EXHIBIT 10.9
COMMERCIAL
LEASE AGREEMENT
This Lease Agreement is made and entered into this 28th day of February, 1995,
by and between Ameritas Life Insurance Corp. corporation (hereinafter called
"Lessor"), and Matrix Telecom, Inc., a Texas Corporation (hereinafter called
"Lessee").
WITNESSETH:
Lessor. In consideration of the rent to be paid and the covenants and agreements
to be performed by Lessee, as hereinafter set forth, does hereby lease, demise,
and let unto Lessee and Lessee accepts that certain office space containing
approximately 24,050 rentable square feet on the First & Second floor in the
building known as Northstar Plaza I (hereinafter called the "Building"), located
on that certain tract of land situated in the City of Fort Worth, County of
Tarrant, State of Texas, more particularly described in Exhibit "A" attached
hereto and made a part hereof (hereinafter called the "Land"). The area hereby
leased (hereinafter called "Leased Premises") in the Building is shown and
designated on the Floor Plan(s) attached hereto and made a part hereof as
Exhibit "B".
The Leased Premises are leased by Lessor to Lessee, are accepted, and are to be
used and possessed by Lessee upon and subject to the following terms,
provisions, covenants, agreements, and conditions:
1. TERM: Subject to and upon the conditions set forth below, including
without limitation subparagraph 34(d), the term of this Lease shall commence on
July 1, 1995 (the "Commencement Date") or, if such date is different from the
Commencement Date, the Completion Date as defined in subparagraph 34(d), which
Lessor shall use its best efforts to establish by the Commencement Date, and
shall terminate June 30, 2000 (60) months thereafter (plus the partial month in
which the Commencement Date or Completion Date occurs, if applicable). If lessee
takes possession of the Leased Premises before July 1, 1995 the monthly rental
for the first month shall be prorated based on Year 1 rent.
2. RENT: (a) Lessee agrees to pay monthly as base rental during the term of
this Lease the sum of ($ ), which amount shall be payable to Lessor at the
address shown below on the first day of the month. One monthly installment of
rent shall be due and payable on the date of execution of this Lease by Lessee
for the first month's rent and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding the
Commencement Date or Completion Date during the demised term; provided, that if
the Commencement Date or the Completion date should be a date other than the
first day of a calendar month, the monthly rental set forth above shall be
prorated to the end of that calendar month, and all succeeding installments of
rent shall be payable on or before the first day of each succeeding calendar
month during the demised term.
(b) On the date of execution of this Lease by Lessee, there shall be due
and payable by Lessee a security deposit in an amount equal to one monthly
rental installment to be held for the performance by Lessee of Lessee's
covenants and obligations under this Lease, it being expressly understood that
the deposit shall not be considered an advance payment of rental or a measure of
Lessor's damage in case of default by Lessee. Upon the occurrence of any event
of default by Lessee or breach by Lessee of Lessee's covenants under this Lease,
Lessor may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrears of rent and/or
any damage, injury, expense or liability caused to Lessor by the event of
default or breach of covenant, any remaining balance of the security deposit to
be returned by Lessor to Lessee upon termination of this Lease. Said security
deposit shall be placed in an interest bearing account and the interest shall be
credited to Lessee provided Lessee is not in default of an
(c) If any increase in the fire and extended coverage insurance premiums
paid by Lessor for the Building in which Lessor occupies space is caused by
Lessee's use and occupancy of the Leased Premises, or if Lessee vacates the
Leased Premises and causes an increase in such premiums, then Lessee shall pay
as additional rental the amount of such increase to Lessor.
(d) Other remedies for non-payment of rent notwithstanding, if the monthly
rental payment is not received by Lessor on or before the fifth day of the month
for which rent is due, or if any other payment due Lessor by Lessee is not
received by Lessor on or before the tenth day after an invoice or other demand
therefor has been sent to Lessee, a service charge of five percent (5%) of such
past due amount shall become due and payable in addition to such amounts owed
under this Lease.
(e) In the event the operating expenses as defined below (hereafter
"Operating Expenses") of Lessor relating to the Building, the Land and other
improvements on the Land shall, in any calendar year during the term of this
Lease, exceed the sum of $3.70 per rentable square foot, with the total rentable
square footage of the Building being 24,050 for the purpose of this calculation,
Lessee agrees to pay as additional rental Lessee's pro rata share (100%) of the
excess Operating Expenses. The increase in operating expenses will be limited to
a 5% increase above $3.70 per rentable square foot for the first year and a 5%
increase over the prior year operating expenses thereafter for the purpose of
calculating the Lessee's pro rata share. In the case of the calendar year during
which the Commencement Date or Completion Date occurs, the foregoing calculation
shall be made based upon a pro rata share (as the balance of the year after the
Commencement Date or Completion Dates bears to the entire year) of the Operating
Expenses for that calendar year for which additional rental is due under this
paragraph, invoice Lessee for the excess Operating Expenses. The invoice shall
include in reasonable detail all computations of the additional rental, and
Lessee agrees to make payment of the additional rental to Lessor within ten days
following receipt of the invoice. In the year in which this Lease terminates,
Lessor, in lieu of waiting until the close of the calendar year in order to
determine any excess Operating Expenses, has the option to invoice Lessee for
Lessee's pro rata share of the Operating Expenses based upon the previous year's
excess Operating Expenses; Lessor shall invoice Lessee under this option within
thirty days prior to the termination of this Lease increase the monthly rental
to an amount which reflects the Lessee's pro rata share of the Operating
Expenses based upon the previous year's excess Operating Expenses after giving
Lessee thirty days notice. Lessor shall provide Lessee thirty days notice.
(f) Operating Expenses include all expenses incurred with respect to the
maintenance and operation of the Building, the Land
and other improvements on the Land, including, but not limited to, maintenance
and repair costs, fuel, water, sewer, gas and other utility charges, security,
window washing, janitorial services, trash removal, landscaping, pest control,
Lessor's managing agent whose duties are connected with the operation and
maintenance of the Building or other expenses on the Land, amounts paid to
management firm to supervise operation of the Building, amounts paid to
contractors or subcontractors for work or services performed in connection with
the operation of the Building or other expenses on the Land, and all services,
supplies, repairs, replacements or other expenses for maintaining and operating
the Building and other expenses on the land, including common areas and parking
area. Operating Expenses also include all real property taxes and all insurance
premiums which lessor is required to pay or deems advisable to pay, including
public liability insurance, with respect to the Building, the Land and other
improvements on the Land. Operating Expenses do not include any capital
improvement to the Building, nor shall it include repairs, restoration or other
work occasioned by fire, windstorm or other casualty, income and franchise taxes
of Lessor, expenses incurred in leasing to or procuring of tenants, leasing
commissions, advertising expenses, expenses for the renovating of space for new
tenants, interest or principal payments on any mortgage or other indebtedness of
Lessor or depreciation allowance or expense.
(g) Lessee will pay the electric xxxx for the entire property as received
from the utility company each month during the primary term and any renewal or
extension period.
3. SIGNS: (a) Lessor will furnish and install a suitable building directory
and establish suite numbers to facilitate locating and identifying Lessee's
premises. In order to effect uniformity, to control the graphics, and to
maintain dignified aesthetics, Lessor will also furnish and install at the
entrance door to Lessee's premises a uniform suite number plate and a name
plate. Signs, name plates or graphics which are wholly within the Leased
Premises and not visible from the exterior of the Building or from public spaces
within the Building will be permitted.
4. USAGE AND INSURANCE: Lessee represents to and agrees with Lessor that
the Leased Premises shall be used and occupied only for the purpose of general
office use. Lessee shall occupy the Leased Premises, conduct its business and
control its agents, employees, contractors, customers and invitees in such a
manner as is lawful, acceptable and will not create any nuisance or otherwise
interfere with, annoy or disturb any other tenant in its normal business
operations or Lessor in its management of the Building. Lessee shall not commit,
or suffer to be committed, any waste on the Leased Premises, nor shall Lessee
permit the Leased Premises to be used in any way which would, in the opinion of
Lessor, be extra hazardous on account of fire or otherwise which would in any
way increase or render void the fire insurance on the Leased Premises or
contents in the Building.
5. BUILDING SERVICES: Lessor shall furnish janitorial services five times
per week during the term of this Lease. Lessee shall pay for the cost of
cleaning services required by non-standard improvements or special operations.
Lessor shall furnish water for Lessee during the term of this lease. Lessee
shall pay all telephone charges. Lessor shall furnish Lessee hot and cold water
at those points of supply provided for general use of other tenants in the
Building, central heating and air conditioning (at times Lessor normally
furnishes these services to other tenants in
the Building, and at temperatures and in amounts as are considered by Lessor to
be standard, routine maintenance, painting and electric lighting service for all
common areas of the Building in the manner and to the extent deemed by Lessor to
be standard. Failure by Lessor to any extent to furnish these defined services,
or any cessation thereof, resulting from causes beyond the control of Lessor
shall neither render Lessor liable in any respect for damages to either person
or property, be construed as an eviction of Lessee, work an abatement of rent
nor relieve Lessee from fulfillment of any covenant in this Lease. Should any of
the equipment or machinery break down, or for any cause cease to function
properly, Lessor shall use reasonable diligence to repair the same promptly, but
Lessee shall have no claim for rebate on account of any interruption in service
occasioned by the repairs, nor shall the same be construed as an eviction of
Lessee, nor relieve Lessee from fulfillment of any covenant in this Lease. Under
no circumstances will Lessor be liable for any indirect or consequential damages
caused by any interruption of building services.
6. REPAIR AND MAINTENANCE: Lessor will, at its own cost and expense, except
as may be provided elsewhere herein, make necessary repairs to the Building
corridors, lobby, and other common areas of the Building and other improvements
on the Land and to the structural parts of the Building and other improvements
on the Land, and to the lines and equipment used to provide the services
referred to herein up to the point of entry into the Leased Premises, unless any
such damage is caused by the negligent acts or omissions of Lessee, its agents,
employees, contractors, customers or invitees, in which event Lessee, its
agents, employees, contractors, customers or invitees, in which event Lessee
will bear the cost of such repair. Lessee will promptly give Lessor written
notice of repair required to be done by Lessor, as aforesaid, of which Lessee
may become aware. Lessor shall not be liable to Lessee, except as expressly
provided in this Lease, for any damage or inconvenience, and Lessee shall not be
entitled to any abatement or reduction of rent, by reason of any repairs,
alterations or additions made by Lessor under this Lease. All requests for
repairs or maintenance that are the responsibility of Lessor pursuant to any
provision of this Lease must be made in writing to Lessor at the address set
forth below and Lessor shall not be deemed in breach of its obligations unless
it fails to commence such repairs within ten (10) days after receipt thereof.
7. LESSEE'S REPAIRS AND ALTERATIONS: Lessee will not, in any manner,
deface, injure or damage the Leased Premises, the Building, or any improvements
on the Land, and will pay the cost of repairing any damage or injury done to the
Leased Premises, the Building or such other improvements by Lessee or Lessee's
agents, employees, contractors, customers or invitees. Lessee shall throughout
the term of this Lease take good care of the leased Premises and keep them free
from waste and nuisance of any kind. Lessee further agrees to keep the Leased
Premises, including all fixtures installed by lessee, any plate glass and any
mechanical lines and equipment within the Leased Premises, in good condition and
make all necessary repairs thereto except for those caused by fire, casualty, or
acts of God covered by Landlord's fire insurance policy covering the Building
and except for repairs to structural parts of the Building which are required to
be done by the Lessor. If Lessee fails to make such repairs within fifteen (15)
days after the occurrence of the damage or injury, Lessor may, at its option,
make such repair and Lessee shall, upon demand therefor, pay Lessor for the cost
thereof, plus a charge in the amount of 15% of the
cost thereof to cover the overhead and administrative expenses of Lessor. Lessee
will not make or allow to be made any alterations or physical additions in or to
the Leased Premises without the prior written consent of Lessor. All
maintenance, repairs, alterations, additions, or improvements shall be conducted
only by contractors and subcontractors approved in writing by Lessor, it being
understood that Lessee shall procure and maintain, and shall cause such
contractors and subcontractors engaged by or on behalf of Lessee, to procure and
maintain, insurance coverage against such risks, in such amounts and with such
companies as Lessor may require in connection with any such maintenance, repair,
alteration, addition, or improvement. Upon termination of this Lease, Lessee
will surrender and deliver up the Leased Premises in the same condition, order
and repair as existed at the Commencement Date or Completion Date, excepting
ordinary wear and tear.
8. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee shall comply with
all laws, ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction relating to the use, condition
and occupancy of the Leased Premises. Lessee will comply with the rules of the
Building adopted by Lessor which are set forth on EXHIBIT C attached to this
Lease. Lessor shall have the right at all times to change the rules and
regulations of the Building or to amend them in any reasonable manner as may be
deemed advisable for the safety, care and cleanliness, and for the preservation
of good order, of the Leased Premises. All changes and amendments in the rules
and regulations of the Building will be sent by Lessor to Lessee in writing and
shall thereafter be carried out and observed by Lessee.
9. LESSOR IMPROVEMENTS: If construction is to be done by Lessor to the
Leased Premises prior to Lessee's occupancy, Lessor will, at its expense,
*commence and/or complete the construction of the improvements constituting the
Leased Premises, including partitions, in accordance with the floor plan set
forth on Exhibit B and the specifications agreed to by the parties and made a
part of this Lease by reference. Upon completion of the Building and other
improvements in accordance with the plans and specifications, Lessee agrees to
accept delivery of the Leased Premises and to execute and deliver to Lessor a
letter accepting delivery of the Leased Premises.
10. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be made
any alterations or physical additions in or to the Leased Premises without first
obtaining the written consent of Lessor. Any alterations, physical additions or
improvements to the Leased Premises made by Lessee shall at once become the
property of Lessor and shall be surrendered to Lessor upon the termination of
this Lease. Lessor, at its option, may require Lessee to remove any physical
additions and/or repair any alterations in order to restore the premises to the
condition existing prior to the time Lessee took possession, all costs of
removal and/or alterations to be borne by Lessee. This clause shall not apply to
moveable equipment or furniture owned by Lessee which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in default and if
such equipment and furniture is not then subject to any other rights, liens and
interests of Lessor, provided that Lessee repairs any damage caused by the
installation or removal thereof.
11. CONDEMNATION: (a) If, during the term (or any extension
or renewal) of this Lease, all or a substantial part of the Leased
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by private
purchase in lieu thereof, and the taking would prevent or materially interfere
with the use of the Leased Premises for the purpose for which they are then
being used, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease effective on the date physical possession is
taken by the condemning authority. Lessee shall have no claim to the
condemnation award.
(b) In the event a portion of the Leased Premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by private sale in lieu thereof, and this Lease
is not terminated as provided in the subparagraph above, Lessor may, at Lessor's
sole risk and expense, restore and reconstruct the Building and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award.
12. FIRE AND CASUALTY: (a) If the Leased Premises should be totally
destroyed by fire, tornado or other casualty, or if the Leased Premises should
be so damaged so that rebuilding cannot reasonably be completed within one
hundred and eighty (180) working days after the date of written notification by
Lessee to Lessor of the destruction, this Lease shall terminate and the rent
shall be abated for the unexpired portion of the Lease, effective as of the date
of the written notification. In no event shall rent be paid by Lessee when the
building is not in an acceptable condition as it relates to the casualties
described in this paragraph.
(b) If the Leased Premises should be partially damaged by fire, tornado or
other casualty, and rebuilding or repairs can reasonably be completed within one
hundred and eighty (180) working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, but Lessor
may at its sole risk and expense proceed with reasonable diligence to rebuild or
repair the Building to substantially the condition in which they existed prior
to the damage. If the Leased Premises are to be rebuilt or repaired and are
untenantable in whole or in part following the damage, and the damage or
destruction was not caused or contributed to by act or negligence of Lessee, its
agents, employees, contractors, customers, invitees or others for whom Lessee is
responsible, the rent payable under this Lease during the period for which the
Leased Premises are untenantable shall be adjusted to such an extent as may be
fair and reasonable under the circumstances. In the event that Lessor fails to
complete the necessary repairs or rebuilding within one hundred and eighty (180)
working days from the date of written terminate this Lease by delivering written
notice of termination to Lessor, whereupon all rights and obligations under the
Lease shall cease to exist.
13. CASUALTY INSURANCE: Lessor shall at all times during the term of this
Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring the
Building against loss or damage by fire, explosion or other hazards and
contingencies for the full insurable value; provided, that Lessor shall not be
obligated in any way or manner to insure any personal property (including, but
not limited to, any furniture, machinery, goods or supplies) of Lessee or which
Lessee may have upon or within the
Leased Premises or any fixtures installed by or paid for by Lessee upon or
within the Leased Premises or any additional improvements which Lessee may
construct on the Leased Premises. Lessee shall at all times during the term of
this Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring all
of Lessee's property at the Leased Premises against loss or damage by fire,
explosion or other hazards and contingencies for the full insurable value
thereof and shall provide to Lessor at all such times a certificate of such
insurance.
14. WAIVER OF SUBROGATION: Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all rights of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Leased Premises, and any additional improvements thereto, the
Building or other improvements on the Land, or personal property (including
contents) within the Building, by reason of fire or other causes which are
covered by standard extended coverage hazard insurance regardless of cause or
origin, including negligence of Lessor or Lessee and their agents, officers and
employees. Because this paragraph will preclude the assignment of any claim
mentioned in it by way as subrogation (or otherwise) to an insurance company (or
any other person), each party to this Lease agrees immediately to give to each
insurance company which has issued to it policies of fire and extended coverage
insurance, written notice of the terms of the mutual waivers contained in this
paragraph, and to have the insurance policies properly endorsed, if necessary,
to prevent the invalidation of the insurance coverage by reason of the mutual
waivers contained in this paragraph.
15. HOLD HARMLESS: Lessor shall not be liable to Lessee, or to Lessee's
agents, employees, contractors, customers or invitees for any damage to person
or property caused by any act, omission or neglect of Lessee, its agents,
employees, contractors, customers or invitees, and Lessee agrees to indemnify
and hold Lessor harmless from all liability and claims for any such damage.
Lessee shall not be liable to Lessor, or to Lessor's agents, employees,
contractors, customers or invitees for any damage to person or property caused
by any act, omission or neglect of Lessor, its agents, employees, contractors,
customers or invitees and Lessor agrees to indemnify and hold Lessee harmless
from all claims for such damage. The provisions of this paragraph shall be
subject to the provisions of paragraph 14.
16. LIABILITY INSURANCE, INDEMNITY AND EXCULPATION:
(a) Lessee must procure and maintain throughout the term of this Lease and
any extensions or renewals of such term general commercial liability insurance
(including blanket contractual liability coverage), which shall cover any claims
for bodily injury, death and/or property damage occurring in or resulting from
any occurrence in or about the Leased Premises, including injury, death and/or
damage caused by the condition of or any defect in the Leased Premises. The
policies evidencing such insurance must be in broad form satisfactory to Lessor,
must name Lessor as an additional insured, must be issued by insurance companies
acceptable to Lessor, and must afford immediate protection to the limit of not
less than $1,000,000 per accident. With respect to each policy evidencing such
liability insurance, Lessee shall obtain any available endorsements required by
Lessor. Lessee shall also deliver the policy or a certificate evidencing the
same to
Lessor prior to occupying the Leased Premises or commencing the construction of
any improvements therein, and Lessee shall deliver a certificate of renewal from
the applicable insurer at least ten days prior to the expiration of the policy.
In addition, Lessee shall obtain and deliver to Lessor a written obligation on
the part of each of its insurance companies to notify Lessor at least 10 days
prior to any cancellation of or material change to such insurance.
(b) Lessee shall indemnify and hold Lessor harmless from all fines, suits,
costs and liability of every kind, including without limitation, attorney fees
and costs in defense of any claim relating thereto, arising because of: (i) any
violation or nonperformance by Lessee of representation or covenant contained in
this Lease: (ii) any bodily injury, death and/or damage to property occurring in
or resulting from any occurrence in the Leased Premises during the term of this
Lease; and (iii) any bodily injury, death and/or property damage that is
incident to, arises out of, or is in any way caused by the acts or negligent
omissions of Lessee or any of its agents, employees, contractors, customers or
invitees. The indemnity set out in the preceding sentence will not be impaired
or affected by negligence on the part of Lessor or anyone acting for Lessor and
is not limited in any way to the amount of insurance required by the preceding
subparagraph (a).
(c) Lessee accepts responsibility for keeping all personal property and
equipment in the Leased Premises adequately insured and for maintaining adequate
business interruption insurance. Lessor will not be liable to Lessee, its
employees, agents, licensees, invitees or insurers for bodily injury, death or
property damage occasioned by the acts or omissions of any other tenant of the
Building or of other tenants, agents, employees, licensees, or invitees within
the Building. Further, Lessor will not be liable to Lessee for any property
damage, bodily injury or inconvenience caused by the condition, maintenance,
repair or alteration of the Building, or the failure to provide maintenance or
repairs, except to the extent caused by Lessor's gross negligence or willful
misconduct.
17. PEACEFUL ENJOYMENT: Lessor warrants that it has full right to execute
and to perform this Lease and to grant the estate demised and that Lessee, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the Leased Premises during the full term of this Lease as well as any
extension or renewal thereof.
18. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, at all reasonable
hours, to enter the Leased Premises for the following reasons: inspection;
cleaning or making repairs, or alterations or additions as Lessor may deem
necessary or desirable, whether to the Leased premises or to other portions of
the Building; determining Lessee's use of the Leased Premises or determining if
an act of default under this Lease has occurred; or showing the Leased Premises
to any existing or prospective mortgagee or purchaser of the Building.
19. ASSIGNMENT OR SUBLEASE: Lessor shall have the right to transfer and
assign, in whole or in part, its rights and obligations in the Building and
property that are the subject of this Lease. Lessee shall not assign this lease
or sublet all or any part of the Leased Premises without the prior written
consent
of Lessor.* Lessor shall have the option, upon receipt from Lessee of written
request for Lessor's consent to subletting or assignment, to cancel this Lease
as of the date the requested subletting or assignment is to be effective. The
option shall be exercised, if at all, within fifteen (15) days following
Lessor's receipt of written notice by delivery to Lessee of written notice of
Lessor's intention to exercise the option. In the event of any assignment or
subletting, Lessee shall nevertheless at all times remain fully responsible and
liable for the payment of the rent and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease. Upon the
occurrence of an "event of default" as defined below, if all or any part of the
Leased Premises are then assigned or sublet, Lessor, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or subtenant all rents becoming due to Lessee by
reason of the assignment or sublease, and Lessor shall have a security interest
in all properties on the Leased Premises to secure payment of such sums. Any
collection directly by lessor from the assignee or subtenant shall not be
construed to constitute a novation or a release of Lessee from the further
performance of its obligations under this Lease.* Such consent shall not be
unreasonably withheld.
20. LANDLORD'S LIEN: In addition to and cumulative of any statutory
landlord's lien provided by law, as security for Lessee's payment of rent,
damages and all other payments required to be made by this Lease, Lessee hereby
grants to Lessor a lien upon all property of Lessee now or subsequently located
upon the Leased Premises. If Lessee abandons or vacates any substantial portion
of the Leased premises or is in default in the payment of any rentals, damages
or other payments required to be made by this Lease or is in default of any
other provision of this Lease, Lessor may enter upon the Leased Premises, by
changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Lessee, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Lessee's title and interest in the personal property sold to him.
The proceeds of the sale of the personal property shall be applied by Lessor
toward the reasonable costs and expenses of the sale, including attorney's fees,
and then toward the payment of all sums then due by Lessee to Lessor under the
terms of this Lease; any excess remaining shall be paid to Lessee or any other
person entitled thereto by law.
21. UNIFORM COMMERCIAL CODE: To the extent, if any, this Lease grants
Lessor any lien or lien rights greater than provided by the laws of Texas
pertaining to "Landlord's Liens", this Lease is intended as and constitutes a
security agreement within the meaning of the Uniform Commercial Code of Texas
and, Lessor, in addition to the rights prescribed in this Lease, shall have all
of the rights, titles, liens and interests in and to Lessee's property now or
hereafter located upon the Leased Premises which are granted a secured party, as
that term is defined, under the Uniform Commercial Code in Texas to secure the
payment to lessor of the various amounts provided in this Lease. Lessee will on
request execute and deliver to lessor a financing statement for the purpose of
perfecting Lessor's security interest under this Lease or Lessor may file this
Lease or a copy thereof as a financing statement.
22. MECHANIC'S LIENS: Lessee shall not permit the placing of any mechanic's
liens against the Building, the Land or other
improvements on the Land caused by or resulting from any work performed,
materials furnished or obligation incurred by or at the request of (or at the
request of) Tenant. Nothing in this Lease or in any other agreement between
lessor and Lessee constitutes the consent or request of Lessor, express or
implied, to any contractor, subcontractors, laborer or materialman for the
performance of any labor or the furnishing of any materials for any specific
improvement alteration or repair to the Building, the Land or other improvements
on the Land. Nor does anything contained herein or in any other agreement made
by Lessor and Lessee concerning the Leased Premises give Lessee any right, power
or authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any mechanic's
or other liens against the interest of Lessor in the Building, the Land or other
improvements on the Land. If any lien is filed against the interest of Lessor in
the Building or against the interest of Lessor in the Leased Premises because of
work performed, materials supplied or an obligation incurred by or at the
request of (or alleged request of) Lessee, then Lessee shall cause the same to
be discharged of record within 20 days after filing. If Lessee fails to
discharge the lien within such period, then, in addition to any other right or
remedy of Lessor, Lessor may, but will not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge by
deposit in court or bonding. Any amount paid by Lessor to discharge the lien,
and all reasonable legal and other expenses of Lessor, including reasonable
attorneys' fees, in defending any such action or in procuring the discharge of
the lien shall be repaid by Lessee on demand.
23. DEFAULT BY LESSEE: The following shall be deemed to be events of
default by Lessee under this Lease:
(a) Lessee shall fail to pay when due any installment of rent or any
other payment required pursuant to this Lease. Lessee shall have ten (10) days
to cure this default after receiving written notice of non-payment from Lessor;
(b) Lessee shall abandon any substantial portion of the Leased
Premises;
(c) Lessee shall fail to comply with any term, provision or covenant
of this Lease, other than the payment of rent, and the failure is not cured
within thirty (30) days after written notice to Lessee;
(d) Lessee shall file a petition or be adjudged bankrupt or insolvent
under the Federal Bankruptcy Act, as amended, or any similar law or statute of
the United States or any state; or a receiver or trustee shall be appointed for
all or substantially all of the assets of Lessee; or Lessee shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors;
(e) Lessee shall do or permit to be done any act which results in a
lien being filed against the Leased Premises.
24. REMEDIES FOR LESSEE'S DEFAULT: Upon the occurrence of any event of
default set forth in this Lease Agreement, Lessor shall have the option to
pursue any one or more of the following remedies without any notice or demand:
(a) Terminate this Lease, in which event Lessee shall
immediately surrender the Leased Premises to Lessor, and, if Lessee fails to
surrender the Leased Premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the Leased Premises, by changing locks if necessary, and lock out,
expel or remove Lessee and any other person who may be occupying all or any part
of the Leased Premises without being liable for prosecution of any claim for
damages. Upon the termination of this Lease, in addition to all unpaid rentals
and other monetary obligations of Lessee to Lessor, Lessor will be entitled to
recover, not as rent or a penalty but as compensation for Lessor's loss of the
benefit of its bargain with Lessee, the difference between (i) an amount equal
to the present value of the rental and other sums that this Lease provides
Lessee will pay for the remainder of the term hereof and for the balance of any
then effective extension of the term hereof, and (ii) the present value of the
net future rentals for such period that will be or with reasonable efforts could
be collected by Lessor by reletting the Leased Premises. The foregoing present
values will be calculated by discounting at the rate of 8 percent per annum. For
purposes of determining what could be collected by Lessor by reletting under the
preceding sentence, it will be assumed that Lessor is not required to relet when
other comparable space in the Building is available for lease and that Lessor
will not be required to incur any cost to relet, other than customary leasing
commissions.
(b) Enter upon and take possession of the Leased Premises, by changing
locks if necessary, and lock out, expel or remove Lessee and any other person
who may be occupying all of any part of the Leased Premises without being deemed
guilty of trespass, without being liable for any claim for damages, and without
causing a termination of or forfeiture of this Lease or of Lessee's obligation
to pay rent and other charges, and may relet the Leased Premises on behalf of
Lessee and receive directly the rent by reason of the reletting, but the failure
to so relet shall not reduce Lessee's liability for rents and other charges or
for damages. Lessee agrees to pay Lessor on demand any deficiency that may arise
by reason of any reletting of the Leased Premises; further, Lessee agrees to
reimburse Lessor for any expenditures made by it for remodeling or repairing in
order to relet the Leased Premises. In connection with any such reletting,
Lessor will not be obligated to incur any cost to relet, other than customary
leasing commissions, will not be obligated to relet for less than the then
market value of the leased Premises or to relet the leased Premises when other
comparable rental space in the Building is available for lease, and may relet
the Leased Premises for a term to expire at the same time as, earlier than, or
subsequent to, the expiration of the term hereof and/or relet all or any portion
of the Leased Premises as a part of a larger area. Lessee may retain the excess,
if any, of the rent earned from reletting the Leased Premises over the rentals
specified in this Lease.
(c) Enter upon the Leased Premises, by changing locks if necessary,
without being liable for prosecution of any claim for damages, and do whatever
Lessee is obligated to do under the terms of this Lease. Lessee agrees to
reimburse Lessor on demand for any expenses which Lessor may incur in effecting
compliance with Lessee's obligations under this Lease; further, Lessee agrees
that Lessor shall not be liable for any damages resulting to Lessee from
effecting compliance with Lessee's obligations under this subparagraph caused by
the negligence of Lessor or otherwise.
(d) After an event of default by Lessee, Lessor may
recover from Lessee from time to time and Lessee shall pay to Lessor upon
demand, whether or not Lessor has relet the Leased Premises or terminated this
Lease, (i) such expenses as Lessor may incur in recovering possession of the
Leased Premises, terminating this Lease, placing the Leased Premises in good
order and condition and altering or repairing the same for reletting; (ii) all
other costs and expenses (including brokerage commissions and legal fees) paid
or incurred by Lessor in exercising any remedy or as a result of the event of
default by Lessee; and (iii) any other amount necessary to compensate Lessor for
all the detriment proximately caused by Lessee's failure to perform Lessee's
obligations under this Lease or which in the ordinary course of things would be
likely to result from such failure.
(e) To the extent permitted by law, Lessee and Lessor agree that
paragraphs (a), (b), (c), (e) and (g) of Section 93.002 of the Texas Property
Code shall not apply to this Lease. However, as provided in Section 93.002(d) of
the Texas Property Code, Lessee will be presumed to have abandoned the Leased
Premises if goods, equipment, or other property, in an amount substantial enough
to indicate a probable intent to abandon the Leased Premises, is being or has
been removed from the Leased Premises and the removal is not within the normal
course of Lessee's business.
25. WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of
default immediately upon its occurrence or delay in taking any action in
connection with an event of default shall not constitute a waiver of the
default, but Lessor shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
or more of the remedies set forth in the above paragraph shall not preclude
pursuit of any other of the remedies set forth in the above paragraph and/or any
one or more of the other remedies provided elsewhere in this Lease or provided
by law, nor shall pursuit of any remedy provided constitute a forfeiture or
waiver of any rent or damages accruing to Lessor by reason of the violation of
any of the terms, provisions or covenants of this Lease. Failure by Lessor to
enforce one or more of the remedies provided upon an event of default shall not
be deemed or construed to constitute a waiver of the default or of any other
violation or breach of any of the terms, provisions and covenants contained in
this Lease.
26. ACTS OF GOD: Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
27. ATTORNEYS' FEES: In the event Lessee defaults in the performance of any
of the terms, covenants, agreements or conditions contained in this Lease and
Lessor places in the hands of an attorney the enforcement of all or any part of
this Lease, the collection of any rent or other sums due or to become due or
recovery of the possession of the Leased Premises, Lessee agrees to pay Lessor
reasonable attorneys' fees for the services of the attorney, whether suit is
actually filed or not. In no event shall the attorneys' fees be less than
fifteen percent of the outstanding balance owed by Lessee to Lessor.
28. HOLDING OVER: In the event of holding over by Lessee after the
expiration or termination of this Lease or any extension thereof, the holdover
shall be as a tenant at will and all of the
terms and provisions of this Lease shall be applicable during that period,
except that Lessee shall pay Lessor as rental for the period of such holdover an
amount equal to one and A Quarter the rent which would have been payable by
Lessee had the holdover period been a part of the original or extended term of
this Lease. Additionally, Lessee shall be liable to Lessor for any damages
caused to Lessor by such holdover. Lessee agrees to vacate and deliver the
Leased Premises to Lessor upon Lessee's receipt of notice from Lessor on demand.
No holding over by Lessee, whether with or without consent of Lessor, shall
operate to extend this Lease except as otherwise expressly provided.
29. RIGHTS OF MORTGAGEE: Lessee accepts this Lease subject and subordinate
to any recorded mortgage, deed of trust or other lien presently existing upon
the Leased Premises. Lessee further agrees that this Lease is subject and
subordinate to any mortgage, deed of trust or other lien hereafter placed on the
Leased Premises, and, although this provision is self-operative, Lessee agrees
upon demand to execute additional instruments subordinating this Lease as Lessor
may require. If the interests of Lessor under this Lease shall be transferred by
reason of foreclosure or other proceedings for enforcement of any mortgage, deed
of trust or other lien on the Leased Premises, Lessee shall be bound to the
transferee (sometimes called the "Purchaser") under the terms, covenants and
conditions of this Lease for the balance of the term remaining, and any
extensions or renewals, with the same force and effect as if the Purchaser were
Lessor under this Lease, and Lessee agrees to attorn to and upon the request of
the Purchaser including the mortgagee or beneficiary under any such mortgage or
deed of trust if it be the Purchaser, as its lessor, the attornment to be
effective and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of Lessor under this Lease and
requiring such attornment. The respective rights and obligations of Lessee and
the Purchaser upon the attornment, to the extent of the then remaining balance
of the term of this Lease, and any extensions and renewals, shall be and are the
same as those set forth in this Lease. Notwithstanding that such attornment is
self-operative, Lessee agrees to execute such further agreements in confirmation
thereof as shall be reasonably requested by Lessor or such mortgagee or
beneficiary, and Lessee further agrees to include in such agreements such other
provisions as may be reasonably requested by Lessor or such mortgagee or
beneficiary, including without limitation provisions for notice of default and
opportunity to cure to such mortgagee or beneficiary and the non-liability of
such mortgagee or beneficiary for claims against the Lessor.
30. ESTOPPEL CERTIFICATES: Lessee agrees to furnish promptly, from time to
time, upon request of Lessor or Lessor's mortgagee or beneficiary or prospective
mortgagee or beneficiary or prospective purchaser, a statement certifying that:
Lessee is in possession of the Leased Premises: the Leased Premises are
acceptable; the Lease is in full force and effect, the Lease is unmodified;
Lessee claims no present charge, lien, or claim of offset against rent; the rent
is paid for the current month, but is not paid and will not be paid for more
than one month in advance; there is no existing default by reason of some act or
omission by Lessor; and such other matters as may be reasonably required by
Lessor or Lessor's mortgagee or beneficiary.
31. SUCCESSORS: This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns, and references
herein to "Lessor" or "Lessee" shall include all of such heirs, personal
representatives, successors and assigns, but the foregoing does not detract in
any way from the provisions of Paragraph 19 hereof. It is hereby covenanted and
agreed that should Lessor's interest in the Leased Premises cease to exist for
any reason during the term of the Lease, then notwithstanding the happening of
such event this Lease nevertheless shall remain unimpaired and in full force and
effect and Lessee hereunder agrees to attorn to the then owner of the Leased
Premises.
32. RENT TAX: If applicable in the jurisdiction where the Leased Premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
33. NOTICE: (a) all rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth below, or any other address
Lessor may specify from time to time by written notice delivered to Lessee.
(b) All payments required to be made by Lessor to Lessee shall be payable
to Lessee at the address set forth below, or at any other address within the
United States as Lessee may specify from time to time by written notice.
(c) Any notice or document required or permitted to be delivered by this
Lease shall be deemed to be delivered (whether or not actually required) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set out
below:
LESSOR: LESSEE:
Ameritas Life Insurance Corp. Matrix Telecom, Inc.
x/x Xxx Xxxxxx Xxxxx, X.X.X. 0000 Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxxxxxx Xxxxx, XX 00000
Xxxxxxx, XX 00000
34. DEFINITIONS: These definitions apply to the terms defined as those
terms are used throughout this Lease.
(a) "Abandon" means the vacating of all or a substantial portion of
the Leased Premises by Lessee, whether or not Lessee is in default of the rental
payments due under this Lease.
(b) An "act of God" or "force majeure" is defined for the purpose of
this Lease as strikes, lockouts, sit-downs, material or labor restrictions by
any governmental authority, riots, floods, washouts, explosions, earthquakes,
fire, storms, acts of the public enemy, wars, insurrections and any other cause
not reasonably within the control of Lessor and which by the exercise of due
diligence Lessor is unable, wholly or in part, to prevent or overcome.
(c) The Commencement Date shall be the date set forth in paragraph 2.
The Commencement Date shall constitute the commencement of this Lease Agreement
for all purposes, whether or not Lessee has actually taken possession.
(d) The Completion Date shall be the date on which the
improvements erected and to be erected upon the Leased Premises shall have been
completed in accordance with the plans and specifications described in paragraph
9. Lessor shall use its best efforts to establish the Completion Date as the
date set forth in paragraph 2. In the event that the improvements have not in
fact been completed as of that date, Lessee shall notify Lessor in writing of
its objections. Lessor shall have a reasonable time after delivery of the notice
in which to take such corrective action as may be necessary, and shall notify
Lessee in writing as soon as it deems such corrective action has been completed
so that the improvements are completed and ready for occupancy. Taking of
possession by Lessee shall be conclusively deemed to establish that the
improvements have been completed and that the Leased Premises are in good and
satisfactory condition, as of the date possession was so taken by Lessee, except
for latent defects, if any.
(e) "Real property tax" means all city, state and county taxes and
assessments including special district taxes or assessments.
(f) The captions appearing in this Lease are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or
intent of such paragraph.
35. LIMITED LIABILITY OF LESSOR: All liability of Lessor for damages for
breach of any covenant, duty or obligation of Lessor hereunder may be satisfied
only out of the interest of Lessor in the Building existing at the time any such
liability if adjudicated in a proceeding as to which judgment adjudicating such
liability is non-appealable and not subject to further review. In no event will
Lessee be entitled to execution under any judgment against any assets of the
Lessor, or any partners, shareholders, policyholders, or other persons or
entities having an interest in the Lessor, except as to their interest in the
Building as set forth above, and no deficiency judgment or money judgment of any
kind shall be sought or entered against Lessor, Lessee agreeing that Lessor
shall have no personal liability hereunder. All obligations of Lessor hereunder
will be construed as covenants, not conditions.
36. SEVERABILITY: A determination that any term or provision of this Lease,
or the application thereof to any person or circumstance, is invalid or
unenforceable, shall not affect the remainder of this Lease or the application
of such term or provision to persons or circumstances other than those as to
which it is invalid or unenforceable.
37. BROKERAGE FEES INCURRED BY LESSEE: Lessee represents and agrees that
Lessor will not be responsible for and Lessee shall indemnify, defend and hold
Lessor harmless against, any brokerage or leasing commission or finder's fee
claimed by any party in connection with this Lease, except any such claim made
pursuant to a separate written agreement executed by Lessor and the party making
such claim.
38. JOINT AND SEVERAL LIABILITY: If Lessee consists of more than one person
or entity at any time, all such persons or entities are jointly and severally
liable hereunder for the obligations of Lessee.
39. TIME IS OF THE ESSENCE: Time is of the essence with respect to the
performance by Lessee of all of its obligations under this Lease.
40. RECORDATION: Lessee agrees not to record this Lease or any memorandum
of this Lease without Lessor's consent.
41. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: It is expressly agreed
by Lessee, as a material consideration for the execution of this Lease, that
this Lease, with the specific reference to written extrinsic documents, is the
entire agreement of the parties and that there are, and were, no verbal
representations, warranties, understandings, stipulations, agreements or
promises pertaining to this Lease or the expressly mentioned written extrinsic
documents not incorporated in writing in this Lease. Any representation of
Lessor's agents which is not incorporated in this Lease shall not be binding
upon Lessor and should be considered as unauthorized. Lessor and Lessee
expressly agree that there are and shall be no implied warranties of
merchantability, fitness or of any other kind arising out of this Lease. It is
likewise agreed that this Lease may not be altered, waived, amended or extended
except by an instrument in writing signed by both Lessor and Lessee.
42. OTHER PROVISIONS:
1) Exhibits A, B and C are attached hereto and made a part hereof.
2) This Lease Agreement is subject to Lessor's approval and will be a
valid Lease Agreement only when signed by the Lessor.
3) Lessor will enter into a license agreement with Lessee for
additional parking not to exceed fifty (50) spaces at 0000 Xxxxxxx Xxxxxxx
Property (Northstar II). Lessee agrees to utilize the additional parking only on
an "as needed" basis. The license agreement will be subject to cancellation with
forty-five (45) days written notice from Lessor to Lessee if Owner of Northstar
II (8713 Airport Freeway) sells or otherwise transfers the property at 0000
Xxxxxxx Xxxxxxx to another owner. This license agreement will also be subject to
cancellation with forty-five (45) days written notice from Lessor to Lessee if
Owner of 0000 Xxxxxxx Xxxxxxx Property decides in its sole discretion that the
above-mentioned fifty (50) spaces are needed for any existing or future Tenant
of the 0000 Xxxxxxx Xxxxxxx Property.
4) Lessor agrees to give Lessee one (1) five year option to renew this
Lease Agreement at the then existing market rate. This renewal will be
negotiated one hundred eighty (180) days prior to the expiration of the primary
term.
5) Lessor will use its best efforts to make Lessee aware of any space
in excess of 5,000 rentable square feet which comes available at the 0000
Xxxxxxx Xxxxxxx Property as long as Lessor retains an ownership position at 0000
Xxxxxxx Xxxxxxx Property during the term of this Lease Agreement.
LESSOR: LESSEE:
AMERITAS LIFE INSURANCE CORP. MATRIX TELECOM, INC.
By /s/ XXXX X. XXXXXXXX By /s/ XXXXXXX X. XXXXXX, XX.
LEASE MODIFICATION AGREEMENT
THIS LEASE MODIFICATION is made this 2nd day of March 1995, by and
between American Life Insurance Corp. herein called "Lessor" and
Matrix Telecom, Inc. herein called "Lessee".
RECITALS
WHEREAS, by a lease dated February 28, 1995 Ameritas Life Insurance Corp. did
lease to Lessee 24,050 rentable square feet on the First and Second floor(s) in
that certain office building known as Northstar Plaza I, located at 0000 Xxxxxxx
Xxxxxxx, Xxxx Xxxxx, Xxxxx. Said space consists of approximately 24,050 rentable
square feet, is shown in Exhibit "A" attached to said lease, and is herein
called the "premises".
WHEREAS, the term of such lease is scheduled to expire on June
20, 2000 and
WHEREAS, the parties desire to make certain changes to said lease.
AGREEMENT
NOW, THEREFORE, in consideration of mutual covenants contained herein and in
said lease, the parties hereto agree as follows:
1. Exhibit B. The last paragraph of Exhibit "B" which reads "Lessee
will have the right to cancel this Lease Agreement if the City of North
Richland Hills requires a fire sprinkler system to be installed in the
building during their plan review and prior to their issuance of a building
permit. This right to cancel will not be available to Lessee once a
building permit is issued and a contract for construction is signed.", is
hereby deleted in its entirety.
If Lessee is a division or subsidiary of a corporation, each
individual executing this Agreement on behalf of the division or subsidiary
represents and warrants that he or she is duly authorized to execute and deliver
this Agreement on behalf of the division or subsidiary, in accordance with a
duly adopted resolution of the Board of Directors or the parent corporation,
that this Agreement is binding upon the parent corporation (as well as the
division or subsidiary) in accordance with its terms, and that said division or
subsidiary shall, within thirty (30) days after request by Lessor, deliver to
Lessor a certified copy of a resolution of the Board of Directors of the parent
corporation authorizing or ratifying the execution of this Agreement.
If Lessee is a partnership, each individual executing this Agreement on
behalf of said partnership represents and warrants that he or she is duly
authorized to sign and deliver this Agreement on behalf of said partnership and
that this Agreement is binding upon said partnership in accordance with its
terms.
2. Miscellaneous:
a. The provisions of this Lease Modification Agreement shall remain in
full force and effect for the duration of the said lease.
b. Except as otherwise set forth herein, all of the
terms and conditions of said lease shall remain in full force and
effect, and shall remain fully applicable to the premises, throughout the
duration of said lease. Said lease, as amended herein, constitutes the entire
agreement between the parties hereto, and no further modification of said lease
shall be binding unless evidenced by an agreement in writing signed by Lessor
and Lessee.
c. The captions and paragraph numbers appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
affect or describe the scope or intent of the provisions in this Agreement.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Modification
Agreement as of the day first above written.
Ameritas Life Insurance Corp.
LESSOR
By: /s/ XXXX X. XXXXXXXX
Matrix Telecom, Inc.
LESSEE
By: /s/ XXXXXXX X. XXXXXX, XX.
DATE: 3/3/95
