AND REGULATIONS GOVERNING THE WRITING OF INSURANCE WITHIN THE
STATE OF TEXAS, ALL INSURANCE CARRIED BY EITHER LANDLORD OR TENANT SHALL PROVIDE
FOR A WAIVER OF RIGHTS OF SUBROGATION AGAINST LANDLORD AND TENANT ON THE PART OF
THE INSURANCE CARRIER. UNLESS THE WAIVERS CONTEMPLATED BY THIS SENTENCE ARE NOT
OBTAINABLE FOR THE REASONS DESCRIBED IN THIS SECTION 23, LANDLORD AND TENANT
EACH HEREBY WAIVE ANY AND ALL RIGHTS OF RECOVERY, CLAIMS, ACTIONS OR CAUSES OF
ACTION AGAINST THE OTHER, ITS AGENTS, OFFICERS, OR EMPLOYEES, FOR ANY LOSS OR
DAMAGE TO PROPERTY OR ANY INJURIES TO OR DEATH OF ANY PERSON WHICH IS COVERED OR
WOULD HAVE BEEN COVERED UNDER THE INSURANCE POLICIES REQUIRED UNDER THIS LEASE.
THE FOREGOING RELEASE SHALL NOT APPLY TO LOSSES OR DAMAGES IN EXCESS OF ACTUAL
OR REQUIRED POLICY LIMITS (WHICHEVER IS GREATER) NOR TO ANY DEDUCTIBLE (UP TO A
MAXIMUM OF $10,000) APPLICABLE UNDER ANY POLICY OBTAINED BY THE WAIVING PARTY.
THE FAILURE OF EITHER PARTY (THE "DEFAULTING PARTY") TO TAKE OUT OR MAINTAIN ANY
INSURANCE POLICY REQUIRED UNDER THIS LEASE SHALL BE A DEFENSE TO ANY CLAIM
ASSERTED BY THE DEFAULTING PARTY AGAINST THE OTHER PARTY HERETO BY REASON OF ANY
LOSS SUSTAINED BY THE DEFAULTING PARTY THAT WOULD HAVE BEEN COVERED BY ANY SUCH
REQUIRED POLICY. THE WAIVERS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE
SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER WAIVERS,
INDEMNITIES, OR EXCLUSIONS OF LIABILITIES SET FORTH IN THIS LEASE.
0.24. Casualty Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged by fire or other
casualty that substantial alteration or reconstruction of the Building shall, in
the judgment of an independent architect selected by Landlord, be required
(whether or not the Premises shall have been damaged by such fire or other
casualty), or in the event any mortgagee under a first mortgage or first deed of
trust covering the Building should require that the insurance proceeds payable
as a result of said fire or other casualty be used to retire the mortgage debt,
or in the event of the occurrence of a casualty which is not insured under the
"all risk" extended coverage insurance required to be carried by Landlord
pursuant to the terms of Section 20, Landlord may, at its option, terminate this
Lease by notifying Tenant in writing of such termination within fifteen (15)
days after the date of Landlord's receipt of the estimated cost of
reconstruction or determination by a mortgagee to take the proceeds, in which
event the Rent hereunder shall be abated as of the date of such damage. If
Landlord does not elect to terminate this Lease, Landlord shall, as soon as
practicable, but no more than ninety (90) days after the date of such damage,
commence to repair and restore the Building and shall proceed with reasonable
diligence to restore the Building to substantially the same condition which it
was in immediately prior to the occurrence of the fire or other casualty, except
that Landlord shall not be required to rebuild, repair, or replace any part of
Tenant's furniture, fixtures and equipment removable by Tenant under the
provisions of this Lease or any Alterations to the Premises made by Tenant
following the Commencement Date which were not approved by Landlord in writing,
and Landlord shall not in any event be required to spend for such work an amount
in excess of the insurance proceeds actually received by Landlord as a result of
the fire or other casualty, plus any deductible amounts thereunder. If Landlord
determines that insurance proceeds will be insufficient to restore the Building
as required by this Section 24, Landlord may, at its option, elect to either (1)
terminate this Lease by written notice to Tenant, or (2) provide the extra funds
necessary to complete the restoration. In the event Landlord did not originally
construct any Alterations to be repaired, the time for Landlord to commence and
complete such repairs shall be extended by the amount of time necessary for
Landlord to obtain detailed working drawings of the Alterations to be repaired.
In the event Landlord does not either commence the repairs to the Building
within the time required herein, or complete the repairs to the Building within
two hundred seventy (270) days after the date of such damage, Tenant may
terminate the Lease by written notice thereof to Landlord given no later than
thirty (30) days following the date on which Landlord was to commence or
complete such repairs, as the case may be. Notwithstanding anything to the
contrary set forth herein, if Landlord grants to any other tenant of the
Building which occupies the same or less square feet of Rentable Area as Tenant
the right to terminate its Lease if repairs to the Building are not
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 23
28
complete within a shorter period of time than 270 days after the date of the
casualty, Landlord shall promptly notify Tenant thereof and Landlord and Tenant
shall thereafter modify this Lease to provide Tenant the same right. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting in any way from such damage or the repair
thereof, except that, subject to the provisions of the next sentence, Landlord
shall allow Tenant an equitable abatement of Rent during the time and to the
extent the Premises are unfit for occupancy and vacated by Tenant. If the
Premises or any other portion of the Complex is damaged by fire or other
casualty resulting from the intentional acts of Tenant or any employee, officer,
contractor, agent, subtenant, or licensee of Tenant, the Rent hereunder shall
not be abated during the repair of such damage, and Tenant shall remain liable
for the payment thereof.
0.25. Condemnation. If (i) the whole or substantially the whole of the
Complex, or (ii) the whole or such portion of the Premises as shall render the
remainder reasonably unfit for Tenant's use, shall be taken for any public or
quasi-public use, by right of eminent domain or otherwise, or sold in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of the Building or the Premises are taken by the condemning
authority. If this Lease is not so terminated upon any such taking or sale, the
Base Rental payable hereunder shall be diminished by an amount representing that
portion of Base Rental applicable to the portion of the Premises subject to such
taking or sale, and Landlord shall to the extent Landlord deems feasible,
restore the Building and the Premises to substantially their former condition,
except that Landlord shall not be required to rebuild, repair, or replace any
Alterations to the Premises made by Tenant following the Commencement Date which
were not approved by Landlord in writing, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all of the Property, Building or the Premises shall belong to
Landlord, and Tenant shall not be entitled to and expressly waives all claims to
any such compensation, except that Tenant may make a separate claim upon the
condemning authority for expenses related to relocation, the unamortized cost of
leasehold improvements paid for by Tenant, and any other damages Tenant may
prove so long as the same do not have the effect of reducing the award which
would otherwise be payable to Landlord.
0.26. DAMAGES FROM CERTAIN CAUSES. NOTWITHSTANDING ANYTHING CONTAINED
IN THIS LEASE TO THE CONTRARY, AND SUBJECT TO THE TERMS OF SECTION 23, NEITHER
LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE LIABLE FOR DAMAGES TO TENANT OR
ANY PARTY CLAIMING THROUGH TENANT FOR ANY INJURY TO OR DEATH OF ANY PERSON OR
DAMAGE TO PROPERTY OR FOR INTERRUPTION OR DAMAGE TO BUSINESS RESULTING FROM ANY
OF THE FOLLOWING REASONS: (a) ANY ACT, OMISSION OR NEGLIGENCE OF TENANT OR
TENANT'S EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, SUBTENANTS, ASSIGNEES,
LICENSEES, INVITEES OR CUSTOMERS; (b) ANY ACT, OMISSION OR NEGLIGENCE OF ANY
OTHER TENANT WITHIN THE BUILDING, OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS,
CONTRACTORS, TENANTS, ASSIGNEES, LICENSEES, INVITEES OR CUSTOMERS; (c)THE
REPAIR, ALTERATION, MAINTENANCE, DAMAGE OR DESTRUCTION OF THE PREMISES OR ANY
OTHER PORTION OF THE BUILDING (INCLUDING THE CONSTRUCTION OF LEASEHOLD
IMPROVEMENTS FOR OTHER TENANTS OF THE BUILDING), EXCEPT TO THE EXTENT CAUSED BY
THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY LANDLORD RELATED PARTY;
(d) VANDALISM, THEFT, BURGLARY AND OTHER CRIMINAL ACTS (OTHER THAN THOSE
COMMITTED BY LANDLORD'S EMPLOYEES); (e) ANY DEFECT IN OR FAILURE OF EQUIPMENT,
PIPES, WIRING, HEATING OR AIR CONDITIONING EQUIPMENT, STAIRS, ELEVATORS, OR
SIDEWALKS, THE BURSTING OF ANY PIPES OR THE LEAKING, ESCAPING OR FLOWING OF GAS,
WATER, STEAM, ELECTRICITY, OR OIL, BROKEN GLASS, OR THE BACKING UP OF ANY
DRAINS, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
LANDLORD OR ANY LANDLORD RELATED PARTY; (f) INJURY DONE OR OCCASIONED BY WIND,
SNOW, RAIN OR ICE, FIRE, ACT OF GOD, PUBLIC ENEMY, INJUNCTION, RIOT, STRIKE,
INSURRECTION, WAR, COURT ORDER, REQUISITION, ORDER OF ANY GOVERNMENTAL BODY OR
AUTHORITY, OR (g) ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF LANDLORD.
UNDER NO CIRCUMSTANCES SHALL LANDLORD BE LIABLE FOR DAMAGES RELATED TO BUSINESS
INTERRUPTION OR LOSS OF PROFITS. THE PROVISIONS OF THIS SECTION 26 SHALL NOT
LIMIT THE OBLIGATIONS OF LANDLORD OR THE RIGHTS OF TENANT UNDER THIS LEASE NOT
INVOLVING A CLAIM FOR DAMAGES.
0.27. Default by Tenant.
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29
0.27.0.0.1. THE FOLLOWING EVENTS SHALL BE DEEMED TO BE EVENTS
OF DEFAULT BY TENANT UNDER THIS LEASE (HEREINAFTER CALLED AN "EVENT OF
DEFAULT"):
0.27.0.0.1.1. Tenant shall fail to timely pay any
Rent and such failure shall continue for a period of five (5)
business days after written notice of such default shall have
been delivered to Tenant; provided, however, Landlord shall
only be required to give Tenant three (3) such notices during
any twelve (12) month period (whether as to one or more than
one failure to pay), Landlord shall not be required to give
further notice and thereafter the failure or refusal by Tenant
to timely make any payment of Rent when due hereunder within
the following twelve (12) months shall be an Event of Default
without notice or grace period;
0.27.0.0.1.2. Tenant shall fail to comply with any
terms, provisions or covenants of this Lease or any other
agreement between Landlord and Tenant not requiring the
payment of Rent, all of which terms, provisions and covenants
shall be deemed material, and such failure shall continue for
a period of thirty (30) days after written notice of such
failure is delivered to Tenant or, if such failure cannot
reasonably be cured within such thirty (30) day period, Tenant
shall fail to commence to cure such failure within such thirty
(30) day period and/or shall thereafter fail to prosecute such
cure diligently and continuously to completion within sixty
(60) days of the date of Landlord's notice of default;
0.27.0.0.1.3. Tenant takes any action to, or notifies
Landlord that Tenant intends to, file a petition under any
section or chapter of the United States Bankruptcy Code, as
amended from time to time, or under any similar law or statute
of the United States or any state thereof; or a petition shall
be filed against Tenant under any such statute and shall not
be dismissed within sixty (60) days thereafter; or
0.27.0.0.1.4. a receiver or trustee shall be
appointed for Tenant's leasehold interest in the Premises or
for all or a substantial part of the assets of Tenant;
0.27.0.0.2. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT,
LANDLORD MAY, AT ITS OPTION AND WITHOUT FURTHER NOTICE TO TENANT AND
WITHOUT JUDICIAL PROCESS, IN ADDITION TO ALL OTHER REMEDIES GIVEN
HEREUNDER OR BY LAW OR EQUITY, DO ANY ONE OR MORE OF THE FOLLOWING: (1)
TERMINATE THIS LEASE, IN WHICH EVENT TENANT SHALL IMMEDIATELY SURRENDER
POSSESSION OF THE PREMISES TO LANDLORD; (2) ENTER UPON AND TAKE
POSSESSION OF THE PREMISES AND EXPEL OR REMOVE TENANT THEREFROM, WITH
OR WITHOUT HAVING TERMINATED THIS LEASE; (3) APPLY ALL OR ANY PORTION
OF THE SECURITY DEPOSIT TO CURE SUCH EVENT OF DEFAULT; (4) CHANGE OR
RE-KEY ALL LOCKS TO ENTRANCES TO THE PREMISES, AND LANDLORD SHALL HAVE
NO OBLIGATION TO GIVE TENANT A NEW KEY TO THE PREMISES UNTIL SUCH EVENT
OF DEFAULT IS CURED; AND (5) REMOVE FROM THE PREMISES ANY FURNITURE,
FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY OF TENANT, WITHOUT
LIABILITY FOR TRESPASS OR CONVERSION, AND STORE SUCH ITEMS EITHER IN
THE COMPLEX OR ELSEWHERE AT THE SOLE COST OF TENANT AND WITHOUT
LIABILITY TO TENANT. ANY OF SUCH FURNITURE, FIXTURES, EQUIPMENT OR
PERSONAL PROPERTY NOT CLAIMED WITHIN THIRTY (30) DAYS FROM THE DATE OF
REMOVAL SHALL BE DEEMED ABANDONED.
0.27.0.0.3. EXERCISE BY LANDLORD OF ANY ONE OR MORE REMEDIES
HEREUNDER SHALL NOT CONSTITUTE FORFEITURE OR AN ACCEPTANCE OF SURRENDER
OF THE PREMISES BY TENANT, IT BEING UNDERSTOOD THAT SUCH SURRENDER CAN
BE EFFECTED ONLY BY THE WRITTEN AGREEMENT OF LANDLORD AND TENANT.
0.27.0.0.4. IF LANDLORD TERMINATES THIS LEASE BY REASON OF AN
EVENT OF DEFAULT, TENANT SHALL PAY TO LANDLORD THE SUM OF (1) THE COST
OF RECOVERING THE PREMISES, (2) THE UNPAID RENT AND ALL OTHER
INDEBTEDNESS ACCRUED HEREUNDER TO THE DATE OF SUCH TERMINATION, (3) THE
AMOUNTS STATED IN SECTION 27(f), AND (4) THE TOTAL RENT WHICH LANDLORD
WOULD HAVE RECEIVED UNDER THIS LEASE FOR THE REMAINDER OF THE LEASE
TERM MINUS THE FAIR MARKET RENTAL VALUE (HEREINAFTER DEFINED) OF THE
PREMISES FOR THE SAME PERIOD, BOTH DISCOUNTED TO PRESENT VALUE AT THE
PRIME RATE (HEREINAFTER DEFINED) IN EFFECT UPON THE DATE OF
DETERMINATION, AND (5) ANY OTHER DAMAGES OR RELIEF WHICH LANDLORD MAY
BE ENTITLED TO AT LAW OR IN EQUITY. FOR THE PURPOSES OF THIS SECTION,
"FAIR MARKET RENTAL VALUE" SHALL BE THE RENTAL RATE THAT WOULD BE
RECEIVED FROM A COMPARABLE TENANT FOR A COMPARABLE LEASE FOR PREMISES
AND OTHER PROPERTIES OF EQUIVALENT QUALITY, SIZE, CONDITION AND
LOCATION AS THE PREMISES, TAKING INTO ACCOUNT ANY FREE RENT OR OTHER
CONCESSIONS, THAT ARE GENERALLY PREVAILING IN THE MARKET PLACE AT THE
TIME OF TENANT'S DEFAULT, MARKET CONDITIONS AND THE PERIOD OF TIME THE
PREMISES MAY REASONABLY BE EXPECTED TO REMAIN VACANT BEFORE LANDLORD IS
ABLE TO RE-LET THE PREMISES TO A SUITABLE NEW TENANT. FOR PURPOSES OF
THIS SECTION, "PRIME RATE" SHALL MEAN THE PER ANNUM RATE OF INTEREST
ANNOUNCED OR PUBLISHED FROM TIME TO TIME
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 25
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BY BANK ONE, TEXAS, N.A., DALLAS, TEXAS (OR ITS SUCCESSORS OR ASSIGNS)
AS ITS PRIME COMMERCIAL LENDING RATE.
0.27.0.0.5. IF LANDLORD REPOSSESSES THE PREMISES WITHOUT
TERMINATING THIS LEASE, THEN TENANT SHALL PAY TO LANDLORD ON DEMAND (1)
THE COST OF RECOVERING THE PREMISES, (2) THE UNPAID RENT AND OTHER
INDEBTEDNESS ACCRUED TO THE DATE OF SUCH REPOSSESSION, AND (3) THE
AMOUNTS STATED IN SECTION 27(f), AND TENANT SHALL FURTHER PAY TO
LANDLORD, AS SUCH SUMS COME DUE, THE TOTAL RENT WHICH LANDLORD WOULD
HAVE RECEIVED UNDER THIS LEASE FOR THE REMAINDER OF THE LEASE TERM
MINUS ANY NET SUMS RECEIVED BY LANDLORD THROUGH RELETTING THE PREMISES
DURING SAID PERIOD, AFTER DEDUCTING EXPENSES INCURRED BY LANDLORD IN
CONNECTION WITH SUCH RELETTING FOR ADVERTISING COSTS, BROKERAGE
COMMISSIONS, ARCHITECTURAL FEES, TENANT IMPROVEMENT COSTS AND
ALLOWANCES AND ANY OTHER ALLOWANCES OR CONCESSIONS PROVIDED BY LANDLORD
(AMORTIZED PRO RATA OVER THE TERM OF SUCH NEW LEASE). RE-ENTRY BY
LANDLORD WILL NOT AFFECT THE OBLIGATIONS OF TENANT FOR THE UNEXPIRED
TERM OF THIS LEASE. TENANT SHALL NOT BE ENTITLED TO ANY EXCESS OF RENT
OBTAINED BY RELETTING OVER THE RENT REQUIRED TO BE PAID BY TENANT
HEREUNDER. ACTIONS TO COLLECT AMOUNTS DUE BY TENANT MAY BE BROUGHT ONE
OR MORE TIMES, WITHOUT THE NECESSITY OF LANDLORD'S WAITING UNTIL THE
EXPIRATION OF THE LEASE TERM. IN ADDITION, LANDLORD MAY, AT ANY TIME
FOLLOWING REPOSSESSION OF THE PREMISES WITHOUT TERMINATION OF THE
LEASE, ELECT TO TERMINATE THE LEASE AND PURSUE THE REMEDIES AVAILABLE
TO LANDLORD PURSUANT TO SECTION 27(d) ABOVE IN LIEU OF THE REMEDIES
AVAILABLE TO LANDLORD PURSUANT TO THIS SECTION 27(e).
0.27.0.0.6. IN THE CASE OF AN EVENT OF DEFAULT, TENANT SHALL
ALSO PAY TO LANDLORD: (1) IF LANDLORD HAS TERMINATED THIS LEASE
PURSUANT TO SECTION 27(d), THE UNAMORTIZED PORTION (ASSUMING LEVEL
AMORTIZATION AT TWELVE PERCENT [12%] INTEREST OVER THE LEASE TERM) UPON
THE DATE OF TERMINATION OF ALL LEASING COMMISSIONS, TENANT IMPROVEMENT
COSTS AND ALLOWANCES, ARCHITECTURAL COSTS AND ALLOWANCES, ANY OTHER
ALLOWANCES PROVIDED BY LANDLORD AND ALL OTHER OUT-OF-POCKET COSTS OF
LANDLORD RELATED TO THIS LEASE; AND (2) ALL OTHER EXPENSES REASONABLY
INCURRED BY LANDLORD IN ENFORCING LANDLORD'S REMEDIES, INCLUDING
ATTORNEYS' FEES AND COURT COSTS.
0.27.0.0.7. UPON TERMINATION OF THIS LEASE OR REPOSSESSION OF
THE PREMISES DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT, LANDLORD
SHALL BE OBLIGATED TO USE REASONABLE EFFORTS TO RELET OR ATTEMPT TO
RELET THE PREMISES.
0.27.0.0.8. IF TENANT SHOULD FAIL TO MAKE ANY PAYMENT, PERFORM
ANY OBLIGATION, OR CURE ANY DEFAULT HEREUNDER WITHIN TEN (10) DAYS
AFTER RECEIPT OF WRITTEN NOTICE THEREOF, LANDLORD, WITHOUT OBLIGATION
TO DO SO AND WITHOUT THEREBY WAIVING SUCH FAILURE OR DEFAULT, MAY MAKE
SUCH PAYMENT, PERFORM SUCH OBLIGATION, AND/OR REMEDY SUCH OTHER DEFAULT
FOR THE ACCOUNT OF TENANT (AND ENTER THE PREMISES FOR SUCH PURPOSE),
AND TENANT SHALL, WITHIN TEN (10) DAYS FOLLOWING WRITTEN DEMAND, PAY
ALL COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING ATTORNEYS' FEES)
INCURRED BY LANDLORD IN TAKING SUCH REMEDIAL ACTION, PLUS, AT THE
OPTION OF LANDLORD, INTEREST THEREON AT THE DEFAULT RATE.
0.27.0.0.9. EXCEPT AS PROVIDED IN SECTION 30, IN NO EVENT
SHALL TENANT BE LIABLE TO LANDLORD FOR CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES BY REASON OF A FAILURE TO PERFORM (OR A DEFAULT) BY
TENANT UNDER THIS LEASE.
0.28. Default by Landlord. Landlord shall be in default under this
Lease if Landlord fails to perform any of its obligations hereunder and such
failure continues for a period of thirty (30) days after Tenant delivers written
notice of such failure to Landlord and to the holder(s) of any indebtedness or
other obligations secured by any mortgage or deed of trust affecting the
Premises, the name and address of which have been provided to Tenant in writing,
provided that if such failure cannot reasonably be cured within such thirty (30)
day period, Landlord shall not be in default hereunder as long as Landlord or
such holder(s) commences the remedying of such failure within such thirty-day
period and diligently prosecutes the same to completion, during which time
Landlord and such holder(s), or either of them, or their agents or employees,
shall be entitled to enter upon the Premises and do whatever may be necessary to
remedy such failure. In no event shall Landlord be liable to Tenant for
consequential, special or punitive damages by reason of a failure to perform (or
a default) by Landlord under this Lease. If Landlord shall default beyond
applicable grace and notice periods in the performance of any term, covenant,
condition or agreement on Landlord's part to be performed hereunder and such
default materially adversely affects the condition of the Premises or the
ability of Tenant to perform its business therein, then, provided such
performance does not affect the Building structure, the Building systems or any
other tenant of the Building, Tenant may perform the same for the account and at
the sole cost and expense of Landlord, on twenty-four (24) hours' prior notice
to Landlord if an emergency exists, or, if no
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emergency exists, on thirty (30) days' prior written notice to Landlord, and all
reasonable costs and expenses paid or incurred by Tenant in curing such default
shall be paid by Landlord to Tenant within thirty (30) days after receipt
therefor, together with interest at the Default Rate; provided, however, that,
prior to performing any such obligation for the account of Landlord (other than
in the event of an emergency), Tenant shall notify any mortgagee of the Premises
of whom Landlord has provided Tenant with written notice ("Lender"), which
notice may be given simultaneously with Tenant's notice to Landlord as provided
above, and such Lender shall have sixty (60) days to cure such default. If (a)
Landlord fails to pay to Tenant any amounts expended by Tenant to cure
Landlord's default (as provided in the previous sentence), (b) Tenant obtains a
final non-appealable judgment against Landlord in a court of law relating to
such default and (c) such final judgment is not satisfied within thirty (30)
days after the rendering of such judgment or otherwise in accordance with the
terms, then Tenant may offset the amount of such final judgment against the Base
Rental due hereunder. In the event of an emergency, Tenant shall give Landlord
prompt notice of any action taken by Tenant pursuant to this Section and shall
incur only such costs and expenses as are necessary to meet the emergency; no
additional costs or expenses shall be incurred which are not necessary to meet
the emergency until Tenant shall have given Landlord thirty (30) days' prior
written notice of default and Lender sixty (60) days' prior written notice of
default, and as herein above provided in this Section.
0.29. Quiet Enjoyment. Tenant, on paying all sums herein called for and
performing and observing all of its covenants and agreements hereunder, shall
and may peaceably and quietly occupy and use the Premises during the Lease Term
or any renewal term, subject to the provisions of this Lease, all matters of
record affecting the Complex and applicable governmental laws, rules, and
regulations; and Landlord agrees to warrant and forever defend Tenant's right to
such occupancy against the claims of any and all persons whomsoever lawfully
claiming the same or any part thereof, subject only to the provisions of this
Lease, all matters of record affecting the Complex and all applicable
governmental laws, rules, and regulations.
0.30. Holding Over. Should Tenant continue to occupy the Premises after
the expiration of the Lease Term or any renewal term without the prior written
consent of Landlord, such occupancy shall be a tenancy at sufferance under all
of the terms, covenants and conditions of this Lease, but at a daily Base Rental
equal to the sum determined by dividing one hundred and fifty percent (150%) of
the Base Rental, plus any sums due pursuant to Section 6, for the final month of
the Lease Term by thirty (30). Tenant shall also pay any and all costs, expenses
or damages (including consequential damages) sustained by Landlord as a result
of such holdover. If Tenant consists of more than one person or entity, and if
any of the persons or entities comprising Tenant continue to occupy the Premises
after the expiration of the Lease Term, all other persons or entities comprising
Tenant shall be deemed to have consented to such occupancy and shall continue to
be jointly and severally liable for all of the terms, covenants and conditions
contained in this Lease during the holdover term.
0.31. Change of Building Name or Common Areas.
0.31.0.0.1. SUBJECT TO TENANT'S SIGNAGE RIGHTS HEREIN GRANTED,
LANDLORD RESERVES THE RIGHT AT ANY TIME TO CHANGE THE NAME OF THE
BUILDING UPON THIRTY (30) DAYS ADVANCE WRITTEN NOTICE.
0.31.0.0.2. LANDLORD HEREBY RESERVES THE RIGHT TO REPAIR,
CHANGE, REDECORATE, ALTER, IMPROVE, OR RENOVATE ANY PART OF THE COMMON
AREAS (INCLUDING, BUT NOT LIMITED TO, THOSE LOCATED ON ANY FULL FLOOR
LEASED BY TENANT), WITHOUT BEING HELD GUILTY OF AN ACTUAL OR
CONSTRUCTIVE EVICTION OF TENANT OR BREACH OF ANY EXPRESS OR IMPLIED
WARRANTY AND WITHOUT ANY ABATEMENT OR REDUCTION OF RENT. IN EXERCISING
SUCH RIGHT, LANDLORD WILL USE REASONABLE EFFORTS TO MINIMIZE ANY
INTERRUPTION OF TENANT'S BUSINESS CONDUCTED IN THE PREMISES.
0.32. Subordination to Mortgage; Estoppel Agreement.
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0.32.0.0.1. SUBJECT TO SECTION 32(c), THIS LEASE SHALL BE
SUBORDINATE TO ANY MORTGAGE, DEED OF TRUST OR OTHER LIEN NOW EXISTING
OR HEREAFTER PLACED UPON THE PREMISES OR UPON THE COMPLEX, AND TO ANY
RENEWALS, MODIFICATIONS, CONSOLIDATIONS, REFINANCINGS, AND EXTENSIONS
THEREOF, BUT TENANT AGREES THAT ANY SUCH MORTGAGEE OR DEED OF TRUST
BENEFICIARY SHALL HAVE THE RIGHT AT ANY TIME TO SUBORDINATE SUCH
MORTGAGE, DEED OF TRUST OR OTHER LIEN TO THIS LEASE ON SUCH TERMS AND
SUBJECT TO SUCH CONDITIONS AS SUCH MORTGAGEE OR DEED OF TRUST
BENEFICIARY MAY DEEM APPROPRIATE, IN ITS DISCRETION. IN THE EVENT ANY
PROCEEDINGS ARE BROUGHT FOR THE FORECLOSURE OF, OR IN THE EVENT OF THE
EXERCISE OF THE POWER OF SALE UNDER, ANY SUCH MORTGAGE, DEED OF TRUST
OR OTHER LIEN, TENANT AGREES, WITHOUT FURTHER ACTION HEREUNDER, TO
ATTORN TO THE PURCHASER UPON SUCH FORECLOSURE (OR ANY DEED IN LIEU OF
FORECLOSURE) AND RECOGNIZE SUCH PURCHASER AS THE LANDLORD UNDER THIS
LEASE. LANDLORD IS HEREBY IRREVOCABLY VESTED WITH FULL POWER AND
AUTHORITY TO SUBORDINATE THIS LEASE TO ANY MORTGAGE, DEED OF TRUST OR
OTHER LIEN NOW EXISTING OR HEREAFTER PLACED UPON THE PREMISES OR THE
COMPLEX AND TENANT AGREES UPON DEMAND TO EXECUTE SUCH FURTHER
INSTRUMENTS SUBORDINATING THIS LEASE OR ATTORNING TO THE HOLDER OF ANY
SUCH LIENS AS LANDLORD MAY REASONABLY REQUEST.
0.32.0.0.2. LANDLORD AGREES TO USE REASONABLE EFFORTS TO
OBTAIN FROM LANDLORD'S LENDER, A SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT ("SNDA") ON SUCH LENDER'S FORM AND OTHERWISE
REASONABLY SATISFACTORY TO LANDLORD, TENANT AND SUCH LENDER.
0.32.0.0.3. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS
SECTION 32, TENANT'S SUBORDINATION TO ANY MORTGAGE, DEED OF TRUST OR
OTHER LIEN SHALL BE CONTINGENT UPON TENANT'S RECEIPT OF AN SNDA AS
DEFINED IN SECTION 32(b) ABOVE FROM THE HOLDER OF SUCH MORTGAGE, DEED
OF TRUST OR OTHER LIEN. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH HEREIN, IN THE EVENT TENANT FAILS TO RECEIVE AN SNDA EXECUTED BY
LANDLORD'S EXISTING MORTGAGEE ON OR BEFORE THE FIFTEENTH (15) DAY (THE
"TERMINATION DATE") AFTER THE EFFECTIVE DATE OF THIS LEASE, TENANT MAY
TERMINATE THIS LEASE BY DELIVERING WRITTEN NOTICE OF SUCH TERMINATION
TO LANDLORD ON THE TERMINATION DATE, FAILING WHICH SUCH TERMINATION
RIGHT SHALL BE DEEMED TO BE WAIVED AND OF NO FURTHER FORCE OR EFFECT.
0.32.0.0.4. TENANT AGREES THAT IT WILL, FROM TIME TO TIME,
WITHIN TEN (10) DAYS AFTER WRITTEN REQUEST BY LANDLORD, EXECUTE AND
DELIVER TO SUCH PERSONS AS LANDLORD SHALL DESIGNATE, AN ESTOPPEL
AGREEMENT IN RECORDABLE FORM CERTIFYING THAT THIS LEASE IS UNMODIFIED
AND IN FULL FORCE AND EFFECT (OR IF THERE HAVE BEEN MODIFICATIONS, THAT
THIS LEASE IS IN FULL FORCE AND EFFECT AS SO MODIFIED), STATING THE
DATES TO WHICH RENT AND OTHER CHARGES PAYABLE UNDER THIS LEASE HAVE
BEEN PAID, STATING THAT THE LANDLORD IS NOT IN DEFAULT HEREUNDER (OR IF
TENANT ALLEGES A DEFAULT, STATING THE NATURE OF SUCH ALLEGED DEFAULT)
AND FURTHER STATING SUCH OTHER MATTERS AS LANDLORD SHALL REASONABLY
REQUIRE.
0.33. Waiver of Landlord's Lien. Landlord hereby waives, releases and
negates any and all contractual liens and security interests, constitutional
liens and security interests, statutory liens and security interests, and/or any
and all other liens and security interests arising by operation of law or
otherwise, to which Landlord might now or hereafter be entitled upon all
equipment, furnishings, furniture, supplies, inventory, or other personal
property which Tenant may place (or permit to be placed) in or about the
Premises
0.34. Attorney's Fees. Tenant must pay to Landlord on demand within
thirty (30) days of said demand all reasonable attorney's fees, costs and
expenses incurred by Landlord in recovery of any Rent or enforcement of
Landlord's rights under this Lease. Furthermore, if Landlord or Tenant employs
an attorney to assert or defend any action arising out of the breach of any
term, covenant or provision of this Lease, or to bring legal action for the
unlawful detainer of the Premises, the prevailing party shall be entitled to
recover from the non-prevailing party attorney's fees and costs of suit incurred
in connection therewith. For purposes of this Section 34, a party shall be
considered to be the "prevailing party" to the extent that (a) such party
initiated the litigation and substantially obtained the relief which it sought
(whether by judgment, voluntary agreement or action of the other party, trial,
or alternative dispute resolution process), (b) such party did not initiate the
litigation and either (1) received a judgment in its favor, or (2) did not
receive judgment in its favor, but the party receiving the judgment did not
substantially obtain the relief which it sought, or (c) the other party to the
litigation withdrew its claim or action without having substantially received
the relief which it was seeking.
0.35. No Implied Waiver. The failure of either party to insist at any
time upon the strict performance of any covenant or agreement in this Lease or
to exercise any right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future. The
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acceptance by Landlord of late payments shall not be construed as a waiver by
Landlord of the requirement for timely payment nor create a course of dealing
permitting such late payments. Any payment by Tenant or receipt by Landlord of a
lesser amount than the monthly installment of Rent due under this Lease shall be
deemed to be on account of the earliest Rent due hereunder. No endorsement or
statement on any check or any letter accompanying any check or payment as Rent
shall be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy provided in this Lease.
0.36. Independent Obligations. The obligation of Tenant to pay Rent
hereunder and the obligation of Tenant to perform Tenant's other covenants and
duties hereunder constitute independent, unconditional obligations to be
performed at all times provided for hereunder and are independent of the
Landlord's performance of Landlord's duties and obligations hereunder. Except as
expressly provided in this Lease, Tenant waives and relinquishes all rights
which Tenant might have to claim any nature of lien against or withhold, ▇▇▇▇▇
or deduct from, or offset against Rent.
0.37. Recourse Limitation. Tenant shall be entitled to look solely to
Landlord's equity in the Complex for the recovery of any judgment against
Landlord, and Landlord shall not be personally liable for any deficiency with
respect to the recovery of such judgment. The provision contained in the
foregoing sentence shall not limit any right that Tenant might otherwise have to
obtain specific performance of Landlord's obligations under this Lease.
0.38. Notices. Any notice under this Lease must be in writing, and
shall be given or be served by (a) personal delivery, (b) delivery via a
recognized overnight courier, (c) depositing the same in the United States mail,
postage prepaid, certified mail, return receipt requested, addressed to the
party to be notified at the address stated in this Lease or such other address
in the continental United States of which notice has been given to the other
party in the manner provided herein, or (d) via facsimile with either electronic
or telephonic verification of receipt, so long as the original of the facsimile
notice is deposited in the United States mail within three (3) days thereafter.
Notice by personal delivery or overnight courier shall be effective upon
receipt, notice by mail shall be effective upon deposit in the United States
mail in the manner above described and notice by facsimile shall be effective
upon electronic or telephonic verification of receipt.
0.39. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
0.40. Recordation. Tenant agrees not to record this Lease or any
memorandum hereof.
0.41. Governing Law. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Texas. This Lease is performable in, and the exclusive
venue for any action brought with respect hereto, shall be in Dallas County,
Texas.
0.42. Force Majeure. Whenever a period of time is herein prescribed for
the taking of any action by Landlord or Tenant, the party responsible for taking
such action shall not be liable or responsible for, and there shall be excluded
from the computation of such period of time, any delays due to strikes, riots,
acts of God, shortages of labor or materials, war, governmental laws,
regulations or restrictions, inclement weather, or any other cause whatsoever
beyond the control of the party responsible for taking such action; provided,
however, the provisions of this Section 42 shall never be construed as allowing
an extension of time with respect to either party's monetary obligations when
and as due under this Lease.
0.43. Time of Performance. Except as otherwise expressly provided
herein, time is of the essence under this Lease, including all Exhibits.
0.44. Transfers by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all of its rights and obligations hereunder and
in the Complex, and in such event and upon the assumption by the transferee of
the obligations of Landlord hereunder, Landlord shall be released from any
further obligations accruing after the date of transfer, and Tenant agrees to
look solely to such successor-in-interest of Landlord for the performance of
such obligations. Landlord shall use reasonable efforts to deliver a copy of the
assumption document to Tenant prior to the effective date of such assumption;
provided, however, Landlord's failure to deliver such document within such time
period shall not constitute a default under this Lease nor shall it affect
Landlord's release under this Section 44.
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0.45. Commissions. Landlord and Tenant agree that the Broker is the
only broker involved in the procurement, negotiation or execution of this Lease
on behalf of Tenant, and that the Broker's commission shall be paid by Landlord
pursuant to a separate commission agreement. Landlord and Tenant hereby agree to
defend, indemnify and hold each other harmless against any loss, claim, expense
or liability with respect to any commissions or brokerage fees claimed on
account of the execution and/or renewal of this Lease or the expansion of the
Premises due to any action of the indemnifying party.
0.46. Effect of Delivery of This Lease. Landlord has delivered a copy
of this Lease to Tenant for Tenant's review only, and the delivery hereof does
not constitute an offer to Tenant or an option to be exercised by Tenant. This
Lease shall not be effective until a copy of this Lease executed by both
Landlord and Tenant is delivered by Landlord to Tenant.
0.47. WAIVER OF WARRANTIES AND ACCEPTANCE OF CONDITION. TENANT
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
LEASE (INCLUDING THE TENANT IMPROVEMENTS AGREEMENT), NEITHER LANDLORD NOR ANY
LANDLORD RELATED PARTY HAS MADE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS
OR IMPLIED, AS TO THE HABITABILITY, MERCHANTABILITY, SUITABILITY, QUALITY,
CONDITION OR FITNESS FOR ANY PARTICULAR PURPOSE WITH REGARD TO THE PREMISES OR
THE COMPLEX AND THAT THIS LEASE CONSTITUTES THE FULL AND FINAL AGREEMENT OF
LANDLORD AND TENANT WITH RESPECT TO THIS LEASE OF SPACE IN THE BUILDING BY
TENANT. EXCEPT FOR ANY WARRANTY SET OUT IN THE TENANT IMPROVEMENTS AGREEMENT,
TENANT HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY CLAIM OR CAUSE OF
ACTION BASED UPON ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO HABITABILITY,
MERCHANTABILITY, SUITABILITY, QUALITY, CONDITION OR FITNESS FOR ANY PARTICULAR
PURPOSE WITH REGARD TO THE PREMISES OR THE COMPLEX. TENANT'S TAKING POSSESSION
OF THE PREMISES SHALL BE CONCLUSIVE EVIDENCE THAT (a) TENANT HAS INSPECTED (OR
HAS CAUSED TO BE INSPECTED) THE PREMISES AND THE COMPLEX, (b) TENANT ACCEPTS THE
PREMISES AND THE COMPLEX AS BEING IN GOOD AND SATISFACTORY CONDITION AND
SUITABLE FOR TENANT'S PURPOSES, AND (c) THE PREMISES AND THE COMPLEX FULLY
COMPLY WITH LANDLORD'S COVENANTS AND OBLIGATIONS HEREUNDER. NOTWITHSTANDING THE
FOREGOING, TENANT DOES NOT WAIVE THE RIGHT TO CAUSE LANDLORD TO (1) COMPLETE ANY
PUNCHLIST ITEMS IN ACCORDANCE WITH THE TERMS OF THIS LEASE OR (2) CORRECT ANY
"LATENT DEFECTS" IN OR AFFECTING THE PREMISES (I.E., DEFECTS NOT REASONABLY
DISCOVERABLE PURSUANT TO A THOROUGH INVESTIGATION OF THE PREMISES), SUBJECT TO
THE LIMITATION SET FORTH IN THE NEXT TWO SENTENCES. TENANT SHALL HAVE THE RIGHT
FOR NINE (9) MONTHS (THE "WARRANTY PERIOD") FOLLOWING THE DELIVERY DATE TO
PROVIDE LANDLORD WITH WRITTEN NOTICE OF ALLEGED LATENT DEFECTS IN OR AFFECTING
THE PREMISES. THE FAILURE OF TENANT TO DELIVER WRITTEN NOTICE OF ALLEGED
DEFECTIVE WORK UNDER THE TENANT IMPROVEMENTS AGREEMENT OR LATENT DEFECTS WITHIN
SUCH NINE (9) MONTH PERIOD SHALL CONSTITUTE A WAIVER OF ANY FURTHER CLAIMS OF
TENANT RELATING TO THE INITIAL IMPROVEMENTS AND THE CONDITION OF THE PREMISES OR
THE COMPLEX AS OF THE COMMENCEMENT DATE. NOTWITHSTANDING THE FOREGOING, NOTHING
CONTAINED IN THIS SECTION 47 SHALL LIMIT THE RIGHT OF TENANT TO ENFORCE THE
REPAIR AND MAINTENANCE OBLIGATIONS OF LANDLORD UNDER THIS LEASE OR THE
OBLIGATIONS OF LANDLORD UNDER SECTIONS 24 AND 25.
0.48. Merger of Estates. The voluntary or other surrender of this Lease
by Tenant, or a mutual cancellation thereof, shall not constitute a merger of
the Landlord's fee estate in the Property and the leasehold interest created
hereby; and upon such surrender or cancellation of this Lease, Landlord shall
have the option, in Landlord's sole discretion, to (a) either terminate all or
any existing subleases or subtenancies, or (b) assume Tenant's interest in any
or all subleases or subtenancies.
0.49. Survival of Indemnities and Covenants. Any and all indemnities of
Landlord or Tenant and any and all covenants of Landlord or Tenant not fully
performed on the date of the expiration or termination of this Lease shall
survive such expiration or termination.
0.50. Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Lease.
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0.51. Entire Agreement; Amendments. This Lease, including the exhibits
and addenda, if any, listed in Section 52, embodies the entire agreement between
the parties hereto with relation to the transaction contemplated hereby, and
there have been and are no covenants, agreements, representations, warranties or
restrictions between the parties hereto, other than those specifically set forth
herein. To be effective, any amendment or modification of this Lease must be in
writing and signed by Landlord and Tenant.
0.52. Exhibits. The following exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" - Property Description
Exhibit "B" - Floor Plan
Exhibit "C" - Rules and Regulations
Exhibit "D" - Tenant Improvements Agreement
Exhibit "E" - Parking Agreement
Exhibit "F" - Form of Confidentiality Agreement
Exhibit "G" - Rights of Refusal
Exhibit "H" - Renewal Option
Exhibit "I" - Description of Base Building Plans
Exhibit "J" - Design Criteria
Exhibit "K" - Permitted Encumbrances
0.53. Joint and Several Liability. If Tenant consists of more than one
person or entity, the obligations of such parties under this Lease shall be
joint and several.
0.54. Multiple Counterparts. This Lease may be executed in multiple
counterparts, each of which shall constitute an original instrument, but all of
which shall constitute one and the same agreement.
0.55. Building Signage. Tenant shall, at Tenant's sole cost and
expense, have the right to place exterior signage (the "Lower Fascia Signage")
on the lower fascia (i.e., between the 2nd and 3rd floors) of the Building,
which Lower Fascia Signage shall be subject to Landlord's prior written approval
(which approval shall not be unreasonably withheld or delayed). In addition, in
the event that and at such time as (i) ninety-five percent (95%) of the Rentable
Area of the Building is leased, (ii) Tenant's annual Base Rental obligation
under this Lease exceeds the annual base rental payable by each of the other
tenants in the Building, and (iii) no other Superior Tenant (hereinafter
defined) in the Building has exercised a right to place exterior signage on the
upper fascia located at the top of the Building (the "Upper Fascia"), then
Tenant shall have the right, at Tenant's sole cost and expense, to place signage
(the "Upper Fascia Signage") on the Upper Fascia of Building, which Upper Fascia
Signage shall be subject to Landlord's prior written approval (which approval
shall not be unreasonably withheld or delayed). Notwithstanding the foregoing,
Tenant's right to erect the Upper Fascia Signage shall at all times remain
subordinate to any rights Landlord may grant to any tenant of the Building which
(a) occupies the entire 10th floor of the Building or (b) now or in the future
has an annual base rental obligation with respect to the Building which exceeds
the annual Base Rental payable by Tenant hereunder (individually a "Superior
Tenant" and collectively, the "Superior Tenants"). If the foregoing conditions
have been satisfied and Tenant elects to erect the Upper Fascia Signage, Tenant
shall, at Tenant's sole cost and expense, remove the Lower Fascia Signage and
shall promptly repair any damage to the Building caused by such removal.
Notwithstanding anything to the contrary set forth herein, in the event Tenant
erects the Upper Fascia Signage and any Superior Tenant desires to exercise its
right to erect signage on the Upper Fascia, Tenant shall remove such Upper
Fascia Signage from the Building at Tenant's sole cost and expense within
fifteen (15) days after receipt of notice thereof (and shall promptly repair any
damage to the Building caused by such removal). In such event, Tenant may once
again erect the Lower Fascia Signage at Tenant's sole cost and expense which
Lower Fascia Signage shall once again be subject to Landlord's prior written
approval (which approval shall not be unreasonably withheld). Upon the
expiration or earlier termination of this Lease, Tenant shall, at Tenant's sole
cost and expense, remove the Lower Fascia Signage or the Upper Fascia Signage,
as the case may be, and shall promptly repair any damage to the Building caused
by such removal. In addition, prior to installing or removing any signage on the
exterior of the Building, Tenant shall cooperate with Landlord and Landlord's
engineer and/or contractor to ensure that the installation or removal of such
signage will not damage the exterior of the Building. Tenant further hereby
agrees to indemnify, defend and hold harmless Landlord from damage caused to the
Building as a result of Tenant's installation, removal, maintenance, repair or
replacement of any exterior signage as provided in this Section 55.
Notwithstanding anything to the contrary set forth herein, the Lower Fascia
Signage or the Upper Fascia Signage, as the case may be, shall be limited to the
word "CapRock" and otherwise shall be of a size, design, location and color
reasonably acceptable to Landlord.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 31
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Notwithstanding anything to the contrary set forth herein, in the event
Landlord elects to erect a monument sign (a "Monument Sign") on the Property
which identifies any tenants of the Building, Tenant, at Tenant's sole cost and
expense, shall have the right to place Tenant's name and/or logo on such
Monument Sign; provided, however, the size and design of Tenant's portion of the
Monument Sign shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld, conditioned or delayed; provided
further that the size of Tenant's portion of the Monument Sign shall be
generally consistent with the relationship which the square footage of Rentable
Area then being occupied by Tenant bears to the square footage of the entire
Building.
0.56. Satellite Dish. Notwithstanding anything to the contrary set
forth herein, Tenant shall have the right, subject to Landlord's prior written
approval (which approval shall not be unreasonably withheld or delayed) at all
times during the terms hereof, including any renewal term, to install, maintain,
replace and remove, all at Tenant's sole cost and expense, a satellite dish and
related equipment not to exceed six (6) feet in diameter ("Communications
Equipment") on the rooftop of the Building provided that Tenant (i) coordinates
the location of such Communications Equipment with Landlord, (ii) coordinates
such installation with Landlord's roofing contractor so as not to affect any
roof warranty, (iii) notifies Landlord prior to such installation to permit
Landlord to have a representative present in connection with such installation,
(iv) remains responsible for and repair any damage to the roof caused by
Tenant's entry on the roof and installation, maintenance, replacement or removal
of the Communications Equipment, (v) complies with all Applicable Laws, rules
and regulations (including deed restrictions and regulations of Addison Circle)
applicable to the installation and maintenance of the Communications Equipment,
and further complies with the reasonable requirements of Landlord with respect
to the installation and maintenance of the Communications Equipment, including
without limitation, screening such equipment from public view from adjacent
public streets and the Parking Areas of the Premises, and (vi) indemnifies,
defends and holds harmless Landlord from any damage to property caused by the
installation, maintenance and removal of such Communications Equipment. Such
Communications Equipment shall remain the exclusive property of Tenant, and
Tenant shall have the right to remove such Communications Equipment at any time
during the term of the Lease, provided Tenant returns the rooftop of the
Building to the condition that existed prior to the installation of such
Communications Equipment. Upon the expiration or earlier termination of this
Lease, Tenant shall, at Tenant's sole cost and expense, remove the
Communications Equipment if requested by Landlord and Tenant shall promptly
repair any damage to the Building caused by such removal.
0.57. Warranty of Title. Landlord hereby covenants and warrants to
Tenant that Landlord has full right and lawful authority to enter into this
Lease for the full term herein granted and for all extensions herein provided,
and that Landlord has good and indefeasible title to the Premises, free and
clear of all occupancies, tenancies, mortgages, liens, and other encumbrances
which are or may be superior to the rights of Tenant hereunder and which would
materially affect the operation of Tenant's business from the Premises, except
for those set forth in Exhibit "K" attached hereto and made a part hereof for
all purposes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date first above written.
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 32
37
Address: LANDLORD:
-------- ---------
c/o Champion Partners, Ltd. CHAMPION ADDISON ONE LIMITED PARTNERSHIP,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ a Delaware limited partnership
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: CP/AOC VENTURE ONE, LTD.,
Attn: Property Manager a Texas limited partnership,
its sole general partner
By: CHAMPION-ACO, LTD.,
a Texas limited partnership,
its general partner
By: ADDISON-CHAMPION, INC.
a Texas corporation,
its general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Address Prior to TENANT:
Commencement Date:
CAPROCK COMMUNICATIONS CORP.,
a Texas corporation
Attn: By:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address Subsequent to Chief Financial Officer
Commencement Date:
OFFICE LEASE AGREEMENT/CAPROCK COMMUNICATIONS CORP. - Page 33
38
EXHIBIT "A"
PROPERTY DESCRIPTION
BEING a tract of land situated in the ▇. ▇. ▇▇▇▇▇▇ Survey, Abstract No. 482,
Town of Addison, Dallas County, Texas, and being a portion of three tracts of
land deeded to Opubco Properties, Inc. as evidenced by three instruments
recorded in Volume 82020, Page 0684, Volume 84151, Page 3619, and Volume 85147,
Page 4305 all of the Deed Records of Dallas County, Texas, said tract being all
of ▇▇▇ ▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, an addition to the Town of
Addison, Texas, as recorded in Volume 97217, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, and being more particularly described as follows:
COMMENCING at a one-half inch iron rod found with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap at the
intersection of the north right-of-way line of the Dallas Area Rapid Transit
Property Acquisition Corporation, (formerly St. Louis Southwestern Railroad) a
100 foot wide right-of-way, as evidenced by instrument recorded in Volume 91008,
Page 1390 of the Deed Records of Dallas County, Texas, with east right-of-way
line of Quorum Drive as established by instrument to the Town of Addison, Texas
as recorded in Volume 82093, Page 1077 of the Deed Records of Dallas County,
Texas;
THENCE, North 66 degrees 45 minutes 01 second East along the northwesterly
right-of-way line of said Dallas Area Rapid Transit tract a distance of 769.32
feet to a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for the POINT OF
BEGINNING;
THENCE, North 23 degrees 14 minutes 59 seconds West a distance of 59.99 feet to
a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 00 degrees 55 minutes 13 seconds East a distance of 157.85 feet to
a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 66 degrees 45 minutes 01 second East a distance of 343.62 feet to
a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 17 degrees 01 minute 01 second West a distance of 60.70 feet to a
one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 72 degrees 58 minutes 59 seconds East a distance of 69.00 feet to
a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 17 degrees 01 minute 01 second West a distance of 32.00 feet to a
one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 72 degrees 58 minutes 59 seconds East a distance of 0.67 feet to a
one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 17 degrees 01 minute 01 second West a distance of 30.83 feet to a
one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap for a corner;
THENCE, North 72 degrees 58 minutes 59 seconds East a distance of 214.02 feet to
a one-half inch iron rod set with "▇▇▇▇▇-▇▇▇▇▇▇▇" cap on the east line of a
tract of land described in instrument to Opubco Properties, Inc. as recorded in
Volume 85147, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and the west
right-of-way line of the Dallas North Tollway, said point being the beginning of
a non- tangent curve to the left having a radius of 1,997.84 feet;
THENCE, continuing along the east line of said Opubco tract and west
right-of-way of the Dallas North Tollway and along said curve to the left
through a central angle of 2 degrees 27 minutes 02 seconds, an arc distance of
85.45 feet and being subtended by a chord bearing South 8 degrees 44 minutes 32
seconds East a distance of 85.44 feet to a one-half inch iron rod set with
"▇▇▇▇▇-▇▇▇▇▇▇▇" cap at the northeast corner of said Opubco tract recorded in
Volume 84151, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, said corner being
the beginning of a non-tangent curve to the left having a radius of 2,964.79
feet;
THENCE, continuing along the East line of said Opubco tract and the west
right-of-way line of the Dallas North Tollway and along said curve to the left
through a central angle of 01 degree 54 minutes 29 seconds, an arc distance of
98.74 feet and being subtended by a chord bearing South 12 degrees 05 minutes 47
seconds East a distance of 98.73 feet to a one-half inch iron rod found with
"▇▇▇▇▇- ▇▇▇▇▇▇▇" cap at the end of said curve;
Exhibit "A", Property Description - Page 1
39
THENCE, South 13 degrees 03 minutes 02 seconds East continuing along the east
line of the Opubco tract and along the west right-of-way line of the Dallas
North Tollway a distance of 118.29 feet to a one- half inch iron rod set with
"▇▇▇▇▇-▇▇▇▇▇▇▇" cap on the northwesterly right-of-way line of said Dallas Area
Rapid Transit tract;
THENCE, South 66 degrees 45 minutes 01 second West along the northwesterly
right-of-way line of Dallas Area Rapid Transit tract a distance of 642.23 feet
to the POINT OF BEGINNING and CONTAINING 3.576 acres of land, more or less.
Exhibit "A", Property Description - Page 2
40
EXHIBIT "B"
FLOOR PLAN
[Floor Plan follows this cover page.]
Exhibit "B", Floor Plan - Solo Page
41
EXHIBIT "C"
RULES AND REGULATIONS
Any capitalized terms not defined in this Exhibit "C" shall have the
meaning set forth in the Lease to which this Exhibit "C" is attached.
FFF. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed, nor shall refuse, furniture, boxes or other items be
placed therein by Tenant or Tenant's officers, agents, servants, contractors and
employees, or used for any purpose other than ingress and egress to and from the
Premises, or for going from one part of the Building or Complex to another part
of the Building or Complex. Tenant shall be responsible, at its sole cost, for
the removal of any large boxes or crates not used in the ordinary course of
business. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways.
GGG. Canvassing, soliciting, distributing handbills, advertising and
peddling in the Building and Complex are prohibited.
HHH. Plumbing fixtures and appliances shall be used only for the purpose
for which such were constructed or installed, and no unsuitable material shall
be placed therein. The cost of repair of any stoppage or damage to any such
fixtures or appliances from misuse on the part of Tenant or Tenant's officers,
agents, servants, contractors, employees, guests and customers shall be paid by
Tenant, and Landlord shall not in any case be responsible therefor.
III. No signs, directories, posters, advertisements, or notices visible to
the public shall be painted or affixed on or to any of the windows or doors, or
in corridors or other parts of the Building, except in such color, size, and
style, and in such places, as shall be first approved in writing by Landlord.
Landlord shall have the right to remove, at the expense of Tenant, all
unapproved signs, directories, posters, advertisements or notices following
reasonable prior notice to Tenant.
JJJ. Tenant shall not do, or permit anything to be done, in or about the
Building or Complex, or bring or keep anything therein, that will in any way
increase the rate of fire or other insurance on the Building, or on property
kept therein, or otherwise increase the possibility of fire or other casualty.
No cooking (other than cooking through the use of a microwave oven), including
grills or barbecues, shall be permitted within the Premises or on any patio
adjoining the Premises.
KKK. Landlord shall have the power to prescribe the weight and position of
heavy equipment or objects which may overstress any portion of the floor of the
Premises. All damage done to the Building by the improper placing of such heavy
items shall be repaired at the sole expense of Tenant. Tenant shall notify the
Building manager when safes or other heavy equipment are to be taken in or out
of the Building and the moving of such equipment shall be done only after
written permission is obtained from Landlord and shall be performed under such
conditions as Landlord may reasonably require.
LLL. Corridor doors, when not in use, shall be kept closed.
MMM. All movement of furniture and equipment into and out of the Building
shall be scheduled through the Building manager and conducted outside of Normal
Business Hours. All deliveries must be made via the service entrance and service
elevator, when provided, during Normal Business Hours. Any delivery after Normal
Business Hours must be coordinated with the Building manager. When conditions
are such that Tenant must dispose of crates, boxes, and other such items, Tenant
shall dispose of such items prior to or after Normal Business Hours.
NNN. Tenant shall cooperate with Landlord's employees in keeping the
Premises neat and clean.
OOO. Tenant shall not cause or permit any improper noises in the Building,
or allow any unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any way other tenants, or persons having business
with such tenants.
PPP. No animals or birds shall be brought into or kept in or about the
Building, except those assisting the disabled.
QQQ. No machinery of any kind, other than ordinary office machines such as
copiers, fax machines, personal computers and related mainframe equipment,
electric typewriters and word processing equipment, shall be operated on the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed.
Exhibit "C", Rules and Regulations - Page 1
42
RRR. Tenant shall not use or keep in the Building any flammable or
explosive fluid or substance (including Christmas trees and ornaments), or any
illuminating materials, without the prior written approval of the Building
manager.
SSS. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
TTT. No nails, hooks, or screws (other than those necessary for hanging
artwork, diplomas, posterboards and other such items on interior walls) shall be
driven into or inserted in any part of the Building (including doors), except as
approved by Landlord.
UUU. Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe. Tenant shall cause its officers, agents and employees
to participate in any fire safety or emergency evacuation drills scheduled by
Landlord.
VVV. No food or beverages shall be prepared, cooked or distributed from
the Premises without the prior written approval of Landlord, which approval
shall not be unreasonably withheld or delayed; provided, however, Tenant shall
be permitted to install refrigerators, microwave ovens, coffee machines and
vending machines for the use of its own employees and guests.
WWW. No additional or replacement locks shall be placed upon any doors
without the prior written approval of Landlord, which approval shall not be
unreasonably withheld or delayed. All necessary keys shall be furnished by
Landlord. Upon termination of the Lease, Tenant shall return all such keys to
Landlord and shall provide the Landlord the combination of all locks on doors or
vaults. No duplicates of keys shall be made by Tenant.
XXX. Tenant will not locate furnishings or cabinets adjacent to mechanical
or electrical access panels or over air conditioning outlets so as to prevent
Landlord's personnel or contractors from servicing such units as routine or
emergency service may require. Tenant shall pay the cost of moving such
furnishings for Landlord's access. Tenant shall instruct all of its employees to
refrain from any attempts to adjust thermostats. The lighting and air
conditioning equipment of the Building shall be exclusively controlled by
Landlord's personnel.
YYY. No portion of the Building shall be used for the purpose of lodging
rooms.
ZZZ. Tenant shall obtain Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed, for the installation of window
shades, blinds, drapes or any other window treatment or object that may be
visible from the exterior of the Building or affect the heating and cooling of
the Building. Landlord will control all internal lighting that may be visible
from the exterior of the Building and shall have the right to change, at
Tenant's expense, any unapproved lighting following reasonable prior notice to
Tenant.
AAAA. No supplemental heating, air ventilation or air conditioning
equipment, including space heaters and fans, shall be installed or used by
Tenant without the prior written consent of Landlord.
BBBB. No smoking shall be permitted within the Premises or anywhere else
within the Complex, other than those smoking areas designated by the Building
manager.
CCCC. No unattended children shall be allowed within the Complex.
DDDD. Other than during Normal Business Hours, Building access shall be
limited, with the result that access will require entry cards or keys and
compliance with Landlord's registration procedures.
EEEE. Landlord reserves the right to rescind any of these Rules and
Regulations and make such other and further Rules and Regulations as in its
reasonable judgment shall from time to time be necessary or advisable for the
operation of the Building or the Complex, providing that such Rules and
Regulations are in writing and uniformly enforced against all other tenants of
the Building provided Landlord may not enact any Rule or Regulation that is
intended to or has the primary effect of discriminating against or adversely
affecting the operations of Tenant's business or its use and enjoyment of the
Premises. Such Rules and Regulations shall be binding upon Tenant upon delivery
to Tenant of notice thereof in writing.
FFFF. In the event of any inconsistency between these Rules and
Regulations and the terms of the Lease, the terms of the Lease shall control.
Exhibit "C", Rules and Regulations - Page 2
43
EXHIBIT "D"
TENANT IMPROVEMENTS AGREEMENT
This Tenant Improvements Agreement ("Agreement") describes and specifies
the rights and obligations of Landlord and Tenant under the Lease to which this
Exhibit "D"is attached, with respect to the design, construction and payment for
completion of the Tenant Improvements within the Premises.
0.84.0.1. Definitions. Each capitalized term in this Agreement shall
have the meaning set forth below. Any capitalized term not defined in
this Agreement shall have the meaning ascribed to such term in the
Lease.
0.84.0.1.1. "TENANT IMPROVEMENTS" SHALL MEAN THE LEASEHOLD
IMPROVEMENTS TO BE MADE TO THE PREMISES BY TENANT IN ACCORDANCE WITH
TENANT'S FINAL PLANS.
0.84.0.1.2. "TENANT'S ARCHITECT" SHALL MEAN HELLMUTH, OBATA &
KASSABAUM, WHICH HAS BEEN APPROVED BY LANDLORD FOR PURPOSES OF SECTION
2 HEREOF.
0.84.0.1.3. "TENANT'S CONTRACTOR" SHALL MEAN THE CONTRACTOR
RESPONSIBLE FOR THE CONSTRUCTION OF TENANT'S WORK IN ACCORDANCE WITH
TENANT'S FINAL PLANS. TENANT'S CONTRACTOR SHALL BE SELECTED BY TENANT
AND APPROVED BY LANDLORD (WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED).
0.84.0.1.4. "TENANT'S FINAL PLANS" SHALL MEAN THE FINAL PLANS
AND SPECIFICATIONS FOR THE CONSTRUCTION OF TENANT'S WORK, WHICH
TENANT'S FINAL PLANS SHALL BE APPROVED BY LANDLORD PURSUANT TO SECTION
2 OF THIS TENANT IMPROVEMENTS AGREEMENT.
0.84.0.1.5. "TENANT'S WORK" SHALL MEAN THE DESIGN AND
CONSTRUCTION OF THE TENANT IMPROVEMENTS FOR TENANT'S USE IN ACCORDANCE
WITH TENANT'S FINAL PLANS.
0.84.0.2. Approval of Design Professionals: Plan and Tenant's Final
Plans. All design professionals engaged by Tenant, including, without
limitation, architects, engineers and interior designers shall be
subject to the prior written approval of Landlord, which approval shall
not be unreasonably withheld. On or before December 1, 1998, Landlord
and Tenant shall agree upon the Space Plan for the Initial Premises and
the preliminary plans and specifications for the Tenant Improvements
applicable to the Initial Premises, including, without limitation, the
types of materials and finishes that Tenant desires to use within the
Premises. In addition, with respect to each additional Phase of the
Premises, Tenant shall submit the Space Plan and the preliminary plans
and specifications for the Tenant Improvements applicable to such Phase
prior to commencement of construction thereof. Landlord shall have ten
(10) days after receipt of Tenant's Space Plan and preliminary plans
and specifications for the Tenant Improvements applicable to each Phase
to approve same. Unless the Landlord timely disapproves in writing,
approval will be deemed granted. If Landlord disapproves, the Landlord
shall specify with particularity the reasons for its disapproval, and
Tenant shall be afforded ten (10) days to revise the applicable portion
of the Space Plan and/or preliminary plans and specifications that has
been disapproved by Landlord. Thirty (30) days following the agreement
by Landlord and Tenant with respect to such items, Tenant shall prepare
and deliver detailed construction documents to Landlord for approval.
Landlord shall approve or disapprove such construction documents within
ten (10) days after receipt thereof. If Landlord does not approve such
construction documents, Landlord shall specifically identify its
objections and Tenant shall revise such construction documents to
address Landlord's objections and re-submit the same to Landlord for
approval within five (5) days thereafter. Landlord may require changes
only to the extent that such construction documents contain detail in
addition to, or contain changes from, the approved preliminary plans
and specifications. The foregoing process shall be implemented
repeatedly (but Tenant covenants to submit construction documents for
the Initial Premises acceptable to Landlord not later than January 15,
1999) until Landlord shall have approved Tenant's construction
documents. Upon approval by Landlord, such construction documents shall
constitute the "Tenant's Final Plans" hereunder.
0.84.0.3. Compliance With Applicable Laws. Tenant acknowledges that
Landlord's approval of the Tenant's Final Plans does not imply that the
Tenant's Final Plans comply with, and Landlord has no responsibility
for compliance of the Tenant's Final Plans with, Applicable Laws.
0.84.0.4. Construction of the Tenant Improvements. Provided Landlord
and Tenant have agreed upon Tenant's Final Plans in accordance with
Section 2 of this Tenant Improvements Agreement, commencing on the
Delivery Date, Tenant shall have the right to enter the Premises and
commence construction of Tenant's Work in accordance with the terms of
this Tenant Improvements
Exhibit "D", Tenant Improvements Agreement - Page 1
44
Agreement. In connection with Tenant's construction of the Tenant's
Work, Tenant shall have the right to set up a temporary office in the
Premises for the sole purpose of facilitating construction of the
Tenant's Work, and the existence of such office shall not constitute
"occupancy" of the Premises for purposes of Section 2 of the Lease.
Tenant shall diligently pursue and complete construction of the
Tenant's Work in a good and workmanlike manner in accordance with
Tenant's Final Plans and all Applicable Laws. Tenant shall
Substantially Complete the performance of Tenant's Work with respect to
the Initial Premises on or before June 1, 1999. Notwithstanding
anything in the Lease to the contrary, Tenant may take possession of
the Second Phase and the Final Phase at any time after the Delivery
Date for the purpose of commencing Tenant's Work; provided, however,
that upon taking such possession, each of the terms and conditions of
the Lease (save and except payment of Base Rental and Tenant's Share of
Basic Operating Costs) shall be in full force and effect with respect
to such Phase(s). In addition, upon Tenant's commencement of
construction of Tenant's Work with respect to the Second Phase and the
Final Phase, Tenant shall diligently pursue such phases to Substantial
Completion. Tenant shall protect the Common Areas and all Building
services and systems during construction of Tenant's Work, and shall
clean the Common Areas promptly upon completion of Tenant's Work.
0.84.0.5. Cost of Tenant Improvements.
0.84.0.5.1. PAYMENT OF COSTS. TENANT SHALL PROMPTLY PAY ANY
AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH OR ARISING OUT
OF THE PERFORMANCE OF THE TENANT'S WORK IN CONSTRUCTING THE TENANT
IMPROVEMENTS.
0.84.0.5.2. TENANT IMPROVEMENT ALLOWANCE. NOTWITHSTANDING THE
PROVISIONS OF SUBPARAGRAPH (A) ABOVE, IN THE EVENT AND ONLY IN THE
EVENT THAT THE LEASE IS SUBSEQUENTLY EXECUTED AS CONTEMPLATED HEREBY,
LANDLORD SHALL PROVIDE TENANT WITH AN ALLOWANCE (THE "ALLOWANCE") EQUAL
TO $21.00 PER SQUARE FOOT OF RENTABLE AREA IN THE PREMISES TO BE USED
FOR THE PERFORMANCE OF TENANT'S WORK. HOWEVER, UP TO $25.00 PER SQUARE
FOOT OF RENTABLE AREA MAY BE ALLOCATED TO THE SEVENTH (7TH) FLOOR OF
THE BUILDING, WITH THE BALANCE TO BE SPENT ON THE SIXTH (6TH) FLOOR OF
THE BUILDING (FOR EXAMPLE, IF TENANT SPENDS $25.00 PER SQUARE FOOT ON
THE SEVENTH (7TH) FLOOR, $17.00 PER SQUARE FOOT WOULD REMAIN AVAILABLE
TO BE SPENT ON THE SIXTH (6TH) FLOOR). AS TENANT'S WORK PROGRESSES
(SUBSEQUENT TO FULL EXECUTION OF THE LEASE BY LANDLORD AND TENANT),
TENANT MAY SUBMIT TO LANDLORD A REQUEST (A "DRAW REQUEST") IN WRITING
FOR A PORTION OF THE ALLOWANCE, WHICH REQUEST SHALL INCLUDE: (i) A
DETAILED BREAKDOWN OF TENANT'S CONSTRUCTION COSTS, TOGETHER WITH
INVOICES THEREFOR, INCURRED THROUGH THE DATE OF SUCH DRAW REQUEST, (ii)
A CERTIFIED, WRITTEN STATEMENT FROM TENANT'S ARCHITECT THAT THE TENANT
IMPROVEMENTS FOR WHICH THE PAYMENT IS BEING REQUESTED HAVE BEEN
COMPLETED IN ACCORDANCE WITH THE TENANT'S FINAL PLANS, TO THE EXTENT OF
THE COSTS THAT ARE THE SUBJECT OF SUCH DRAW REQUEST AND (iii) LIEN
WAIVERS IN FORM AND SUBSTANCE SATISFACTORY TO LANDLORD FROM THE
TENANT'S CONTRACTOR (AND ANY SUBCONTRACTORS PERFORMING WORK WHICH IS
THE SUBJECT OF SUCH DRAW REQUEST), WAIVING ANY APPLICABLE MECHANIC'S
LIENS RELATING TO SUCH WORK. UPON LANDLORD'S RECEIPT AND APPROVAL OF A
DRAW REQUEST, LANDLORD SHALL PAY TO TENANT THE PORTION OF THE ALLOWANCE
REQUESTED WITHIN THIRTY (30) BUSINESS DAYS OF LANDLORD'S APPROVAL OF
THE DRAW REQUEST, UNLESS LANDLORD NOTIFIES TENANT IN WRITING OF
LANDLORD'S REJECTION (AND THE REASONS THEREFOR) OF SUCH DRAW REQUEST.
NOTWITHSTANDING THE FOREGOING, LANDLORD MAY NOT REJECT ANY DRAW REQUEST
UNLESS TENANT HAS FAILED TO PROVIDE THE ITEMS REQUIRED TO ACCOMPANY THE
DRAW REQUEST AS PROVIDED IN THIS SECTION 5(b), OR UNLESS LANDLORD
REASONABLY DETERMINES THAT THE PORTION OF THE TENANT'S WORK WHICH IS
THE SUBJECT OF THE DRAW REQUEST HAS NOT BEEN COMPLETED IN A GOOD AND
WORKMANLIKE MANNER IN ACCORDANCE WITH TENANT'S FINAL PLANS AND ALL
APPLICABLE LAWS. TO THE EXTENT LANDLORD DOES NOT SO REJECT ANY PORTION
OF SAID DRAW REQUEST, LANDLORD SHALL TIMELY PAY SUCH ACCEPTABLE PORTION
OF THE DRAW REQUEST.
0.84.0.5.3. EXCESS COSTS. IF THE ACTUAL COST OF PERFORMANCE OF
THE TENANT'S WORK EXCEEDS THE ALLOWANCE, THEN TENANT SHALL PAY ALL SUCH
EXCESS COSTS ("EXCESS COSTS") IN A TIMELY MANNER AND LANDLORD SHALL
HAVE NO RESPONSIBILITY THEREFOR.
0.84.0.5.4. EXCESS ALLOWANCE. IF THE AMOUNT OF THE ALLOWANCE
EXCEEDS THE ACTUAL COST OF PERFORMANCE OF THE TENANT'S WORK, TENANT MAY
USE ANY EXCESS PORTION OF THE ALLOWANCE FOR SUCH OTHER EXPENSES
RELATING TO THIS LEASE AS TENANT DEEMS APPROPRIATE, INCLUDING, WITHOUT
LIMITATION, MOVING EXPENSES, ARCHITECTURAL EXPENSES AND OTHER TENANT
EXPENSES RELATING TO TENANT'S MOVE INTO THE PREMISES OR TENANT'S
OCCUPANCY OF THE PREMISES.
0.84.0.5.5. ADDITIONAL DRAW REQUESTS. NOTWITHSTANDING ANYTHING
TO THE CONTRARY SET FORTH HEREIN, ONCE TENANT HAS EXHAUSTED THE
ALLOWANCE, TENANT SHALL STILL NEVERTHELESS CONTINUE TO DELIVER TO
LANDLORD NOT LATER THAN THE FIFTH (5TH) DAY OF EACH MONTH ALL OF THE
INFORMATION REQUIRED TO BE DELIVERED WITH THE DRAW REQUEST SET FORTH IN
SECTION 5(b) ABOVE.
Exhibit "D", Tenant Improvements Agreement - Page 2
45
0.84.0.6. Mechanic's Liens. Tenant will not permit any mechanic's
liens, materialmen's liens or other liens to be placed upon the
Premises for any work performed by or at the request of Tenant, or any
assignee, sublessee or licensee of Tenant, and nothing in this
Agreement shall be deemed or construed in any way as constituting the
consent or request of Landlord, express or implied, by inference or
otherwise, to any person for the performance of any labor or the
furnishing of any materials to the Premises, or any part thereof, nor
as giving Tenant any right, power, or authority to contract for or
permit the rendering of any services or the furnishing of any materials
that would give rise to any mechanic's or other liens against the
Premises. In the event any such lien is attached to the Premises and
not discharged by payment, bonding or otherwise within ten (10)
business days after receipt of written notice from Landlord, then, in
addition to any other right or remedy of Landlord at law or in equity,
Landlord may, but shall not be obligated to, discharge the same. Any
amount paid by Landlord for the aforesaid purpose shall be paid by
Tenant to Landlord on demand and shall bear interest at the Default
Rate provided for in the Lease from the date paid by Landlord until
reimbursed by Tenant.
0.84.0.7. Exculpation and Indemnity. Landlord shall not be liable for
any injury, loss or damage to any of Tenant's installations or
decorations made prior to the Commencement Date and not installed by
Landlord, except to the extent caused by Landlord. Tenant shall
indemnify, defend (with counsel reasonably satisfactory to Landlord and
Tenant) and hold harmless Landlord from and against any and all suits,
claims, actions, loss, cost, damage or expense (including claims for
worker's compensation, attorneys' fees and costs) based on personal
injury or property damage caused in, or contract claims (including,
without limitation, claims for breach of warranty) arising from the
performance of Tenant's Work, except to the extent caused by Landlord.
Tenant shall repair or replace (or, at Landlord's election, reimburse
Landlord for the actual cost of repairing or replacing) any portion of
the Building or item of Landlord's equipment or any of Landlord's real
or personal property damage, lost or destroyed during the construction
of the Tenant Improvements, except to the extent caused by Landlord.
Landlord is not responsible for the function and maintenance of the
Tenant Improvements, except to the extent caused by Landlord. All work,
materials, installations, equipment and decorations of any nature
whatsoever brought on or installed in the Premises pursuant to the
provisions of this Agreement before the commencement of the Term or
throughout the Term shall be at Tenant's risk, and neither Landlord nor
any Landlord Related Party shall be responsible for any damage thereto
or loss or destruction thereof due to any reason or cause whatsoever,
excluding by reason of Landlord or such Landlord Related Party's
negligence or willful misconduct.
0.84.0.8. Tenant's Contractor. Tenant's Contractor and any
subcontractors thereof shall be duly licensed (to the extent required
by applicable law) in the state in which the Premises are located.
Tenant's agreement with Tenant's Contractor shall (i) require such
Tenant's Contractor to provide daily cleanup of the construction area
to the extent such cleanup is necessitated by the construction of the
Tenant's Work and (ii) provide that both Landlord and Tenant shall have
the right to approve the identity of any sub-contractors. Tenant shall
require that Tenant's Contractor carry a comprehensive liability
(including builder's risk) insurance policy in such amounts as Landlord
may reasonably require and provide proof of such insurance to Landlord
prior to commencement of Tenant's Work. Nothing contained herein shall
make or constitute Tenant as the agent of Landlord. Landlord's
representative shall have the right to require periodic meetings with
Tenant's representative and Tenant's Contractor to discuss the status
of the Tenant's Work.
0.84.0.9. Construction Representatives. Landlord's and Tenant's
representatives for coordination of construction and approval of
matters set forth herein will be as follows, provided that either party
may change his representative upon written notice to the other:
Landlord's Representative:
Name: Mr. W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant's Representative:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: The Staubach Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit "D", Tenant Improvements Agreement - Page 3
46
0.84.0.10. Change Orders. All changes and modifications in the
Tenant's Work from that contemplated in the Tenant's Final Plans,
whether or not such change or modification gives rise to an increase or
decrease in cost, must be evidenced by written change order (the
"Change Order") approved by Landlord (which approval shall not be
unreasonably withheld or delayed).
0.84.0.11. Management. Tenant shall not have any obligation to
pay Landlord for Landlord's costs resulting from Landlord's review of
Tenant's Final Plans. In the event Tenant elects to hire a third-party
construction manager, such third-party construction manager shall be
subject to Landlord's prior written approval, which approval shall not
be unreasonably withheld.
0.84.0.12. Indemnity. Tenant shall indemnify and hold harmless
Landlord from and against any and all suits, claims, actions, loss,
costs, damages or expense (including damage to persons or property),
arising from any act or negligence of Tenant or of any of Tenant's
contractors or their subcontractors, or the officers, agents or the
employees of Tenant while engaged in the performance of any work or
other activities on the Premises, or arising from liens or claims for
services rendered or labor or materials furnished in or for the
performance of any work by Tenant, its agents, employees, contractors
or subcontractors on the Premises, or arising from accident or injury
related thereto and not caused by negligent acts of Landlord, its
agents or anyone employed by Landlord.
0.84.0.13. Costs and Expenses. If in the enforcement of any
part of this Agreement Landlord shall incur expenses or be obligated to
pay attorney's fees or court costs, Tenant agrees to reimburse Landlord
for such expenses, reasonable attorney's fees or court costs. If in the
enforcement of any part of this Agreement Tenant shall incur expenses
or be obligated to pay attorney's fees or court costs, Landlord agrees
to reimburse Tenant for such expenses, reasonable attorney's fees or
court costs.
0.84.0.14. Base Building Plans. Landlord shall furnish to
Tenant, at Landlord's sole cost and expense, a copy of the Base
Building Plans, including electronic media (if available).
0.84.0.15. Temporary Power. Landlord shall furnish to Tenant,
at Landlord's sole cost and expense, temporary electrical power and
free access to service elevators at all times during Tenant's
construction of the Tenant Improvements (including during business
hours, after-hours and on weekends).
0.84.0.16. NOTICE OF INDEMNITIES. THIS AGREEMENT CONTAINS
VARIOUS INDEMNIFICATION PROVISIONS, INCLUDING, WITHOUT LIMITATION,
PARAGRAPHS 7 AND 12 HEREOF.
Exhibit "D", Tenant Improvements Agreement - Page 4
47
EXHIBIT "E"
PARKING AGREEMENT
This Parking Agreement (herein so called) describes and specifies the
rights and obligations of Landlord and Tenant under the Lease to which this
Exhibit "E" is attached, with the respect to parking by Tenant in the Parking
Garage.
GGGG. Definitions. Any capitalized terms not defined in this Parking
Agreement shall have the meaning set forth in the Lease.
HHHH. Grant and Rental Fee. Provided no Event of Default has occurred
and is continuing under the Lease and subject to Landlord's recapture right set
forth below, Tenant shall have (i) a non-exclusive right to use 221 unreserved
parking spaces located within the Office Portion of the Parking Garage, during
the Lease Term at a monthly rate of $30.00 per Space and (ii) an exclusive right
to use 25 reserved parking spaces located within the Office Portion of the
Parking Garage (of which at least seven [7] shall be on the first ramp up from
the first level of the Parking Garage in the locations identified on Annex 1 to
this Exhibit "E") during the Lease Term at a monthly rate of $80.00 per Space
(all of such unreserved and reserved parking spaces being collectively referred
to herein as the "Spaces"), plus any applicable tax thereon, subject to such
terms, conditions, and regulations as are, from time to time, promulgated by
Landlord, including the rules and regulations set forth in Section 5 to this
Parking Agreement. Tenant shall pay all sums due under the preceding sentence
("Parking Charges") to Landlord in advance in monthly installments on the first
day of each calendar month during the Lease Term, and such Parking Charges shall
be deemed to be Rent for all purposes under the Lease.
Of the total 246 Spaces for the Premises, 123 Spaces are allocable to
the Initial Premises (the "Initial Premises Spaces"), 62 Spaces are allocable to
the Second Phase (the "Second Phase Spaces") and 61 Spaces are allocable to the
Final Phase (the "Final Phase Spaces"). Tenant may freely utilize as many of the
Spaces as are needed at any time prior to Tenant's occupancy of the entire
Premises, provided Tenant pays the Parking Charges for all Spaces so used.
Notwithstanding the foregoing, upon the commencement of the Initial Stage,
Tenant shall pay Parking Charges on the greater of (A) the number of Spaces
actually being used by Tenant pursuant to this Section 2 and (B) all of the
Initial Premises Spaces (which shall include all 25 reserved Spaces).
Upon the commencement of the Second Stage, Tenant additionally shall be
required to pay Parking Charges to Landlord on 50 of the Second Phase Spaces
(the "Required Second Phase Spaces"). Not less than four months after the
commencement of the Second Stage, Tenant shall deliver written notice to
Landlord informing Landlord of the total number of Second Phase Spaces which
Tenant desires to utilize with respect to the remainder of the Lease Term;
provided, however, Tenant may not elect to utilize less than the Required Second
Phase Spaces. In the event Tenant timely notifies Landlord that Tenant elects to
utilize less than all of the allocated Second Phase Spaces for the remainder of
the Lease Term, Landlord shall have the right to recapture the remaining Second
Phase Spaces and Tenant's rights and obligations with respect to such recaptured
Second Phase Spaces shall terminate for the remainder of the Lease Term.
Upon the commencement of the Final Stage, Tenant additionally shall be
required to pay Parking Charges to Landlord on 50 of the Final Phase Spaces (the
"Required Final Phase Spaces"). Not less than four months after the commencement
of the Final Stage, Tenant shall deliver written notice to Landlord informing
Landlord of the total number of Final Phase Spaces which Tenant desires to
utilize with respect to the remainder of the Lease Term; provided, however,
Tenant may not elect to utilize less than the Required Final Phase Spaces. In
the event Tenant timely notifies Landlord that Tenant elects to utilize less
than all of the allocated Final Phase Spaces for the remainder of the Lease
Term, Landlord shall have the right to recapture the remaining Final Phase
Spaces and Tenant's rights and obligations with respect to such recaptured Final
Phase Spaces shall terminate for the remainder of the Lease Term.
Upon Landlord's recapture of any of the Second Phase Spaces or the
Final Phase Spaces pursuant to this Section 2, Landlord shall have the right to
allocate such recaptured Spaces to other tenants of the Building.
IIII. Unavailability of Spaces. In the event that all or a portion of
the Spaces become unavailable to Tenant due to casualty damage, flooding,
condemnation or repairs, Landlord shall use best efforts to provide Tenant with
reasonably satisfactory alternative parking arrangements until the use of such
Spaces is restored. Notwithstanding anything contained herein to the contrary,
Tenant shall have no right to terminate this Lease by reason of such loss of
available parking, but Tenant shall be entitled to ▇▇▇▇▇ payment of the Parking
Charges relating to any such Spaces until such time as the use of such Spaces
(or reasonable satisfactory alternative spaces) is restored.
Exhibit "E", Parking Agreement - Page 1
48
JJJJ. Limitations of Liability. All motor vehicles shall be parked in
the Spaces at the sole risk of Tenant, its employees, agents, invitees and
licensees, it being expressly agreed and understood that Landlord has no duty to
insure any of said motor vehicles (including the contents thereof), and that
Landlord is not responsible for the protection and security of such vehicles (or
the contents thereof). LANDLORD SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY
PROPERTY DAMAGE AND/OR PERSONAL INJURY WHICH MIGHT OCCUR IN THE PARKING AREAS OR
AS A RESULT OF OR IN CONNECTION WITH THE PARKING OF MOTOR VEHICLES IN ANY OF THE
SPACES. TENANT HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD LANDLORD HARMLESS
FROM AND AGAINST ANY AND ALL COSTS, CLAIMS, EXPENSES, DAMAGES AND/OR CAUSES OF
ACTION WHICH LANDLORD MAY INCUR IN CONNECTION WITH OR ARISING OUT OF THE USE OF
THE SPACES BY TENANT OR ITS EMPLOYEES, AGENTS, SUBTENANTS, LICENSEES AND
VISITORS.
KKKK. Rules and Regulations. Tenant and its employees, agents,
subtenants, licensees and visitors shall follow the following rules and
regulations for the Parking Areas, as the same may be amended or supplemented
from time to time in accordance with the terms of Exhibit "C":
(1) CARS MUST BE PARKED ENTIRELY WITHIN THE STALL LINES
PAINTED ON THE GROUND OR ON THE FLOOR;
(2) ALL DIRECTIONAL SIGNS AND ARROWS MUST BE OBSERVED;
(3) THE SPEED LIMIT SHALL BE FIVE (5) MILES PER HOUR;
(4) PARKING IS PROHIBITED IN AREAS NOT STRIPED FOR PARKING,
AISLES, AREAS WHERE "NO PARKING" SIGNS ARE POSTED, IN CROSS-HATCHED
AREAS AND IN SUCH OTHER AREAS AS MAY BE DESIGNATED BY LANDLORD OR
LANDLORD'S AGENT(S), INCLUDING, BUT NOT LIMITED TO, AREAS DESIGNATED AS
"VISITOR PARKING" OR RESERVED SPACES NOT RENTED UNDER THIS PARKING
AGREEMENT;
(5) EVERY VEHICLE OWNER IS REQUIRED TO PARK AND LOCK HIS OWN
CAR;
(6) SPACES WHICH ARE DESIGNATED FOR SMALL, INTERMEDIATE OR
FULL-SIZED CARS SHALL BE SO USED; NO INTERMEDIATE OR FULL-SIZE CARS
SHALL BE PARKED IN PARKING SPACES LIMITED TO COMPACT CARS; AND
(7) NO VEHICLE MAY BE STORED IN THE PARKING AREAS (ANY VEHICLE
REMAINING IN THE PARKING AREAS WITHOUT INTERRUPTION FOR FIVE [5]
BUSINESS DAYS IS DEEMED TO HAVE BEEN STORED IN THE PARKING AREAS).
(8) NO PARKING BY TENANT AND ITS EMPLOYEES, AGENTS,
SUBTENANTS, LICENSEES, AND VISITORS SHALL BE PERMITTED IN ANY PORTION
OF THE PARKING GARAGE WHICH IS NOT A PART OF THE OFFICE PORTION OF THE
PARKING GARAGE.
LLLL. Default. Upon the occurrence of an Event of Default by Tenant
under the Lease, Landlord shall be entitled to terminate Tenant's right to
utilize the Spaces in accordance with the exercise of Landlord's right to
terminate the Lease or Tenant's right to possession of the Premises under
Section 27 of this Lease.
MMMM. Limitation of Access. Landlord shall be entitled to utilize
whatever access device Landlord deems necessary (including, but not limited to,
the issuance of parking stickers or access cards), to assure that only
authorized persons will use the Parking Areas.
NNNN. Parking. The Parking Areas are provided for the non-exclusive and
common use of Landlord, all tenants of the Building, and their respective
employees, agents, subtenants, licensees, visitors, guests and invitees. In
addition, certain portions of the Parking Garage are dedicated to the use of the
retail and residential portions of the Addison Circle development. Utilization
of the unreserved portions of the Parking Areas is therefore subject to
availability (and Landlord shall have no obligation to provide a specific number
of surface parking spaces to Tenant). Tenant and Tenant's employees, customers
and invitees shall have no right to park in those portions of the Parking Garage
which are not a part of the Office Portion of the Parking Garage. In the event
any person shall wrongfully park in any of the Parking Areas or any portion of
the Parking Garage which is not a part of the Office Portion of the Parking
Garage, or in the event any personnel shall violate the rules and regulations
set forth in Section 5 of this Parking Agreement, Landlord shall be entitled and
is hereby authorized to place a wheel lock or
Exhibit "E", Parking Agreement - Page 2
49
other device restricting mobility upon such vehicle or have any such vehicle
towed away, at the sole risk and expense of the vehicle owner.
Exhibit "E", Parking Agreement - Page 3
50
ANNEX 1 (TO EXHIBIT "E")
LOCATION OF RESERVED PARKING SPACES
[A parking plan showing the location of the seven (7) reserved parking spaces on
the first ramp up from the first level of the Parking Garage is attached to this
cover page.]
Annex 1 (to Exhibit "E"), Location of Reserved Parking Spaces - Cover Page
51
EXHIBIT "F"
FORM OF CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of
____________, is entered into by________________________________________________
______________________________________________________________________, a
____________________ ("Tenant"), and ___________________________________
("Auditor"), for the benefit of SIERRA OFFICE VENTURE ONE, LTD., a Texas limited
partnership ("Landlord").
W I T N E S S E T H T H A T:
WHEREAS, in connection with that certain Lease (the "Lease") dated
_________________, between Landlord and Tenant, Tenant has the right to hire an
independent accounting firm to audit Landlord's books and records pertaining to
Basic Operating Costs (as defined in the Lease); and
WHEREAS, it is expected that in connection with such audit, Tenant and
Auditor will receive or have access to Confidential Information (defined below);
and
WHEREAS, as a condition of Tenant's audit right, Landlord requires that
Tenant and Auditor keep confidential the Confidential Information.
NOW, THEREFORE, in consideration of and as a condition of Tenant's
audit right and in consideration of payment by Tenant for Auditor's services for
performing the audit, and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, Auditor and
Tenant agree as follows, for the benefit of Landlord:
OOOO. Auditor and Tenant acknowledge that the information which Auditor
and Tenant may receive in connection with such audit is non-public, confidential
and/or proprietary information relating to Landlord, its business operations and
the Complex, and that Landlord would be irreparably damaged if such information
were disclosed to or utilized on behalf of any other person (including Auditor
and Tenant), firm, corporation or any other tenant of the Complex for any reason
other than Tenant's audit of Landlord. Auditor and Tenant agree that any
information given to Auditor or Tenant by Landlord during the course of such
audit is, and shall remain, property owned by Landlord, and neither Auditor nor
Tenant shall have any right in or to such information, other than to use the
information for the purposes set forth in the Lease.
PPPP. Auditor and Tenant agree to keep confidential, and agree to cause
their employees, associates, agents and advisors to keep confidential, any
information belonging to Landlord and any information not generally known to the
public about the business and affairs of Landlord, including, without
limitation, (a) all books, manuals, records, memoranda, projections, business
plans, tenant lists, cost information, contractual relationships, and (b) other
information, whether computerized, written or oral, relating specifically or
generally to Basic Operating Costs, the Complex and the business operations of
Landlord (the "Confidential Information").
QQQQ. Auditor and Tenant each hereby represent and warrant that its
internal policies, procedures and practices are adequate to safeguard against
any breach of this Agreement by it or its employees, associates, agents and
advisors, and Auditor and Tenant each agree to maintain such internal policies,
procedures and practices as are necessary to adequately safeguard against a
breach of this Agreement.
RRRR. The phrase "to keep confidential," as used herein, means that the
information or document, including the content, substance or effect of such
information or document, (a) shall not be disclosed or distributed by Auditor or
Tenant to any other person, firm, organization or entity, including to any
associate, agent, advisor or affiliate of Auditor or Tenant not directly
involved in the audit, or to any other tenant of the Complex, (b) shall not be
utilized by either Auditor or Tenant for any purpose other than as described in
the Lease.
SSSS. Notwithstanding anything to the contrary set forth herein, in the
event that Auditor or Tenant is required to do so in legal, arbitration,
governmental or regulatory proceedings, Auditor or Tenant may disclose only that
portion of the Confidential Information which its counsel advises in writing
that it is legally compelled to disclose and will exercise its best efforts to
obtain assurances that confidential treatment will be accorded such Confidential
Information even after such disclosure.
TTTT. Auditor and Tenant acknowledge that the subject matter of this
Agreement is unique and that no adequate remedy at law would be available for
breach of the obligations specified herein.
Exhibit "F", Form of Confidentiality Agreement - Page 1
52
Accordingly, in the event of a breach or threatened breach by Auditor or Tenant
of the provisions of this Agreement, Landlord shall, in addition to any other
rights and remedies available to it, at law or in equity, be entitled to
injunctive relief by a court or agency of competent jurisdiction enjoining and
restraining the violating party from committing or continuing any violation of
this Agreement.
UUUU. Any waiver by Landlord of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or of any other provision hereof.
VVVV. In case any one or more of the provisions or parts of a provision
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement; and this Agreement shall, to the fullest extent possible, be
reformed and construed as if such invalid or illegal or unenforceable provision,
or part of a provision, had never been contained herein, and such provision or
part shall be reformed so that it would be valid, legal and enforceable to the
maximum extent possible.
WWWW. This Agreement shall be binding upon Tenant, Auditor and their
successors and assigns for the benefit of Landlord, and shall be fully
enforceable by Landlord against Tenant, Auditor and their successors and
assigns.
XXXX. This Agreement may be amended or modified in whole or in part,
only by an instrument in writing signed by Landlord, Tenant and Auditor.
YYYY. This Agreement shall be construed in accordance with and governed
for all purposes by the laws of the State of Texas, without regard to conflicts
of law principles. Venue for any action arising herefrom shall be in Dallas
County, Texas, and the parties hereto submit themselves to the jurisdiction of
the state and federal courts of Dallas County, Texas.
IN WITNESS WHEREOF, Tenant and Auditor have duly executed this
Agreement as of the date first above written.
TENANT:
,
a
By:
Name:
Title:
Date:
AUDITOR:
,
a
By:
Name:
Title:
Date:
Exhibit "F", Form of Confidentiality Agreement - Page 2
53
EXHIBIT "G"
RIGHTS OF REFUSAL
If, during the initial Lease Term, Landlord shall receive an offer or
offers which Landlord is willing to accept (individually or collectively, an
"Offer") to lease vacant space within the following areas, to-wit: (i)
approximately 15,393 square feet of Rentable Area on the 8th floor of the
Building (the "First Right Space"), (ii) an additional approximately 15,393
square feet of Rentable Area on the 8th floor of the Building (the "Second Right
Space"), and (iii) approximately 10,000 square feet of Rentable Area on the 5th
floor of the Building (the "5th Floor Space") (the First Right Space, the Second
Right Space and the 5th Floor Space being hereinafter referred to collectively
as the "Refusal Space") and provided that the Lease is in full force and effect
and there is no uncured Event of Default under the Lease, Tenant shall have a
continual right (the "Refusal Right") to lease all (but not part) of the portion
of the Refusal Space that is the subject of the Offer (the "Subject Space") upon
substantially the same terms and conditions contained in the Offer. If, within
five (5) business days after Tenant receives written notice of the Offer
(including a statement of the material terms and conditions thereof), Tenant
does not notify Landlord in writing that Tenant elects to lease the Subject
Space, then Landlord may enter into a lease with the prospective tenant or
tenants who made the Offer on substantially the same terms and conditions
contained therein and, in the event Landlord enters into such a lease with such
prospective Tenant, Tenant's rights under this Exhibit "G" shall terminate and
be of no further force or effect. In addition, if the Subject Space is less than
all of the Refusal Space, Tenant's failure to exercise the Refusal Right with
respect to the Subject Space shall not prejudice its Refusal Right with respect
to the remainder of the Refusal Space. Except as provided in the preceding two
sentences, the failure of Tenant to exercise the Refusal Right within the time
period set forth herein shall constitute a waiver and termination of the Refusal
Right with respect to that portion of the Refusal Space which was the subject of
the Offer. If Tenant timely notifies Landlord of its intention to lease the
Subject Space, Landlord and Tenant shall promptly enter into an amendment to
this Lease adding the Subject Space to the Premises and otherwise incorporating
the terms and conditions of the Offer. This Refusal Right is personal to Tenant
and is not assignable to any third parties, including, but not limited to, any
assignee or sublessee of Tenant. Notwithstanding anything to the contrary set
forth herein, Tenant hereby acknowledges that the Refusal Right with respect to
the First Right Space shall be a right of first refusal and shall not be
subordinate to the rights of any other tenants of the Building, but the Refusal
Right with respect to the Second Right Space and with respect to the 5th Floor
Space shall be subordinate to any other existing or future rights granted by
Landlord to other tenants of the Building with respect to the Second Right Space
and the Fifth Floor Space, respectively (it being acknowledged that Landlord has
previously granted a right of first refusal with respect to the Fifth Floor
Space to The Staubach Company).
Any capitalized terms not defined in this Exhibit "G" shall have the
meaning set forth in the Lease to which this Exhibit "G" is attached.
Exhibit "G", Rights of Refusal - Solo Page
54
EXHIBIT "H"
RENEWAL OPTION
Provided that, at the time of Tenant's exercise of an Option
(hereinafter defined) and upon the commencement of each Renewal Term
(hereinafter defined), this Lease is in full force and effect, and there is no
uncured Event of Default under this Lease, Tenant shall have the option (an
"Option") to renew this Lease as follows:
Tenant may, by notifying Landlord of its election in writing ("Tenant's
First Renewal Notice") not less than two hundred seventy (270) days prior to the
end of the Lease Term, renew the Lease for five (5) additional years (the "First
Renewal Term"). Further, Tenant may, by notifying Landlord of its election in
writing ("Tenant's Second Renewal Notice") not less than two hundred seventy
(270) days prior to the end of the First Renewal Term, renew this Lease for five
(5) more additional years (the "Second Renewal Term"). Hereinafter, Tenant's
First Renewal Notice and Tenant's Second Renewal Notice may be cumulatively
referred to as "Tenant's Renewal Notice." Hereinafter, the First Renewal Term
and the Second Renewal Term may be cumulatively referred to individually as the
"Renewal Term" and collectively, the "Renewal Terms." Each Renewal Term shall
commence on the date next following the expiration date of the Lease Term or the
current Renewal Term and shall continue for sixty (60) months thereafter. Such
renewal shall include the Premises, as well as any other space within the
Building then being leased by Tenant as of the date of exercise of the Option.
The renewal of this Lease will be upon the same terms, covenants and conditions
applicable during the Lease Term, as provided in the Lease, except that:
0.103.0.0.1. THE BASE RENTAL PAYABLE DURING THE APPLICABLE
RENEWAL TERM SHALL BE AN AMOUNT EQUAL TO THE MARKET RENTAL RATE (AS
DEFINED BELOW) AS OF THE DATE ON WHICH SUCH RENEWAL TERM COMMENCES;
0.103.0.0.2. THE TERM "LEASE TERM" SHALL BE DEEMED TO INCLUDE
THE APPLICABLE RENEWAL TERM;
0.103.0.0.3. NO CONCESSIONS APPLICABLE DURING THE INITIAL
LEASE TERM (SUCH AS CONSTRUCTION ALLOWANCES, MOVING ALLOWANCES OR FREE
RENT) SHALL BE APPLICABLE DURING ANY RENEWAL TERM; AND
0.103.0.0.4. TENANT SHALL POSSESS NO FURTHER RENEWAL OPTIONS
AFTER THE EXPIRATION OF THE SECOND RENEWAL TERM. IN ADDITION, IF TENANT
FAILS TO EXERCISE THE OPTION FOR THE FIRST RENEWAL TERM, THE OPTION FOR
THE FIRST RENEWAL TERM AND THE SECOND RENEWAL TERM SHALL IMMEDIATELY
TERMINATE.
As used herein, the phrase "Market Rental Rate" shall mean the rate of
base rental being charged for similar transactions for comparable space
(including factors such as size, age, location and condition of the premises and
the improvements in place therein) within buildings (including, but not limited
to, the Building) within the Market Area during the previous six (6) months with
tenants of a size and having a financial condition comparable to that of Tenant.
Within thirty (30) days after receipt of Tenant's Renewal Notice (and
any required supporting information), Landlord shall notify Tenant in writing of
the Market Rental Rate. Landlord and Tenant will in good faith attempt to
determine the Market Rental Rate to be used to calculate the Base Rental. In the
event that the parties cannot agree on the Market Rental Rate, Landlord and
Tenant shall agree, such agreement not to be unreasonably withheld or delayed,
on an M.A.I. appraiser, who will determine the Market Rental Rate to be used to
calculate the Base Rental, which determination will be binding upon the parties.
Each party will pay one-half (1/2) of the cost of the appraisal. Within fifteen
(15) days thereafter, Tenant shall notify Landlord that Tenant either (a)
accepts Landlord's renewal terms, in which event the parties shall promptly
enter into an amendment to the Lease incorporating such terms, or (b) reject
Landlord's renewal terms, in which event the Lease shall end at the expiration
of the initial Lease Term and Landlord shall have no further obligations or
liability hereunder. The failure of Tenant to respond within such fifteen (15)
day period shall be deemed rejection of Landlord's terms.
The failure of Tenant to exercise the Renewal Option within the time
period set forth herein shall constitute a waiver and termination of such
Renewal Option. This Renewal Option is personal to Tenant and is not assignable
to any third parties, including, but not limited to, any assignee or sublessee
of Tenant.
Exhibit "H", Renewal Option - Page 1
55
Any capitalized terms not defined in this Exhibit "H" shall have the
meaning set forth in the Lease to which this Exhibit "H" is attached.
Exhibit "H", Renewal Option - Page 2
56
EXHIBIT "I"
DESCRIPTION OF BASE BUILDING PLANS
[Description of Base Building Plans follows this cover page.]
Exhibit "I", Description of Base Building Plans - Cover Page
57
EXHIBIT "J"
DESIGN CRITERIA
[Design Criteria follows this cover page.]
Exhibit "J", Design Criteria - Cover Page
58
EXHIBIT "K"
Exhibit "K", Permitted Encumbrances - Solo Page
59
PERMITTED ENCUMBRANCES
Exhibit "K", Permitted Encumbrances - Solo Page