EXHIBIT 10.18
TRIPLE NET LEASE
LANDLORD:
AGB XXXXXXX PARK, L.P.
a Delaware limited partnership
TENANT:
INFLOW, INC.,
a Delaware corporation
0000 X. XX 00
Xxxxxx, Xxxxx 00000
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS
THIS SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS (this "Summary") is
hereby incorporated into and made a part of the Triple Net Lease attached hereto
which pertains to the Premises described in Section 1.3 of this Summary. All
references in the Lease to the "Lease" shall include this Summary. All
references in the Lease to any term defined in this Summary shall have the
meaning set forth in this Summary for such term. Any initially capitalized terms
used in this Summary and any initially capitalized terms in the Lease which are
not otherwise defined in this Summary shall have the meaning given to such terms
in the Lease.
1.1 Landlord's Address: AGB Xxxxxxx Park, L.P.
c/o Xxxxxx, Xxxxxx & Co., L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
with a copy to: Provident Realty Advisors, Inc.
00000 Xxxxxxx Xxxx
Xxxxx 000, XX 23
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxx
1.2 Tenant's Address: Inflow, Inc.
0000 X. XX 00, Xxxxx X
Xxxxxx, Xxxxx 00000
Attn: General Manager
with a copy to: Inflow, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Legal Department
1.3 Premises: An area which the parties hereto hereby stipulate and agree
consists of approximately 34,000 rentable square feet of space and is more
particularly described in the Exhibit A attached to the Lease (the "Initial
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Premises") located in that certain building (the "Building") having an address
of 0000 X. XX 00, Xxxxxx, Xxxxx 00000, and which Building is located on the land
(the "Land") more particularly described in the Exhibit B attached to the Lease
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(the Land, the Building and all other improvements now or hereafter located on
the Land are herein collectively referred to as the "Project"). As used in the
Lease, the term "Premises" shall mean the Initial Premises together with any
other space in the Project hereafter leased to Tenant pursuant to the terms and
provisions of the Lease and the Exhibits attached thereto. The exact square
footage of the Initial Premises shall be calculated at the time Landlord
delivers possession of the same to Tenant. The square footage of the Initial
Premises shall be measured in accordance with BOMA standard "ANSI Z65. I -1996".
If, after such measurement, the actual square footage of the Initial Premises is
found to be different than the number of rentable square feet identified above
in this Section 1.3, Landlord and Tenant shall, within twenty (20) days after
Tenant's receipt of written notice of the results of such measurement, execute
and deliver an amendment to this Lease which amends this Lease as necessary due
to the change in the number of rentable square feet of space comprising the
Initial Premises (including, without limitation, the required increases or
decreases, as applicable, in the amounts of Annual Rent).
1.4 Commencement Date: December 15, 1999. Prior to December 15, 1999, Landlord
shall construct a four hour fire rated demising wall to the deck (the "Demising
Wall") within the Building to separate the Initial Premises from the remaining
leasable area of the Building in the location generally depicted on the Rider D.
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1.5 Lease Expiration Date: The last day of the one hundred twentieth (120th)
full calendar month after the Rent Commencement Date (as defined below).
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1.6 Annual Rent:
(a) For the period commencing on the earlier to occur of(x) the ninetieth
(90th) day after the Commencement Date, and (y) the date on which Tenant shall
occupy all or any part of the Initial Premises (the "Rent Commencement Date")
(Tenant's entry upon the Initial Premises to construct the Initial Improvements
[as defined in Section 5.(b) below] shall not constitute occupancy of the
Premises for the purposes of this sentence), through the last day of the
sixtieth (60th) full calendar month after the Rent Commencement Date, Annual
Rent shall be payable at the rate of $408,000.00 per annum (i.e., $12.00 per
rentable square foot on an annual basis for the Premises); and
(b) For the period from the first day of the sixty-first (6 1st) full
calendar month after the Rent Commencement Date through the last day of the one
hundred twentieth (120th) full calendar month after the Rent Commencement Date,
Annual Rent shall be payable at the rate of $442,000.00 per annum (i.e., $13.00
per rentable square foot on an annual basis for the Premises).
1.7 Security Deposit: None.
1.8 Permitted Use: The Premises may be used for general office use, network
operations center, and computer and telecommunications equipment rooms only.
1.9 Default Interest Rate: The lesser of the following: (a) the rate announced
from time to time by Citibank, N.A. or, if Citibank, N.A. ceases to exist or
ceases to publish such rate, then the rate announced from time to time by the
largest (as measured by deposits) chartered operating bank operating in New
York, as its "prime rate", "best rate", or "reference rate", plus three percent
(3%) (such rate is referred to herein as the "Interest Rate"); or (b) the
maximum rate permitted by law.
2.0 Tenant's Early Access to the Initial Premises. Except during such times as
the Demising Wall is actually being constructed by Landlord's contractor, Tenant
shall have the right to enter the Initial Premises or authorize its employees,
architects, space planners, consultants, contractors, engineers, suppliers and
other representatives (collectively, "Tenant's Contractors") to do so prior to
the Commencement Date for the purpose of space planning and construction of the
Initial Improvements in accordance with the Exhibit K attached to this Lease.
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Tenant shall protect, defend, indemnify and hold harmless Landlord and all
Landlord Indemnified Parties exempt and harmless from and against any and all
costs, expenses, claims, demands, judgements, losses, liabilities and causes of
action arising out of or in connection with work performed in any portion of the
Initial Premises by or on behalf of Tenant or otherwise arising out of or
connected with the activities of Tenant or its agents, servants, officers,
employees, contractors, suppliers or workmen in or about any portion of the
Initial Premises, the Building and/or the Project, SPECIFICALLY INCLUDING,
WITHOUT LIMITATION, SUCH LIABILITIES, COSTS, DAMAGES, FEES AND EXPENSES ARISING
OUT OF OR CONNECTED WITH THE NEGLIGENCE OF LANDLORD OR ANY LANDLORD INDEMNIFIED
PARTIES, but excluding any such liabilities, costs, damages, fees and expenses
caused by or resulting from the sole or gross negligence or willful misconduct
of Landlord or any Landlord Indemnified Parties. Such entry by Tenant and
Tenant's Contractors pursuant to this Section shall be deemed to be under all of
the terms, covenants, provisions and conditions of this Lease except the
covenant to pay Rent.
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TRIPLE NET LEASE
THIS TRIPLE NET LEASE (this "Lease"), which includes the preceding Summary
of Basic Lease Information and Definitions (the "Summary") attached hereto and
incorporated herein by this reference, is made as of the 12th day of November,
1999 (the "Effective Date"), by and between AGB XXXXXXX PARK, L.P., a Delaware
limited partnership ("Landlord"), and INFLOW, INC., a Delaware corporation
("Tenant").
1. Lease of Premises.
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1.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and conditions
contained in this Lease to be performed by each party. The Premises are demised
and let subject to (a) the state of title, (b) any state of facts which an
accurate survey or physical inspection of the Premises might show, and (c) all
applicable Laws (as hereinafter defined) (including, without limitation,
Environmental Laws [as defined in subsection 6.5(a) below]), all without
representation or warranty by Landlord (except as specifically set forth
otherwise in this Lease). As used herein, the term "Laws" shall mean all laws,
statutes, ordinances, resolutions, rules, codes, regulations, restrictions
(including, without limitation, public or private restrictive covenants or deed
restrictions), policies, orders, determinations or requirements of any
Governmental Authority (as hereinafter defined) from time to time in existence,
and the term "Governmental Authority" shall mean any federal, state, county,
municipal or other government or any governmental or quasi-governmental
subdivision, agency, department, commission, board, bureau, office or
instrumentality or any of them. The Initial Premises shall be delivered to
Tenant in a broom-clean condition, free of all non-structural, non-core interior
walls, except as otherwise provided in Section 1.4 of the Summary.
1.2. Net Lease; Non-Term inability.
(a) This is an absolutely net Lease to Landlord. It is the intent of the
parties hereto that the Annual Rent payable under this Lease shall be an
absolutely net return to the Landlord and that the Tenant shall pay all costs
and expenses relating to the use, operation, maintenance and repair of the
Premises and the business of Tenant carried on therein (including, without
limitation, taxes and insurance, utility and maintenance costs) unless otherwise
expressly provided in this Lease. Any amount or obligation herein relating to
the use and occupancy of the Premises which is not expressly declared to be an
obligation of Landlord shall be deemed to be an obligation of Tenant to be
performed by Tenant at Tenant's expense. Except as expressly provided in this
Lease, Annual Rent, additional rent and all other sums payable hereunder by
Tenant shall be paid without notice, demand, setoff, counterclaim, abatement,
suspension, deduction or defense.
(b) Except as expressly provided in this Lease, this Lease shall not
terminate, nor shall Tenant have any right to terminate this Lease, nor shall
Tenant be entitled to any abatement of Rent (as defined in Section 3.2 below),
nor shall the obligations of Tenant under this Lease be affected by reason of
(i) any damage to or destruction of all or any part of the Premises from
whatever cause; (ii) the taking of the Premises or any portion thereof by
condemnation, requisition or otherwise; (iii) the prohibition, limitation or
restriction of Tenant's use of all or any part of the Premises, or any
interference with such use other than by Landlord or any of Landlord's agents or
employees; (iv) Tenant's acquisition or ownership of all or any part of the
Premises; (v) any default on the part of Landlord under this Lease, or under any
other agreement to which Landlord and Tenant may be parties; (vi) the failure of
Landlord to deliver possession of the Premises on the Commencement Date; or
(vii) any other cause whether similar or dissimilar to the foregoing, any
present or future law to the contrary notwithstanding. It is the intention of
the parties hereto that the obligations of Tenant hereunder shall be separate
and independent covenants and agreements, that the Annual Rent, the additional
rent and all other sums payable by Tenant hereunder shall continue to be payable
in all events and that the obligations of Tenant hereunder shall continue
unaffected, unless the requirements to pay or perform the same shall have been
suspended or terminated pursuant to an express provision of this Lease.
(c) Tenant agrees that it will remain obligated under this Lease in
accordance with its terms and that it will not (except as expressly permitted
herein) take any action to terminate, rescind or avoid this Lease,
notwithstanding (i) the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, or winding-up or other proceeding
affecting Landlord or its successors in interest, or (ii) any action with
respect to this Lease which may be taken by any trustee or receiver of Landlord
or its successors in interest or by any court in any such proceeding.
(d) Except as otherwise permitted in this Lease, Tenant waives all rights
which may now or hereafter be conferred by law (i) to quit, terminate or
surrender this Lease or the Premises or any part thereof, or (ii) to any
abatement, suspension, deferment or reduction of the Annual Rent, additional
rent or any other sums payable under this Lease.
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2. Term.
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2.1 Term. The initial term of this Lease (the "Initial Term") shall commence
upon the Commencement Date and shall expire on the Lease Expiration Date, unless
sooner terminated. As used in this Lease, the "Term" shall mean the Initial Term
together with any renewal thereof, whether pursuant to the terms of this Lease
or otherwise by a written agreement thereof executed by Landlord and Tenant.
2.2 Delivery of Possession. Landlord shall deliver possession of the Initial
Premises on the date on which the Demising Wall has been completed and notice of
such fact has been given to Tenant (the actual date on which Landlord delivers
possession of the Initial Premises to Tenant is herein referred to as the
"Premises Delivery Date"). If the Demising Wall has not been completed on or
before December 15, 1999, and Landlord fails to complete the construction of the
same within ten (10) business days after its receipt of written notice of such
failure, Tenant, by notice to Landlord, shall have the right to construct the
Demising Wall and deduct the cost therefor from the amounts of Rent first coming
due hereunder.
2.3 Option to Extend. Tenant shall have two (2) consecutive options (the
"Extension Options") to extend the Term and Lease Expiration Date for a period
(the "Option Periods") of five (5) years per option, each such period commencing
upon the then-current Lease Expiration Date upon the same terms and conditions
as are applicable for the Premises under the Lease for the Initial Term, except
for the amount of Annual Rent payable under this Lease (which amount shall be
determined as set forth below). An Extension Option may be validly exercised
only by notice in writing received by Landlord not later than twelve (12) months
prior to commencement of the applicable Option Period; provided, however, that
the applicable Extension Option may be validly exercised only if no uncured
Tenant default exists as of the date of exercise. If Tenant does not exercise an
Extension Option in strict accordance with the provisions hereof, such Extension
Option and all subsequent Extension Options shall forever terminate and be of no
further force or effect. Tenant's Extension Options shall be upon all of the
terms and conditions of this Lease, except that (i) the grant of any exercised
Extension Option shall no longer apply; (ii) Landlord shall not be obligated to
perform any work to the Premises or provide Tenant with any refurbishment or
similar allowances; and (iii) the Annual Rent during the first Option Period
shall be payable at the rate of $15.00 per rentable square foot per annum, and
the Annual Rent during the second Option Period shall be payable at the rate of
$17.00 per rentable square foot per annum. In the event the named Tenant herein
(i.e., Inflow, Inc.) or any Transferee (as defined in Section 14.4 below)
following a Permitted Transfer (as defined in Section 6.9 below) shall not be in
occupancy of, and conducting business in, all of the Premises, any rights
granted pursuant to this Section shall be null and void. Additionally, Tenant's
rights under this Section shall terminate following the occurrence of any of the
following events: to the extent lawful and not in violation of Tenant's rights
under this Lease, (a) a termination of Tenant's right to possess all or any
portion of the Premises; and/or (b) any termination of this Lease.
3. Rent.
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3.1 Annual Rent. Tenant agrees to pay Landlord, as rent for the Premises, the
Annual Rent designated in Section 1.6 of the Summary. The Annual Rent shall be
paid by Tenant in twelve (12) equal monthly installments in advance on the first
day of each and every calendar month commencing upon the Commencement Date,
except that the first monthly installment of Annual Rent shall be paid upon
execution of this Lease by Tenant. Rent for any partial month shall be prorated
in the proportion that the number of days this Lease is in effect during such
month bears to the actual number of days in such month.
3.2 Additional Rent. All amounts and charges payable by Tenant under this Lease
in addition to the Annual Rent described in Section 3.1 above shall be
considered additional rent for the purposes of this Lease, and the word "Rent"
in this Lease shall include the Annual Rent and such additional rent unless the
context specifically or clearly implies that only the Annual Rent is referenced.
The Annual Rent and additional rent shall be paid to Landlord as provided in
Section 7, without any prior demand therefor and without any deduction or offset
except as specified elsewhere in this Lease.
4. Tenant's Expense Payment.
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(a) In addition to Annual Rent, Tenant shall pay as additional rent,
Tenant's Share (as defined in Section 4.(b) below) of Project Expenses (as
defined in Section 4.(c) below). Such payment shall hereafter be referred to as
"Tenant's Expense Payment". Landlord may, if it elects, either deliver to Tenant
periodic statements of Tenant's Expense Payment or Landlord may estimate the
amount of Tenant's Expense Payment payable by Tenant for any calendar year or
any portion thereof. In the event Landlord elects to estimate Tenant's Expense
Payment for any calendar year, Landlord
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shall provide written notice of the estimate of Tenant's Expense Payment for the
applicable calendar year and the monthly installment due for each month during
such calendar year at least thirty (30) days prior to the date such installments
become due and payable. Tenant shall pay to Landlord on the first day of each
calendar month during any calendar year Landlord elects to estimate Tenant's
Expense Payment, the amount of the applicable monthly installments, without
demand. Landlord shall, on or before the first day of July of each calendar
year, determine the actual Tenant's Expense Payment for the preceding calendar
year and provide Tenant with written notice thereof. If Tenant's actual payments
of estimated Tenant's Expense Payment are lesser than Tenant's share of actual
Tenant's Expense Payments for such year, then Tenant shall pay to Landlord the
amount of the deficiency within thirty (30) days from the date of Landlord's
notice of deficiency. Alternatively, if Tenant's actual payments of estimated
Tenant's Expense Payments are greater than the actual Tenant's Expense Payment
for such year, then Landlord shall credit the amount of the surplus against the
next accruing installments of Tenant's Expense Payment.
(b) For Project Expenses that are not reserved, allocated or dedicated to
Tenant or any other tenant of the Project, the term "Tenant's Share" shall mean
a fraction, the numerator of which is the rentable area of the Premises and the
denominator of which is the rentable area of the Project. For Project Expenses
that are specifically and exclusively attributable to the Premises or to those
portions of the Common Areas (as defined in Section 4.(d) below) that are
reserved or designated for exclusive use by Tenant (including, without
limitation, any parking areas over which Tenant shall have exclusive use), the
term "Tenant's Share" shall mean 100%.
(c) As used herein, the term "Project Expenses" shall mean all direct
costs and expenses of operation, security, protection, replacement, repair and
maintenance of the Project incurred by Landlord, as determined by sound, accrual
basis, accounting principles consistently applied, and shall include (i) all
costs incurred in connection with the ownership and operation of the Common
Areas; all property and liability insurance premiums, including without
limitation, rent loss insurance; accounting and legal fees; costs incurred in
the management of the Project; and dues, taxes and/or assessments imposed by any
applicable property owners' association if any, excluding however, any
assessments to the extent allocable to capital improvements; plus (ii) all real
property taxes and assessments, water and sewer rents and charges, utilities and
communications taxes and charges, any similar impositions in lieu of other
impositions now or previously within the definition of real property taxes or
assessments, all other government charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are, at any time, prior to or
during the Term, imposed upon or assessed against the Project (exclusive of
federal, state or other income taxes and franchise taxes, Rent Taxes [as defined
in Section 10.1 below] and change in ownership taxes and assessments); plus
(iii) all costs whatsoever incurred by Landlord in connection with the use,
operation, maintenance and repair of the Project, excepting only those specific
costs and expenses that Landlord has specifically agreed to bear with no
reimbursement from Tenant. Project Expenses shall not include any capital
expenditures except expenditures for capital improvements to the Project
(including, without limitation, professional fees, consultants' fees and
services contracted for in connection with such capital improvements) that are
(I) primarily for the purpose of reducing Project Expenses, (2) made in order to
prevent interruption of any of the services to be provided by Landlord to Tenant
pursuant to this Lease, or (3) made in order to comply with Laws enacted after
the Commencement Date that are applicable to the Project, the cost(s) of which
shall be amortized over the useful life of the improvement with interest at
twelve percent (12%) per annum on the unamortized amount; and (2) any capital
improvements to the Project that are minor in nature (i.e., cost less than
$10,000.00). Project Expenses do not include any costs or expenses that are
separately metered and payable solely by Tenant or by other tenants of the
Project. The total of Project Expenses charged to all tenants of the Project
will not exceed 100% of the costs and expenses for the Project included in the
Project Expenses, and no item will be included more than once in determining
Project Expenses. Project Expenses also will not include any of the following:
(a) costs incurred in marketing space in the Project or for specific tenants or
prospective tenants, including without limitation, building-out, renovating or
otherwise improving or decorating or redecorating space for tenants or other
occupants of the Project or vacant leasable space in the Project; (b)
depreciation of the Project and all equipment, fixtures, improvements and
facilities used in connection therewith or other non-cash items; (c) financing
costs, including, without limitation, interest and principal payments and fees
and points, on loans secured by mortgages or deeds of trust covering all or any
portion of the Project, and other debt costs, if any, and rental under any
ground lease or other underlying lease, if any, covering all or any portion of
the Project; (d) real estate brokers' leasing commissions or compensation,
attorneys' fees, costs and disbursements and other expenses incurred in
connection with negotiations for leases with tenants and/or prospective
occupants of the Project; (e) any cost or expenditure (or portion thereof) for
which Landlord is reimbursed, whether by insurance proceeds or otherwise
(Tenant's Expense Payment, and similar payments made under similar provisions in
other tenant leases, are not reimbursements); (t) any wages, salaries or other
compensation paid to any employee not employed at least in part for or on behalf
of the Project (provided that such costs for employees working in the Project
part-time must be allocated by Landlord on a pro rata basis to the Project); (g)
that portion of any cost or expense which is allocated by Landlord to, or is
performed solely for the benefit of, any property owned or operated by Landlord
other than the Project; (h) legal, accounting and similar or related costs paid
or incurred in
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connection with any sale, syndication, financing or refinancing involving the
Project and/or the Premises or any of Landlord's interest therein; (i) any fees,
fines, penalties and/or interest incurred by Landlord as a result of Landlord's
noncompliance with any applicable Laws; (j) any costs (including, without
limitation, legal fees and expenses), fees, fines, penalties and/or interest
incurred by Landlord as a result of Landlord's failure to timely pay any
obligations of Landlord (including, without limitation, Landlord's failure to
timely pay real property taxes and assessments); (k) costs of disputes between
Landlord and any third party regarding matters not related to the Project; (1)
costs associated with business dealings with, and any lawsuits involving,
partners or other persons holding equity, lenders or ground lessors of Landlord;
(in) any debt losses, rent losses or reserves for bad debt; (n) Landlord's
general corporate overhead and general and administrative expenses, including,
in any event, any costs and expenses associated with Landlord's internal
financing or business dealings and salaries of Landlord's executive officers or
any employee or agent above the grade of building manager; (o) any compensation
paid to clerks, attendants or other persons in commercial concessions operated
by Landlord or an affiliate of Landlord; (p) advertising and promotional
expenditures for leasing space in the Project; (q) costs arising from Landlord's
charitable or political contributions; (r) costs. for sculptures, paintings or
other objects of art; (s) Landlord's income taxes, excess profit taxes,
franchise taxes or similar taxes levied on Landlord's business and change in
ownership taxes and assessments; (t) costs of any goods or services acquired
from an Affiliate of Landlord or of the manager of the Project to the extent in
excess of the costs that would be paid to an unaffiliated, third-party provider
of such goods or services; (u) costs and expenses incurred (whenever incurred)
in repairing any latent defects in the Project or any portion thereof or in
removing any Hazardous Materials that are in, on, under, about or affect the
Project on or before the Commencement Date (regardless of when discovered) or
remediating damage to the extent therefrom; (v) any costs or expenses incurred
as the result of the gross negligence or willful misconduct of Landlord; (w) any
costs or expenses incurred (regardless of when incurred) to the extent necessary
to make the Project comply with Laws in effect on the Commencement Date; and (x)
costs allocable to future development of the Project or other real estate.
(d) The "Common Area" and the "Common Areas" are the part of the Project
designated by Landlord from time to time for the common use of all tenants,
including, among other facilities, parking areas, sidewalks, landscaping, curbs,
loading areas, private streets and alleys, lighting facilities, hallways,
restrooms, bike lockers, bike paths and pedestrian pathways, and other areas and
improvements provided by Landlord for the common use of all tenants, all of
which shall be subject to Landlord's sole management and control and shall be
operated and maintained in such manner as Landlord, in its discretion, shall
determine. Tenant and its employees, customers, subtenants, licensees and
concessionaires shall have the non-exclusive right and license to use the Common
Area as constituted from time to time, such use to be in common with Landlord,
other tenants of the Project and other persons permitted by Landlord to use the
same. Landlord may temporarily close any part of the Common Area for such
periods of time as may be necessary to prevent the public from obtaining
prescriptive rights thereto or to make repairs or alterations, provided that
Tenant shall have access to the Premises and its equipment supporting its
operations in the Premises at all times.
5. Electricity, Gas and Other Utilities.
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(a) Tenant shall be solely responsible for bringing electricity and gas
service to the Premises on a separately metered basis and for obtaining the same
from the supplying utility companies. Landlord shall cooperate therewith,
including, without limitation, furnishing such Landlord-approved easements,
Landlord-approved licenses and consents of Landlord as may be necessary for
Tenant to obtain such electricity and gas service.
(b) Tenant's use of electric current and gas service in the Premises
shall not at any time exceed the capacity of any of the electrical or gas
conductors, feeders or risers and equipment in the Building, the Project or
otherwise serving the Premises. In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Project's electric and
gas service, Tenant shall not, without Landlord's prior written consent in each
instance, make any alteration or addition to the electric and gas systems of the
Premises existing upon the date on which Tenant completes the initial
improvements (the "Initial Improvements") to be made by Tenant to the Initial
Premises as contemplated by the Exhibit K attached to this Lease. To the extent
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not caused by the gross negligence or willful misconduct of Landlord or its
agents. Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric current or gas service furnished
to the Premises or for any loss or damage or expense which Tenant may sustain or
incur if either the said supply or character of electric current or gas service
either fails or changes or is no longer available for Tenant's requirements at
the Premises. Tenant shall furnish and install all lighting tubes, lamps, and
bulbs used in the Premises.
(c) Landlord shall furnish to the Premises domestic water and a sewage
service in amounts and in the capacity as is available at the Premises on the
Effective Date.
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(d) Tenant shall be solely responsible for obtaining, and shall promptly
pay directly to the supplying utility companies all charges for, any services
and/or utilities used, consumed or provided in, furnished to or attributable to
the Premises that Landlord has not expressly agreed to provide to Tenant
pursuant to this Lease (for example, telephone service which is not being
provided to Tenant by Landlord). Tenant shall reimburse Landlord within thirty
(30) days of billing for fixture charges and/or water tariffs attributable to
the Premises, if applicable, which are charged to Landlord by utility companies.
Landlord will notify Tenant of this charge as soon as practicable after Landlord
becomes aware of the same. This charge will increase or decrease with current
charges being levied against Landlord or the Premises by the local utility
company, and will be due as additional rent. In no event shall Rent xxxxx or
shall Landlord be liable for any interruption or failure in the supply of any
utility services to the Premises.
6. Use.
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6.1 General. Tenant shall use the Premises solely for the Permitted Use
specified in Section 1.8 of the Summary, and shall not use or permit the
Premises to be used for any other use or purpose whatsoever. No auction,
liquidation, going out of business, fire or bankruptcy sales may be conducted
in, on or about the Premises. Tenant shall not use or permit the use of any
portion of the Premises as sleeping apartments, lodging rooms or for any
unlawful purposes. Except as expressly provided in this Lease, in no event shall
Tenant use any area outside the Premises other than for pedestrian and vehicular
ingress and egress to and from the Premises, other than for parking in the areas
currently designated for parking (which shall be provided at no monthly parking
charge to Tenant, other than taxes and other costs as provided herein), and
other than to perform Tenant's repairs, maintenance and other obligations under
this Lease. Tenant and its employees shall have access to the Premises 24 hours
per day, 7 days per week throughout the Term.
6.2 Compliance With Laws.
(a) Tenant shall not use or allow the Premises to be used in violation of
any covenants, conditions and restrictions or other agreements affecting the
Premises, or of any insurance policy in effect with respect to the Premises, or
of any Laws or of any certificate of occupancy issued for the Premises. Tenant
shall, at its sole cost and expense, observe and comply with, and at all times
cause the Premises and Tenant's use thereof to comply with, all requirements of
any board of fire underwriters or similar body relating to the Premises, and all
Laws, contracts, insurance policies and restrictions now or hereafter in force
relating to or affecting the Premises and the condition, use, occupancy,
alteration and/or improvement thereof, including, without limitation, the
provisions of the Americans With Disabilities Act of 1990, 42 U.S.C.
(S)(S)12101-12213, as amended ("ADA"), and any other Disability Laws (as defined
in Section 12.1(b) below), as the same pertain to the Premises and Tenant's use,
occupancy, improvement and alteration of the Premises. The foregoing compliance
obligations of Tenant shall include any and all alterations, replacements,
improvements and changes, whether structural or non-structural, unforeseen
and/or extraordinary, whether or not the same are considered capital
expenditures under standard real estate accounting practices ("Capital Items"),
and regardless of the period of time then remaining in the Term, but shall not
include any alterations, replacements, improvements and changes to any of the
Base Building Components (as defined in Section 11.(b) below), the mechanical
systems of the Building or to any of the Common Areas. Landlord will not
initiate or consent to any change in Laws or enter into or consent to any
contracts, insurance policies and restrictions that would cause Tenant to
violate its obligations under this Section 6.2(a).
(b) Landlord represents and warrants to Tenant that Landlord has no
knowledge, nor has Landlord received written notice from any Governmental
Authority since Landlord acquired the Project, of any existing or threatened
violation of (i) any Laws of any Governmental Authority applicable to the
ownership, operation, use, maintenance or condition of the Project or any part
thereof (including, without limitation, ADA and other Disability Laws), or (ii)
any restrictive covenant or deed restriction affecting the Project. Landlord
represents and warrants to Tenant that, to Landlord's knowledge, the only
restrictive covenants and deed restrictions (including, without limitation, any
master development plan or property owners association requirements) affecting
the Project are identified on Rider E.
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(c) As used in this Lease and the Exhibits and Riders attached hereto,
the phrases "Landlord's knowledge" or "knowledge of Landlord" or any similar
phrase shall mean the current actual knowledge of Landlord as of the Effective
Date without any investigation or inquiry.
6.3 No Nuisance or Waste. Tenant shall not commit or suffer to be committed any
waste upon the Premises or any nuisance or other act or thing which may disturb
the quiet enjoyment of any other tenant in the Building or owners or tenants of
property adjacent to the Project. Tenant shall not use or permit to be used, any
medium that might constitute a nuisance, such as loud-speakers, sound
amplifiers, phonographs, radios, televisions, or any other sound producing
device which will carry sound outside the Premises. Tenant shall not permit
noise or odors in the Premises which are reasonably
5
objected to by any owner or tenant of property adjacent to the Project. Upon
written notice from Landlord, Tenant shall immediately cease and desist from
causing such noise or odor.
6.4 Signs.
(a) Except as expressly provided in this Section 6.4, Tenant shall not
install any signs (including, without limitation, Tenant's Sign [as defined in
subparagraph 6.4(b) below]), awnings, canopies or advertisements in, on or about
the Premises (other than interior signs in the Premises which can not be seen
outside the Premises) unless Tenant complies with all Laws and all public and
private restrictive agreements affecting the Premises (including, without
limitation, any master development plan or property owners association
requirements) and obtains prior written approval therefor from all Governmental
Authorities having jurisdiction over the Premises, from such other parties as
may be required, and from Landlord. Tenant's installation and maintenance of
such signs (including, without limitation, Tenant's Sign), awnings, canopies or
advertisements need only be in compliance with those public and private
restrictive agreements that copies of which have theretofore been provided to
Tenant by Landlord or any other party prior to the installation of any such
signs, awnings, canopies or advertisements. Tenant agrees to maintain Tenant's
Sign and any other sign, awning, canopy or advertising matter as may be approved
in writing by Landlord in good condition and repair at all times. At the
expiration or earlier termination of this Lease, at Landlord's election, Tenant
shall (i) remove Tenant's Sign and all other signs, awnings, canopies and
advertising approved in writing by Landlord and installed by or at the direction
of Tenant, and (ii) repair any damage to the Premises resulting from such
removal all at Tenant's sole cost and expense. If Tenant fails to maintain
and/or remove Tenant's Sign and any other such approved sign, awning, canopy or
advertising and/or fails to repair any such damage, Landlord may do so and
Tenant shall reimburse Landlord for the actual costs incurred by Landlord in
performing such work. If, without Landlord's prior written approval or any other
required approvals, Tenant installs any sign, awning, canopy or advertising, or
fails to remove any such item(s) at the expiration or earlier termination of
this Lease, Landlord may have such item(s) removed and stored and may repair any
damage to the Premises at Tenant's expense. All removal, repair and/or storage
costs incurred by Landlord pursuant to the foregoing provisions of this Section
6.4 shall bear interest until paid at the Default Interest Rate specified in
Section 1.9 of the Summary.
(b) Tenant shall be permitted, at Tenant's sole cost and expense and
after satisfying all conditions precedent to the installation of the same set
forth in Section 6.4(a) above and below in this subparagraph, to install and
maintain during the Term, all in accordance with the terms and provisions of
this Lease, one (1) sign on the front of the Building facing either Xxxxxxx Park
Blvd. or Xxxxxxxxxx Xxxx (such sign is herein referred to as "Tenant's Sign").
The size, type, design, quality, construction and location of Tenant's Sign
shall comply in all respects with all applicable Laws. Landlord's approval of
Tenant's Sign and any plans and specifications related to the installation of
Tenant's Sign shall create no responsibility or liability on the part of
Landlord for the completeness, design or sufficiency of Tenant's Sign or such
plans and specifications, or the compliance of the same with any Laws applicable
thereto. Prior to installing Tenant's Sign, Tenant must satisfy the following
conditions precedent: (a) Tenant shall have obtained the written approval of
Landlord required by the preceding subparagraph; (b) Tenant shall have obtained
and be maintaining all permits and/or approvals required by applicable Laws with
respect to the installation and maintenance of Tenant's Sign and shall have
provided Landlord with sufficient evidence of the existence of such permits
and/or approvals and that the installation of Tenant's Sign planned by Tenant
will comply in all respects with all applicable Laws; and (c) Tenant shall have
furnished Landlord, in the form and content required by Section 20 of this
Lease, with evidence of the insurance that Tenant is obligated to furnish to
Landlord pursuant to Section 20 of this Lease. Tenant shall promptly pay to
Tenant's contractors, when due, the cost of all work performed in connection
with the installation of, and any removal of, Tenant's Sign and, upon completion
of such work, deliver to Landlord evidence of payment and waivers of all liens
for labor, services or materials. Tenant shall, at its risk and at its sole cost
and expense and within thirty (30) days after Tenant's receipt of Landlord's
written request for such removal, remove Tenant's Sign from the Project
following the occurrence of any of the following events and Tenant's receipt of
Landlord's written request for such removal: (1) a proper termination of
Tenant's right to possess all or any portion of the Premises; (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises (other
than to a Permitted Transferee [as defined in Section 6.9 below]) in
contravention of this Lease; (3) the expiration of the Term; or (4) a proper
termination of this Lease. After any removal of Tenant's Sign required by the
preceding sentence, (y) Tenant shall have no further signage rights at the
Building notwithstanding anything to the contrary contained in this Section 6.4,
and (z) if such removal is not done by Tenant or a contractor of Tenant within
such required period of time, then Landlord may, at Tenant's sole cost and
expense, dispose of Tenant's Sign in any manner Landlord deems appropriate.
Prior to any removal of Tenant's Sign by or on behalf of Tenant (but excluding
any removal of Tenant's Sign by Landlord or its contractor), Tenant shall (i)
obtain Landlord's written approval to the plans related to the same (Landlord's
approval of such plans shall create no responsibility or liability on the part
of Landlord for the completeness, design or sufficiency of such plans), (ii)
obtain and maintain all permits and/or approvals required by applicable Laws
with respect to the removal of Tenant's Sign and provide Landlord with
sufficient evidence of the
6
existence of such permits and/or approvals and that the removal of Tenant's Sign
planned by Tenant will comply in all respects with all Laws applicable thereto,
and (iii) furnish Landlord with the written evidence of insurance that Tenant is
obligated to furnish to Landlord pursuant to Section 20 of this Lease. Tenant
shall repair all damage caused by the installation, maintenance, or removal of
Tenant's Sign and restore the Building to its condition existing before the
installation of Tenant's Sign. If Tenant fails to satisfy any of Tenant's
obligations under this Section 6.4, Landlord may, without compensation to
Tenant, use Tenant's Sign after removing Tenant's name and/or logo therefrom or,
at Tenant's sole cost and expense, remove Tenant's Sign and perform the related
restoration and/or repair work and dispose of Tenant's Sign in any manner
Landlord deems appropriate. Tenant shall protect, defend, indemnify and hold
harmless Landlord and all Landlord Indemnified Parties (as defined in Section
6.5(a) below) from all Claims (as defined in Section 6.5 below) resulting from
and/or arising in connection with or related to the construction, installation,
maintenance, use, or removal of Tenant's Sign by Tenant, its agents or
contractors or, if permitted by this Lease or any termination of Tenant's right
to possess the Premises, the removal of Tenant's Sign by Landlord, its agents or
contractors, INCLUDING THOSE ARISING FROM THE NEGLIGENCE OF LANDLORD OR ANY
LANDLORD INDEMNIFIED PARTIES, except to the extent the Claim in question was
caused by Landlord's or its agents' or contractors' sole or gross negligence or
willful misconduct. The rights granted to Tenant under this Section 6.4 may not
be assigned to any party other than a Permitted Transferee. As used in this
Section 6.4, the term "Tenant" shall include any Permitted Transferee following
an assignment of this Lease in its entirety from Tenant to such Permitted
Transferee.
6.5 Hazardous Materials.
(a) Tenant shall at its sole cost and expense, (i) obtain and maintain in
full force and effect all Environmental Permits (as defined below) that may be
required from time to time under any Environmental Laws applicable to Tenant's
use and occupancy of the Premises or Tenant's use of the Satellite Dish Area (as
defined in the Exhibit E attached hereto), the Telecommunications Cabling Area
---------
(as defined in the Exhibit G attached hereto) and/or the Generator Pad (as
---------
defined in the Exhibit J attached hereto), and (ii) be and remain in compliance
---------
with all terms and conditions of all such Environmental Permits and with all
Environmental Laws applicable to Tenant or the Premises. As used in this Lease,
the term "Environmental Law" means any past, present or future federal, state,
local or foreign statutory or common law, or any regulation, ordinance, code,
plan, order, permit, grant, franchise, concession, restriction or agreement
issued, entered, promulgated or approved thereunder, relating to (A) the
environment, human health or safety, including, without limitation, emissions,
discharges, releases or threatened releases of Hazardous Materials into the
environment (including, without limitation, air, surface water, groundwater or
land), or (B) the manufacture, generation, refining, processing, distribution,
use, sale, treatment, receipt, storage, disposal, transport, arranging for
transport, or handling of Hazardous Materials. "Environmental Permits" means,
collectively, any and all permits, consents, licenses, approvals and
registrations of any nature at any time required pursuant to, or in order to
comply with, any Environmental Law. Except for ordinary and general office
supplies, such as copier toner, liquid paper, glue, ink, customary cleaning
materials and materials required for cleaning and maintaining computer and
telecommunications equipment and batteries for Tenant's UPS system and fuel
tanks for Tenant's generator. Tenant agrees not to cause or permit any Hazardous
Materials to be brought upon, stored, used, handled, generated, released or
disposed of on, in, under or about the Premises, the Satellite Dish Area and/or
the Generator Pad (or cause any Hazardous Materials to be brought upon, stored,
used, handled, generated, released or disposed of on, in, under or about the
Telecommunications Cabling Area) by Tenant, its agents, employees, subtenants,
assignees, licensees, contractors or invitees (collectively, "Tenant's
Parties"), without the prior written consent of Landlord, which consent Landlord
may withhold in its sole and absolute discretion. Upon the expiration or earlier
termination of this Lease or any termination of Tenant's right to possess the
Premises, Tenant agrees to promptly remove from the Premises and/or the Project,
at its sole cost and expense, any and all Hazardous Materials, including any
equipment or systems containing Hazardous Materials, then present in, on, under
or about the Premises and/or the Project which were installed, brought upon,
stored, used, generated or released upon, in, under or about the Premises and/or
the Project by Tenant or any of Tenant's Parties. To the fullest extent
permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold
harmless Landlord and Landlord's partners and members and their respective
partners, members, managers, officers, directors, employees, agents, Affiliates
(as defined in Section 14.5 below), mortgagees, successors and assigns
(collectively, "Landlord Indemnified Parties") from and against any and all
claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs, but excluding
indirect or consequential damages) which arise or result from (1) the presence
of Hazardous Materials in, on, under or about the Premises and/or the Project if
such Hazardous Materials were installed, brought upon, stored, used, generated
or released upon, in, under or about the Premises and/or the Project by Tenant
or any of Tenant's Parties, and/or (2) Tenant's breach of any of the provisions
of this Section 6.5. Tenant acknowledges that Tenant has inspected the Premises
and/or the Project and has thoroughly reviewed each of the environmental
reports, if any, supplied by Landlord to Tenant with respect to the Project
and/or the Premises, and that, except as provided in Section 6.5(b) below,
Landlord
7
makes no representations or warranties of any kind or nature with respect to the
environmental condition of the Premises and/or the Project, including, but not
limited to, the accuracy of any such environmental reports, the existence or
nonexistence of any Hazardous Materials in, on, under or about the Premises
and/or the Project or the compliance of the Premises and/or the Project with
applicable Environmental Laws. As used in this Lease, the term "Hazardous
Materials" shall mean and include any hazardous or toxic materials, substances
or wastes as now or hereafter designated under any law, statute, ordinance,
rule, regulation, order or ruling of any agency of the State, the United States
Government or any other Governmental Authority, including, without limitation,
asbestos, petroleum, petroleum hydrocarbons and petroleum based products, urea
formaldehyde foam insulation, polychlorinated biphenyls, and freon and other
chlorofluorocarbons.
(b) Landlord hereby represents and warrants to Tenant that Landlord has
no knowledge, nor has Landlord received written notice from any Governmental
Authority since Landlord acquired the Project, of any existing or threatened
violation of any Environmental Law relating to the Premises.
(c) In no event will Tenant have any liability or obligation under this
Lease or with respect to the Premises for Hazardous Materials existing in, on,
under or about the Premises on the Commencement Date or any violation of
Environmental Laws prior to or existing on the Commencement Date.
(d) The provisions of this Section 6.5 will survive the expiration or
earlier termination of this Lease.
6.6 Cleaning, Refuse and Sewage. Tenant agrees not to keep any trash, garbage,
waste or other refuse at the Premises and/or the Project except in sanitary
containers and agrees to regularly and frequently clean the Premises and remove
any and all trash, garbage, waste or refuse from the Premises. Tenant shall keep
all containers or other equipment used for storage of such materials in a clean
and sanitary condition. Tenant shall, at Tenant's sole cost and expense,
properly dispose of all trash, garbage, waste and refuse and shall not use the
existing sewage disposal system for the disposal of anything except sanitary
sewage. Tenant shall contract directly for all trash disposal services at
Tenant's sole cost and expense. Tenant expressly acknowledges that pursuant to
the terms of this Lease, Landlord shall provide no cleaning or trash removal
services.
6.7 Landlord's Rights Regarding the Building and the Project. So long as such
construction does not (i) materially and adversely affect Tenant's use and
occupancy of the Premises or Tenant's use of the Satellite Dish Area, the
Generator Pad, the Telecommunications Cabling Area (as the same may be relocated
pursuant to the Exhibit G attached hereto) or any facilities of Tenant using,
constituting or dependent upon any portion of the Building not included within
the Premises or any Common Areas, as specified in this Lease, (ii) materially
and adversely affect Tenant's use of the Exclusive Parking Area, to the extent
of Tenant's right therein under this Lease, the Common Parking Area, (iii)
prevent Tenant's access to the Premises, or (iv) otherwise materially and
adversely diminish Tenant's rights under this Lease, Landlord shall have the
right, from time to time:
(a) to make changes to and/or to reconfigure the Building or the Project
and the Common Areas, including, without limitation, changes in the location,
size, shape, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, restrooms, driveways, entrances,
parking spaces, parking areas, loading and unloading areas, ingress, egress,
direction of traffic, decorative walls, landscaped areas and walkways;
(b) to temporarily close or deny access to any part of the Common Areas
for maintenance purposes or for safety reasons;
(c) to designate other land and improvements outside, but contiguous to,
the boundaries of the Building or the Project to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Building or the Project;
(d) to add additional buildings, improvements and leasable areas to the
Project and/or the Common Areas; and
(e) to temporarily close a portion of Common Areas to such extent
reasonably necessary, in the opinion of Landlord's counsel, to prevent a
dedication thereof or the acquisition of any rights therein by any person or by
the public.
In connection with any changes or reconfigurations described in Section 6.7(a)
above, Landlord shall use commercially reasonable efforts to minimize the
disruption caused to Tenant's use and occupancy of the Premises and its business
conducted in the Premises.
8
6.8 Parking.
(a) Tenant and any Permitted Transferee and its and such Permitted
Transferee's officers (if any), employees, licensees and visitors may use the
uncovered parking area identified on the Exhibit B-1 attached hereto (such
-----------
uncovered parking area is herein called the "Common Parking Area") for temporary
-------------------
parking of their motor vehicles. Such use will begin on the Premises Delivery
Date and shall be (i) in common with other tenants of the Project and such
tenants' officers, employees, licensees and visitors, and (ii) subject to such
reasonable rules, regulations and restrictions as from time to time may be
imposed by Landlord in connection therewith including, without limitation, the
right of Landlord to (I) designate, except with respect to the Visitor Parking
Area (as defined in Section 6.8(b) below) and the Exclusive Parking Area (as
defined in Section 6.8(b) below), a particular area or areas within the Common
Parking Area to be used for such parking, and (2) reserve parking spaces in the
Common Parking Area (other than any parking spaces located in the Visitor
Parking Area or the Exclusive Parking Area) for the exclusive use of other
tenants of the Project and such tenants' officers, employees, licensees and/or
visitors. Tenant will furnish Landlord upon request a complete list of license
numbers of all automobiles operated by Tenant, its employees or licensees and
using the Common Parking Area on a regular basis. Neither Landlord nor any
parking operator shall have any liability or responsibility to Tenant or any
party parking in the Common Parking Area, the Exclusive Parking Area and/or the
Visitor Parking Area for any loss or damage that may be occasioned by or may
arise out of such parking, including, but not limited to, loss of property or
damage or injury to person or property from any cause whatsoever, and Tenant
hereby waives any and all claims of any kind or nature against Landlord by
reason of occurrences in the Common Parking Area, the Exclusive Parking Area,
the Visitor Parking Area and the driveway exits and entrances thereto unless
caused by the gross negligence or willful misconduct of Landlord.
(b) Parking in the Common Parking Area will be allocated by Landlord to
Tenant on a first come - first served basis in an amount equal to two (2) non-
reserved, non-exclusive and non-covered space per one thousand (1,000) rentable
square feet of the Premises (the "Initial Parking Ratio"). Initially, therefore,
Landlord will allocate to Tenant sixty-eight (68) uncovered parking spaces (the
"Initially Allocated Parking Spaces") in the Common Parking Area. There will be
no charge during the Term for the Initially Allocated Parking Spaces. At such
time as the net rentable square footage of the Premises increases or decreases,
the number of Initially Allocated Parking Spaces shall be increased or
decreased, as applicable, based on the Initial Parking Ratio. Subject to the
allocation provided above, all parking is subject to space availability and
Landlord shall designate the location of all reserved parking spaces.
Notwithstanding anything to the contrary contained in this Lease, Tenant and any
Permitted Transferee and its and such Permitted Transferee's visitors shall have
the right to use the twenty-four (24) uncovered parking spaces located within
the portion of the Common Parking Area (the "Visitor Parking Area") identified
on the Exhibit B-2 attached hereto as the "Visitor Parking Area" for temporary
-----------
parking of their motor vehicles. The parking rights in the immediately preceding
sentence shall be in common with visitors of other tenants of the Project but
shall be exclusive to the visitors of Tenant and such other tenants of the
Project. Additionally, Tenant and its officers and employees shall have the
exclusive right to use the parking spaces located within the area (the
"Exclusive Parking Area") identified on Exhibit B-2 as the "Exclusive Parking
-----------
Area" for temporary parking of their motor vehicles.
6.9 Abandonment. Except following a Permitted Transfer (as hereinafter
-----------
defined), if Tenant (or any Transferee or Permitted Transferee) shall, after the
Commencement Date, abandon (as hereinafter defined) or fail to occupy all of the
Premises for a period of six (6) consecutive months, Landlord may, at its
option, terminate this Lease with respect to all of the Premises to the extent
the same has been abandoned (as hereinafter defined) or is no longer occupied.
Such termination of this Lease shall be done by delivering written notice of
such termination to Tenant prior to the end of any such abandonment (as
hereinafter defined) or failure to occupy the Premises, and such written notice
of termination shall specify the date or dates on which such termination shall
be effective. As used in this Lease, the term "Permitted Transfer" shall mean
either (1) a Transfer (as defined in Section 14.2 below) after Tenant's receipt
of Landlord's prior written consent thereto, or (2) a Permitted Transfer Without
Landlord Consent (as defined in Section 14.6 below), and the term "Permitted
Transferee" shall mean any assignee or sublessee in connection with a Permitted
Transfer. Landlord may re-enter the Premises for purposes of marketing the same
and making the same ready for a new tenant at any time after abandonment or
failure to occupy, but Landlord shall in no event be deemed to have terminated
this Lease by taking any such actions. If Tenant (or any Transferee or Permitted
Transferee) shall (a) after the Commencement Date, abandon or fail to occupy the
entire Premises for a period of six (6) consecutive months, (b) surrender
(whether at the end of the Term or otherwise) the entire Premises, or (c) be
dispossessed by process of law, or otherwise, of all of the Premises, then any
personal property belonging to Tenant and left in the Premises shall, at
Landlord's option, be deemed abandoned. Such personal property may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such
property. As used in this Lease, the terms "abandon," "abandoned" and
"abandonment" shall mean to conduct, during the normal business hours of the
Building, Tenant's activities within the
9
Premises such that the Premises is not being occupied by at least one (1) person
during such business hours. In addition, Tenant shall be deemed to have
abandoned one or more portion(s) of the Premises in the event that more than
ninety percent (90%) of Tenant's furniture, fixtures and/or equipment within the
Premises is removed by or on behalf of Tenant prior to the expiration or earlier
termination of this Lease. The provisions of this Section 6.9 shall survive the
expiration or earlier termination of this Lease.
7. Payments and Notices.
--------------------
7.1 Payments. All Rent and other sums payable by Tenant to Landlord hereunder
shall be paid in lawful money of
the United States of America, at c/o Provident Realty Advisors, Inc., 00000 X.
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, or to such other persons and/or at such other places as Landlord may
hereafter designate by notice to Tenant.
7.2 Notices. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by nationally
recognized overnight courier or express mailing service) or by registered or
certified mail, postage prepaid, return receipt requested, addressed to Tenant
at each of the addresses designated in Section 1.2 of the Summary, or to
Landlord at each of the addresses designated in Section 1.1 of the Summary.
Either party may, by written notice to the other, specify a different address or
addresses for notice purposes. Notices shall be deemed received (a) on the date
of delivery, with respect to personal deliveries made prior to 5:00 p.m. Central
Time, (b) the next business day, with respect to personal deliveries made after
5:00 p.m. Central Time and overnight courier or express mailing service
deliveries or (c) three (3) business days after delivery to the postal
authorities, with respect to registered or certified mail. Notwithstanding
anything to the contrary herein, payments of Rent and additional rent shall be
deemed given when actually received by Landlord.
8. Brokers.
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Each party represents and warrants to the other, that other than The Dupont
Group (Xxxxx Xxxxxx) and Node Com, Inc. (Xxx Suppers) (collectively, the
"Brokers") and Liberty Greenfield, LLP and Xxxx Xxxxxx & Associates
(collectively, the "Prior Brokers"), no broker, agent or finder (a) negotiated
or was instrumental in negotiating or consummating this Lease on its behalf, and
(b) is or might be entitled to a commission or compensation in connection with
this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to
disclose herein shall be paid by Tenant. Tenant shall indemnify, protect, defend
(by counsel reasonably approved in writing by Landlord) and hold Landlord
harmless from and against any and all claims, damages, judgments, suits, causes
of action, losses, liabilities, penalties, fines, expenses and costs (including,
without limitation, sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees and court costs) (collectively, "Claims")
resulting from any and all claims or demands made upon Landlord for any
commissions, fees or other compensation by any broker, agent or salesman (other
than the Brokers but including, without limitation, the Prior Brokers) in
connection with this Lease claiming by or through Tenant. Landlord shall
indemnify, protect, defend (by counsel reasonably approved in writing by Tenant)
and hold Tenant harmless from and against any and all Claims resulting from any
and all claims or demands made upon Tenant for any commissions, fees or other
compensation by any broker, agent or salesman (including, without limitation,
the Brokers but excluding the Prior Brokers) in connection with this Lease
claiming by or through Landlord. The foregoing indemnities shall survive the
expiration or earlier termination of this Lease. Landlord shall pay each of the
Brokers pursuant to a separate written agreement with each of them.
9. Surrender; Holding Over.
-----------------------
9.1 Surrender of Premises. Upon the expiration or sooner termination of this
Lease or any proper termination of Tenant's right to possess the Premises,
Tenant shall surrender all keys for the Premises to Landlord, and Tenant shall
deliver exclusive possession of the Premises to Landlord broom clean and in the
same condition and repair, reasonable wear and tear and damage due to fire or
other casualty excepted, as delivered to Tenant by Landlord on the Commencement
Date with all of Tenant's personal property (and those items, if any, of Tenant
Changes identified by Landlord pursuant to Section 12.2 below) removed therefrom
and all damage caused by such removal repaired, as required pursuant to Sections
12.2 and 12.3 below. If, for any reason, Tenant fails to surrender the Premises
on the expiration or earlier termination of this Lease, with such removal and
repair obligations completed, then, in addition to Landlord's rights and
remedies under Section 12.4 and the other provisions of this Lease, Tenant shall
indemnify, protect, defend (by counsel reasonably approved in writing by
Landlord) and hold Landlord harmless from and against any and all Claims
resulting from such failure to surrender, including, without limitation, any
Claims made by any succeeding tenant based thereon.
10
9.2 Holding Over. If Tenant holds over after the expiration or earlier
termination of the Term or after any termination of Tenant's right to possess
the Premises, then, without waiver of any right on the part of Landlord as a
result of Tenant's failure to timely surrender possession of the Premises to
Landlord, Tenant shall become a tenant at sufferance only, upon the terms and
conditions set forth in this Lease so far as applicable (including Tenant's
obligation to pay all costs, expenses and any other additional rent under this
Lease), but at a monthly Rent equal to one hundred twenty-five percent (125%) of
the greater of (x) the monthly Rent applicable to the Premises immediately prior
to the date of such expiration or earlier termination, increased as provided
below, or (y) the monthly fair market rental value of the Premises upon the
expiration or earlier termination of the Term, as reasonably determined by
Landlord. For the purposes of the immediately preceding sentence, the monthly
Rent referred to in subpart (x) shall be increased by a percentage equal to the
percentage increase, if any, in the Consumer Price Index (as defined in Section
9.3 below) published for the month immediately preceding the month in which such
expiration or termination of this Lease occurs, as compared to the Consumer
Price Index published for the month immediately preceding the most recent month
in which the Annual Rent payable hereunder was increased as provided in Section
1.6 of the Summary or during any Option Period; provided, however, in no event
shall such percentage increase exceed three and one-half percent per year.
Acceptance by Landlord of rent after any expiration or earlier termination of
this Lease shall not constitute a consent to a hold over hereunder or result in
an extension of this Lease. Tenant shall pay an entire month's monthly Rent
calculated in accordance with this Section 9.2 for any portion of a month it
holds over and remains in possession of the Premises pursuant to this
Section 9.2.
9.3 Consumer Price Index. As used in this Lease, the term "Consumer Price
Index" shall mean the Revised Consumer Price Index for All Urban Consumers, U.S.
City Average, "All Items" index (1982-1984 = 100) published by the Bureau of
Labor Statistics, United States Department of Labor (the "Bureau"). If the
Consumer Price Index is converted to a different standard reference base or
otherwise revised, the determination of the holdover rent due pursuant to
Section 9.2 above shall be made with the use of such conversion factor, formula,
or table for converting the Consumer Price Index as may be published by the
Bureau or, if the Bureau does not publish same, then with the use of such
conversion factor, formula, or table as is published by any nationally
recognized publisher of similar statistical information. If the Consumer Price
Index ceases to be published, then Landlord may substitute for the Consumer
Price Index any independently published index of similar type.
10. Taxes.
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10.1 Rent Taxes. In addition to the payment required to be made by Tenant under
Article 4 hereof, Tenant agrees to pay all other general and special taxes,
assessments (including, without limitation, real estate taxes and assessments),
liens, bond obligations, license fees or taxes, water and sewer rents and
charges, utilities and communications taxes and charges, any similar impositions
in-lieu of other impositions now or previously within the definition of real
property taxes or assessments, all other government charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, which are, at any
time, prior to or during the Term, imposed upon or assessed against (a) any Rent
or other sum payable hereunder, (b) this Lease, the leasehold estate created
hereby, or (c) the ownership, operation, occupancy, leasing, use or possession
of the Premises (including, without limitation, any gross receipts tax, gross
rental tax, sales tax, use tax or excise tax) and any and all assessments under
any covenants, conditions and restrictions affecting the Premises (collectively
"Rent Taxes") which may be now or hereafter levied or assessed against the
Premises or the Project (as the case may be), applicable to the period from the
Commencement Date until the expiration or sooner termination of this Lease.
Notwithstanding the foregoing, there shall be excluded from Rent Taxes all
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal, state and local income
taxes, change in ownership taxes or assessments and other taxes to the extent
applicable to Landlord's general or net income (as opposed to rents, receipts,
sales, excise, use or income attributable to operations at the Premises).
Notwithstanding anything to the contrary contained herein, in no event shall the
following constitute Rent Taxes: special assessments that have been made based
solely on capital improvements made by or on behalf of Landlord to the Project.
If at any time during the Term under the laws of the United States, or the
state, county, municipality, or any political subdivision thereof in which the
Premises is located, a tax or excise on rent or any other tax however described
is levied or assessed by any such political body against Landlord on account of
rent payable to Landlord hereunder or any tax based on or measured by
expenditures made by Tenant on behalf of Landlord, such tax or excise shall be
considered "Rent Taxes" for purposes of this Section 10.1, and shall be payable
in full by Tenant. Such taxes or excises shall be payable within thirty (30)
days after Tenant's receipt of the tax xxxx therefor from Landlord.
10.2 Personal Property Taxes. Tenant shall be liable for, and shall pay before
delinquency, all taxes and assessments, real and personal (but only to the
extent not included in Project Expenses or Rent Taxes), levied against (a) any
personal property or trade fixtures placed by Tenant in or about the Premises
(including any increase in the assessed value of the
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Premises based upon the value of any such personal property or trade fixtures);
and (b) any tenant improvements or alterations (including Tenant Changes) in or
about the Premises and/or the Building (whether installed and/or paid for by
Landlord or Tenant). If any such taxes or assessments are levied against
Landlord or Landlord's property, Landlord may, after written notice to Tenant
(and under proper protest if requested by Tenant) pay such taxes and
assessments, and Tenant shall reimburse Landlord therefor within thirty (30)
days after demand by Landlord; provided, however, Tenant, at its sole cost and
expense, shall have the right, with Landlord's cooperation, to bring suit in any
court of competent jurisdiction to recover the amount of any such taxes and
assessments so paid under protest.
11. Repairs.
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11.1 Landlord's Repair Rights and Obligations.
(a) If Tenant fails to promptly perform Tenant's obligations under Section
11.2 below, or under any other provision of this Lease, then Landlord shall have
the option (but not the obligation) to enter upon the Premises after ten (10)
days' prior written notice to Tenant, or in the case of an emergency immediately
without prior notice, to perform such obligations on Tenant's behalf necessary
to return the Premises to good order, condition and repair, whereupon the costs
incurred by Landlord shall become due and payable to Landlord, upon demand,
together with a fee of ten percent (10%) of the costs of such work for
Landlord's managing agent.
(b) Unless due to the acts or omissions of Tenant, its contractors, agents,
employees or invitees, and unless Tenant is otherwise expressly obligated under
the terms and conditions of this Lease, provided Tenant is not in default
hereunder beyond the expiration of any applicable grace period, Landlord, at its
sole cost and expense, subject to reimbursement in accordance with Section 4 of
this Lease, shall maintain and repair (i) the Project (excluding, however, those
portions of the Premises and/or Building to be maintained by Tenant as provided
in Section 11.2 below), (ii) the foundation, the roof (excluding, however, any
portions of the roof actually used by Tenant within the Satellite Dish Area) and
the structural walls of the Building (the "Base Building Components"), (iii) the
Common Areas, (iv) the Common Parking Area, the Exclusive Parking Area and the
Visitor Parking Area, and (v) the water and sewer systems of the Building.
Except as provided in Section 18.1 below, there shall be no abatement of Rent or
liability of Tenant on account of any injury or interference with Tenant's
business with respect to any improvements, alterations or repairs made by
Landlord to the Project or any part thereof. Tenant expressly waives the
benefits of any statute now or hereafter in effect which would otherwise afford
Tenant the right to make repairs at Landlord's expense or to terminate this
Lease because of Landlord's failure to repair or maintain the Project, any Base
Building Components, the Common Areas, the Common Parking Area, the Exclusive
Parking Area or the Visitor Parking Area.
11.2 Tenant's Repair Obligations. Except to the extent of the Landlord's
obligations under, and as otherwise provided in, Sections 18 and 19 of this
Lease, Tenant shall at all times and at Tenant's sole cost and expense keep the
Premises, the Generator Pad, the Satellite Dish Area and the Telecommunications
Cabling Area and all parts thereof and all improvements thereon (including,
without limitation, utility meters, plumbing, pipes and conduits located within
and serving the Premises, all heating, ventilating and air conditioning systems
located within or serving the Premises, all fixtures, furniture and equipment,
locks, closing devices, security devices, windows, window sashes, casements and
frames, floors and floor coverings, shelving, restrooms, ceilings, interior
walls, roof, skylights, interior and demising walls, doors, electrical and
lighting equipment, sprinkler systems, loading dock areas and doors, signs and
all other improvements [including any Tenant Changes or other alterations,
additions and other property and/or fixtures located within the Premises but
excluding any property located under or within the Telecommunications Cabling
Area not owned by Tenant]) in good condition and repair, reasonable wear and
tear and damage due to fire or other casualty excepted. Such maintenance and
repairs shall be performed with due diligence, lien-free and in a good and
workmanlike manner.
11.3 AS-IS.
(a) Tenant acknowledges and agrees that, except to the extent specifically
set forth in this Lease, Landlord has not made, does not make and specifically
negates and disclaims any representations, warranties, promises, covenants,
agreements or guarantees, express or implied, of any kind or character
whatsoever concerning or with respect to (i) the value, nature, quality or
condition (including, without limitation, the environmental condition) of the
Premises; (ii) the suitability of the Premises for any and all activities and
uses which Tenant may conduct thereon; (iii) the compliance of the Premises with
any Laws; (iv) the habitability, merchantability, marketability, profitability
or fitness for a particular purpose of the Premises; (v) the manner or quality
of the construction or materials incorporated into the Premises; (vi) the
manner, quality, state of repair or lack of repair of the Premises; (vii) the
lawfulness, either now or in the future, of the use of the Premises for the
Permitted Use set forth in Section 1.8 of the Summary; or (viii) any other
matter with respect to the
12
Premises, it being agreed that all risks incident to all of these matters are to
be borne by Tenant. Tenant further acknowledges and agrees that Tenant has
inspected the Premises and Tenant has relied and shall rely solely on its own
investigation of the Premises and not on any information provided or to be
provided by Landlord. Tenant further acknowledges and agrees that any
information provided or to be provided by or on behalf of Landlord with respect
to the Premises, was obtained from a variety of sources and that Landlord has
not made any independent investigation or verification of such information and
makes no representations as to the accuracy or completeness of such information.
Tenant further acknowledges and agrees that, except to the extent specifically
set forth in this Lease, the leasing of the Premises as provided for herein is
made on an "AS-IS" condition and basis with all faults. In the event of any
defect or deficiency in any nature in the Premises, whether patent or latent,
Landlord shall have no responsibility or liability with respect thereto (except
as otherwise expressly provided in this Lease) or for any incidental or
consequential damages arising therefrom. Subject to Landlord's indemnity of
Tenant in Section 17.2(b) below, Tenant and anyone claiming by, through or under
Tenant hereby fully and irrevocably releases Landlord and the Landlord
Indemnified Parties from any and all damage to property and injury to persons
and all other Claims that it may now have or hereafter acquire against them
arising from or related to any construction defects, errors, omissions or other
conditions now or hereafter affecting the Premises, including, but not limited
to, environmental matters and Hazardous Materials, except to the extent that
Landlord has, pursuant to the terms of this Lease, expressly assumed an
obligation with respect to such conditions (including, without limitation,
Landlord's obligations in Sections 11.1(b), 18 and 19). This release includes
claims of which Tenant is presently unaware or which Tenant does not presently
suspect to exist in its favor which, if known by Tenant, would materially affect
Tenant's release of Landlord and the Landlord Indemnified Parties.
(b) Landlord represents and warrants that, to Landlord's knowledge, the
Base Building Components have been constructed in a good and workmanlike manner,
and that none of the same has been constructed in contravention of any
applicable Laws (including, without limitation, any Environmental Laws and/or
the ADA or other Disability Laws).
12. Alterations.
-----------
12.1 Tenant Changes; Conditions.
(a) Tenant shall not make any alterations, additions or improvements to the
Premises (collectively, "Tenant Changes," and individually, a "Tenant Change")
unless Tenant first obtains Landlord's prior written approval thereof, which
approval Landlord shall not unreasonably withhold or delay; provided, however,
Landlord may withhold its consent, in its sole and absolute discretion with
respect to any such alterations, additions, improvements or decorations to or
affecting (i) the Base Building Components or any other structural components,
and/or utilities or systems of or serving the Premises or any portion thereof,
or (ii) any Common Areas. Landlord shall approve or disapprove of any Tenant
Change requiring Landlord's written consent thereto prior to the construction
thereof within ten (10) business days after Landlord's receipt of the last
of(A)Tenant's written request for Landlord's approval to a Tenant Change and the
plans, specifications and working drawings related to such Tenant Change, and
(B) such other information related to such Tenant Change as Landlord may
reasonably require in connection therewith after its receipt of the materials
identified in subpart (A). If Landlord fails to approve or disapprove of any
Tenant Change within the ten (10) business day period identified in the
immediately preceding sentence, and Landlord thereafter fails to approve or
disapprove of such Tenant Change within ten (10) business days after its receipt
of written notice of its failure to approve or disapprove of such Tenant Change
within such ten (10) business day period, Landlord shall be deemed to have
approved the applicable Tenant Change. If a Tenant Change (1) does not affect
(y) the Base Building Components or any other structural components, and (z)
utilities or systems of or serving the Premises or any portion thereof, and (2)
will cost less than $10,000.00, Tenant shall have the right to make such Tenant
Change without first obtaining Landlord's written approval thereof and without
the payment of any fee to Landlord in connection therewith provided that (aa)
Tenant provides Landlord with a written notice describing in reasonable detail
such Tenant Change, and (bb) on the date of Landlord's receipt of such written
notice no Event of Default has occurred and is continuing or any event which
with the giving of notice or the passage of time, or both, would constitute an
Event of Default. The preceding sentence shall not excuse Tenant from performing
such Tenant Change in accordance with the requirements set forth in Sections
12.1(b) and 12.1(c) below and all other applicable provisions of this Lease.
(b) All Tenant Changes shall be performed: (i) in accordance with plans,
specifications and working drawings approved by Landlord; (ii) lien-free and in
a good and workmanlike manner; (iii) in compliance with all Laws, including,
without limitation, the provisions of Title III of the ADA and all other
Disability Laws (as hereinafter defined); (iv) subject to such reasonable rules
and regulations as Landlord may from time to time designate, but in no event
shall Landlord be entitled to receive more than $250.00 as a fee for Landlord's
approval of the plans, specifications and/or working drawings relating to the
applicable Tenant Changes; and (v) in compliance with the requirements of any
insurance
13
policy required to be maintained by Tenant under this Lease. Tenant shall
promptly pay when due all costs and expenses of any Tenant Changes. Tenant
Changes may be performed by a general contractor, construction manager,
subcontractors, architects and engineers of Tenant's choice, subject to
Landlord's approval, which will not be unreasonably withheld or delayed. As used
in this Lease, the term "Disability Laws" shall mean the provisions of (A) Tex.
Rev. Civ. Stat. Xxx. art. 9102, as amended, (B) the ADA, as amended, and (C) any
other similar public accommodation Laws.
(c) Throughout the performance of the Tenant Changes, Tenant shall obtain,
or cause its contractors to obtain, workers compensation insurance and
commercial general liability insurance in compliance with the provisions of
Section 20 of this Lease.
12.2 Removal of Tenant Changes. All Tenant Changes shall become the property of
Landlord and shall remain upon and be surrendered with the Premises at the end
of the Term; provided, however, Landlord may, by written notice delivered to
Tenant at any time prior to the expiration or sooner termination of this Lease,
identify those items of the Tenant Changes which Landlord shall require Tenant
to remove at the end of the Term. In no event shall Tenant be required to remove
any of the improvements existing in the Building as of the date possession
thereof is delivered to Tenant. Additionally, Tenant shall only be required to
remove such Landlord approved Tenant Changes that, after (y) Landlord has
received Tenant's written request for Landlord's approval of such Tenant
Changes, and (z) Landlord has received sufficient information regarding the same
to enable Landlord to determine whether such Tenant Changes should remain in the
Premises or be removed by Tenant upon the expiration or earlier termination of
this Lease, Landlord has identified in a written notice to Tenant, given within
fifteen (15) days after the later of the date of Landlord's receipt of Tenant's
written request for Landlord's approval or the date of Landlord's receipt of the
information required by this sentence, which states that Landlord will require
that Tenant remove the identified Tenant Changes at the expiration or earlier
termination of this Lease. If Landlord requires Tenant to remove any such Tenant
Changes as described above, Tenant shall, at its sole cost, remove the
identified Tenant Changes on or before the expiration or sooner termination of
this Lease and repair any damage to the Premises caused by such removal (or, at
Landlord's option, shall pay to Landlord all of Landlord's costs of such removal
and repair).
12.3 Removal of Personal Property. All articles of personal property owned by
Tenant or installed by Tenant at its expense on the Premises, including, without
limitation, computer and telecommunications equipment, Switch Gear, Generator,
Uninterruptible Power Supply, AC Power Distribution System, HVAC Chiller Plant,
HVAC Stand Alone Units, Facility Monitoring Systems and Fire Suppression
systems, business and trade fixtures, furniture and movable partitions
(collectively, "Tenant's Property") shall be, and remain, the property of
Tenant, together with all personal property owned by Tenant's customers at any
time located on the Premises ("Tenant's Customer's Property") and shall be
removed by Tenant from the Premises, at Tenant's sole cost and expense, on or
before the expiration or sooner termination of this Lease or any termination of
Tenant's right to possess the Premises. Tenant shall repair any damage caused by
such removal.
12.4 Tenant's Failure to Remove. If, prior to the date of the expiration or
sooner termination of this Lease or any termination of Tenant's right to possess
the Premises, Tenant fails to remove all of Tenant's Property and Tenant's
Customer's Property, or any items of Tenant Changes identified by Landlord for
removal pursuant to Section 12.2 above, Landlord may, (without liability to
Tenant for loss thereof), at Tenant's sole cost and in addition to Landlord's
other rights and remedies under this Lease, at law or in equity: (a) remove and
store such items in accordance with applicable Laws; and/or (b) upon ten (10)
days' prior notice to Tenant sell all or any such items at private or public
sale for such price as Landlord may obtain as permitted under applicable Laws.
Landlord shall apply the proceeds of any such sale to any amounts due to
Landlord under this Lease from Tenant (including Landlord's attorneys' fees and
other costs incurred in the removal, storage and/or sale of such items), with
any remainder to be paid to Tenant.
13. Liens.
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Tenant shall not permit any mechanic's, materialmen's or other liens to be
filed against all or any part of the Premises, nor against Tenant's leasehold
interest in the Premises, by reason of or in connection with any repairs,
alterations, improvements or other work contracted for or undertaken by Tenant
or any other act or omission of Tenant or Tenant's agents, employees,
contractors, licensees or invitees. Tenant shall, at Landlord's request, provide
Landlord with enforceable, conditional and final lien releases (and other
reasonable evidence reasonably requested by Landlord to demonstrate protection
from liens) from all persons furnishing labor and/or materials with respect to
the Premises. Landlord shall have the right at all reasonable times to post on
the Premises and record any notices of non-responsibility which it deems
necessary for protection from such liens. If any such liens are filed, Tenant
shall, at its sole cost, within twenty (20) days after receipt of notice of the
filing thereof, cause each such lien to be released of record or bonded so that
it no longer affects title to the Premises. If Tenant fails to cause such lien
to be so released or bonded within such twenty
14
(20) day period, Landlord may, without waiving its rights and remedies based on
such breach, and without releasing Tenant from any of its obligations, cause
such lien to be released by any means it shall deem proper, including payment in
satisfaction of the claim giving rise to such lien. Tenant shall pay to Landlord
within ten (10) business days after receipt of invoice from Landlord, any sum
paid by Landlord to remove such liens, together with interest at the Default
Interest Rate from the date of such payment by Landlord.
14. Assignment and Subletting.
-------------------------
14.1 Restriction on Transfer. Tenant shall not assign or encumber this Lease in
whole or in part, nor sublet all or any part of the Premises, without the prior
written consent of Landlord, which consent will not be unreasonably withheld or
conditioned. The consent by Landlord to any assignment, encumbrance or
subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment, encumbrance or subletting. This prohibition against
assigning or subletting shall be construed to include a prohibition against any
assignment or subletting by operation of law. Without limiting in any way
Landlord's right to withhold its consent on any reasonable grounds, it is agreed
that Landlord will not be acting unreasonably in refusing to consent to an
assignment or sublease if, in Landlord's opinion, (a) the proposed assignment or
sublease involves a change of use of the Premises from that specified herein,
(b) the proposed assignee or subtenant is not, in Landlord's reasonable opinion,
of reputable or good character or does not have a financial strength equal to a
tenant to whom Landlord would lease space in the Project, (c) a Mortgagee (as
defined in Section 18.1 below) or Ground Lessor (as defined in Section 18.1
below) does not approve such assignment or sublease after being requested to
approve the same, (d) there shall have been any advertisement relating to the
proposed assignment or subletting which mentions or refers to a rental rate
unless such advertisement has been approved in writing in advance by Landlord,
or (e) in the case of a subletting, the subletting shall not be expressly
subject to all of the provisions of this Lease and the obligations of Tenant
hereunder (other than Tenant's obligation to pay Rent and any other obligations
under this Lease that are in no way applicable to the proposed subleased
premises) and shall not further provide that if Landlord shall recover or come
into possession of the Premises before the expiration of this Lease, Landlord
shall have the right to take over the sublease and to have it become a direct
lease with Landlord, in which case Landlord shall succeed to all of the rights
of Tenant, as sublessor, thereunder and that in such case subtenant shall be
bound to Landlord for the balance of the term of the Sublease and shall attom to
and recognize Landlord as its landlord under the sublease under all of the then
executory terms of the sublease, except that Landlord will not (i) be liable for
any previous acts or omissions of Tenant, as sublessor, (ii) be subject to any
claims of subtenant not expressly set forth in the sublease, (iii) be bound by
any modification of the sublease for which Landlord shall have not expressly
consented, or (iv) be obligated to perform any repairs or other work beyond
Landlord's obligations under this Lease. Tenant acknowledges and agrees (again
without in any way limiting Landlord's right to withhold its consent on
reasonable grounds) that Landlord may also withhold its consent to a Transfer
based on any one or more of the following: (1) Tenant's failure to satisfy its
obligations in Section 14.2; (2) at the time thereof an Event of Default (as
defined in Section 22.1 below) has occurred and is continuing or an event has
occurred and is continuing which with the giving of notice or the passage of
time, or both, would constitute an Event of Default; (3) the portion(s) of the
Premises subject to the proposed Transfer will, in Landlord's sole discretion
reasonably exercised, cause the Premises to be excessively and/or unacceptably
"chopped-up"; (4) a lessor under any ground or underlying lease covering the
Project or any portion thereof has not approved the proposed Transfer and
Landlord has requested that such lessor approve the same; (5) the fact that the
Proposed Transferee is a governmental entity; (6) the Proposed Transferee's
primary business is prohibited by a non-compete or similar provision of another
lease of space at the Project; (7) the Proposed Transferee is a competitor of
Landlord; (8) the Proposed Transferee is then, or has within twelve months
immediately preceding Tenant's written request for Landlord's consent to such
Transfer been, a person or entity with whom Landlord is dealing or has dealt
regarding the possibility of leasing space in the Project and Landlord then has
space Available For Rent (as defined in Section 14.5 below) in the Project that
is Comparable in Size (as defined in Section 14.5 below) to the Premises or the
applicable portion thereof to be sublet; or (9) the fact that the instrument
effecting the proposed Transfer is not in form and content reasonably
satisfactory to Landlord.
14.2 Transfer Notice. If Tenant desires to effect an assignment, encumbrance or
subletting (a "Transfer"), then at least thirty (30) days prior to the date when
Tenant desires the Transfer to be effective (the "Transfer Date"), Tenant agrees
to give Landlord a notice (the "Transfer Notice"), stating the name, address and
business of the proposed assignee, sublessee or other transferee (sometimes
referred to as a "Proposed Transferee"), reasonable information (including
references) concerning the character, ownership, and financial condition of the
Proposed Transferee, the Transfer Date, any ownership or commercial relationship
between Tenant and the Proposed Transferee, and the consideration and all other
material terms and conditions of the proposed Transfer, all in such detail as
Landlord may reasonably require, together with copies of the Proposed Transfer
documentation and the following information about the Proposed Transferee: (1)
such Proposed Transferee's proposed use of the Premises; (2) banking, financial,
and other credit information (including, without limitation, a current balance
sheet and income statement of the Proposed Transferee); and (3) such other
15
information as Landlord may reasonably request in writing within ten (10) days
after its receipt of the Transfer Notice and the information described in
clauses (1) and (2) of this Section 14.2. If Tenant effects a Transfer or
requests the consent of Landlord to any Transfer (whether or not such Transfer
is consummated), then, upon demand, and as a condition precedent to Landlord's
consideration of the proposed assignment or sublease, Tenant shall (a) pay to
Landlord a $500.00 administrative fee to compensate Landlord for evaluating
Tenant's request for consent to a Transfer, and (b) reimburse Landlord for its
attorneys' fees and other expenses incurred in connection with considering any
request for its consent to a Transfer.
14.3 Landlord's Options. Within twenty (20) days of Landlord's receipt of any
Transfer Notice and all of the information and materials required by the first
sentence in Section 14.2 above (including, without limitation, any and all
additional information requested by Landlord concerning the proposed
Transferee's financial responsibility), Landlord will notify Tenant of its
election to do one of the following: (a) consent to the proposed Transfer
subject to such reasonable conditions as Landlord may impose in providing such
consent; (b) refuse such consent, which refusal shall be on reasonable grounds,
subject to the terms herein, or (c) terminate this Lease (or, as to a partial
subletting or assignment, terminate this Lease as to the portion of the Premises
proposed to be sublet or assigned if the term of any such sublease or partial
assignment is co-terminous with the remaining term of this Lease), effective as
of the effective date of the Transfer Date. If Landlord terminates this Lease as
to any portion of the Premises and Tenant does not rescind in writing its
request for Landlord's consent to the applicable Transfer within ten (10)
business days after its receipt of written notice of such termination, then (i)
this Lease shall cease for such portion of the Premises, (ii) Tenant shall pay
to Landlord all Rent accrued through the termination date relating to the
portion of the Premises covered by the proposed Transfer, and (iii) Landlord and
Tenant shall, within fifteen (15) days after Tenant's receipt of Landlord's
written notice of termination, enter into an agreement amending this Lease to
reflect such partial termination (including, without limitation, Tenant's
acknowledgment and agreement that Landlord may lease such portion of the
Premises to the prospective transferee [or to any other person] without
liability to Tenant).
14.4 Additional Conditions. A condition to Landlord's consent to any Transfer
of this Lease will be the delivery to Landlord of a true copy of the fully
executed instrument of assignment, sublease, transfer or hypothecation, in form
and substance reasonably satisfactory to Landlord, which instrument shall, in
the case of an assignment, include an express assumption by the assignee of all
of Tenant's obligations under this Lease. Except as otherwise provided in this
Section 14.4, Tenant agrees to pay to Landlord, as additional rent, all sums and
other consideration payable to and for the benefit of Tenant by the assignee or
sublessee in excess of the rent payable under this Lease for the same period and
portion of the Premises (100% of such excess is herein referred to as "Transfer
Profits"). No Transfer will release Tenant of Tenant's obligations under this
Lease or alter the primary liability of Tenant to pay the Rent and to perform
all other obligations to be performed by Tenant hereunder. Landlord may require
that any Transferee remit directly to Landlord on a monthly basis, all monies
due Tenant by said Transferee (less any portion of the applicable Transfer
Profits Tenant is then entitled to receive pursuant to this Section 14.4), and
each sublease shall provide that if Landlord gives said sublessee written notice
that Tenant is in default under this Lease, said sublessee will thereafter make
all payments due under the sublease directly to or as directed by Landlord,
which payments (excluding any portion thereof comprising Transfer Profits which
shall be retained by Landlord) will be credited against any payments due under
this Lease. Tenant hereby irrevocably and unconditionally assigns to Landlord
all rents and other sums payable under any sublease of the Premises; provided,
however, that Landlord hereby grants Tenant a license to collect all such rents
and other sums so long as no Event of Default has occurred and is continuing and
to retain 50% of such Transfer Profits until the date on which an Event of
Default has occurred, after which date Tenant shall have no right to retain any
such Transfer Profits. This covenant and assignment shall run with the land and
shall bind Tenant and Tenant's heirs, executors, administrators, personal
representatives, successors and assigns. Any assignee or purchaser of Tenant's
interest in this Lease or any sublessee of all or any portion of the Premises
(each such assignee, purchaser or sublessee is herein referred to as a
"Transferee"), by occupying the Premises or any portion(s) thereof and/or
assuming Tenant's obligations hereunder, shall assume liability to Landlord for
all amounts paid to persons other than Landlord by such Transferee in connection
with any such assignment or sale of Tenant's interest in this Lease or
subletting of all or any portion of the Premises. No collection or receipt of
Rent by Landlord shall be deemed a waiver on the part of Landlord, or the
acceptance of the assignee, subtenant or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained. Consent by Landlord to one Transfer will not be deemed consent
to any subsequent Transfer. In the event of default by any Transferee of Tenant
or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. Notwithstanding any contrary
provision of this Lease, if Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent to a proposed Transfer
or otherwise has breached its obligations under this Section 14, Tenant's and
such Transferee's only remedy shall be to submit such claim for resolution by
binding arbitration in accordance with the terms, conditions and provisions of
the Exhibit F attached to this Lease, and Tenant, on behalf of itself and, to
---------
the extent
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permitted by law, such proposed Transferee waives all other remedies against
Landlord, including without limitation, the right to seek monetary damages or to
terminate this Lease.
14.5 Definitions. For the purposes of this Lease, space in the Project shall be
considered "Available For Rent" if(A) the applicable space is not then leased by
a tenant and is not then subject to any expansion options, rights of first offer
or other options or rights of other tenants or other third parties (or is
subject to any of the foregoing, but the party owning the same has waived, been
deemed to have waived, or failed to timely exercise the same with respect to the
leasing of the applicable space by Landlord), or (B) if the applicable space is
then leased and the applicable tenant's lease expires, or shall terminate
effective as of a date which is, 4 months or less from the date on which it is
being determined whether the applicable space is Available For Rent and such
space is not then subject to any expansion options, rights of first offer or
other options or rights of other tenants or other third parties (or is subject
to any of the foregoing, but the party owning the same has waived, been deemed
to have waived, or failed to timely exercise the same with respect to the
leasing of the applicable space by Landlord), and space in the Project shall be
considered "Comparable in Size" if it is between 75% and 125% of the amount of
net rentable square feet of space being compared to such space (by way of
example only, if Tenant is proposing to sublease 10,000 net rentable square feet
of the Premises, then any space containing at least 7,500 net rentable square
feet of space and not more than 12,500 net rentable square feet of space would
be considered Comparable in Size to such proposed subleased portion of the
Premises). For the purposes of this Lease, the term "Affiliate" shall mean a
person or entity directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with the party in question.
The term "control", as used in this Section 14.5, means, with respect to an
entity that is a corporation, the right to the exercise, directly or indirectly,
of more than 50% of the voting rights attributable to the shares of the
controlled corporation and, with respect to an 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 entity. In determining
whether a person or entity is an Affiliate of an individual, the aggregate
voting rights or interests in other entities which are held by members of such
individual's immediate family members or by trusts for the benefit of such
individual's immediate family members shall be attributed to such individual.
14.6 Permitted Transfers. Notwithstanding anything to the contrary in this
Lease, Tenant may assign this Lease in its entirety or sublease all or any
portion of the Premises without the prior written consent of Landlord to (1) any
Affiliate of Tenant, (2) any partnership, corporation or other business entity
into or with which Tenant, or its permitted successors or assigns, shall be
merged, converted or consolidated in accordance with applicable statutory
provisions governing merger, conversion or consolidation of the applicable
business entity, or (3) a partnership, corporation or other business entity
which is a direct successor to Tenant owning all or substantially all of
Tenant's business and assets provided that, in connection with any assignment or
subletting described in clauses (1), (2) and (3) of this Section 14.6, (a)
Tenant shall have notified Landlord in writing prior to or promptly after such
assignment or subletting, (b) at the time thereof no Event of Default has
occurred and is continuing and no event has occurred which with the giving of
notice or the passage of time, or both, would constitute an Event of Default,
(c) the proposed transferee shall deliver to Landlord a written agreement
whereby it expressly assumes all of the Tenant's obligations under this Lease;
provided, however, that any sublessee of less than all of the space in the
Premises shall be liable only for obligations under this Lease that are properly
allocable to the space subject to the applicable Transfer (excluding, however,
any obligation to pay Rent due hereunder), (d) Tenant shall have paid to
Landlord a $500.00 administrative fee to compensate Landlord for evaluating
Tenant's compliance with this Section 14.6 and shall have reimbursed Landlord
for all costs and expenses incurred by Landlord (including, without limitation,
attorneys' fees) in connection with such assignment and/or subletting, and (e)
in the case of a Transfer described in clauses (2) and (3) of this Section 14.6,
Tenant shall have provided Landlord with evidence reasonably acceptable to
Landlord that the proposed assignee/sublessee has a demonstrable net worth not
less than the net worth of Tenant as of the date of such assignment or
subletting. Any assignment or subletting permitted without Landlord's prior
written consent as provided above (a "Permitted Transfer Without Landlord
Consent") shall not release Tenant from any of its obligations (including,
without limitation, its obligation to pay Rent) under this Lease. For the
purposes of this Section 14.6, the term "Tenant" shall also mean a permitted
assignee or sublessee of the initial Tenant named in this Lease.
15. Entry by Landlord.
-----------------
Landlord and its employees and agents shall at all reasonable times and
with reasonable notice (except in the case of an emergency) have the right to
enter the Premises to inspect the same, to show the Premises to prospective
lenders or purchasers (or during the last twelve (12) months of the Term, to
prospective tenants), to post notices of non-responsibility, and/or to alter,
improve or repair the Premises as contemplated by Section 11. In exercising such
entry rights, Landlord shall use best efforts to minimize, to the extent
practicable, the interference with Tenant's business, and shall provide Tenant
with reasonable advance notice of such entry (except in emergency situations)
and (except in emergency situations) shall be subject to such security
procedures, including without limitation, identification, sign-in and escorting
as Tenant
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may reasonably require. Landlord shall have reasonable means available to it to
open Tenant's doors in an emergency in order to obtain entry to the Premises.
Any entry to the Premises obtained by Landlord in accordance with this Section
15 shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant
from the Premises or any portion thereof, or grounds for any abatement or
reduction of Rent and Landlord shall not have any liability to Tenant for any
damages or losses on account of any such entry by Landlord except to the extent
of Landlord's gross negligence or willful misconduct.
16. Heating and Air Conditioning.
----------------------------
(a) Landlord shall furnish on or before the Commencement Date the following
heating and air conditioning units located on the roof of the Building above the
Initial Premises (collectively, the "HVAC Units"): (i) six (6) warehouse heating
units; and (ii) four (4) of the 10 ton air conditioning units and two of the
7 1/2 ton air conditioning units. Landlord shall assign to Tenant all warranties
owned by Landlord with respect to the HVAC Units. On or before the date Tenant
begins to occupy any portion of the Initial Premises for the purpose of
conducting its business therein, Tenant shall notify Landlord in writing which
of the HVAC Units, if any, Tenant elects to accept and use during the Term (such
HVAC Units are herein collectively referred to as the "Accepted HVAC Units" and
the HVAC Units that Tenant does not elect to accept and use are herein
collectively referred to as the "Unaccepted HVAC Units"). If Tenant fails to
provide Landlord with such written notice on or before such date, all of the
HVAC Units shall be deemed to be Accepted HVAC Units. Tenant shall have no
rights in or to, or obligations with respect to, the Unaccepted HVAC Units.
(b) Tenant shall operate the Accepted HVAC Units at its sole cost and
expense in accordance with its design criteria unless otherwise required by
applicable Laws. The cost of electricity consumed by the Accepted HVAC Units
shall be measured by a separate electric meter as provided in Section 5 above.
(c) Tenant shall be responsible for the repair, replacement and maintenance
of the Accepted HVAC Units, and shall promptly notify Landlord of any damage to,
or malfunction of, the Accepted HVAC Units. Throughout the Term, Tenant shall
contract with a qualified and properly insured HVAC contractor reasonably
acceptable to Landlord to have the Accepted HVAC Units serviced at minimum of
once every six (6) months. Such service shall include, but not be limited to,
cleaning of the coil and condenser units on each unit; checking the electrical
connections, the oil and refrigerant for leaks, the safety-device, the blower
belt for wear, tension and alignment, the expansion valve, coil temperature, and
condensate drain; and maintaining the lubrication and addition of freon. Tenant
shall secure, at its sole cost and expense, and shall provide Landlord with a
copy of the service contract providing for the maintenance as described in this
subparagraph, within sixty (60) days following the Commencement Date, and
thereafter, Tenant shall renew or replace the service contract so the service
contract or a replacement thereof remains in full force and effect at all times
until the expiration or earlier termination of this Lease. Tenant shall provide
Landlord with written evidence of such renewal or replacement at least ten (10)
days prior to expiration of the then existing service contract.
(d) The Accepted HVAC Units shall be for the sole use of Tenant and the
Premises.
17. Indemnification and Exculnation.
-------------------------------
17.1 Tenant's Assumption of Risk and Waiver. Except to the extent such matter is
not covered by the insurance required to be maintained by Tenant under this
Lease and such matter is indemnified by Landlord pursuant to Section 17.2(b)
below, Landlord shall not be liable to Tenant, Tenant's employees, agents or
invitees for: (a) any loss (including loss by theft) or damage to property of
Tenant, or of others, located in, on or about the Premises, the Generator Pad,
the Satellite Dish Area or the Telecommunications Cabling Area, which property
shall be the sole risk of Tenant; (b) any injury to, or death of any, persons or
any loss of, or damage to, any property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or leaks from any part of the
Premises or from the pipes, appliance of plumbing works or from the roof, street
or subsurface or from any other places or by dampness or by any other cause of
whatsoever nature; or (c) any such damage caused by other persons in, on or
about the Premises, the Generator Pad or the Satellite Dish Area, occupants of
adjacent property, or the public, or caused by operations in construction of any
private, public or quasi-public work. Tenant, as a material part of the
consideration to be rendered to Landlord under this Lease and to the extent
permitted by law, hereby waives all claims, INCLUDING ANY CLAIMS CAUSED BY OR
RESULTING FROM THE NEGLIGENCE OF LANDLORD OR ANY LANDLORD INDEMINIFIED PARTIES,
except claims caused by or resulting from the gross negligence or willful
misconduct of Landlord or any Landlord Indemnified Parties, Tenant or Tenant's
successors or Transferees may have against Landlord or any Landlord Indemnified
Parties, for any of the matters described in subparts (a) through (c) of this
Section 17.1. Landlord shall in no event be liable for any consequential damages
or loss of business or profits and Tenant hereby waives any and all claims for
any such damages.
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17.2 Indemnification.
(a) Tenant shall be liable for, and shall indemnify, defend, protect and
hold Landlord and the Landlord Indemnified Parties harmless from and against,
any and all Claims (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS CAUSED BY OR
RESULTING FROM THE COMPARATIVE NEGLIGENCE OF LANDLORD OR ANY LANDLORD
INDEMNIFIED PARTIES) arising or resulting from (i) any injury to, or death of,
any person, or any loss of, or damage to, any property in or on the Premises,
the Satellite Dish Area or the Generator Pad, or on adjoining sidewalks, streets
or ways, or connected with the use, condition or occupancy of the Premises or
the use or condition of the Generator Pad, the Satellite Dish Area or the use of
the Telecommunications Cabling Area; (ii) any act, omission or negligence of
Tenant or any of the Tenant's Parties; (iii) the use of the Premises and conduct
of Tenant's business by Tenant or any Tenant Parties, or any other activity,
work or thing done, permitted or suffered by Tenant or any Tenant Parties, in,
on or about the Premises; and (iv) any breach, violation, or non-performance of
any obligation of Tenant hereunder; provided, however, such indemnification by
Tenant shall not include Claims waived by Landlord in Section 21 below, and
Tenant shall not be required to indemnify or hold Landlord or the Landlord
Indemnified Parties harmless from any Claims to the extent resulting from the
sole or gross negligence or willful misconduct of Landlord or any Landlord
Indemnified Parties. In case any action or proceeding is brought against
Landlord or any Landlord Indemnified Parties by reason of any such indemnified
Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's
expense by counsel approved in writing by Landlord, which approval shall not be
unreasonably withheld.
(b) Landlord shall be liable for, and shall indemnify, defend, protect and
hold Tenant and Tenant's partners and their respective officers, directors,
employees, agents, successors and assigns (collectively, the "Tenant Indemnified
Parties") harmless from and against any and all Claims (INCLUDING, WITHOUT
LIMITATION, ANY CLAIMS CAUSED BY OR RESULTING FROM THE COMPARATIVE NEGLIGENCE OF
TENANT OR ANY TENANT INDEMNIFIED PARTIES) which are suffered by, recovered from
or asserted against Tenant or any Tenant Indemnified Parties and which (i) are
not paid by proceeds of insurance carried by Landlord, Tenant or any Tenant
Indemnified Parties, and (ii) arise from or in connection with (A) the use of
the Common Areas by Tenant or any Tenant Indemnified Parties, or (B) the gross
negligence or willful misconduct of Landlord or any of the Landlord Indemnified
Parties; provided, however, such indemnification by Landlord shall not include
(1) Claims waived by Tenant in Section 17.1 above or in Section 21 below, (2)
any Claim to the extent caused by or resulting from the sole or gross negligence
or willful misconduct of Tenant or its assignees, sublessees, officers,
directors, employees, agents, servants, contractors, customers or invitees, or
(3) Claims arising in connection with Tenant's or any Tenant Indemnified
Parties' use of the Satellite Dish Area, the Generator Pad or the
Telecommunications Cabling Area. In case any action or proceeding is brought
against Tenant or any Tenant Indemnified Parties by reason of any such
indemnified Claims, Landlord, upon notice from Tenant, shall defend the same at
Landlord's expense by counsel approved in writing by Tenant, which approval
shall not be unreasonably withheld.
18. Damage or Destruction.
---------------------
18.1 Rights of Landlord and Tenant. In the event the Premises or the Project are
damaged by fire or other insured casualty and the insurance proceeds have been
made available therefor by the holder or holders of any mortgages or deeds of
trust covering the Project (each a "Mortgagee") or by any lessor under a ground
lease covering the Project (a "Ground Lessor"), the damage shall be repaired by
and at the expense of Landlord to the extent of such insurance proceeds
available therefor, provided such repairs can, in Landlord's sole opinion, be
made within one hundred twenty (120) days after the occurrence of such damage
without the payment of overtime or other premiums. Until such repairs are
completed, Rent shall be abated effective as of the date of such fire or other
casualty in proportion to the part of the Premises which is unusable by Tenant
in the conduct of its business. If repairs cannot, in Landlord's sole opinion,
be made within one hundred twenty (120) days after the occurrence of such damage
without the payment of overtime or other premiums, Landlord may, at its
option,make them within a reasonable time, and in such event, this Lease shall
continue in effect and Rent shall be abated in the manner provided in the
immediately preceding sentence. In the case of repairs which, in Landlord's
opinion, cannot be made within such one hundred twenty (120) day period, or in
the event that insurance proceeds for repairs have not been made available to
Landlord by a Mortgagee or Ground Lessor, Landlord shall notify Tenant within
sixty (60) days of the date of occurrence of such damage as to whether or not
Landlord will make such repairs. If Landlord elects not to make such repairs
which cannot be made within such one hundred twenty (120) day period, or for
which insurance proceeds have not been made available to Landlord by a Mortgagee
or Ground Lessor, then either party may, by written notice to the other,
terminate this Lease as of the date of the occurrence of such damage, and
Landlord shall have no liability to Tenant for failure to make such repairs
except for abatement of Rent. Except as provided in this Section 18.1, there
shall be no abatement of Rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business or property arising from the
making of any repairs, alterations or improvements in or to
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any portion of the Project and/or the Premises, or in or to fixtures,
appurtenances and equipment located therein, and, in any event, there shall be
no liability of Landlord should repairs require more than one hundred twenty
(120) days for completion; provided, however, if Landlord makes repairs,
Landlord shall do so as quickly as possible without the payment of overtime or
premiums (unless Tenant agrees to bear the costs of such overtime or premiums).
In addition, Tenant shall have the right, at its sole cost and expense, to
install temporary facilities for the operation of any or all of its business, to
the extent appropriate facilities are available, during the rebuilding period at
a location at the Project proposed by Tenant and approved by Landlord, provided
that (i) such installation shall comply with all applicable Laws relating
thereto, (ii) Tenant obtains all necessary permits and/or approvals from the
City of Austin and all other Governmental Authorities having jurisdiction over
Tenant and/or the Project and provides Landlord with written evidence of the
same, (iii) Tenant shall remove all such installation upon completion of the
repair of the Premises, and (iv) Tenant shall have furnished Landlord, in the
form and content required by Section 20 below, with evidence of the insurance
that Tenant is obligated to furnish to Landlord pursuant to Section 20. If the
Premises is damaged so that Tenant cannot reasonably conduct its business
therein and such damage was not caused, in whole or in part, by any act,
omission or negligence of Tenant or any officers, employees, agents,
contractors, subcontractors, sublessees or licensees of Tenant, then immediately
following such damage, Tenant shall have the right, at its sole cost and
expense, to relocate the Premises for the balance of the Term to any other space
in the Project that is not then leased to another tenant; provided, however,
Tenant shall not have the foregoing right if at the time Tenant elects to
exercise the same an Event of Default has occurred and is continuing or an event
has occurred and is continuing which with the giving of notice or the passage of
time, or both, would constitute an Event of Default. Tenant must exercise the
forgoing relocation right by giving Landlord written notice thereof within
forty-five (45) days after the date of such damage. If Tenant timely exercises
this relocation right and is not then in default under this Lease, Landlord will
cooperate with Tenant in identifying space at the Project that is available for
lease and in connection with Tenant's relocation to the same and Landlord and
Tenant will enter into an amendment to this Lease to address the correct size
and location of the relocated Premises, which relocated Premises shall in no
event be less than 95% of the net rentable square footage of the Premises at the
time of such damage.
18.2 Agreements Regarding Landlord's Repairs. If Landlord is obligated to repair
damage to the Premises or the Project pursuant to Section 18.1 above, Landlord
shall use reasonable efforts to complete or cause the completion of the repairs
to the same on or before the expiration of the Casualty Repair Delivery Period
(as defined below in this Section 18.2). Notwithstanding anything else to the
contrary contained in this Lease, if Landlord, for any reason whatsoever, cannot
complete or cause the completion of the repair of the applicable damage to the
Premises such that the Premises are usable by Tenant for the purposes identified
in Section 1.8 of the Summary on or before the last day of the Casualty Repair
Delivery Period, then Landlord shall not be liable to Tenant for any loss or
damage resulting therefrom, but Tenant shall, as its sole and exclusive remedy,
have the right to terminate this Lease by giving Landlord written notice thereof
within ten (10) days after the expiration of the Casualty Repair Delivery
Period; provided, however, if Tenant delivers such written termination notice to
Landlord and on the date of such delivery Landlord is continuing with
commercially reasonable diligence to cause such damage to the Premises to be
repaired as required hereby, then such termination shall not be effective;
provided further, however, if (a) Tenant's termination notice is not effective
due to the foregoing, and (b) thereafter Landlord fails to continue with
commercially reasonable diligence to cause such damage to the Premises to be
repaired as required hereby, then Tenant may terminate this Lease by giving
Landlord written notice thereof within ten (10) days after the date of such
failure. As used herein, the term "Casualty Repair Delivery Period" shall mean
the period of time beginning on the date the Premises and the Building have been
damaged by fire or other insured casualty and ending on the date which shall be
determined by adding to the 270th day after such damage date the number of days
that Landlord is delayed and/or prevented from completing or causing the
completion of the repair of the applicable damage to the Premises as a result of
Force Majeure Delays (as defined in Section 31.15 below). If (i) Tenant attempts
to terminate this Lease pursuant to this Section and delivers to Landlord
written notice of such termination, and (ii) Landlord in good faith disputes
such attempted termination, Landlord shall notify Tenant in writing of such
dispute (a "Lease Termination Dispute Notice") within ten (10) days after
Landlord's receipt of Tenant's written notice of termination, and Landlord and
Tenant shall thereafter proceed to diligently and in good faith attempt to
resolve such dispute and, if the parties are unable to resolve the same within
thirty (30) days after Tenant's receipt of the applicable Lease Termination
Dispute Notice, such dispute shall be submitted for resolution by binding
arbitration in accordance with the terms, conditions and provisions of the
Exhibit F attached to this Lease. If Landlord timely delivers a Lease
---------
Termination Dispute Notice to Tenant, the applicable written termination notice
of Tenant shall be of no force or effect until such time, if any, as either (y)
Landlord and Tenant agree otherwise in a writing signed by both parties, or (z)
a panel of arbitrators decides that Tenant's termination of this Lease was, in
fact, effective, If Landlord fails to dispute any such written termination
notice of Tenant within such ten (10) day period, Tenant's written termination
notice shall conclusively be deemed to be effective for the purposes of this
Section.
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18.3 Acknowledgements Regarding Repairs. Tenant acknowledges and agrees that (i)
Landlord will not carry insurance of any kind on (1) Tenant's furnishings or
furniture, (2) the leasehold improvements in the Premises, or (3) any fixtures
or equipment removable by Tenant under the provisions of this Lease, and (ii)
Landlord shall not be required to repair any injury or damage caused by fire or
other cause, or to make any repairs or replacements to or of improvements
installed in the Premises by or for Tenant, all of which shall be the sole
responsibility of Tenant.
19. Eminent Domain.
--------------
19.1 Total or Partial Taking. In the event (i) all of the Premises, or such
substantial part of the Premises or the Project as shall materially,
substantially and adversely interfere with Tenant's ability to conduct its
business upon the Premises, shall be taken for any public or quasi-public
purpose by any lawful power or authority by exercise of the right of
appropriation, condemnation or eminent domain, or sold in lieu of or to prevent
such taking, or (ii) so much of the Common Parking Area shall be taken for any
public or quasi-public purpose by any lawful power or authority by exercise of
the right of appropriation, condemnation or eminent domain, or sold in lieu of
or to prevent such taking and, after such taking or sale in lieu thereof,
Landlord can no longer provide Tenant with Tenant's allocated parking spaces as
provided in Section 6.8 above (unless Tenant elects to reduce its parking rights
accordingly), either party shall have the right to terminate this Lease by
providing the other party (and, with respect to a termination by Tenant, any
Mortgagee or Ground Lessor) written notice thereof within thirty (30) days of
such party's receipt of a notice of such taking. Such termination shall be
effective as of the date possession is required to be surrendered to said
authority. Said termination of this Lease shall not release Landlord or Tenant
from any obligations or liabilities of such party under this Lease, actual or
contingent, which have accrued on or prior to said termination. Tenant shall not
assert any claim against Landlord or the taking authority for any compensation
because of such taking, and Landlord shall be entitled to receive the entire
amount of any award without deduction for any estate or interest of Tenant;
provided, however, in the event of such a taking, Tenant shall be entitled to
such share of the award as is equitably attributable to Tenant Changes and
Tenant's Property (if any), and Tenant shall have the right to recover from any
condemning authority, through a separate award which does not reduce Landlord's
award, any compensation as may be awarded Tenant on account of moving and
relocation expenses and depreciation to and removal of Tenant's physical
property from the Premises, including, without limitation, any of Tenant's
Property.
19.2 Temporary Taking. In the event of taking of the Premises or any part
thereof for temporary use, (a) this Lease shall be and remain unaffected thereby
and Rent shall not xxxxx, and (b) Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided such award is expressly
allocated to the Premises. Any temporary taking which continues for thirty (30)
consecutive days shall be deemed a permanent taking and shall be governed by
Section 19.1 above.
20. Tenant's Insurance; Landlord's Insurance.
----------------------------------------
20.1 Types of Insurance to be Maintained by Tenant. On or before the earlier of
the Commencement Date or the date Tenant commences or causes to be commenced any
work of any type in or on any portion of the Premises, and continuing during the
entire Term, Tenant shall obtain and keep in full force and effect respecting
the Premises, the following insurance:
(a) Special Form (formerly referred to as "All Risk") property insurance,
including fire and extended coverage, sprinkler leakage, vandalism, and
malicious mischief coverage, upon property and improvements owned by Tenant of
every description and kind located in the Premises or otherwise at the Project,
including, without limitation, furniture, equipment and any other personal
property, any Tenant Changes, the Satellite Dish (as defined in the Exhibit E
---------
attached hereto), any Additional Conduit (as defined in the Rider A attached
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hereto), Tenant's Power Generator (as defined in the Exhibit J attached hereto),
---------
and any other improvements in or to the Premises or located in the Satellite
Dish Area or the Generator Pad in an amount not less then the full replacement
cost thereof. This insurance shall be on an occurrence basis and shall be
primary and noncontributory to any other insurance carried by Landlord. Evidence
of this insurance shall be provided on XXXXX Form 27.
(b) Commercial general liability insurance coverage, including personal
injury, bodily injury (including wrongful death), broad form property damage,
operations hazard, owner's protective coverage, contractual liability (including
Tenant's indemnification obligations under this Lease, including Section 17
hereof), liquor liability (if Tenant serves or stores alcohol on the Premises),
products and completed operations liability, and owned/non-owned auto liability,
with a general aggregate of not less than Five Million Dollars ($5,000,000). The
general aggregate amount of such commercial general liability insurance may be
increased every three (3) years during the Term to an amount reasonably required
by Landlord. Tenant's liability insurance shall (1) be written on an occurrence
basis on a form approved by
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Landlord (which approval will not be unreasonably withheld), and (2) be primary
and noncontributory to any other insurance carried by Landlord or any other
Landlord Parties (as defined in Section 20.2 below). All commercial general
liability insurance maintained by Tenant as required by this Lease (and any
commercial umbrella applicable thereto) shall be endorsed using a waiver of
subrogation form or forms approved by Landlord (which approval will not be
unreasonably withheld), and any such endorsements shall be unmodified and shall
be in favor of all Landlord Parties. Landlord's approval of the form of Tenant's
liability insurance may not be withheld if the form of such insurance is
identical in all material respects to either Insurance Services Office "ISO")
form CG 0001 1092 or CG 0001 0695 or any successor forms. Landlord's approval of
waiver of subrogation endorsement forms may not be withheld if the form of such
endorsement is identical in all material respects to ISO form CG 2404 1093 or
any successor form.
(c) Worker's compensation in statutory amounts and limits, and employer's
liability insurance in an amount not less than $1,000,000.00 or the amount
required by law, whichever is greater, covering all persons employed in
connection with any work done on or about the Premises for which claims for
death or bodily injury could be asserted against Landlord, Tenant or the
Premises. All employer's liability insurance maintained by Tenant as required by
this Lease (and any commercial umbrella applicable thereto) shall be endorsed
using an endorsement form approved by Landlord (which approval will not be
unreasonably withheld) (i.e., a waiver of subrogation endorsement), and such
endorsement shall be in favor of all Landlord Parties. Landlord's approval in
this subparagraph may not be withheld if the form of endorsement is identical in
all material respects to ISO endorsement form WC 429394 or any successor form of
endorsement.
(d) Business income and extra expense insurance (formerly known as
"business interruption insurance") in such amounts as will reimburse Tenant for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent tenants or attributable to prevention of access to the
Premises or to the Building as a result of such perils.
(e) Any other form or forms of insurance as Tenant or Landlord or any
Mortgagee or Ground Lessor may reasonably require from time to time, in form,
amounts and for insurance risks against which a prudent tenant would protect
itself, but only to the extent such risks and amounts are available in the
insurance market at commercially reasonable costs.
If Tenant or any contractor of Tenant performs any work on any portion or
portions of the Premises or, as expressly permitted by this Lease, on approved
areas of the roof of the Building and/or approved areas of the Project, prior to
the commencement of any such work, Tenant shall deliver to Landlord certificates
issued by insurance companies licensed to do business in the State of Texas, in
form and content reasonably acceptable to Landlord, evidencing that commercial
general liability, workers' compensation, employer's liability, automobile
liability and other insurance as required by Landlord and any Mortgagee or
Ground Lessor, in amounts and with companies reasonably satisfactory to
Landlord, are in force and effect and maintained by all contractors and
subcontractors engaged by Tenant or any contractor of Tenant to perform such
work, and name all Landlord Parties as additional insureds.
20.2 Requirements for Tenant's Insurance. Each policy required to be obtained by
Tenant hereunder shall: (a) be issued by insurers which are reasonably approved
by Landlord and/or Landlord's mortgagees and are authorized to do business in
the state in which the Premises is located and rated not less than financial
class X, and not less than policyholder rating A in the most recent version of
Best's Key Rating Guide; (b) be in form reasonably satisfactory from time to
time to Landlord; (c) name Tenant as named insured thereunder and name Landlord
and all Landlord Parties as additional insureds (and with respect to the
insurance described in Section 20.1(a) above, as loss-payees) thereunder, all as
their respective interests may appear; (d) not have a deductible amount
exceeding Ten Thousand Dollars ($10,000), (except for earthquake and flood
insurance, if any, which shall have a deductible amount not to exceed five
percent (5%) of the replacement cost); (e) specifically provide that the
insurance afforded by such policy for the benefit of Landlord and Landlord's
mortgagees and ground lessors shall be primary, and any insurance carried by
Landlord or Landlord's mortgagees and ground lessors shall be excess and non-
contributing; (f) except for worker's compensation insurance, contain an
endorsement that the insurer waives its right to subrogation as described in
Section 22 below; (g) contain a requirement by the insurer to notify (or be
endorsed to require that such insurer notify) Landlord (and the mortgagees and
ground lessors of Landlord who are named as additional insureds) in writing not
less than thirty (30) days prior to any change, reduction in coverage,
cancellation or other termination thereof (except that only ten (10) days notice
shall be required prior to cancellation for failure to pay premiums); and (h) be
in amounts sufficient at all times to satisfy any coinsurance requirements
thereof. Each such policy shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or omission of Landlord
or Tenant which might, absent such provision, result in a forfeiture of all or a
part of such insurance payment, (ii) the occupation or use of the Premises for
purposes more hazardous than permitted by the provisions of such policy, (iii)
any foreclosure or other action or proceeding taken by any Mortgagee pursuant to
any provision of the mortgage upon the happening of a default thereunder, or
(iv) any change in title or
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ownership of the Premises. Tenant agrees to deliver to Landlord, as soon as
practicable after the placing of the required insurance, but in no event later
than five (5) days prior to the date Tenant takes possession of all or any part
of the Premises, certificates from the insurance company evidencing the
existence of such insurance and Tenant's compliance with the foregoing
provisions of this Section 20. Tenant shall cause replacement certificates to be
delivered to Landlord not less than thirty (30) days prior to the expiration of
any such policy or policies. Copies of endorsements to the applicable insurance
policy must be attached to all certificates delivered by Tenant to Landlord as
required by this Lease. If any such initial or replacement certificates are not
furnished within the time(s) specified herein, or Tenant otherwise fails to
satisfy its obligations under this Section 20 and such failure continues for ten
(10) business days after Tenant's receipt of written notice of such failure,
shall constitute an Event of Default without the benefit of any additional
notice or cure period provided in Section 22.1 below, and Landlord shall have
the right, but not the obligation, to cure such default at Tenant's expense. As
used in this Section 20, the term "Landlord Parties" shall mean (i) Landlord,
(ii) any lender whose loan is secured by a lien against the Project, or any
portion thereof, that has been identified to Tenant in a writing sent by
Landlord or its agent or property manager, (iii) any ground lessor of all or any
portion of the Project that has been identified to Tenant in a writing sent by
Landlord or its agent or property manager, (iv) the Building manager and any
other parties which Landlord shall deem necessary, (v) their respective
shareholders, members, partners, affiliates and subsidiaries, and (vi) any
directors, officers, employees, agents or contractors of such persons or
entities.
20.3 Effect on Insurance. Tenant shall not do or permit to be done anything
which will violate or invalidate any insurance policy maintained by Tenant
hereunder. If Tenant's occupancy or conduct of its business in or on the
Premises results in any increase in premiums for any insurance carried by
Landlord, Tenant shall pay such increase as additional rent within ten (10) days
after being billed therefor by Landlord. Landlord represents that use of the
Premises for general office use, a network operations center and computer and
telecommunications equipment rooms will not increase the premiums for Landlord's
insurance. If any insurance coverage carried by Landlord shall be cancelled or
reduced (or cancellation or reduction thereof shall be threatened) by reason of
the use or occupancy of the Premises by Tenant or by anyone permitted by Tenant
to be upon the Premises, and if Tenant fails to remedy such condition within
five (5) days after written notice thereof, Tenant shall be deemed to be in
default under this Lease, without the benefit of any additional notice or cure
period specified in Section 22.1 below, and Landlord shall have all remedies
provided in this Lease, at law or in equity, including, without limitation, the
right (but not the obligation) to enter upon the Premises and attempt to remedy
such condition at Tenant's cost.
20.4 Types of Insurance to be Maintained by Landlord. Except as otherwise
provided in this Section 20.4, Landlord covenants and agrees that throughout the
Term it will maintain Special Form property insurance, including fire and
extended coverage, vandalism, and malicious mischief coverage upon the Building
(excluding excavation, foundation, footings and underground flues and drains)
and the machinery, boilers and equipment contained therein owned by Landlord
(excluding any property with respect to which Tenant is obligated to insure
pursuant to the provisions of Section 20.1 above), in an amount not less than
the full replacement cost thereof as reasonably determined by Landlord. Landlord
will also, throughout the Term, carry public liability and property damage
insurance with respect to the operation of the Project in reasonable amounts as
would be customarily carried by an owner of a similar property in the vicinity
of the Project. Landlord may, but shall not be obligated to, take out and carry
any other form or forms of insurance as Landlord or any Mortgagee or Ground
Lessor may reasonably determine to be advisable, and Landlord shall take out and
carry any other form or forms of insurance as any Mortgagee or Ground Lessor
shall require of Landlord. Notwithstanding any contribution by Tenant to the
cost of insurance premiums as provided herein, Tenant acknowledges that it has
no right to receive any proceeds from any such insurance policies carried by
Landlord and that such insurance will be for the sole benefit of Landlord with
no coverage for Tenant for any risk against which insurance has been obtained.
20.5 Delivery of Evidence of Landlord's Insurance. If requested in writing by
Tenant during the Term (but not more than once in any 12 month period), Landlord
shall provide Tenant with evidence that Landlord is maintaining the insurance
required pursuant to Section 20.4 above; provided, however, Landlord shall have
no obligation to furnish the foregoing evidence of Landlord's insurance at any
time in which an Event of Default has occurred and is continuing or an event has
occurred and is continuing which with the giving of notice or the passage of
time, or both, would constitute an Event of Default.
21. Waiver of Subrogation. All fire, extended coverage and/or damage insurance
---------------------
which must be carried by Tenant or Landlord shall be endorsed with a subrogation
clause substantially as follows: "This insurance shall not be invalidated should
the insured waive in writing, prior to a loss, any or all right of recovery
against any party for loss occurring to the property described herein." Landlord
and Tenant each hereby waives any rights it may have against the other
(including, but not limited to, a direct action for damages) on account of any
loss or damage occasioned to Landlord or Tenant, as the case may be (WHETHER OR
NOT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT, NEGLIGENCE OR
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OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF LANDLORD OR TENANT OR THEIR
RESPECTIVE OFFICERS, PARTNERS, DIRECTORS, EMPLOYEES, SERVANTS AGENTS OR
INVITEES), to their respective property, the Premises, its contents or to any
other portion of the Property arising from any risk covered by the current Texas
State Board of Insurance promulgated form of property insurance and the
customary commercially obtainable endorsements thereto, or covered by any other
insurance required to be carried by Tenant and Landlord, respectively, pursuant
to this Lease. If a party waiving rights under this Section is carrying a
property insurance policy in the promulgated form used in the State of Texas and
an amendment to such promulgated form is passed, such amendment shall be deemed
not a part of such promulgated form until it applies to the policy being carried
by the waiving party. Without in any way limiting the foregoing waivers and to
the extent permitted by applicable law, the parties hereto each, on behalf of
their respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that Landlord or
Tenant or their respective insurers may have against the other party or their
respective officers, directors, employees, agents or invitees and all rights of
their respective insurance companies based upon an assignment from its insured.
Each party to this Lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers contained in
this Section and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waivers shall be effective whether or not the
parties maintain the required insurance.
22. Tenant's Default and Landlord's Remedies.
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22.1 Tenant's Default. The occurrence of any one or more of the following events
shall constitute an event of default under this Lease by Tenant (an "Event of
Default"):
(a) with respect to the first payment of Rent (whether a monthly
installment of Annual Rent or any other amount due and payable by Tenant
pursuant to this Lease) due from Tenant to Landlord under this Lease (or any
other payment due from Tenant to Landlord under any lease or license agreement
executed by Tenant for space in, on or about the Project, or any part thereof)
not made by Tenant when due in any twelve (12) month period, the failure by
Tenant to make such payment to Landlord within five (5) days after Tenant
receives written notice specifying that the applicable payment was not made when
such payment was due; with respect to any other payment of either (i) Rent due
from Tenant to Landlord under this Lease, or (ii) any other payment due from
Tenant to Landlord under any lease or license agreement executed by Tenant for
space in, on or about the Project, or any part thereof, whether or not Tenant
has received notice or demand for a payment described in subparts (i) or (ii) of
this subparagraph, the failure by Tenant to make such payment within five (5)
days after the due date thereof;
(b) the failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Section 22.1(a) above, where such failure
shall continue for a period of ten (10) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than ten (10) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant shall commence such cure
within said ten (10) day period and thereafter diligently prosecute such cure to
completion within ninety (90) days after such written notice of default (or such
longer time as Landlord may agree in writing), but in any event prior to the
time such failure would result in a violation of applicable Laws or a default by
Landlord under any lease or lien affecting the Project or the Building;
(c) a breach by Tenant of any of the provisions of Sections 12 and 14
hereof;
(d) the doing, or permitting to be done, by Tenant of any act which creates
a mechanic's lien or claim therefor against the Project or any part thereof or
against the interest of Landlord in the leasehold hereby created if the same is
not released, bonded or otherwise provided for by indemnification satisfactory
to Landlord within twenty (20) days after Tenant first obtains actual knowledge
of such lien or claim;
(e) the occurrence and continuance of a Vacation of the Premises (as
hereinafter defined) or a Material Abandonment of the Premises (as hereinafter
defined); or
(f) (i) the making by Tenant of any general assignment for the benefit of
creditors (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless in the case of a petition filed against the
Tenant the same is dismissed within ninety [90] days) (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where possession
is not restored to Tenant within ninety (90) days or (iv) the
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attachment execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within ninety (90) days.
As used in this Lease, the phrase "Vacation of the Premises" shall mean vacating
the Premises without providing a reasonable level of security to minimize the
potential for vandalism, or where the coverage of the property insurance under
Section 20.1(a) is jeopardized as a result thereof, and the phrase "Material
Abandonment of the Premises" shall mean the abandonment by Tenant of the
Premises for ten (10) business days during any period of time in which an Event
of Default has occurred and is continuing.
22.2 Landlord's Remedies. Upon the occurrence and during the continuance of an
Event of Default, then, and in any such event, Landlord, besides other rights or
remedies it may have under this Lease, at law or in equity and without prejudice
to any of the same, shall have the option, without any notice to Tenant (except
as expressly provided below) and with or without judicial process, to pursue any
one or more of the following remedies:
(a) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord.
(b) To the extent permitted by applicable Laws, Landlord may enter upon and
take custodial possession of all or any portion of the Premises by picking the
locks if necessary, lock out or remove Tenant and any other person occupying all
or any portion of the Premises and alter the locks and other security devices at
the Premises, all without Landlord being deemed guilty of trespass or becoming
liable for any resulting loss or damage and without causing a termination or
forfeiture of this Lease or of Tenant's obligation to pay rent.
(c) Landlord may enter all or any portion of the Premises and take
possession of and remove any and all trade fixtures and personal property
situated thereon, without liability for trespass or conversion. Landlord may
retain control over all such property for the purpose of foreclosing the liens
and security interests described in Section 31.20 below by public or private
sale. If Landlord takes possession of and removes personal property from the
Premises, then prior to any disposition of the property by sale or until Tenant
reclaims the property if no foreclosure by public or private sale is
contemplated, Landlord may store it in a public warehouse or elsewhere at the
cost of and for the account of Tenant without the resort to legal process and
without becoming liable for any resulting loss or damage.
Landlord's pursuit of any remedy specified in this Lease will not constitute an
election to pursue that remedy only, nor preclude Landlord from pursuing any
other remedy available at law or in equity, nor constitute a forfeiture or
waiver of any Rent or other amount due to Landlord as described below.
22.3 Re-Entry and Re-Letting. In the event Landlord enters and takes possession
of all or any portion of the Premises without electing to terminate this Lease,
Landlord will have the right to relet all or any portion of the Premises for
Tenant, in the name of Tenant or Landlord or otherwise, on such terms as
Landlord deems advisable and Tenant hereby appoints Landlord its attorney-in-
fact for such purposes. Landlord will not be required to incur any expenses to
relet all or any portion of the Premises, although Landlord may at its option
incur customary leasing commissions or other costs for the account of Tenant as
Landlord shall deem necessary or appropriate to relet. In no event will the
failure of Landlord to relet all or any portion of the Premises reduce Tenant's
liability for monthly rentals and other charges due under this Lease or for
damages; provided, however, the foregoing shall not relieve Landlord from any
obligation under Texas law to mitigate the damages of Landlord arising as a
result of a default by Tenant under this Lease. To the extent Landlord is
obligated under Texas law to mitigate its damages following a default by Tenant
under this Lease, Landlord may satisfy such obligation by retaining a real
estate broker (such broker can be the same as the broker that is leasing the
other space in the Building and/or Project which is available for rent) and
acknowledging that all portions of the Premises as available for lease;
provided, however, in no event shall Landlord be obligated to either (a) relet
all or any portion(s) of the Premises for less than the then market value of
such premises as determined by Landlord, or (b) relet all or any portion(s) of
the Premises unless there is/are no other comparable space/spaces available for
lease at the Project or any other property owned by Landlord or an Affiliate of
Landlord within a five (5) mile radius of the Project. Without causing a
surrender or forfeiture of this Lease after the occurrence and during the
continuance of an Event of Default, Landlord may: (i) relet all or any portion
of the Premises for a term or terms to expire at the same time as, earlier than,
or subsequent to, the expiration of the Term; (ii) remodel or change the use and
character of all or any portion of the Premises; and (iii) grant rent
concessions in reletting all or any portion of the Premises, if necessary in
Landlord's judgment, without reducing Tenant's obligation for rentals specified
in this Lease. Landlord may retain the excess, if any, of the rent earned from
reletting all or any portion of the Premises over the rentals specified in this
Lease.
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22.4 Continuation of Lease. Upon the occurrence and during the continuance of
an Event of Default, in addition to any other remedies available to Landlord
under this Lease, at law or in equity, Landlord shall have the right to continue
this Lease in full force and effect, whether or not Tenant shall have abandoned
the Premises. In the event Landlord elects to continue this Lease in full force
and effect pursuant to this Section 22.4, then Landlord shall be entitled to
enforce all of its rights and remedies under this Lease, including the right to
recover rent as it becomes due. Landlord's election not to terminate this Lease
pursuant to this Section 22.4 or pursuant to any other provision of this Lease,
at law or in equity, shall not preclude Landlord from subsequently electing to
terminate this Lease or pursuing any of its other remedies.
22.5 Termination. Upon the termination of this Lease, Landlord will be entitled
to recover all unpaid Rent that has accrued through the date of termination plus
the costs of performing any of Tenant's obligations (other than the payment of
Rent) that should have been but were not satisfied as of the date of such
termination. Landlord shall also be entitled to recover the amounts set forth in
Section 22.6 below.
22.6 Repossession and Rental Acceleration. In the event Landlord either (a)
enters and takes possession of all or any portion of the Premises without
electing to terminate this Lease, or (b) terminates this Lease after the
occurrence and during the continuance of an Event of Default, Landlord will be
entitled to recover, not as rent or a penalty but as compensation for Landlord's
loss of the benefit of its bargain with Tenant, the difference between (i) an
amount equal to the present value of the Rent that this Lease provides Tenant
will pay for the remainder of the Term and for the balance of any then effective
extension of the Term, and (ii) the present value of the future rentals (net of
leasing commissions and other costs of reletting and refurbishing) for such
period that will be or with reasonable efforts could be collected by Landlord by
reletting all or any portion of the Premises. For purposes of determining what
could be collected by Landlord by reletting under the preceding sentence,
Landlord (i) will not be required to relet when other comparable space is
available for lease at the Building and/or the Project or any other property
owned by Landlord or an Affiliate of Landlord within a ten (10) mile radius of
the Project, and (ii) will not be required to incur any cost to relet other than
customary leasing commissions and customary leasing concessions/allowances.
22.7 Landlord's Right to Perform. Except as specifically provided otherwise in
this Lease, all covenants and agreements by Tenant under this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any abatement
or offset of rent. If Tenant shall fail to pay any sum of money (other than
Annual Rent) or perform any other act on its part to be paid or performed
hereunder and such failure shall continue for five (5) days with respect to
monetary obligations (or ten [10] days with respect to non-monetary obligations)
after Tenant's receipt of written notice thereof from Landlord, Landlord may,
without waiving or releasing Tenant from any of Tenant's obligations, make such
payment or perform such other act on behalf of Tenant. All sums so paid by
Landlord and all necessary incidental costs incurred by Landlord in performing
such other acts shall be payable by Tenant to Landlord within five (5) days
after demand therefor, together with interest thereon at the Default Interest
Rate as additional rent.
22.8 Interest. If any monthly installment of Annual Rent, or any other amount
payable by Tenant hereunder is not received by Landlord by the date when due, it
shall bear interest at the Default Interest Rate set forth in Section 1.9 of the
Summary from the date due until paid. All interest, and any late charges imposed
pursuant to Section 22.9 below, shall be considered additional rent due from
Tenant to Landlord under the terms of this Lease.
22.9 Late Charges; Returned Checks. Tenant acknowledges that, in addition to
interest costs, the late payments by Tenant to Landlord of any Annual Rent or
other sums due under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impractical to fix. Accordingly, if any monthly installment of
Annual Rent or any other amount payable by Tenant hereunder is not received by
Landlord by the due date thereof, and such failure shall continue for five (5)
days after the same is due, Tenant shall pay to Landlord an additional sum of
five percent (5%) of the overdue amount as a late charge, but in no event more
than the maximum late charge allowed by law. Acceptance of a late charge or
interest shall not constitute a waiver of Tenant's default with respect to the
overdue amount or prevent Landlord from exercising any of the other rights and
remedies available to Landlord under this Lease or at law or in equity now or
hereafter in effect. In the event any check received by Landlord from Tenant in
payment of any amounts payable by Tenant hereunder is returned by Tenant's bank,
Tenant shall pay to Landlord a service charge of $25.00 for each such check upon
receipt of an invoice therefor.
22.10 Rights and Remedies Cumulative. All rights, options and remedies of
Landlord contained in this Section 22 and elsewhere in this Lease shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in
equity, whether or not stated in this Lease. Nothing in this Section 22 shall be
deemed to limit or otherwise affect Tenant's indemnification of Landlord
pursuant to any provision of this Lease.
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22.11 Tenant's Waiver of Redemption. Tenant hereby waives and surrenders for
itself and all those claiming under it, including creditors of all kinds, (a)
any right and privilege which it or any of them may have under any present or
future law to redeem any of the Premises or to have a continuance of this Lease
after termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof, and (b) the benefits of any
present or future law which exempts property from liability for debt or for
distress for rent.
22.12 Landlord's Default.
(a) Landlord shall not be deemed to be in default in the performance of
any of its obligations hereunder unless it shall fail to perform such
obligations and such failure shall continue for a period of thirty (30) days or
such additional time as is reasonably required to correct any such default after
written notice has been given by Tenant to Landlord specifying the nature of
Landlord's alleged default (a "Landlord's Default"). Notwithstanding the
immediately preceding sentence, if Landlord's failure to perform its obligations
under this Lease has materially, substantially and adversely interfered with
Tenant's ability to conduct its business upon the Premises, a Landlord's Default
shall not occur until such time as Landlord has received written notice of such
default and has failed to commence to cure the same within five (5) business
days after Landlord's receipt of such written notice or Landlord has commenced
to cure such default but has failed to diligently pursue such cure to completion
and thereafter failed to re-commence to cure such default and diligently pursue
the same to completion after written notice of its failure to initially
diligently pursue such cure to completion. Landlord shall not be liable in any
event for incidental, consequential and/or punitive damages to Tenant by reason
of any Landlord's Default, whether or not notice is given. Tenant shall have no
right to terminate this Lease as a result of any Landlord's Default.
Additionally, Tenant shall have no right to any offset or counterclaim against
Rent due hereunder as a result of any Landlord's Default.
(b) Tenant may, but shall not be obligated to, cure any Landlord's
Default that would be detrimental to Tenant's occupancy of the Premises if not
cured, and whenever Tenant so elects, all costs and expenses incurred by Tenant
in curing a Landlord's Default shall be paid by Landlord to Tenant within
fifteen (15) days after Landlord's receipt of Tenant's written demand therefor,
together with lawful interest thereon from the date of payment by Tenant to the
date of payment by Landlord; provided, however, that Tenant shall protect,
defend indemnify and hold Landlord and all Landlord Indemnitees exempt and
harmless against any damage to the Building, or any premises therein, resulting
from Tenant's effecting a cure of any Landlord's Default.
23. Intentionally deleted.
24. Subordination; Nondisturbance.
-----------------------------
(a) This Lease and the rights of Tenant hereunder shall be and are hereby
made subject and subordinate to all ground or underlying leases now or hereafter
existing and all renewals, modifications, consolidations, replacements and
extensions thereof, and to the lien of any mortgages or deeds of trust or any
other lien now or hereafter existing against the Project or any part thereof,
and/or any said ground lease or any part or parts thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof and to all
advances made, or hereafter to be made, upon the security thereof; provided,
however, that the foregoing subordination in respect of any ground or underlying
lease or any mortgage or deed of trust placed on the Project after the date
hereof shall not become effective until and unless such lessor or the holder of
such mortgage or deed of trust delivers to Tenant a non-disturbance agreement (a
"Non-Disturbance Agreement") which provides that if Tenant is not then in
default under, or in breach of any provision of, this Lease, such lessor or
holder of such mortgage or deed of trust will not disturb Tenant's right of
occupancy of the Premises in the event of a foreclosure of any such mortgage or
deed of trust or a termination of such ground or underlying lease (a Non-
Disturbance Agreement may also include Tenant's agreement to attorn as set forth
below and will contain such other provisions as such lessor or holder of such
mortgage or deed of trust shall require in connection therewith). Although the
subordination in the immediately preceding sentence shall be self-operating,
Tenant, or its successors in interest, shall, upon Landlord's request, execute
and deliver upon demand any and all Non-Disturbance Agreements delivered to
Tenant subordinating this Lease to such lease, mortgage, deed of trust or other
lien. Tenant also agrees that any lessor, mortgagee or trustee may elect (which
election shall be revocable) to have this Lease superior to any lease or lien of
its mortgage or deed of trust and, in the event of such election and upon
notification by such lessor, mortgagee or trustee to Tenant to that effect, this
Lease shall be deemed superior to the said lease, mortgage or deed of trust,
whether this Lease is dated prior to or subsequent to the date of said lease,
mortgage or deed of trust. Although the subordination in the immediately
preceding sentence shall be self-operating, Tenant, or its successors in
interest, shall, upon Landlord's request, execute and deliver upon the demand of
Landlord any and all instruments desired by Landlord, subordinating, in the
manner reasonably
27
requested by Landlord, any such lease, mortgage, deed of trust or other lien to
this Lease. If Tenant fails to execute and deliver to Landlord any Non-
Disturbance Agreement or any such subordination instrument delivered to Tenant
for Tenant's execution within ten (10) days after Tenant's receipt of the same,
(I) such failure shall constitute an Event of Default hereunder until such time
as it has been delivered to Landlord, (2) Tenant shall be deemed to have agreed
to all of the terms and provisions of such Non-Disturbance Agreement or such
subordination instrument, and (3) Tenant shall thereafter be estopped from
disclaiming any of the obligations, benefits and burdens set forth therein
including, without limitation, (i) the subordination of this Lease to any deed
of trust, mortgage, ground lease or similar instruments, (ii) any non-
disturbance rights provided to Tenant therein, and (iii) any attornment
agreements of Tenant set forth therein. Landlord is hereby irrevocably appointed
and authorized as agent and attorney-in-fact of Tenant, coupled with an
interest, to execute all such Non-Disturbance Agreements and subordination
instruments in the event Tenant fails to execute said instruments within ten
(10) days after Tenant's receipt of the same.
(b) Landlord shall obtain a Non-Disturbance Agreement from the beneficiary
under the deed of trust that now covers the Building. Upon the delivery to
Tenant of multiple originals of a Non-Disturbance Agreement executed by such
beneficiary and the other party or parties thereto (other than Tenant), Tenant
shall, within ten (10) days after Tenant's receipt of the same, execute each of
the same and return all but one of such originals to Landlord at Landlord's
address for notices set forth in Section 1.1 of the Summary.
25. Estoppel Certificate.
--------------------
25.1 Tenant's Obligations. Within five (5) business days following Landlord's
written request, Tenant shall execute and deliver to Landlord an estoppel
certificate, in a form substantially similar to the form of Exhibit C attached
---------
hereto, certifying: (a) the Commencement Date; (b) that this Lease is unmodified
and in full force and effect (or, if modified, that this Lease is in full force
and effect as modified, and stating the date and nature of such modifications);
(c) the date to which the Rent and other sums payable under this Lease have been
paid; (d) that there are not, to the best of Tenant's knowledge, any defaults
under this Lease by either Landlord or Tenant, except as specified in such
certificate; and (e) such other matters as are set forth in Exhibit C or are
---------
reasonably requested by Landlord. Any such estoppel certificate delivered
pursuant to this Section 25.1 may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of any portion of the Premises, as well as
their assignees.
25.2 Tenant's Failure to Deliver. Tenant's failure to deliver such estoppel
certificate within such time shall be conclusive upon Tenant that: (a) this
Lease is in full force and effect without modification, except as may be
represented by Landlord; (b) there are no uncured defaults in Landlord's or
Tenant's performance (other than Tenant's failure to deliver the estoppel
certificate); and (c) not more than one (1) month's rental has been paid in
advance. If Tenant shall fail to deliver any estoppel certificate required by
this Lease and such failure shall continue for a period of five (5) days after
Tenant's receipt of written notice thereof, Tenant shall indemnify, protect,
defend (with counsel reasonably approved by Landlord in writing) and hold
Landlord harmless from and against any and all Claims attributable to any
failure by Tenant to timely deliver any such estoppel certificate to Landlord
pursuant to Section 25.1 above.
26. Lease Execution.
---------------
26.1 Authority. If Tenant executes this Lease as a partnership, limited
liability company or corporation, then Tenant and the persons and/or entities
executing this Lease on behalf of Tenant represent and warrant that: (a) Tenant
is a duly authorized and existing partnership or corporation, as the case may
be, and is qualified to do business in the state in which the Premises are
located; (b) such persons and/or entities executing this Lease are duly
authorized to execute and deliver this Lease on Tenant's behalf in accordance
with the Tenant's partnership agreement (if Tenant is a partnership), or a duly
adopted resolution of Tenant's board of directors and the Tenant's by-laws (if
Tenant is a corporation); and (c) this Lease is binding upon Tenant in
accordance with its terms. Landlord and the persons and/or entities executing
this Lease on behalf of Landlord represent and warrant that: (a) Landlord is a
duly authorized and existing partnership and is qualified to do business in the
state in which the Premises are located; (b) such persons and/or entities
executing this Lease are duly authorized to execute and deliver this Lease on
Tenant's behalf in accordance with the Tenant's partnership agreement; and (c)
this Lease is binding upon Landlord in accordance with its terms.
26.2 Joint and Several Liability. If more than one person or entity executes
this Lease as Tenant: (a) each of them is and shall be jointly and severally
liable for the covenants, conditions, provisions and agreements of this Lease to
be kept, observed and performed by Tenant; and (b) the act or signature of, or
notice from or to, any one or more of them with respect to this Lease shall be
binding upon each and all of the persons and entities executing this Lease as
Tenant with the same force and effect as if each and all of them had so acted or
signed, or given or received such notice.
28
26.3 No Option. The submission of this Lease for examination or execution by
Tenant does not constitute a reservation of or option for the Premises and this
Lease shall not become effective as a Lease until it has been executed by
Landlord and delivered to Tenant.
27. Modification and Cure Rights of Landlord's Mortgagees and Lessors.
-----------------------------------------------------------------
27.1 Modifications. If, in connection with Landlord's obtaining or entering
into any financing or ground lease for any portion of the Premises, the lender
or ground lessor shall request modifications to this Lease, Tenant shall, within
ten (10) days after request therefor, execute an amendment to this Lease
including such modifications, provided such modifications are reasonable, do not
increase the obligations of Tenant hereunder, or adversely affect the leasehold
estate created hereby or Tenant's rights hereunder or Tenant's ability to
conduct its business in the Premises.
27.2 Cure Rights.
(a) Should any mortgage or deed of trust affecting the Project be
foreclosed, or if any ground or underlying lease be terminated: (i) the
liability of the mortgagee, beneficiary or purchaser at such foreclosure sale,
or the liability of a subsequent owner designated as Landlord under this Lease,
shall exist only so long as such mortgagee, beneficiary, purchaser or owner is
the owner of the Project and such liability shall not continue or survive after
further transfer of ownership; (ii) Tenant shall be deemed to have attorned, as
Tenant under this Lease, to the purchaser at any foreclosure sale thereunder, or
if any ground or underlying lease be terminated for any reason, Tenant shall be
deemed to have attorned, as Tenant under this Lease, to the ground lessor under
the ground lease, and this Lease shall continue in force and effect as a direct
lease between and binding upon Tenant and such mortgagee or ground lessor, as
the case may be. As used in this paragraph, the terms "mortgagee" and
---------
"beneficiary" shall include successors and assigns of such party, whether
-----------
immediate or remote, the purchaser of any mortgage or deed of trust, whether at
foreclosure or otherwise, and the successors, assigns and mortgagees and
beneficiaries of such purchaser, whether immediate or remote.
(b) In the event of any act or omission by Landlord under this Lease which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, Tenant will not exercise any such right until:
(i) it has given written notice (by United States certified or
registered mail, postage prepaid) of such act or omission to the holder of any
mortgage or deed of trust on the Project and to the ground lessor of any ground
lease of the Project (whose names and addresses Landlord agrees will be
furnished to Tenant on request); and
(ii) any such holder of any mortgage or deed of trust on the Project,
or any such ground lessor of any ground lease of the Project, shall, following
its receipt of such notice, have failed with commercially reasonable diligence
to commence and to pursue to completion reasonable action to remedy such act or
omission; provided, however, if such act or omission cannot be cured without
possession of the Project, such holder of any mortgage or deed of trust or such
ground lessor shall not be obligated to commence and to pursue reasonable action
to remedy such act or omission, until it has obtained possession of the Project
pursuant to any applicable mortgage, deed of trust or ground lease.
28. Quiet Enjoyment.
---------------
Landlord covenants and agrees with Tenant that, upon Tenant performing all
of the covenants and provisions on Tenant's part to be observed and performed
under this Lease (including payment of rent hereunder), Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises in accordance with and
subject to the terms and conditions of this Lease as against all persons
claiming by, through or under Landlord.
29. Transfer of Landlord's Interest.
-------------------------------
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of the Landlord are concerned, shall be limited to mean
and include only the owner or owners, at the time in question, of the fee title
to, or a lessee's interest in a ground lease of, the Building and/or Project. In
the event of any transfer or conveyance of any such title or interest (other
than a transfer for security purposes only), the transferor shall be
automatically relieved of all covenants and obligations on the part of Landlord
contained in this Lease accruing after the date of such transfer or conveyance.
Landlord and Landlord's transferees and assignees shall have the absolute right
to transfer all or any portion of their respective title and interest in the
Building, the Project and/or this Lease without the consent of Tenant, and such
29
transfer or subsequent transfer shall not be deemed a violation on Landlord's
part of any of the terms and conditions of this Lease.
30. Limitation on Landlord's Liability.
----------------------------------
Notwithstanding anything contained in this Lease to the contrary, the
obligations of Landlord under this Lease (including any actual or alleged breach
or default by Landlord) do not constitute personal obligations of the individual
partners, members, managers, directors, officers or shareholders of Landlord or
Landlord's partners or Affiliates, and Tenant shall not seek recourse against
the individual partners, members, managers, directors, officers or shareholders
of Landlord or Landlord's partners or Affiliates, or any of their personal
assets for satisfaction of any liability with respect to this Lease. In
addition, in consideration of the benefits accruing hereunder to Tenant and
notwithstanding anything contained in this Lease to the contrary, Tenant hereby
covenants and agrees for itself and all of its successors and assigns that the
liability of Landlord for its obligations under this Lease (including any
liability as a result of any actual or alleged failure, breach or default
hereunder by Landlord), shall be limited solely to, and Tenant's and its
successors' and assigns' sole and exclusive remedy shall be against, Landlord's
interest in the Project, and no other assets of Landlord.
31. Miscellaneous.
-------------
31.1 Governing Law. This Lease shall be governed by, and construed pursuant to,
the laws of the state in which the Premises is located.
31.2 Successors and Assigns. Subject to the provisions of Section 29 above, and
except as otherwise provided in this Lease, all of the covenants, conditions and
provisions of this Lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, personal representatives and
permitted successors and assigns; provided, however, no rights shall inure to
the benefit of any Transferee of Tenant unless the Transfer to such Transferee
is made in compliance with the provisions of Section 14, and, except as
otherwise expressly provided herein to the contrary, no options or other rights
which are expressly made personal to the original Tenant or in any rider
attached hereto shall be assignable to or exercisable by anyone other than the
original Tenant.
31.3 No Merger. The voluntary or other surrender of this Lease by Tenant or a
mutual termination thereof shall not work as a merger and shall, at the option
of Landlord, either (a) terminate all or any existing subleases, or (b) operate
as an assignment to Landlord of Tenant's interest under any or all such
subleases.
31.4 Professional Fees. If either Landlord or Tenant should bring suit against
the other with respect to this Lease, including for unlawful detainer or any
other relief against the other hereunder, then all costs and expenses incurred
by the prevailing party therein (including, without limitation, its actual
appraisers', accountants', attorneys' and other professional fees, expenses and
court costs), shall be paid by the other party.
31.5 Waiver. The waiver by either party of any breach by the other party of any
term, covenant or condition herein contained shall not be deemed to be a waiver
of any subsequent breach of the same or any other term, covenant and condition
herein contained, nor shall any custom or practice which may become established
between the parties in the administration of the terms hereof be deemed a waiver
of, or in any way affect, the right of any party to insist upon the performance
by the other in strict accordance with said terms. No waiver of any default of
either party hereunder shall be implied from any acceptance by Landlord or
delivery by Tenant (as the case may be) of any rent or other payments due
hereunder or any omission by the non-defaulting party to take any action on
account of such default if such default persists or is repeated, and no express
waiver shall affect defaults other than as specified in said waiver. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
31.6 Terms and Headings; Interpretation. Terms (including, without limitation,
the words "Landlord" and "Tenant") used herein shall include the plural as well
as the singular. Words used in any gender include other genders. The Section
headings of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
31.7 Time. Time is of the essence with respect to performance of every
provision of this Lease in which time or performance is a factor. All references
in this Lease to "days" shall mean calendar days unless specifically modified
herein
30
to be "business" days. The term "business day" shall mean a day on which banks
are open for business in the State in which the Premises are located, and shall
exclude Saturdays, Sundays, and federal, state and local public holidays.
31.8 Prior Agreements; Amendments. This Lease, including the Summary and all
Exhibits and Riders attached hereto contains all of the covenants, provisions,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and any other matter covered or mentioned in this Lease, and no
prior agreement or understanding, oral or written, express or implied,
pertaining to the Premises or any such other matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest. The parties acknowledge that all prior agreements, representations
and negotiations are deemed superseded by the execution of this Lease to the
extent they are not expressly incorporated herein.
31.9 Separability. The invalidity or unenforceability of any provision of this
Lease (except for Tenant's obligation to pay Rent) shall in no way affect,
impair or invalidate any other provision hereof, and such other provisions shall
remain valid and in full force and effect to the fullest extent permitted by
law.
31.10 Recording. Neither Landlord nor Tenant shall record this Lease. In
addition, neither party shall record a short form memorandum of this Lease
without the prior written consent (and signature on the memorandum) of the
other, and provided that prior to recordation Tenant executes and delivers to
Landlord, in recordable form, a properly acknowledged quitclaim deed or other
instrument extinguishing all of the Tenant's rights and interest in and to the
Premises, and designating Landlord as the transferee, which deed or other
instrument shall be held by Landlord and may be recorded by Landlord once this
Lease terminates or expires (but not prior thereto).
31.11 Exhibits and Riders. All Exhibits and Riders attached to this Lease are
hereby incorporated in this Lease for all purposes as though set forth at length
herein.
31.12 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent payment herein stipulated shall be deemed to be
other than on account of the rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent 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. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by any statute or at common law.
31.13 Financial Statements. Upon ten (10) days prior written request from
Landlord (which Landlord may make at any time during the Term but no more often
than once in any calendar year), Tenant shall deliver to Landlord a current
financial statement of Tenant and any guarantor of this Lease. Such statements
shall be prepared in accordance with generally acceptable accounting principles
and certified as true in all material respects by Tenant (if Tenant is an
individual) or by an authorized officer or general partner of Tenant (if Tenant
is a corporation or partnership, respectively). Notwithstanding the foregoing,
Tenant shall have no obligation to provide Landlord with such certified
financial information with respect to Tenant during any period of time in which
Tenant is a publicly-held company in good standing with the United States
Securities and Exchange Commission with its Voting Stock being publicly traded
on the New York Stock Exchange, the American Stock Exchange or the NASDAQ.
Landlord covenants and agrees to keep the non-public financial information of
Tenant it receives during the Term strictly confidential and not disclose the
same except as follows: (a) to the extent the disclosure of the same may be
required by any applicable Law; (b) in connection with any financing sought by
Landlord; (c) in connection with any legal or arbitration proceedings related to
this Lease; (d) to any prospective purchaser of all or any portion of the
Project or any interest therein or in Landlord; and (e) to any partner of
Landlord and Landlord's or any such partner's officers, directors, trustees,
partners, agents, employees, attorneys, consultants, contractors or
representatives.
31.14 No Partnership. Landlord does not, in any way or for any purpose, become
a partner of Tenant in the conduct of its business, or otherwise, or joint
venturer or a member of a joint enterprise with Tenant by reason of this Lease.
31.15 Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, governmental moratorium or other governmental action or
inaction (including failure, refusal or delay in issuing permits, approvals
and/or authorizations), injunction or court order, riots, insurrection, war,
fire, earthquake, flood or other natural disaster or other reason of a like
nature not the fault of the party delaying in performing work or doing acts
required under the terms of this Lease (but excluding delays due to financial
inability) (herein collectively, "Force Majeure Delays"), then performance of
such act shall be excused for the period of the delay and the period for the
31
performance of any such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Section shall not apply to nor
operate to excuse Tenant from the payment of Rent strictly in accordance with
the terms of this Lease.
31.16 Counterparts. This Lease may be executed in one or more counterparts,
each of which shall constitute an original and all of which shall be one and the
same agreement.
31.17 Nondisclosure of Lease Terms. Tenant acknowledges and agrees that the
terms of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Premises, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease. Tenant and its partners, officers, directors, employees, agents and
attorneys shall additionally have the right to disclose the terms and conditions
of this Lease as follows: (a) to the extent disclosure of some or all of such
terms, conditions or provisions may be required by law; (b) the financial terms
of this Lease to the extent that the disclosure of the same is required in
connection with any financing sought by Tenant; and (c) in connection with the
enforcement of Tenant's rights hereunder. The covenants of Tenant in this
Section have been given by Tenant as a material inducement to Landlord to lease
the Premises to Tenant.
31.18 Rules and Regulations. Tenant and Tenant's agents, employees and invitees
will comply fully with all requirements of the rules and regulations with
respect to the Building, the Project and the Common Areas which are attached
hereto as Exhibit D and made a part hereof as though fully set out herein.
---------
Landlord shall at all times have the right to change such rules and regulations
or to promulgate other reasonable rules and regulations in such manner as may be
deemed advisable for safety, care or cleanliness of the Building and the Project
and for preservation of good order therein, all of which rules and regulations,
changes and amendments will be forwarded to Tenant in writing and shall be
carried out and observed by Tenant; provided, however, no such other rules or
regulations shall materially and adversely affect the business being conducted
by Tenant at the Premises. Tenant shall further be responsible for compliance
with such rules and regulations by the employees, servants, agents, visitors and
invitees of Tenant. While all of said rules and regulations are intended to be
uniformly enforced as to all tenants and occupants of the Project, Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Project of any of said rules and regulations, and the failure
of such other tenant or occupant of the Project to comply with any of said rules
and regulations shall not relieve Tenant from the obligation to comply with the
same.
31.19 Proceedings for Non-Payment of Rent. In the event Landlord commences any
proceedings for non-payment of Rent or any other charges payable hereunder,
Tenant shall not interpose any counterclaim of whatever nature or description in
any such proceeding, unless the failure to raise the same would constitute a
waiver thereof. This shall not, however, be construed as a waiver of Tenant's
right to assert such claims in any separate action brought by Tenant.
31.20 Landlord's Lien. Intentionally deleted.
31.21 Security Deposit. Intentionally deleted.
31.22 Landlord Consents and Approvals; Indemnification. Except as expressly set
forth to the contrary in this Lease or any Exhibits or Riders attached hereto,
any time Landlord's consent or approval is required, Landlord may withhold such
consent or approval in Landlord's sole and absolute discretion. Additionally,
without limiting in any way Landlord's right to withhold its consent or approval
on reasonable grounds, whenever Landlord's consent or approval is expressly
required not to be unreasonably withheld or conditioned, it is agreed that
Landlord will not be acting unreasonably in refusing to give its consent or
approval to the matter Tenant is seeking to have Landlord consent to or approve
if, in Landlord's good faith opinion, such matter would (1) cause Landlord to
incur some cost or expense in connection with the leasing and/or build-out of
the remaining portions of the Building (other than any cost or expense which
Landlord would have otherwise incurred regardless of the matter being consented
to or approved) and Tenant has not offered in connection with its requested
consent to fully reimburse and/or indemnify Landlord for any such cost or
expense (such reimbursement to take place within 15 days after Tenant's receipt
of Landlord's written request therefor and amount thereof), (2) adversely affect
any of the Base Building Components or any of the systems of the Building, or
(3) otherwise adversely affect the Project (including, without limitation,
Landlord's ability to lease the remaining space in the Building and/or sell the
Project). Landlord acknowledges and agrees that the fact that Tenant plans to
construct such improvements to the Initial Premises as
32
are necessary to complete its intended data center to be located at the Project
will not, in and of itself, adversely affect the Project. All indemnity
obligations of Landlord and Tenant set forth in this Lease or any Exhibits or
Riders attached hereto shall survive the expiration or earlier termination of
this Lease.
31.23 Satellite Dishes and Antennae. Tenant's rights with respect to the
installation and maintenance of communication dishes and antennae on the roof of
the Building are set forth in the Exhibit E attached hereto.
---------
31.24 Fiber Conduits. Tenant's rights to install, connect, run and maintain
telecommunications cabling across the Land to the Premises are set forth in the
Exhibit G attached hereto.
---------
31.25 Letter of Credit. Intentionally deleted.
31.26 Tenant's Power Generator. Tenant's rights with respect to the installation
and maintenance of a backup generator at the Project are set forth in the
Exhibit J attached hereto.
---------
31.27 Right of First Refusal. Tenant's right of first refusal with respect to
the remaining unoccupied portion of the Building is set forth on the Exhibit I
---------
attached hereto.
31.28 Addendum to Lease. Certain additional provisions with respect to this
Lease are set forth in the Rider A attached hereto. If any of the provisions set
-------
forth in the main body of this Lease or any Exhibit or other Rider attached
hereto would prevent Tenant from exercising the rights expressly granted to
Tenant in Rider A, the provisions of Rider A granting Tenant such rights shall
------- -------
control.
31.29 Leasehold Improvements. The rights and obligations set forth in the
Exhibit K attached hereto shall govern Tenant's construction of the Initial
---------
Improvements.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
33
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
TENANT: INFLOW, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: President, CEO
---------------------------
LANDLORD: AGB XXXXXXX PARK L.P., a Delaware limited partnership
By: XX XXXXXXX PARK ACQUISITION CORP., L.P.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
----------------------------
Title: Vice President
---------------------------
34
EXHIBIT A
DEPICTION OF THE PREMISES
-------------------------
[to be supplied]
A-1
[DIAGRAM]
EXHIBIT A
DEPICTION OF THE PREMISES
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
-----------------------------
Xxx 0, Xxxxx X, Xxxxxxxxxxxxx Xx Xxx 0 and Lot 7, Replat of Xxxxxxx Park, Volume
94, Pages 299-300, Xxxxxx County, Texas
B-1
EXHIBIT B-1
-----------
DEPICTION OF THE COMMON PARKING AREA
------------------------------------
[to be supplied]
B-1-1
[DIAGRAM]
EXHIBIT B-2
-----------
DEPICTION OF THE VISITOR PARKING AREA AND THE EXCLUSIVE PARKING AREA
--------------------------------------------------------------------
[to be supplied]
B-2-1
[DIAGRAM]
EXHIBIT C
SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE
------------------------------------------
The undersigned ("Tenant") hereby certifies to ______________________________
("Landlord"), and ______________________________ as follows:
1. Attached hereto is a true, correct and complete copy of that certain Lease
dated __________,by and between Landlord and Tenant (the "Lease"), which demises
Premises which are located at
__________________________________________________________________. The Lease is
now in full force and effect and has not been amended, modified or supplemented,
except as set forth in Section 6 below.
2. The term of the Lease commenced on [_____________].
3. The term of the Lease is currently scheduled to expire on _________________.
4. Tenant has no option to renew or extend the term of the Lease except:
_______________.
5. Tenant has no preferential right to purchase the Premises.
6. The Lease has: (Initial One)
( ) not been amended, modified, supplemented, extended, renewed or
assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements, copies of which are attached
hereto: ______________________________.
7. Tenant has accepted and is now in possession of the Premises and has not
sublet, assigned or encumbered the Lease, the Premises or any portion thereof
except as follows: ____________.
8. The current monthly Rent is $________________.
9. The amount of security deposit (if any) is $____. No other security
deposits have been made.
10. All rental payments payable by Tenant have been paid in full as of the date
hereof. No rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
11. All work required to be performed by Landlord under the Lease has been
completed and has been accepted by Tenant, and all tenant improvement allowances
have been paid in full.
12. To the best of Tenant's knowledge, as of the date hereof, there are no
defaults on the part of Landlord or Tenant under the Lease.
13. Tenant has no defense as to its obligations under the Lease and claims no
set-off or counterclaim against Landlord.
14. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies, except as
expressly provided in the Lease.
15. All insurance required of Tenant under the Lease has been provided by
Tenant and all premiums have been paid.
16. There has not been filed by or against Tenant a petition in bankruptcy,
voluntary or otherwise, any assignment for the benefit of creditors, any
petition seeking reorganization or arrangement under the bankruptcy laws of the
United States or any state thereof, or any other action brought pursuant to such
bankruptcy laws with respect to Tenant.
17. Tenant pays rent due Landlord under the Lease to Landlord and does not have
any knowledge of any other person who has any right to such rents by collateral
assignment or otherwise.
C-1
The foregoing certification is made with the knowledge that
__________________________ is about to [fund a loan to Landlord or purchase the
Premises from Landlord], and that __________________________ is relying upon the
representations herein made in [funding such loan or purchasing the Premises].
Dated: ___________________
"TENANT'
[_____________________________________________]
By ____________________________________________
Name: _________________________________________
Title: ________________________________________
SAMPLE ONLY (NOT FOR EXECUTION)
X-0
XXXXXXX X
XXX XXXXXXX XXXX, L.P., a Delaware limited partnership ("Landlord"), and INFLOW,
INC., a Delaware corporation ("Tenant"), have entered into that certain Triple
Net Lease (the "Lease") dated as of November 12, 1999, for the lease of certain
space in a building located in Xxxxxx County, Texas. This Exhibit D (this
"Exhibit") is attached to the Lease. Except to the extent otherwise indicated
herein, the initially capitalized terms used in this Exhibit shall have the
meanings assigned to them in the Lease.
RULES AND REGULATIONS
---------------------
1. Landlord agrees to furnish Tenant with three (3) keys to the Premises
without charge. Additional keys will be furnished at a nominal charge.
Tenant shall not change locks or install additional locks on doors without
prior written consent of Landlord. Tenant shall not make or cause to be
made duplicates of keys procured from Landlord without prior written
approval of Landlord. All keys to the Premises shall be surrendered to
Landlord upon termination of this Lease.
2. Tenant will refer all contractors rendering any service on or to the
Premises for Tenant to Landlord for Landlord's approval before performance
of any contractual service, which approval will not be unreasonably
withheld, conditioned or delayed. Tenant's contractors shall comply with
Landlord's reasonable rules and regulations pertaining to construction and
installation. This provision shall apply to all work performed to the
Premises, including installation of electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim,
windows, ceilings and equipment or any other physical portion of the
Premises or the Project. The foregoing shall not apply to any work done
relating to Tenant's Property or Tenant's Customer's Property. The
foregoing shall not apply to any work done relating to Tenant's Property or
Tenant's Customer's Property as long as such work will not affect the
Building and/or the Premises.
3. Tenant shall not at any time occupy any part of the Premises as sleeping or
lodging quarters.
4. Tenant shall not place, install or operate on the Premises or in any part
of the Project any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the
Premises or the Project any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable, explosive or hazardous material without written
consent of Landlord; provided, however, the foregoing shall not apply to
Tenant's generator, associated fuel tanks or UPS battery backup systems or
to any Tenant Changes or to the computer or telecommunications equipment
operated by Tenant or its customers on the Premises.
5. Landlord will not be responsible for lost or stolen merchandise, trade
fixtures, furniture, furnishings, personal property, equipment, money or
jewelry from the Premises or the Project regardless of whether such loss
occurs when the area is locked against entry.
6. No dogs, cats, fowl or other animals shall be brought into or kept in or
about the Premises or Property.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person or contract with or render free or paid services to
any Tenant or to any of Tenant's agents, employees or invitees.
8. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the Project shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
9. No person shall disturb occupants of the Project by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
10. Nothing shall be thrown out of the windows of the Project or down the
stairways or other passages.
11. Tenant and its employees, agents and invitees shall park their vehicles
only in the Common Parking Area, the Exclusive Parking Area or, as to
visitors of Tenant, in the Visitor Parking Area. Tenant shall furnish
Landlord with state automobile license numbers of Tenant's vehicles and its
employees' vehicles within five (5) days after
D-1
taking possession of the Premises and shall notify Landlord of any changes
within five (5) days after such change occurs with respect to vehicles
regularly using the Common Parking Area. Tenant shall not leave any vehicle
in a state of disrepair (including without limitation, flat tires, out of
date inspection stickers or licenses plates) on the Premises or on the
Project. If Tenant or its employees, agents or invitees (i) park their
vehicles in areas other than the Common Parking Area, the Exclusive Parking
Area or, as to visitors of Tenant, the Visitor Parking Area, or (ii) leave
any vehicle in a state of disrepair, Landlord, after giving written notice
to Tenant of such violation, shall have the right to remove such vehicles
at Tenant's expense.
12. Parking in the Common Parking Area shall be in compliance with all parking
rules and regulations including any sticker or other identification system
established by Landlord. Failure to observe the rules and regulations shall
terminate Tenant's right to use the parking or area and subject the vehicle
in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal or impoundment
of a vehicle shall create any liability on Landlord or be deemed to
interfere with Tenant's right to possession of its Premises. Vehicles must
be parked entirely within the stall lines and all direction signs, arrows
and posted speed limits must be observed. Parking is prohibited in areas
not striped for parking, in areas marked "2 HOUR VISITOR PARKING" (except
by visitors), in aisles, where "No Parking" signs are posted, on ramps, in
cross hatched areas, and in other areas as may be designated by Landlord.
Parking stickers or other forms of identification supplied by Landlord
shall remain the property of Landlord and not the property of Tenant and
are not transferable. Every person is required to park and lock his
vehicle. All responsibility for damage to vehicles or persons is assumed by
the owner of the vehicle or its driver.
13. Tenant assumes, and shall indemnify Landlord against, all risks and claims
of damage to persons and properties arising in connection with any movement
in or out of the Building of furniture, office supplies and equipment.
14. Tenant shall not lay floor covering within the Premises without written
approval of Landlord. The use of cement or other similar adhesive materials
not easily removed with water is expressly prohibited.
15. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Project.
16. If any governmental license or permit shall be required for the proper and
lawful conduct of Tenant's business, Tenant, before occupying the Premises
shall procure and maintain such license or permit and submit it for
Landlord's inspection. Tenant shall at all times comply with the terms of
any such license or permit.
17. Except with the prior written consent of Landlord, Tenant shall not sell or
permit the sale from the Premises of, or use, or permit the use of any
sidewalk or mall area adjacent to the Premises for the sale of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building, nor shall
the Premises be used for manufacturing of any kind, or for any business or
activity other than that specifically provided for in Tenant's lease. The
foregoing shall not apply with respect to Tenant's provision of co-location
services and other telecommunications services for its customers.
18. Tenant shall not install any radio or television antenna, loudspeaker or
other device on the exterior walls or roof of the Building except as
permitted in the Lease.
19. Tenant shall not use in any space, or in the Common Areas of the Building,
any hand trucks except those equipped with rubber tires and side guards or
such other material handling equipment as Landlord may approve. No other
vehicles of any kind shall be brought by Tenant into the Building or kept
in or about the Premises without prior written approval of Landlord.
20. Tenant shall store all its trash and garbage within the Premises until
daily removal of same by janitorial service to such location in the
Building as may be designated from time to time by Landlord. No material
shall be placed in the Building trash boxes or receptacles if such material
is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the city
in which the Premises is located without being in violation of any law or
ordinance governing such disposal.
D-2
21. Tenant shall not permit the use or the operation of any coin operated
machines on the Premises, including without limitation, vending machines,
video games, pinball machines, or pay telephones without the prior written
consent of Landlord.
22 As used in the Lease, "business days" means Monday through Saturday (except
holidays); "regular hours" means 7:00 a.m. to 6:00 p.m. on weekdays and
9:00 a.m. to 1:00 p.m. on Saturdays; and "holidays" means New Years Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas
Day, together with such other holidays designated by Landlord consistent
with those holidays designated by landlords of comparable office buildings
located in the county in which the Building is located.
23. Landlord desires to maintain the Project in the highest standard of dignity
and good taste consistent with comfort and convenience for Tenants. Any
action or condition not meeting this high standard should be reported
directly to Landlord. Your cooperation will be mutually beneficial and
sincerely appreciated. Subject to the terms and conditions of the Lease,
Landlord reserves the right to make such other and further reasonable rules
and regulations as in its judgment may from time to time be necessary, for
the safety, care and cleanliness of the Premises and the Project and for
the preservation of good order therein.
D-3
EXHIBIT E
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit E
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
SATELLITE DISH/ANTENNA
----------------------
1. Provided that Tenant complies with the terms of this Exhibit, Tenant
may, at its risk and expense, install the Satellite Dish (as hereinafter
defined) on the roof of the Building in the area depicted in the Rider F
attached to the Lease (the "Satellite Dish Area"), which Satellite Dish Area
shall contain approximately 1,000 square feet of space. As used herein, the term
"Satellite Dish" shall mean each satellite dish or other antenna or dish or
telecommunications equipment and related wiring and equipment approved in
writing by Landlord to be located in the Satellite Dish Area, and the term
"Satellite Dishes" shall collectively refer to all of the foregoing. Satellite
Dishes may only be used by Tenant and any Permitted Transferee of all of
Tenant's interest in the Lease or a Permitted Transferee subleasing all or any
part of the Premises and their respective customers in the operation of their
respective businesses in the Premises. Satellite Dishes shall not be used for or
on behalf of any persons or entities other than Tenant or any Permitted
Transferee identified in the immediately preceding sentence and Tenant's and
such Permitted Transferee's customers (i.e., Satellite Dishes shall not be used
for any commercial or other for-profit use unrelated to such businesses). If the
Satellite Dish is not owned by Tenant or a Permitted Transferee then occupying
all or any portion of the Premises, Tenant or such Permitted Transferee shall,
prior to the installation of any Satellite Dish, deliver to Landlord a written
acknowledgement by the owner of the applicable Satellite Dish of Landlord's
rights under this Exhibit. Prior to installing a Satellite Dish in the Satellite
Dish Area, Tenant shall submit to Landlord for its approval plans and
specifications which (1) specify in reasonable detail the design, location and
size of the applicable Satellite Dish, and (2) are sufficiently detailed to
allow for the installation of the applicable Satellite Dish in a good and
workmanlike manner and in accordance with all Laws applicable thereto
(collectively, the "SD Legal Requirements"). Prior to installing a Satellite
Dish in the Satellite Dish Area, Tenant must also satisfy the following
conditions precedent: (a) Tenant shall have obtained the written approval of
Landlord required by the preceding sentence; (b) Tenant shall have obtained and
be maintaining all permits and/or approvals required by applicable Laws with
respect to the installation, maintenance and operation of the applicable
Satellite Dish and shall have provided Landlord with sufficient evidence of the
existence of such permits and/or approvals and that the installation of such
Satellite Dish planned by Tenant will comply in all respects with the SD Legal
Requirements; and (c) Tenant shall have furnished Landlord, in the form and
content required by Section 20 of the Lease, with evidence of the insurance that
Tenant is obligated to furnish to Landlord pursuant to Section 20 of the Lease.
Landlord's approval of any plans and specifications related to the installation
of a Satellite Dish shall create no responsibility or liability on the part of
Landlord for the completeness, design or sufficiency of such plans and
specifications, or the compliance of the same or the applicable Satellite Dish
with the SD Legal Requirements. If Tenant satisfies the conditions precedent set
forth above, Tenant shall install (in a good and workmanlike manner), maintain
and use the applicable Satellite Dish in accordance with all SD Legal
Requirements. Tenant will make no penetration through the roof of the Building
without Landlord's prior written consent (which consent shall not be
unreasonably withheld or delayed). After installing a Satellite Dish, Tenant
shall maintain all permits necessary for the maintenance and operation of the
applicable Satellite Dish while it is on the roof of the Building and operate
and maintain such Satellite Dish in such a manner so as not to unreasonably
interfere with (i) any other satellite, antennae, or other transmission facility
on the Building's roof, in the Building or otherwise at the Project, and (ii)
the use or occupancy of space at the Project by any other tenants or occupants
of such space (the interference described in this sentence is herein referred to
as "Interference"). Copies of all such permits and evidence of such consents
must be submitted to Landlord as soon as practicable after Tenant obtains the
same.
2. If, in Landlord's judgement reasonably exercised, a Satellite Dish has
caused Interference and such Interference did not arise merely as a result of
the existence of the applicable Satellite Dish at the time of Landlord's leasing
space to another tenant at the Project or Landlord's granting rights to a third
party on the roof of the Building or otherwise at the Project. Landlord shall
provide Tenant with written notice thereof and Tenant shall promptly begin
taking actions to prevent the applicable Interference and shall in any event end
such Interference within five (5) business days after Tenant's receipt of such
written notice. If Tenant has failed to promptly begin taking actions to prevent
the applicable Interference and/or failed to end such Interference within five
(5) business days after Tenant's receipt of written notice thereof, such failure
shall constitute an Event of Default and Landlord shall have the right, in
addition to any and all other remedies available to it under this Exhibit and
the Lease, to require that Tenant remove the Satellite Dish causing such
Interference by giving Tenant written notice thereof, which removal by Tenant
shall be completed in accordance with the paragraph 4 below and within thirty
(30) days after Tenant's receipt of such written removal notice. Tenant
acknowledges and agrees
E-1
that continuing Interference may cause irreparable injury and, therefore,
Landlord shall additionally have the right to bring an action to enjoin such
Interference. Landlord acknowledges and agrees that if another tenant at the
Project and/or another user of the roof of the Building seeks to install or
actually installs a satellite dish or other antenna or dish or
telecommunications equipment and a Satellite Dish interferes with such tenant's
or user's property, such interference will not constitute Interference for the
purposes of this paragraph.
3. Landlord may require that Tenant screen each Satellite Dish with a
parapet or other screening device acceptable to Landlord. If Landlord does elect
to require that Tenant screen a Satellite Dish (whether at the time of the
installation thereof or at any time thereafter), Tenant shall promptly complete
such screening work and in no event shall such work fail to be completed within
30 days after Landlord's election to require such screening. Tenant shall
maintain each Satellite Dish and screening device in good repair and condition.
4. Tenant shall, at its risk and expense, remove all Satellite Dishes
(including all wiring and/or cabling related thereto) from the Project within
thirty (30) days after the occurrence of any of the following events: (A) a
proper termination of the Lease by Tenant or Landlord (other than a termination
of the Lease by Landlord following the occurrence and during the continuance of
an Event of Default); or (B) Tenant assigns any of its interest in the Lease or
sublets any portion of the Premises (other than to a Permitted Transferee).
Tenant shall, at its risk and expense on or before the date of the expiration of
the Term or any proper termination of the Lease or Tenant's right to possess the
Premises following the occurrence and during the continuance of an Event of
Default, remove all Satellite Dishes (including all wiring and/or cabling
related thereto) from the Project. If Tenant fails to remove any Satellite Dish
as required by the preceding 2 sentences or by paragraph 2 above, the applicable
Satellite Dish shall become the property of Landlord and Landlord (and its
agents, employees or contractors) may remove such Satellite Dish and store or
dispose of it in any manner Landlord deems appropriate without liability to
Tenant. Tenant shall, within ten (10) days after Tenant's receipt of Landlord's
written request for the following reimbursement, reimburse Landlord for all
costs incurred by Landlord in connection with any removal of the applicable
Satellite Dish by Landlord or its agents, employees or contractors that is
permitted by this Exhibit. Prior to any removal of a Satellite Dish by or on
behalf of Tenant (but excluding any removal of a Satellite Dish by Landlord or
its agent, employee or contractor), Tenant shall (i) obtain Landlord's written
approval (which approval shall not be unreasonably withheld or delayed) to the
plans related to the same (Landlord's approval of such plans shall create no
responsibility or liability on the part of Landlord for the completeness, design
or sufficiency of such plans), (ii) obtain and maintain all permits and/or
approvals required by the SD Legal Requirements with respect to the removal of
the applicable Satellite Dish and provide Landlord with sufficient evidence of
the existence of such permits and/or approvals and that the removal of such
Satellite Dish planned by Tenant will comply in all respects with all SD Legal
Requirements, and (iii) furnish Landlord with the written evidence of insurance
that Tenant is obligated to furnish to Landlord pursuant to Section 20 of the
Lease. Tenant shall repair any damage to the Building and/or Project caused by
or relating to a Satellite Dish (including, without limitation, any damage
caused by its installation, maintenance, use, or removal of the applicable
Satellite Dish) and restore the roof of the Building to its condition existing
before the installation of the applicable Satellite Dish.
5. Tenant shall protect, defend, indemnify and hold harmless Landlord and
all Landlord Indemnified Parties from all Claims resulting from and/or arising
in connection with or related to the installation, maintenance, use, or removal
of each Satellite Dish by Tenant, its agents or contractors or, if permitted by
this Exhibit, the removal of any Satellite Dish by Landlord, its agents,
employees or contractors, INCLUDING THOSE ARISING FROM THE NEGLIGENCE OF
LANDLORD OR ANY LANDLORD INDEMNIFIED PARTIES, unless the Claim in question was
caused by Landlord's or its agents', employees' or contractors' sole or gross
negligence or willful misconduct. All work relating to a Satellite Dish shall,
at Tenant's expense, be coordinated with Landlord's roofing contractor so as not
to adversely affect any warranty for the Building's roof. Except as otherwise
set forth in this Exhibit, there shall be no charge to Tenant for its use of the
roof of the Building for any of the Satellite Dishes. All additional equipment
and work related to any Satellite Dish shall be located in the Premises or the
Satellite Dish Area, unless an alternate location within or on top of the
Building is approved by Landlord. If Landlord allows such additional equipment
to be located outside of the Premises or the Satellite Dish Area, Tenant and
Landlord shall mutually agree upon a reasonable rental for space occupied by
such equipment. Subject to Landlord's rules and regulations related thereto,
Tenant and its contractors shall have reasonable access to each Satellite Dish
and related equipment for the purposes of servicing, repairing, or otherwise
maintaining the same.
6. The indemnification of Landlord and Landlord Indemnified Parties in the
preceding paragraph and the obligations of Tenant with respect to the removal of
each Satellite Dish from the roof of the Building and the Project shall survive
the expiration of the Term and any earlier termination of the Lease.
E-2
EXHIBIT F
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit F
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
ARBITRATION PROVISIONS
----------------------
Any controversy or claim arising out of or relating to the Lease which
involves less than $50,000.00 or which relates to an unreasonable denial of any
consent or approval not to have been unreasonably withheld (the foregoing claims
or controversies together with matters specifically identified in the Lease as a
claim to be submitted for resolution by binding arbitration are herein referred
to as "Claims Subject to Arbitration") shall be settled by arbitration
administered by the American Arbitration Association (the "AAA") under its
Commercial Arbitration Rules (the "Rules"), and judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
Landlord and Tenant agree as follows: (1) all Claims Subject to Arbitration
shall be submitted to arbitration (using one arbitrator selected by the AAA or,
if requested by either party, three arbitrators selected as provided below)
administered by the AAA under the Rules; and (2) both Landlord and Tenant will
abide by and perform any award rendered by the arbitrators. The arbitrators
shall have the right to award any form of relief permitted to be awarded by any
court of law having jurisdiction. Any decision or award by the arbitrators shall
be enforceable in any court having jurisdiction.
In the event of a need for the submission of any Claims Subject to
Arbitration to arbitration, the initiating party shall (1) give written notice
to the other party of its intention to arbitrate, which notice must contain a
statement setting forth the nature of the dispute, the amount involved, if any,
the remedy sought, and the hearing locale requested, and (2) file at any
regional office of the AAA three copies of such written notice, three copies of
the applicable arbitration provisions of the Lease, and the appropriate filing
fee as provided by the Rules. Within fifteen (15) days after the non-initiating
party has received notice of such filing, the AAA shall appoint one arbitrator,
unless either party has given notice of its election to have three arbitrators
hear the matter, in which case Landlord and Tenant each may appoint one
arbitrator by identifying such appointed arbitrator in a written notice
delivered to the other party and filing such written notice at the appropriate
regional office of the AAA within such fifteen (15) day period. If either
Landlord or Tenant fails to so appoint an arbitrator, the AAA shall, as provided
in the Rules, appoint the arbitrator to have been selected by such party or
parties and the third arbitrator. The arbitration proceedings shall thereafter
take place as provided by the Rules. As provided in the Lease, the unsuccessful
party in the arbitration proceedings shall promptly pay to the successful party
all costs and expenses (including, without limitation, court costs and
attorneys' fees) incurred therein; provided, however, Landlord and Tenant shall
each be responsible for 50% of (i) all filing fees related to such arbitration
proceedings, and (ii) all fees payable to one or more of the arbitrators.
Notwithstanding anything to the contrary contained in this Exhibit, in no
event shall any dispute regarding the existence of an Event of Default or
Landlord's ability to exercise its rights and remedies in connection therewith
(including, without limitation, the exercise of any of Landlord's remedies set
forth in Section 22.2 of the Lease) constitute, or be deemed to constitute, a
"Claim Subject to Arbitration".
F-1
EXHIBIT G
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit G
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
TELECOMMUNICATIONS CABLING LICENSE
----------------------------------
1. As partial consideration for the Rent to be paid by Tenant to Landlord
pursuant to the Lease, Landlord hereby grants to Tenant a non-exclusive license
(the "Fiber Optic License") to install, connect, run and maintain, after the
Effective Date and prior to the Removal Date (as defined below), up to ten (10)
telecommunications (including, without limitation, fiber optic conduits) from
the boundary of the Project to the Building under the Telecommunications Cabling
Area (as defined below). The fiber optic conduit described above is herein
referred to as the "Fiber Optic Conduit". The location of the Fiber Optic
Conduit shall be within the areas of the Land shown on the Rider A attached to
the Lease (the "Telecommunications Cabling Area") and shall be underground at a
depth approved by Landlord unless Landlord otherwise agrees in a writing signed
by Landlord or its managing agent. Tenant's rights within the Telecommunications
Cabling Area are nonexclusive and subject to the rights of all other parties
having rights therein and thereto, to the extent such rights do not unreasonably
interfere with the Fiber Optic License or its intended use by Tenant. The Fiber
Optic License is further subject to any and all Laws applicable thereto and to
the rights of all other parties (including, without limitation, Landlord) with
rights in and to the Telecommunications Cabling Area. Landlord has made no
representations or warranties regarding the condition of the Telecommunications
Cabling Area and/or the suitability of the Telecommunications Cabling Area for
Tenant's intended use. The Fiber Optic License is non-transferable except in
connection with a Transfer of the Lease to a Permitted Transferee. In the event
of a termination of the Lease or Tenant's right to possess the Premises, the
Fiber Optic License shall also terminate effective on the thirtieth (30th) day
after such termination. As used herein, the term "Removal Date" shall mean the
date on which Tenant is required by the terms of this Exhibit to remove the
Fiber Optic Conduit from the Project. The Fiber Optic License shall not be
terminated by Landlord other than in the event of a proper termination of the
Lease or Tenant's right to possess the Premises or as otherwise expressly
provided in this Exhibit.
2. The Fiber Optic Conduit may only be used by Tenant and any Permitted
Transferee and Tenant's or such Permitted Transferee's customers. Landlord shall
have the absolute right to require Tenant to relocate from time to time the
Fiber Optic Conduit to alternative locations at the Project (which alternative
locations shall then become the Telecommunications Cabling Area). In the event
of any such relocation (which relocation will be done in the same manner and
after satisfying the same conditions as applicable to the initial installation
of the Fiber Optic Conduit), Landlord will allow Tenant a reasonable time to
accomplish such relocation, not to exceed 90 days, and such relocation shall be
performed at Tenant's sole cost and expense subject to Tenant's right of
reimbursement in the immediately following sentence. Landlord acknowledges that
such relocation will be done by first installing redundant Fiber Optic Conduit
and by taking other precautions so that service to Tenant shall at no time be
interrupted. Within thirty (30) days after completing such relocation, Tenant
may submit to Landlord written evidence of all costs actually incurred by Tenant
in connection therewith and Landlord shall, provided no Event of Default has
occurred and is continuing and within fifteen (15) days after Landlord's receipt
of such written evidence of costs, pay to Tenant 100% of the amount of such
relocation costs.
3. Prior to installing the Fiber Optic Conduit in the Telecommunications
Cabling Area, Tenant shall submit to Landlord for its approval, which shall not
be unreasonably withheld or delayed, plans and specifications which are
sufficiently detailed to allow for the installation of the Fiber Optic Conduit
in a good and workmanlike manner and in accordance with all Laws applicable
thereto (collectively, the "Conduit Legal Requirements"). Prior to installing
the Fiber Optic Conduit in the Telecommunications Cabling Area, Tenant must also
satisfy the following conditions precedent: (a) Tenant shall have obtained the
written approval of Landlord required by the preceding sentence; (b) Tenant
shall have obtained and be maintaining all permits and/or approvals required by
applicable Laws with respect to the installation, maintenance and operation of
the Fiber Optic Conduit and shall have provided Landlord with sufficient
evidence of the existence of such permits and/or approvals and that the
installation of the Fiber Optic Conduit planned by Tenant will comply in all
respects with the Conduit Legal Requirements; and (c) Tenant shall have
furnished Landlord, in the form and content required by Section 20 of the Lease,
with evidence of the insurance that Tenant is obligated to furnish to Landlord
pursuant to Section 20 of the Lease. Landlord's approval of any plans and
specifications related to the installation of the Fiber Optic Conduit shall
create no responsibility or liability on the part of Landlord for the
completeness, design or sufficiency of such plans and specifications, or the
compliance of the same or the Fiber Optic Conduit with the Conduit Legal
Requirements. If Tenant satisfies the conditions precedent set forth above,
Tenant shall install (in a good and
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workmanlike manner), maintain and use the Fiber Optic Conduit in accordance with
all Conduit Legal Requirements. Tenant acknowledges and agrees that if the
installation of the Fiber Optic Conduit will require any penetrations through
the exterior of the Building, no such penetrations shall be made by Tenant or
any other party unless the same are made following Tenant's receipt of
Landlord's written approval with respect thereto, which shall not be
unreasonably withheld or delayed. Tenant shall promptly pay to Landlord or to
Tenant's contractors, as the case may be, when due, the cost of all work
performed in connection with the installation of the Fiber Optic Conduit, and
upon completion, deliver to Landlord evidence of payment and waivers of all
liens for labor, services or materials. Tenant shall protect, defend, indemnify
and hold Landlord and all Landlord Indemnified Parties harmless from all Claims
and/or liens for labor, services or materials relating to such work that may
arise as a result of any failure by Tenant to satisfy its obligations set forth
in this Exhibit. In the event Landlord incurs any expenses in the removal of
trash or due to the cleaning of the public corridors and loading dock areas or
any other areas of the Project as a direct result of Tenant's or Tenant's
contractors' work, then Tenant shall reimburse Landlord for such expenses within
ten (10) days of Tenant's receipt of a xxxx or bills from Landlord for the
amount of such expenses.
5. After installing the Fiber Optic Conduit, Tenant shall maintain all
permits and/or consents necessary for the maintenance and use of the Fiber Optic
Conduit and use and maintain the Fiber Optic Conduit and otherwise perform all
of Tenant's telecommunications activities/services ("Tenant's Telecommunications
Services") in such a manner so as not to unreasonably interfere with (i) any
other wiring, cabling, equipment and/or other property located at the Project,
(ii) any satellite, antennae, or other transmission facility on the Building's
roof, in the Building or otherwise at the Project, and (iii) the use or
occupancy of space at the Project by any other tenants or occupants of such
space (the interference described in this sentence is herein collectively
referred to as "Interference"). Copies of all such permits and evidence of such
consents must be submitted to Landlord as soon as practicable after Tenant
obtains the same. Tenant, at its sole cost and expense, shall be solely
responsible for and shall maintain the Fiber Optic Conduit in a safe, sound,
clean and good condition and repair. Subject to the rules and regulations then
in force and effect in accordance with the Lease, Tenant or its contractor shall
have access at all times to the Fiber Optic Conduit for purposes of servicing,
repairing, or otherwise maintaining the same.
6. If, in Landlord's judgement reasonably exercised, the Fiber Optic
Conduit and/or Tenant's Telecommunications Services have caused Interference and
such Interference did not arise merely as a result of the existence of the Fiber
Optic Conduit at the time of Landlord's granting rights to a third party within
the Telecommunications Cabling Area, Landlord shall provide Tenant with written
notice thereof and Tenant shall promptly begin taking actions to prevent the
applicable Interference and shall in any event end such Interference within five
(5) business days after Tenant's receipt of such written notice. If Tenant has
failed to promptly begin taking actions to prevent the applicable Interference
and/or failed to end such Interference within five (5) business days after
Tenant's receipt of written notice thereof, such failure shall constitute an
Event of Default and Landlord shall have the right, in addition to any and all
other remedies available to it under this Exhibit and the Lease, to require that
Tenant remove the Fiber Optic Conduit and/or cease the Tenant's
Telecommunications Services causing such Interference by giving Tenant written
notice thereof, which removal by Tenant shall be completed in accordance with
the following paragraph and within thirty (30) days after Tenant's receipt of
such written removal notice. Tenant acknowledges and agrees that continuing
Interference may cause irreparable injury and, therefore, Landlord shall
additionally have the right to bring an action to enjoin such Interference.
Landlord acknowledges and agrees that if another tenant at the Project and/or
another user of any of the Telecommunications Cabling Area seeks to install or
actually installs wiring, cabling and/or conduit within the Telecommunications
Cabling Area and any of the Fiber Optic Conduit interferes with such tenant's or
user's property, such interference will not constitute Interference for the
purposes of this paragraph.
7. Tenant shall, at its risk and expense, remove the Fiber Optic Conduit
from the Project within thirty (30) days after the occurrence of any of the
following events: (A) a proper termination of the Lease by Tenant or Landlord
(other than a termination of the Lease by Landlord following the occurrence and
during the continuance of an Event of Default); or (B) Tenant assigns any of its
interest in the Lease or sublets any portion of the Premises (other than to a
Permitted Transferee). Tenant shall also, at its risk and expense on or before
the Initial Expiration Date (as the same may be extended pursuant to a valid
exercise by Tenant of one or more or the Extension Options) or any proper
termination of the Lease or Tenant's right to possess the Premises following the
occurrence and during the continuance of an Event of Default, remove the Fiber
Optic Conduit from the Project. If Tenant fails to remove the Fiber Optic
Conduit as required by the preceding 2 sentences or by the immediately preceding
paragraph, the Fiber Optic Conduit shall become the property of Landlord and
Landlord (and its agents, employees or contractors) may remove the Fiber Optic
Conduit and store or dispose of it in any manner Landlord deems appropriate
without liability to Tenant. Tenant shall, within ten (10) days after Tenant's
receipt of Landlord's written request for the following reimbursement, reimburse
Landlord for all costs incurred by Landlord in connection with any removal of
the Fiber Optic Conduit by Landlord or its agents, employees or contractors that
is permitted by this Exhibit. Prior to any removal of the Fiber Optic Conduit by
or on behalf of Tenant (but excluding
G-2
any removal of the Fiber Optic Conduit by Landlord or its agent, employee or
contractor), Tenant shall (i) obtain Landlord's written approval to the plans
related to the same (Landlord's approval of such plans shall create no
responsibility or liability on the part of Landlord for the completeness, design
or sufficiency of such plans), (ii) obtain and maintain all permits and/or
approvals required by the Conduit Legal Requirements with respect to the removal
of the Fiber Optic Conduit and provide Landlord with sufficient evidence of the
existence of such permits and/or approvals and that the removal of the Fiber
Optic Conduit planned by Tenant will comply in all respects with all Conduit
Legal Requirements, and (iii) furnish Landlord with the written evidence of
insurance that Tenant is obligated to furnish to Landlord pursuant to Section 20
of the Lease. Tenant shall repair any damage to the Project caused by or
relating to the Fiber Optic Conduit (including, without limitation, any damage
caused by its installation, maintenance, use, or removal of the Fiber Optic
Conduit).
8. Tenant shall protect, defend, indemnify and hold harmless Landlord and
all Landlord Indemnified Parties from all Claims resulting from and/or arising
in connection with or related to (i) the installation, maintenance, use, or
removal of the Fiber Optic Conduit by Tenant or any other Tenant Parties or, if
permitted by this Exhibit, the removal of the Fiber Optic Conduit by Landlord,
its agents, employees or contractors, and (ii) any failure by Tenant to satisfy
its obligations set forth in this Exhibit, INCLUDING THOSE ARISING FROM THE
NEGLIGENCE OF LANDLORD OR ANY LANDLORD INDEMNIFIED PARTIES, unless the Claim in
question was caused by Landlord's or its agents', employees' or contractors'
sole or gross negligence or willful misconduct.
9. The Fiber Optic Conduit shall remain personalty of Tenant
notwithstanding the fact that it may be affixed or attached to the Building and,
except as otherwise provided above in this Exhibit, shall during the Term belong
to and be removable by Tenant. The indemnification obligations of Tenant in this
Exhibit and the obligations of Tenant with respect to the removal of the Fiber
Optic Conduit from the Project shall survive the expiration or any earlier
termination of the Lease.
10. The rights granted to Tenant under the Telecommunications Cabling
License also may be exercised by any one or more vendors of telecommunications
services to Tenant (a "Telecommunications Vendor"), subject to the terms and
conditions of the Telecommunications Cabling License. The performance of any
obligation, or the discharge of any liability of Tenant hereunder, by such
Telecommunications Vendor shall constitute the performance of such obligation or
the discharge of such liability by Tenant.
11. Upon the request of Tenant, Landlord shall grant to any
Telecommunications Vendor a license on the same terms and conditions as the
Telecommunications Cabling License. If any Telecommunications Vendor whose
equity is Publicly Traded (as defined below) requires that its own form of
agreement be used to grant license to such Publicly Traded Telecommunications
Vendor as a condition to providing telecommunications services to Tenant,
Landlord shall execute such form of agreement, to the extent the terms and
conditions of such form of agreement (i) grant no rights with respect to the
Project other than the rights granted to Tenant pursuant to the
Telecommunications Cabling License; (ii) except as expressly provided in this
paragraph, do not diminish the rights of the Landlord under the
Telecommunications Cabling License or the Lease in any respect; (iii) do not
create any obligations or liabilities of Landlord other than those created
pursuant to this Exhibit with respect to the Telecommunications Cabling License;
(iv) do not adversely affect any insurance carried by Landlord with respect to
the Project; (v) do not violate any obligation of Landlord to any Mortgagee or
Ground Lessor; or (vi) otherwise are not reasonably objected to by Landlord;
provided, however, Landlord shall not object to any provisions in such form of
agreement that (A) permits self-insurance; (B) provides for insurance that does
not include any waivers of subrogation; (C) provides for insurance that
otherwise varies from that required under Section 20 of the Lease, so long as
such variance, after taking into account the insurance carried by Tenant, does
not result in an increase in the Landlord's exposure to Claims; (D) provides for
longer periods of time to remove any of such vendor's equipment or perform other
obligations under the Telecommunications Cabling License, other than the curing
of Interference, so long as such longer periods of time are commercially
reasonable and in no event exceed thirty (30) days; (E) requires notices,
including, without limitation, notices of default, to be sent to specified
persons; or (F) contains no, or a less comprehensive, indemnification of
Landlord and Landlord Indemnified Parties than contained in the
Telecommunications Cabling License, so long as Tenant agrees to indemnify
Landlord and the Landlord Indemnified Parties on behalf of such Publicly Traded
Telecommunications Vendor to the extent required under the Telecommunications
Cabling License (and not covered by any indemnification of such Publicly Traded
Telecommunications Vendor). As used in this Exhibit, the term "Publicly Traded"
shall mean with respect to any Telecommunications Vendor the fact that such
vendor is in good standing with the United States Securities and Exchange
Commission and such vendor's Voting Stock is being publicly traded on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ.
G-3
12. The Telecommunications Cabling License may be assigned, in whole or in
part, to any Permitted Transferee (including, without limitation, in such a
manner that both to the Tenant and any Permitted Transferee become licensees
under the Telecommunication Cabling License), subject to the terms and
conditions of this Exhibit.
X-0
XXXXXXX X
XXX XXXXXXX XXXX, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit H
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
LETTER OF CREDIT PROVISIONS
---------------------------
Intentionally deleted.
H-1
EXHIBIT I
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit I
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
TENANT'S CONTINUING RIGHTS OF FIRST REFUSAL
-------------------------------------------
1. Provided no Event Default has occurred and is continuing and no event
has occurred and is continuing which with the giving of notice or the passage of
time, or both, would constitute an Event of Default, Landlord shall, during the
Term and prior to leasing all or any portion of the Right of First Refusal Space
(as hereinafter defined), provide Tenant with the first refusal rights set forth
below. As used herein, the term "Right of First Refusal Space" shall mean the
premises designated as "Right of First Refusal Space" on the Rider B attached to
the Lease.
2. Landlord shall, at any time during the Term if required by this
Exhibit, prior to leasing all or any portion of the Right of First Refusal
Space, deliver to Tenant a written statement (a "Statement") which shall reflect
Landlord's and the prospective tenant's non-binding agreement with respect to
rent, term, finish allowances and other tenant inducements, and other matters
related to the leasing of the applicable portion(s) of the Right of First
Refusal Space. Tenant shall have ten (10) business days after its receipt of a
Statement within which to notify Landlord in writing that it will lease the
applicable Right of First Refusal Space on the terms set forth in this Exhibit.
Failure by Tenant to notify Landlord within such ten (10) business day period
shall be deemed an election by Tenant not to lease the applicable Right of First
Refusal Space and Landlord shall have the right to lease such space to the
prospective tenant or an Affiliate thereof. If Landlord does not lease the
applicable Right of First Refusal Space to such prospective tenant or an
Affiliate thereof, Landlord shall be free to market such space to other
prospective tenants but subject to the rights of Tenant in this Exhibit. Tenant
agrees that if it exercises the right of first refusal described in this
paragraph, it must lease all of the Right of First Refusal Space described in
the applicable Statement.
3. At the time the Right of First Refusal Space described in the
applicable Statement is added to the Premises, the term "Premises" shall mean
the then existing Premises together with such Right of First Refusal Space and,
except as otherwise set forth in this Exhibit, Tenant's leasing of such Right of
First Refusal Space shall be subject to the provisions of the Lease (including,
without limitation, the length of the term of Tenant's leasing of the Right of
First Refusal Space which shall be co-terminous with the Term). Such Right of
First Refusal Space shall be leased to Tenant upon all terms and conditions of
the Lease with the following exceptions: (i) Annual Rent for such Right of First
Refusal Space will be equal to the Annual Rent then payable pursuant to the
Lease, subject to adjustments and increases as provided therein; (ii) Tenant
shall not be entitled to any allowances or inducements with respect to such
Right of First Refusal Space other than those provided below in this Exhibit;
and (iii) Annual Rent with respect to such Right of First Refusal Space shall
commence when Landlord delivers possession of such Right of First Refusal Space
to Tenant.
4. Within fifteen (15) days after the date of Landlord's receipt of
Tenant's written notice that it will lease the Right of First Refusal Space
described in the applicable Statement, Landlord and Tenant will enter into an
amendment to the Lease reflecting (i) the addition of such Right of First
Refusal Space to the Premises, (ii) the increase in Annual Rent payable under
the Lease as provided by this Exhibit, (iii) the increase in Tenant's Share,
(iv) the fact that the Right of First Refusal Space will be accepted by Tenant
in its "as is" condition and Landlord shall not provide to Tenant any allowances
(e.g., moving allowance, construction allowance, and the like) or other tenant
inducements other than those specified in the applicable Statement, and (v) such
other amendments to the Lease as are necessary due to the addition of such Right
of First Refusal Space to the Premises.
5. Tenant may not exercise its rights under this Exhibit if an Event of
Default by Tenant under the Lease has occurred and is continuing. Tenant's
rights under this Exhibit shall terminate following the occurrence of any of the
following events: (a) Tenant's right to possess all or any of the Premises is
properly terminated; (b) the failure of Tenant to timely exercise either of the
Extension Options; and/or (c) any proper termination of the Lease or Tenant's
right to possess the Premises.
I-1
EXHIBIT J
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit J
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
TENANT'S POWER GENERATOR
------------------------
1. For the Term of the Lease, and as partial consideration for the monies
to be paid hereunder, Landlord hereby grants Tenant a an exclusive license (the
"Power Generator License"), subject to the approval of the City of Austin and
all other governmental authorities having jurisdiction over the Project and
Tenant's operations, to install, maintain, repair and replace from time to time,
at the location outside the Building identified on the Rider C attached to the
Lease (the "Generator Pad"), a power generator, together with associated
equipment and fuel tanks (collectively, "Tenant's Power Generator"), to provide
primary or backup power, or both, to Tenant's equipment at the Premises, and to
integrate Building power into Tenant's Power Generator. Landlord has made no
representations or warranties with respect to (i) Tenant's ability to install
the Generator Pad and/or Tenant's Power Generator at the Project, or (ii) the
manner in which Tenant's Power Generator would be integrated into the existing
systems servicing the Building and/or Premises. The Generator Pad and Tenant's
Power Generator shall by secured by a fence with a locked gate. During the Term
Tenant shall maintain such fencing in good repair and condition. Landlord shall
provide, at no additional charge, license rights and, if applicable, riser space
as necessary to connect Tenant's Power Generator to Tenant's equipment at or
otherwise serving the Premises. After installing Tenant's Power Generator,
Tenant shall maintain all permits necessary for the maintenance and operation of
Tenant's Power Generator while it is located at the Generator Pad. Landlord
agrees to cooperate with Tenant to obtain any land use permits required for the
construction, maintenance and operation of Tenant's Power Generator.
2. Tenant shall, at its risk and expense, remove the Generator Pad and
Tenant's Power Generator from the Project within thirty (30) days after the
occurrence of any of the following events: (A) a proper termination of the Lease
by Tenant or Landlord (other than a termination of the Lease by Landlord
following the occurrence and during the continuance of an Event of Default); or
(B) Tenant assigns any of its interest in the Lease or sublets any portion of
the Premises (other than to a Permitted Transferee). Tenant shall, at its risk
and expense on or before the date of the expiration of the Term or any proper
termination of the Lease or Tenant's right to possess the Premises following the
occurrence and during the continuance of an Event of Default, remove the
Generator Pad and Tenant's Power Generator from the Project. If Tenant fails to
remove either of the Generator Pad or Tenant's Power Generator as required by
the preceding 2 sentences, the Generator Pad or Tenant's Power Generator, as
applicable, shall become the property of Landlord and Landlord (and its agents,
employees or contractors) may remove the same and store or dispose of it in any
manner Landlord deems appropriate without liability to Tenant. Tenant shall,
within ten (10) days after Tenant's receipt of Landlord's written request for
the following reimbursement, reimburse Landlord for all costs incurred by
Landlord in connection with any removal of the Generator Pad or Tenant's Power
Generator, as applicable, by Landlord or its agents, employees or contractors
that is permitted by this Exhibit. Prior to any removal of the Generator Pad
and/or Tenant's Power Generator by or on behalf of Tenant (but excluding any
removal of the Generator Pad or Tenant's Power Generator by Landlord or its
agent, employee or contractor), Tenant shall (i) obtain Landlord's written
approval (which approval shall not be unreasonably withheld or delayed) to the
plans related to the same (Landlord's approval of such plans shall create no
responsibility or liability on the part of Landlord for the completeness, design
or sufficiency of such plans), (ii) obtain and maintain all permits and/or
approvals required by applicable Laws with respect to the removal of the
Generator Pad and/or Tenant's Power Generator and provide Landlord with
sufficient evidence of the existence of such permits and/or approvals and that
the removal of the Generator Pad and/or Tenant's Power Generator planned by
Tenant will comply in all respects with all applicable Laws, and (iii) furnish
Landlord with the written evidence of insurance that Tenant is obligated to
furnish to Landlord pursuant to Section 20 of the Lease. Tenant shall repair any
damage to the Generator Pad and/or Project caused by or relating to Tenant's use
of Tenant's Power Generator (including, without limitation, any damage caused by
its installation, maintenance, use, or removal of Tenant's Power Generator).
3. Tenant shall be solely responsible for all costs of constructing,
installing, maintaining and operating the Generator Pad and Tenant's Power
Generator. Prior to installing Tenant's Power Generator on the Generator Pad,
Tenant must also satisfy the following conditions precedent: (a) Tenant shall
have obtained and be maintaining all permits and/or approvals required by
applicable Laws with respect to the installation, maintenance and operation of
the Generator Pad and Tenant's Power Generator (collectively, the "Power
Generator Legal Requirements") and shall have provided Landlord with sufficient
evidence of the existence of such permits and/or approvals and that the
installation of the Generator Pad and/or Tenant's Power Generator planned by
Tenant will comply in all respects with the Power Generator Legal
J-1
Requirements; and (b) Tenant shall have furnished Landlord, in the form and
content required by Section 20 of the Lease, with evidence of the insurance that
Tenant is obligated to furnish to Landlord pursuant to Section 20 of the Lease.
Landlord's approval of any plans and specifications related to the installation
of the Generator Pad and/or Tenant's Power Generator shall create no
responsibility or liability on the part of Landlord for the completeness, design
or sufficiency of such plans and specifications, or the compliance of the same
with the Power Generator Legal Requirements. If Tenant satisfies the conditions
precedent set forth above, Tenant shall install (in a good and workmanlike
manner), maintain and use Tenant's Power Generator in accordance with all Power
Generator Legal Requirements. Tenant shall promptly pay to Landlord or to
Tenant's contractors, as the case may be, when due, the cost of all work
performed in connection with the installation of the Generator Pad and Tenant's
Power Generator, and upon completion, deliver to Landlord evidence of payment
and waivers of all liens for labor, services or materials. Tenant shall protect,
defend, indemnify and hold Landlord and all Landlord Indemnified Parties
harmless from all Claims and/or liens for labor, services or materials relating
to such work that may arise as a result of any failure by Tenant to satisfy its
obligations set forth in this Exhibit. In the event Landlord incurs any expenses
in the removal of trash or due to the cleaning of the public corridors and
loading dock areas or any other areas of the Project as a direct result of
Tenant's or Tenant's contractors' work, then Tenant shall reimburse Landlord for
such expenses within ten (10) days of Tenant's receipt of a xxxx or bills from
Landlord for the amount of such expenses.
4. Landlord agrees that Rent or assessments or expenses will not be
charged to Tenant for the Power Generator License. Tenant's Power Generator and
the Generator Pad may only be used by Tenant and any Permitted Transferee.
5. Tenant shall protect, defend, indemnify and hold harmless Landlord and
all Landlord Indemnified Parties from all Claims resulting from and/or arising
in connection with or related to the installation, maintenance, use, or removal
of the Generator Pad and/or Tenant's Power Generator by Tenant, its agents or
contractors or, if permitted by this Exhibit, the removal of the Generator Pad
or Tenant's Power Generator by Landlord, its agents, employees or contractors,
INCLUDING THOSE ARISING FROM THE NEGLIGENCE OF LANDLORD OR ANY LANDLORD
INDEMNIFIED PARTIES, unless the Claim in question was caused by Landlord's or
its agents', employees' or contractors' sole or gross negligence or willful
misconduct. All additional equipment and work related to Tenant's Power
Generator shall be located in the Premises or at the Generator Pad, unless an
alternate location within the Project is approved by Landlord. If Landlord
allows such additional equipment to be located outside of the Premises and the
Generator Pad, Tenant and Landlord shall mutually agree upon a reasonable rental
for space occupied by such equipment. Tenant and its contractors shall have
access at all times to the Generator Pad and Tenant's Power Generator for the
purposes of servicing, repairing, or otherwise maintaining the same.
6. The indemnification of Landlord and Landlord Indemnified Parties in
the preceding paragraph and the obligations of Tenant with respect to the
removal of the Generator Pad and Tenant's Power Generator from the Project shall
survive the expiration of the Term and any earlier termination of the Lease.
J-2
EXHIBIT K
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Exhibit K
(this "Exhibit") is attached to the Lease. Except to the extent otherwise
indicated herein, the initially capitalized terms used in this Exhibit shall
have the meanings assigned to them in the Lease.
LEASEHOLD IMPROVEMENTS
----------------------
1. Within thirty-five (35) days after the date of Landlord's execution of
the Lease, Tenant shall provide to Landlord for its approval final working
drawings, prepared by Tenant's architect (the "Architect") and approved by
Tenant (which approval shall be indicated by Tenant's signature thereon), of all
improvements that Tenant proposes to install in, and alterations to be made to,
the Initial Premises; such working drawings shall include, without limitation,
the partition layout, ceiling plan, electrical outlets and switches, telephone
outlets, drawings for any modifications to the mechanical and plumbing systems
of the Building and detailed plans and specifications for the construction of
the improvements called for under this Exhibit in accordance with all applicable
Laws. Further, if any of Tenant's proposed construction work will affect the
Building's HVAC, electrical, mechanical, or plumbing systems, then the working
drawings pertaining thereto shall be reviewed by the Building's engineer of
record, whom Tenant shall at its cost engage for such purpose. Subject to
Paragraph 5 below and Landlord's ability to withhold its approval to the
foregoing on reasonable grounds, Landlord agrees that it will approve (subject
to such modifications as Landlord may require) or disapprove of the final
working drawings described above within ten (10) business days after Landlord's
receipt of two (2) complete sets of the same. Based upon such review, Landlord
may order reasonable modifications to the Working Drawings, which modifications
will be made by Tenant in accordance with Landlord's direction; except that if
Tenant reasonably cannot make any such modification regarding a reasonable
improvement included by Tenant in the Working Drawings in good faith, and if
such modification would have a material adverse impact on the operation of
Tenant's business or Tenant's costs for the initial build-out of the Initial
Premises, then Tenant shall have the right to terminate the Lease by giving
Landlord written notice thereof within fifteen (15) days after Landlord's
request for the applicable modification unless Landlord withdraws its requested
modification either prior to its receipt of Tenant's termination notice or
within five (5) business days thereafter, in which case the Lease shall remain
in force and effect and the applicable modification will not be made to the
Working Drawings. If Tenant fails to terminate the Lease within such fifteen
(15) day period, Tenant shall have no further right to terminate the Lease based
on the applicable modification requested by Landlord and such modification shall
be made to the Working Drawings. As used herein, "Working Drawings" shall mean
the final working drawings approved by Landlord, as amended from time to time by
any approved changes thereto, and "Work" shall mean all alterations and
improvements to be constructed in accordance with and as indicated on the
Working Drawings. Approval by Landlord of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings are adequate for any
use, purpose, or condition, or that such drawings comply with any applicable
Law, but shall merely be the consent of Landlord to the performance of the Work.
All changes in the Work must receive the prior written approval of Landlord, and
in the event of any such approved change Tenant shall, upon completion of the
Work, furnish Landlord with an accurate, reproducible "as-built" plan (e.g.,
sepia) of the improvements as constructed, which plan shall be incorporated into
the Lease by this reference for all purposes.
2. The Work shall be performed by contractors and/or subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed.
3. All contractors and subcontractors shall be required to procure and
maintain insurance against such risks, in such amounts, and with such companies
as Landlord may reasonably require. Certificates of such insurance, with paid
receipts therefor, and copies of such certificates of insurance must be received
by Landlord before the Work is commenced. The Work shall be performed in a good
and workmanlike manner that is free of defects and is in strict conformance with
the Working Drawings, and shall be performed in such a manner and at such times
as to maintain harmonious labor relations and not to unreasonably interfere with
or delay Landlord's other contractors, the operation of the Building, and the
occupancy thereof by other tenants.
4. Tenant shall bear the entire cost of performing the Work (including,
without limitation, design of the Work and preparation of the Working Drawings,
costs of construction labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs).
K-1
RIDER A
AGB XXXXXXX PARK, L.P., a Delaware limited partnership ("Landlord"), and
INFLOW, INC., a Delaware corporation ("Tenant"), have entered into that certain
Triple Net Lease (the "Lease") dated as of November 12, 1999, for the lease of
certain space in a building located in Xxxxxx County, Texas. This Rider A (this
"Rider") is attached to the Lease. Except to the extent otherwise indicated
herein, the initially capitalized terms used in this Rider shall have the
meanings assigned to them in the Lease.
ADDENDUM TO LEASE
-----------------
1. Landlord's Warranties. Landlord represents and warrants to Tenant as
---------------------
follows: (1) Landlord is the owner of good and indefeasible title to the
Project; (2) the Building and the Premises are, as of the date of the Lease, not
subject to any ground lease, mortgage or deed of trust except the deed of trust
in favor of National Bank of Xxxxxxxxx; (3) the party executing the Lease on
behalf of Landlord has full power and authority to enter into the Lease on
behalf of Landlord and to bind Landlord to the terms of the Lease; (4) Landlord
has not granted, and to Landlord's knowledge, no other party has any right to
use or occupy the Premises from and after the Commencement Date; and (5) the
Project is not located within property designated by any Governmental
Authorities as within a 100-year flood plain.
2. Accommodation Space. Provided Tenant is not then in default under the
-------------------
Lease and has obtained Landlord's written approval with respect thereto
(including, without limitation, the location of the following and the manner in
which any of the following are constructed), Tenant shall have the right during
the Term to utilize available portions of the Land and/or roof of the Building
to accommodate equipment being utilized by Tenant in connection with its use and
occupancy of the Premises.
3. Co-Location of Space Within the Premises to Tenant's Customers. The
--------------------------------------------------------------
co-location of space within the Premises for Tenant's Customer's Equipment shall
not be a Transfer. Tenant shall have the right to do any of the following at no
additional charge to Tenant: (a) to co-locate Tenant's Customer's Equipment in
the Premises without Landlord's consent; (b) to provide short-term rights to use
portions of the Premises to Tenant's customers and vendors without Landlord's
consent; (c) to connect Tenant's Customer's Equipment to Tenant's
telecommunications facilities located at the Project; and (d) to provide
telecommunication services to Tenant's customers (including, without limitation,
other tenants of the Project), the manner in which cabling and/or wiring
necessary to provide such services can be installed by Tenant at the Project
being governed by various other provisions of this Rider and the Lease.
4. Conduit/Riser Space. Provided Tenant is not then in default under the
-------------------
Lease and has obtained Landlord's written approval with respect thereto (which
approval will not be unreasonably withheld, conditioned or delayed), Tenant
shall have the right during the Term to do the following (all at Tenant's sole
cost and expense): (a) use Existing Fiber Optic Cabling (as hereinafter
defined); (b) construct additional telecommunication entrances into the
Premises; and (c) install additional conduit ("Additional Conduit") within the
existing risers and shaftways of the Building as may be required in order to
connect Tenant's generator, power, HVAC equipment and piping, antennas,
grounding, and related equipment and for other purposes not inconsistent with
the design of such risers and shaftways. Tenant's rights in the immediately
preceding sentence are subject to Landlord's written approval of the manner in
which the same are being exercised by Tenant and such conditions as Landlord in
its sole discretion reasonably exercised may impose in connection therewith. As
used herein, the term "Existing Fiber Optic Cabling" shall mean the fiber optic
cabling, if any, located in the Building as of the Effective Date. Landlord has
made no representations or warranties regarding (i) the condition of the
Existing Fiber Optic Cabling or the risers or shaftways of the Building, or (ii)
the suitability of either of the foregoing for Tenant's intended use.
Notwithstanding anything to the contrary contained in the Lease, Tenant shall,
at its risk and expense on or before the date of the expiration of the Term or
any termination of the Lease or Tenant's right to possess the Premises, remove
all Additional Conduit from the Project. If Tenant fails to remove any
Additional Conduit as required by the preceding sentence, such Additional
Conduit shall become the property of Landlord and Landlord (and its agents,
employees or contractors) may remove the same and store or dispose of it in any
manner Landlord deems appropriate (but in compliance with Laws) without
liability to Tenant. Tenant shall, within ten (10) days after Tenant's receipt
of Landlord's written request for the following reimbursement, reimburse
Landlord for all costs incurred by Landlord in connection with any removal of
any Additional Conduit by Landlord or its agents, employees or contractors that
is permitted by this Rider. Prior to any removal of Additional Conduit by or on
behalf of Tenant (but excluding any removal of Additional Conduit by Landlord or
its agent, employee or contractor), Tenant shall obtain Landlord's written
approval to the plans related to the same (Landlord's approval of such plans
shall create no responsibility or liability on the part of Landlord for the
completeness, design or sufficiency of such plans).
Rider A-1
5. Tenant UPS Systems. Provided Tenant is not then in default under the
------------------
Lease and has obtained Landlord's written approval with respect to the manner of
installation and integration of the following (which approval will not be
unreasonably withheld, conditioned or delayed), Tenant shall have the right
during the Term to install, at Tenant's sole cost and expense, one or more
uninterrupted power supply systems and their associated batteries (each a
"Tenant UPS System") within the Premises and to integrate the Building power
into each Tenant UPS System. Landlord has made no representations or warranties
with respect to (i) Tenant's ability to install any Tenant UPS System within the
Premises, or (ii) the manner in which any Tenant UPS System would be integrated
into the existing systems servicing the Building and/or Premises.
Notwithstanding anything to the contrary contained in the Lease, Tenant shall,
at its risk and expense on or before the date of the expiration of the Term or
any termination of the Lease or Tenant's right to possess the Premises, remove
each Tenant UPS System from the Project. If Tenant fails to remove any Tenant
UPS System as required by the preceding sentence, such UPS System shall become
the property of Landlord and Landlord (and its agents, employees or contractors)
may remove the same and store or dispose of it in any manner Landlord deems
appropriate without liability to Tenant. Tenant shall, within ten (10) days
after Tenant's receipt of Landlord's written request for the following
reimbursement, reimburse Landlord for all costs incurred by Landlord in
connection with any removal of any Tenant UPS System by Landlord or its agents,
employees or contractors that is permitted by this Rider. Prior to any removal
of a Tenant UPS System by or on behalf of Tenant (but excluding any removal of a
Tenant UPS System by Landlord or its agent, employee or contractor), Tenant
shall obtain Landlord's written approval to the plans related to the same
(Landlord's approval of such plans shall create no responsibility or liability
on the part of Landlord for the completeness, design or sufficiency of such
plans).
6. Grounding. Provided Tenant is not then in default under the Lease,
---------
Tenant shall have the right, at no additional charge but at Tenant's sole cost
and expense, to tie into any existing electrical grounding systems in the
Building or, if the such grounding systems do not meet Tenant's requirements, to
install Tenant's own electrical grounding system for the Premises. The manner in
which Tenant shall tie into existing electrical grounding systems and/or install
Tenant's own electrical grounding system for the Premises shall be subject to
Landlord's prior written approval (which approval will not be unreasonably
withheld, conditioned or delayed). Landlord has made no representations or
warranties with respect to the existing electrical grounding systems in the
Building.
7. Tenant Generators. Intentionally deleted.
-----------------
8. HVAC and Humidity Control. Provided Tenant is not then in default
-------------------------
under the Lease and has obtained Landlord's written approval with respect
thereto (which approval will not be unreasonably withheld, conditioned or
delayed), Tenant shall have the right during the Term to (i) install, at
Tenant's sole cost and expense, coolant lines within the Premises to support the
air conditioning systems servicing the Premises, (ii) install and operate a
separate and independent chiller or other cooling system servicing the Premises,
(iii) vent through the ventilation system servicing the Premises and to install
drains within the Premises for the HVAC equipment servicing the Premises and to
discard HVAC wastewater into the sewage system servicing the Premises, and (iv)
remove or cap any heating system servicing the Premises. In the event Tenant
does install such coolant lines and/or separate and independent chiller or other
cooling system, Tenant shall maintain the same in good condition and repair
throughout the Term.
9. Fire System. Provided Tenant is not then in default under the Lease
-----------
and has obtained Landlord's written approval with respect thereto (which
approval will not be unreasonably withheld, conditioned or delayed), Tenant
shall have the right during the Term to do the following (all at Tenant's sole
cost and expense): (a) convert the present sprinkler system within the Premises
to a dry-pipe, pre-action system, (b) relocate or encase any water mains or
other water pipes running through or adjacent to the Premises, (c) install an FM
200 gas system in the Premises, or (d) install any other fire suppression system
desired by Tenant within the Premises. Landlord has made no representations or
warranties with respect to (i) Tenant's ability to convert, relocate and/or
install any of the foregoing, or (ii) the manner in which any of the foregoing
would be integrated into the existing systems servicing the Building and/or
Premises. In the event Tenant does install an FM 200 gas system and/or other
fire suppression system within the Premises, Tenant shall maintain the same in
good condition and repair throughout the Term.
10. Structural. Provided Tenant is not then in default under the Lease and
----------
has obtained Landlord's written approval with respect thereto (which approval
will not be unreasonably withheld, conditioned or delayed), Tenant shall have
the right during the Term to do the following (all at Tenant's sole cost and
expense): (a) to reinforce floor load capacities of the Premises; (b) to cover
or block up windows and/or exterior walls in the Premises, provided that such
measures are reasonably acceptable to Landlord with respect to the external
aesthetics of the Building; (c) to fence in any equipment or facilities located
or installed outside the Premises in accordance with the Lease and all exhibits
and riders attached thereto; and (d) to install up to three manholes adjacent to
the exterior walls of the Premises for bringing
Rider A-2
telecommunications fiber into the Premises. In the event Tenant does fence in
such equipment or facilities and/or install such manholes, Tenant shall maintain
the same in good condition and repair throughout the Term.
11. Security System. Tenant shall have the right to install its own
---------------
security system for the Premises ("Tenant's Security System"), and to create a
special security area within the Premises to encompass Tenant's equipment room.
Landlord will cooperate with Tenant in maintaining the security for such area.
Tenant shall be permitted to install security with non-building-standard locks
and other access controls which restrict access to Tenant and its customers,
provided that Landlord shall be provided with keys or other entry mechanisms
which may be used in accordance with the terms of the Lease. Landlord shall not
enter Tenant's secured equipment area or permit any janitorial, maintenance,
repair or other service to such area except as approved and supervised by
Tenant. Landlord or its agents shall enter Tenant's secured equipment area only
after at least twenty-four (24) hours notice to Tenant and when accompanied by
Tenant, except when failure to comply with the foregoing will cause imminent
danger to the Premises or other portions of the Building or any person. Any
entry by Landlord will be conducted with reasonable caution under the
circumstances to prevent damage to or interference with any of the equipment in
the area. During the Term Tenant shall maintain Tenant's Security System in good
condition and repair. Landlord has made no representations or warranties with
respect to (i) Tenant's ability to install Tenant's Security System within the
Premises, or (ii) the manner in which Tenant's Security System would be
integrated into the existing systems servicing the Building and/or Premises.
12. Equipment and Floor Loads. Provided Tenant is not then in default
-------------------------
under the Lease, Tenant shall have the right to install, maintain, repair and
replace computer, telecommunication, and other equipment in the equipment room
of the Premises (collectively, the "Equipment Room Property"), so long as the
floor load pattern does not exceed the floor capacity of the Building. Landlord
hereby acknowledges that such weights are not excessive loads for the structure
and hereby consents thereto. Tenant shall have the right to install fixed
telephone and HVAC systems in the Premises, and Landlord hereby consents
thereto. Prior to the expiration or earlier termination of the Lease or Tenant's
right to possess the Premises, Tenant shall have the right to move Equipment
Room Property in and out of the Premises from time to time in the course of its
business, and Landlord hereby consents thereto. Notwithstanding anything to the
contrary contained in the Lease, Tenant shall, at its risk and expense on or
before the date of the expiration of the Term or any termination of the Lease or
Tenant's right to possess the Premises, remove all Equipment Room Property from
the Project. If Tenant fails to remove any Equipment Room Property as required
by the preceding sentence, and such failure continues for ten (10) days after
Tenant's receipt of written notice thereof, such Equipment Room Property shall
become the property of Landlord and Landlord (and its agents, employees or
contractors) may remove the same and store or dispose of it in any manner
Landlord deems appropriate without liability to Tenant. Tenant shall, within ten
(10) days after Tenant's receipt of Landlord's written request for the following
reimbursement, reimburse Landlord for all costs incurred by Landlord in
connection with any removal of any Equipment Room Property by Landlord or its
agents, employees or contractors that is permitted by this Rider. Prior to any
removal of any Equipment Room Property by or on behalf of Tenant (but excluding
any removal of Equipment Room Property by Landlord or its agent, employee or
contractor), Tenant shall obtain Landlord's written approval to the plans
related to the same (Landlord's approval of such plans shall create no
responsibility or liability on the part of Landlord for the completeness, design
or sufficiency of such plans).
13. Landlord's Remedies. Notwithstanding anything to the contrary in the
-------------------
Lease, (i) in no event shall Landlord have a lien on any of the property of any
of Tenant's customers; and (ii) in no event shall Landlord be entitled to
withhold services under the Lease as a remedy for Tenant's default thereunder.
14. Indemnification. Tenant shall protect, defend, indemnify and hold
---------------
harmless Landlord and all Landlord Indemnified Parties from all Claims resulting
from and/or arising in connection with or related to (a) the exercise of
Tenant's rights pursuant to this Rider, and/or (b) the installation,
maintenance, use, or removal of any Additional Conduit, Existing Fiber Optic
Cabling, Tenant UPS System, Generator Pad, Tenant's Power Generator, Tenant's
Security System or Equipment Room Property by Tenant, its agents or contractors
or, if permitted by this Rider, the removal of any Additional Conduit, Existing
Fiber Optic Cabling, Tenant UPS System, Generator Pad, Tenant's Power Generator,
Tenant's Security System or Equipment Room Property by Landlord, its agents,
employees or contractors, INCLUDING THOSE ARISING FROM THE NEGLIGENCE OF
LANDLORD OR ANY LANDLORD INDEMNIFIED PARTIES, unless the Claim in question was
caused by Landlord's or its agents', employees' or contractors' sole or gross
negligence or willful misconduct.
15. Interference. The exercise of Tenant's rights set forth in this Rider
------------
shall not unreasonably interfere with (a) any rights of other tenants at the
Project, and (b) any other wiring, cabling, equipment and/or other property
located within the risers and shaftways of the Building or otherwise at the
Project (the interference described in this sentence is herein collectively
referred to as "Interference"). If, in Landlord's judgement reasonably
exercised, either (i) the Generator Pad, Additional Conduit, Tenant UPS System,
Tenant's Power Generator, Tenant's Security System and/or Equipment
Rider A-3
Room Property are causing or have caused Interference and such Interference did
not arise merely as a result of the existence of any of the foregoing at the
time of Landlord's leasing other space in the Project, and/or (ii) Tenant's
exercise of its rights set forth in this Rider are causing or have caused
Interference, Landlord shall provide Tenant with written notice thereof and
Tenant shall promptly begin taking actions to prevent the applicable
Interference and shall in any event end such Interference within ten (10) days
after Tenant's receipt of such written notice. If Tenant has failed to promptly
begin taking actions to prevent the applicable Interference and/or failed to end
such Interference within ten (10) days after Tenant's receipt of written notice
thereof, such failure shall constitute an Event of Default and Landlord shall
have the right, in addition to any and all other remedies available to it under
this Rider and the Lease, to require that Tenant remove the Generator Pad,
Additional Conduit, Tenant UPS System, Tenant's Power Generator, Tenant's
Security System and/or Equipment Room Property, as applicable, by giving Tenant
written notice thereof, which removal by Tenant shall be completed in accordance
with this Rider and the Lease and within thirty (30) days after Tenant's receipt
of such written removal notice. Tenant acknowledges and agrees that continuing
Interference may cause irreparable injury and, therefore, Landlord shall
additionally have the right to bring an action to enjoin such Interference.
Landlord acknowledges and agrees that if another tenant at the Project seeks to
install or actually install wiring, cabling, equipment, antennas or other
property at the Project and any of Tenant's wiring, cabling, equipment, antennas
or other property at the Project (including, without limitation, the Generator
Pad, Additional Conduit, Tenant UPS System, Tenant's Power Generator, Tenant's
Security System and/or Equipment Room Property) interferes with such tenant's
property, such interference will not constitute Interference for the purposes of
this paragraph.
16. Interference To Tenant. Landlord acknowledges that Tenant's intended
----------------------
business to be conducted in the Premises require continuous, clean,
uninterrupted power and telecommunications services. Accordingly, prior to
permitting any other tenant or occupant of the Project to install any
telecommunications or electrical equipment facilities (other than building
standard electrical power) within the Project which Landlord believes might
result in immediate interference with Tenant's services or equipment, Landlord
shall consult with Tenant to determine whether such immediate interference might
occur. Landlord shall not grant any rights to any other tenants or occupants
within the Project relating to telecommunications or electrical equipment or
services which Landlord actually knows will cause immediate interference to
Tenant's services or equipment.
Rider A-4
This Rider B is attached to that certain Triple Net Lease by and between
AGB XXXXXXX PARK, L.P., as landlord, and INFLOW, INC., as tenant.
DEPICTION OF THE RIGHT OF FIRST REFUSAL SPACE
---------------------------------------------
[to be supplied]
[DIAGRAM]
DEPICTION OF THE RIGHT OF FIRST REFUSAL SPACE
RIDER C
This Rider C is attached to that certain Triple Net Lease by and between AGB
XXXXXXX PARK, L.P., as landlord, and INFLOW, INC., as tenant.
LOCATION OF THE GENERATOR PAD
-----------------------------
[to be supplied]
RIDER C
LOCATION OF THE GENERATOR PAD
[DIAGRAM]
RIDER D
This Rider D is attached to that certain Triple Net Lease by and between
AGB XXXXXXX PARK, L.P., as landlord, and INFLOW, INC., as tenant.
DEMISING WALL PLANS AND SPECIFICATIONS
--------------------------------------
[to be supplied]
RIDER D
[DIAGRAM]
RIDER E
This Rider E is attached to that certain Triple Net Lease by and between
AGB XXXXXXX PARK, L.P., as landlord, and INFLOW, INC., as tenant.
RESTRICTIVE COVENANTS AND DEED RESTRICTIONS
-------------------------------------------
First Amended and Restated Declaration of Protective Covenants for Xxxxxxx Park,
recorded Dec. 20, 1994, at Film 5234494, Book 12337, Pages 1791 through 1811 in
the real property records of Xxxxxx County, Texas
Rider E-1
RIDER F
This Rider F is attached to that certain Triple Net Lease by and between
AGB XXXXXXX PARK, L.P., as landlord, and INFLOW, INC., as tenant.
SATELLITE DISH AREA
-------------------
[to be supplied]
[DIAGRAM]
RIDER G
This Rider G is attached to that certain Triple Net Lease by and between
AGB XXXXXXX PARK, L.P. as landlord, and INFLOW, INC., as tenant.
TELECOMMUNICATIONS CABLING AREA
-------------------------------
[to be supplied]
[DIAGRAM]
