EXHIBIT 10.24
OFFICE LEASE
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxx
This Lease, made as of February 22, 2001, by and between the Landlord
and the Tenant named below.
ARTICLE 1. - BASIC LEASE TERMS
For the purposes of this Lease, the following terms shall have the
meanings set forth below:
1.1 Landlord. One Liberty Place, L.C.
1.2 Tenant. R.E. Xxxxxxxx, Inc., dba COLO SOLUTIONS
1.3 Building. The Building (including the Leased Premises) known as One
Liberty Place, 000 Xxxxx Xxxxx Xxxxxx, Xxxx, Xxxxx 00000 located on that tract
of land and (the "Land") described on Exhibit A hereto, together with all other
buildings, structures, backup electrical power equipment, fixtures and other
improvements located thereon from time to time, being presently as depicted on
the drawing attached hereto as Exhibit B. The Building and the Land are
sometimes collectively referred to herein as the "Property."
1.4 Leased Premises. That portion of the Building indicated in red on
Exhibit B, on the floor(s) indicated thereon, together with a common area
percentage factor determined by Landlord, resulting in an aggregate of
approximately 1,159 net rentable square feet. The Leased Premises also include,
but are not limited to, the back-up electrical power equipment located in the
common area parking lot which is contiguous to building. Premises shall include
the Utility Installation Space which shall mean the certain utilities and
installation space located in and through portions of the Building, other than
and in addition to the 1,159 square feet of space of the Building, necessary for
the installation, construction, connection, use and maintenance by Tenant and
its officers, employees, and agents (including without limitation a local
telephone company) of Tenant's Equipment (as hereinafter defined) and such
additional telephone cables, conduits and other facilities and/or equipment as
Tenant may reasonably determine to be appropriate for the operation of Tenant's
business at and from the Premises between and among Landlord, Tenant, and other
tenants of Building. Any damage done to the building, including but not limited
to the lease space, by any contractor working for the tenant shall be fully
repaired at LESSEE'S sole expense. The location and configuration of Tenant's
Equipment in the Utilities Installation Space shall be designated by Tenant,
subject to Landlord's consent which shall not be unreasonably withheld or
delayed. "Tenant's Equipment" shall mean all electronic computerized equipment
and components necessary or appropriate for the operation of Tenant's business,
including without limitation, (a) all cable, telephone switching equipment,
environmental control equipment, power equipment, and auxiliary equipment within
the Premises, including the Utility Installation Space; and (b) all cables
within conduits throughout the entire Premises. Tenant shall procure and install
all such Tenant's Equipment at its sole cost and expense without obtaining
consent of the Landlord therefor. Landlord hereby acknowledges that all of
Tenant's Equipment shall, notwithstanding the incorporation of any of the same
into the Premises, at all times remain the property of the Tenant. Tenant hereby
acknowledges that Landlord is not liable in any way for the installation and/or
operation and/or maintenance of this equipment.
1.5 Lease Term. 48 months and 15 days, beginning on the Commencement
Date of March 15, 2001.
1.6 Commencement Date. The commencement date is March 15, 2001, and the
expiration date is April 30, 2005. Option Periods are provided as outlined in
ARTICLE 15.
1.7 Base rent. Base rent is as follows:
Years 1 and 2 - BASE RENT is $1,425.00, consisting of:
Standard rent $ 1,275.00
Generator pad in parking lot 159.00
-----------
TOTAL BASE RENT $ l,425.00
EXCESSIVE UTILITY CHARGE 750.0O
-----------
TOTAL MONTHLY CHARGE FOR YEARS 1 AND 2 $ 2,175.00*
[*This amount does not include any finish-out costs for which the Landlord
might agree to pay for up front, but these same costs will be amortized and
paid for by Tenant each month over the initial four year lease term, in
addition to the other rental amount and charges outlined above.]
Years 3 and 4 - BASE RENT is $1,575.00, consisting of:
Standard Rent $ 1,400.00
Generator Pad in Parking Lot l75.00
-----------
TOTAL BASE RENT $ 1,575.00
-----------
EXCESSIVE UTILITY CHARGE $ 800.00
-----------
TOTAL MONTHLY CHARGE FOR YEARS 3 AND 4 $ 2,375.00**
[**This amount does not include any finish-out costs for which the Landlord
might agree to pay for up front, but these same costs will be amortized and
paid for by Tenant each month over the initial four year lease term, in
addition to the other rental amount and charges outlined above.]
/s/
-------------------
Initials
1.8 Security Deposit. Security deposit is $2,500.00
1.9 Addresses.
Landlord's Address Tenant's Address
One Liberty Place, L.C. R.E. Xxxxxxxx, Inc.
Xxxxx 000, Xxx Xxxxxxx Xxxxx dba COLO SOLUTIONS
000 Xxxxx Xxxxx Xxxxxx X.X. Xxx 000000
Xxxx, Xxxxx 76701 Xxxxxxxxx, XX 00000
Landlord, Tenant, and Manager by written notice to the others may change from
time to time the foregoing addresses, and Landlord, by written notice to Tenant,
may notify Tenant from time to time of the appointment of a new Manager and such
new Manager's address.
1.10 Permitted Use. Leased premises shall be used only as a switching
center for Carrier-Neutral Colocation Center, for the housing of
telecommunications and internet related equipment. No other use is allowed
without written permission of Landlord.
1.11 Common Areas. Such parking areas, streets, driveways, aisles,
sidewalks, curbs, delivery passages, loading areas, lighting facilities, and
all other areas situated on or in the Property which are designated by Landlord,
from time to time, for use by all tenants of the Property in common.
ARTICLE 2. GRANTING CLAUSE AND RENT PROVISIONS
2.l Grant of Premises. In consideration of the obligation of tenant to
pay the rent and other charges as provided in this Lease and in consideration of
the other terms and provisions of this Lease, Landlord hereby leases the Leased
Premises to Tenant during the Lease Term, subject to the terms and provisions of
this Lease.
2.2 Base Rent. Tenant agrees to pay monthly as base rent during the
term of this Lease the sum of money identified as TOTAL BASE RENT, and as set
forth in Section 1.7 of this Lease, which amount shall be payable to Landlord at
the address shown in section 1.9 above or at such other address that Landlord in
writing shall notify Tenant. The first monthly installment of rent due and
payable for March 15 - 31, 2001 (March rent to be pro rated for 1/2 month) and
April 1, 2001, shall be paid by Tenant at the time of execution of this Lease
Agreement, and a like monthly installment shall be due and payable on or before
the first day of each calendar month succeeding the Commencement Date during the
term of this Lease, without demand, offset or reduction; provided, if the
Commencement 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 term of this Lease.
Tenant shall pay the Excess Monthly Utility Charge as outlined in Article 1,
Paragraph 1.7, and, as additional rent, all other sums due under this lease.
2.3 Operating Expenses. If Landlord's Operating Expenses per net
rentable square foot for the Property, in any calendar year during the term of
this Lease exceed the Operating Expense Base, Tenant agrees to pay as additional
rent Tenant's share of such excess operating expense. As used herein, the term
"Tenant's share of such excess Operating Expenses" means the amount by which
Landlord's Operating Expenses per net rentable square foot exceed the Operating
Expense Base, multiplied by the net rentable square feet comprising for each
calendar year, which amount shall be adjusted each year based upon anticipated
exceeded operating expenses. Within one-hundred twenty (120) days following the
close of each calendar year, Landlord shall provide Tenant an accounting showing
in reasonable detail all computations of additional rent due under this Section.
If the accounting shows that the total of the monthly payments made by Tenant
exceeds the amount of additional rent due by Tenant under this Section, the
accounting shall be accompanied by a refund. If the accounting shows that the
total of the monthly payments made by Tenant is less than the amount of
additional rent due by Tenant under this Section, the accounting shall be
accompanied by an invoice for the additional rent. Notwithstanding any other
provisions in this Lease, during the year in which the Lease terminates,
Landlord, within one (1) year following the termination date, shall have the
option to invoice Tenant for Tenant's share of the excess operating expenses
based upon the previous year's operating expenses. If this Lease shall terminate
on a day other than the last day of a calendar year, the amount of any
additional rent payable by Tenant applicable to the year in which such
termination shall occur shall be prorated on the ratio that the number of days
from the commencement of the calendar to and including the termination date
bears to 365. Tenant shall have the right, at its own expense and within
reasonable time, to audit during Landlord's regular business hours Landlord's
books relevant to the additional rent payable under this Section.
Notwithstanding anything to the contrary contained in this Lease, if the
Building is not fully occupied during any calendar year, Tenant's additional
rent under this Section and the operating expenses shall be determined as if the
Building had been fully occupied during such year. Tenant agrees to pay any
additional rent due under this Section within thirty (30) days following receipt
of the invoice or accounting showing additional rent due, Calendar year 2001 to
be the base for calculation of pass through of operating expenses.
2.4 Definition of Operating Expense. The term "operating expenses"
includes all expenses by Landlord with respect to the maintenance, servicing,
repairing and operation of the Property, including, but not limited to the
following: maintenance, repair and replacement costs;
/s/
-------------------
Initials
electricity, fuel, water, sewer, gas and other utility charges; security, window
washing and janitorial services; trash and snow and ice removal; landscaping and
pest control; management fees payable to third parties, wages and benefits
payable to employees of Landlord whose duties are directly connected with the
operation and maintenance of the Property; all parking and common area; the
cost, including interest, amortized over its useful life, of any capital
improvement made to the Property by Landlord after the date of this Lease which
is required under any governmental law or regulation that was not applicable to
the Property at the time it was constructed; the cost, including interest,
amortized over its useful life, of installation of any device or other equipment
which improves the operating efficiency of any system within the Leased Premises
and thereby reduces operating expenses; all other expenses which generally would
be regarded as operating and maintenance expenses which would be reasonably
amortized over a period not to exceed five (5) years; governmental levies or
charges of any kind or nature assessed or imposed on the Property, whether by
state, county, city or any political subdivision thereof; and all insurance
premiums Landlord is required to pay or deems necessary to pay, including public
liability for repairs, restoration or other work occasioned by fire, wind, the
elements or other casualty that are covered by insurance, with respect to the
Property. The term operating expenses does not include the following: expenses
for repairs, restoration or other work occasioned by fire, wind, the elements or
other casualty that are covered by insurance; income and franchise taxes of
Landlord; expenses incurred in leasing or procuring of tenants, or principal
payments on any mortgage or other indebtedness of Landlord; compensation paid
to any employee of Landlord above the grade of property manager; any
depreciation allowance or expense; or operating expenses which are the
responsibility of Tenant.
2.5 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if any monthly rental payments is not received by Landlord on
or before the tenth (10th) day of the month for which the rent is due, or if any
other payment hereunder due Landlord by Tenant is not received by Landlord on or
before the tenth (10th) day of the month next following the month in which
Tenant was invoiced, a late payment charge of ten percent (10%) of such past due
amount shall become due and payable in addition to such amounts owed under this
Lease.
2.6 Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Landlord for the Property is caused by Tenant's use of the
Leased Premises in a manner other than as set forth in Section 1.10, or if
Tenant vacated the Leased Premises and caused an increase in such premiums, then
Tenant shall pay as additional rent the amount of such increase to Landlord.
Tenant agrees to pay any amount due under this Section within ten (10) days
following receipt of the invoice showing the additional rent due.
2.7 Holding Over. If Tenant does not vacate the Leased Premises upon
the expiration or earlier termination of this Lease, Tenant shall be a tenant at
sufferance for the holdover period and all of the terms and provisions of this
Lease shall be applicable during that period, except that Tenant shall pay
Landlord (in addition to additional rent payable under Section 2.3 and any other
sums payable under this Lease) as base rental for the period of such holdover an
amount equal to one and one-half (1 1/2) times the base rent which would have
been payable by Tenant had the holdover period been a part of the original term
of this Lease (without waiver of Landlord's right to recover damages as
permitted by law). Upon the expiration or earlier termination of this Lease,
Tenant agrees to vacate and deliver the Leased Premises, and all keys thereto,
to Landlord upon delivery to Tenant of Notice from Landlord to vacate. The
rental payable during the holdover period shall be payable to Landlord on
demand. No holding over by Tenant, whether with or without the consent of
Landlord, shall operate to extend the term of this Lease. Tenant shall indemnify
Landlord against all claims made by any tenant or prospective tenant against
Landlord resulting from delay by Landlord in delivering possession of the Leased
Premises, except in such instances where Landlord has approved the holdover by
Tenant, to such other tenant or prospective tenant.
ARTICLE 3. - OCCUPANCY, USE AND OPERATIONS
3.1 Use. Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied only for the purpose as set forth in Section
1.10. Tenant shall occupy the Leased Premises, conduct its business and
control its agents, employees, invitees and visitors in such a manner as is
lawful, reputable and will not create a nuisance to other tenants in the
Property. Tenant shall not solicit business, distribute handbills or display
merchandise within the Common Areas, or take any action which would interfere
with the rights of other persons to use the Common Areas. Tenant shall not
permit any operation which emits any odor, use any apparatus or machine which
makes undue noise or causes vibration in any portion of the Property or
otherwise interfere with or disturb in any material way Landlord in its
management of the Property. Tenant shall neither permit any waste on the Leased
Premises nor allow the Leased Premises to be used in any way which would, in the
reasonable opinion of Landlord, be extra hazardous on account of fire or which
would in any way increase or render void the fire insurance on the Property.
3.2 Signs. No signs of any type or description shall be erected,
placed or painted in or about the Leased Premises except those signs submitted
to Landlord in writing and approved by Landlord in writing, which approval shall
not be unreasonably withheld, and which signs are in conformity with Landlord's
sign criteria established for the Property. Landlord reserves the right to
remove, at Tenant's expense, all signs other than signs approved in writing by
Landlord under this Section 3.2 without notice to Tenant and without liability
to Tenant for any damages sustained by Tenant as a result thereof.
/s/
-------------------
Initials
3.3 Compliance with Laws, Rules and Regulations. Tenant, at Tenant's
sole cost and expense, shall comply with all laws, ordinances, orders, acts,
rules and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over the use, condition or occupancy of the Leased Premises,
including, but not limited to, the Americans with Disabilities Act of 1990 (the
"ADA"). Tenant shall procure at its own expense all permits and licenses
required for the transaction of its business in the Leased Premises. Tenant will
comply with the rules and regulations of the Property adopted by Landlord which
are set forth on a schedule attached to this Lease. It Tenant is not complying
with such rules and regulations, or if Tenant is in any way not complying with
this Article 3, then, notwithstanding anything to the contrary contained herein,
Landlord, may, at its election enter the Leased Premises without liability
therefore and fulfill Tenant's obligations. Tenant shall reimburse Landlord on
demand for any expenses which Landlord may incur in effecting compliance with
Tenant's obligations and agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action. Landlord shall have the right at
all times to change and amend the rules and regulations in any reasonable manner
as it may deem advisable for the safety, care, cleanliness, preservation of good
order and operation or use of the Property or the Leased Premises. All changes
and amendments to the rules and regulations of the property will be forwarded by
Landlord to Tenant in writing and shall thereafter be carried out and observed
by Tenant.
3.4 Warranty of Possession. Landlord and Tenant each warrants that it
has the right and authority to execute this Lease, and Landlord warrants to
Tenant, that upon payment of the required rents by Tenant and subject to the
terms, conditions, covenants and agreements contained in this Lease, as well as
any extensions or renewal thereof, Tenant shall have possession of the Leased
Premises during the full term of this Lease, as well as any extension or renewal
thereof, without hindrance from Landlord or any person or persons lawfully
claiming the Leased Premises by, through or under Landlord (but not otherwise);
subject, however, to all mortgages, deeds of trust, leases, and agreements to
which this Lease is subordinate and to all laws, ordinances, orders, rules and
regulations of any governmental authority. Landlord shall not be responsible for
the acts or omissions of any other lessee or third party that may interfere with
Tenant's use and enjoyment of the Leased Premises.
3.5 Inspection. Landlord or its authorized agents shall at any and all
reasonable times have the right to enter the Leased Premises to inspect the
same, to supply janitorial service or any other service to he provided by
Landlord, to show the Leased Premises to prospective mortgagees, purchasers, or
prospective tenants, and to alter , improve or repair the Leased Premises or any
other portion of the Property. Notwithstanding the foregoing, Landlord, except
in cases of emergency, may exercise its rights of entry and inspection under
this Section 3.5 only after twenty-four (24) hours' prior notice thereof to the
office of Tenant's office manager. Whenever Landlord shall enter upon and/or be
present in the premises, Landlord shall exercise reasonable efforts to minimize
any interference with Tenant's business operations that may be occasioned
thereby. Provided Landlord has exercised reasonable efforts to minimize any
interference with Tenant's business operations, Tenant hereby waives any claim
for abatement or reduction of rent or for any damages for injury or
inconvenience to or interference with Tenant's business, for any loss of
occupancy or use of the Leased Premise, and for any other loss occasioned
thereby. Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the leased Premises. Tenant shall not change
Landlord's lock system or in any other manner prohibit Landlord from entering
the Leased Premises. Landlord shall have the right at all times to enter the
Leased Premises by any means in the event of an emergency without liability
therefor.
3.6 Personal Property Taxes. Tenant shall be liable for all taxes
levied against leasehold improvements, merchandise, equipment, personal
property, trade fixtures and all other taxable property located in the Leased
Premises. If any such taxes for which tenant is liable are levied against
Landlord or Landlord's property and if Landlord elects to pay same or if the
assessed value of Landlord's property is increased by inclusion of personal
property and trade fixtures place by Tenant in the Leased Premises and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord,
upon demand, that part of such taxes for which Tenant is primarily liable
pursuant to the terms of this Section. Tenant shall pay when due any and all
taxes related to Tenant's use and operation of its business in the Leased
Premises.
3.7 Life Safety and Emergency Procedures. Upon taking possession of the
Leased Premises, Manager shall deliver to Tenant a complete plan of Manager's
life safety requirements and emergency procedures (the "Life Safety Plan"), if
any. Tenant agrees to execute an acknowledgment of receipt of the Life Safety
Plan. Additionally, Tenant, at Tenant's sole cost and expense, shall comply with
the Life Safety Plan, as amended by Manager from time to time. All changes and
amendments to the Life Safety Plan will be forwarded by Manager to Tenant in in
writing and shall thereafter also be carried out and observed by Tenant. Any
questions or comments with respect to the Life Safety Plan should be addressed
to Manager in writing.
ARTICLE 4 - UTILITIES AND SERVICE
4.1 Building Services. Landlord shall provide water and electricity for
Tenant during the term of this Lease. Tenant shall pay all telephone charges.
Landlord shall furnish Tenant water at those points of supply provided for
general use of other tenants in the Building, and central heating and air
conditioning in season (on business days during regular hours, and at
temperatures and in amounts as are considered by Landlord to be standard or in
compliance with
/s/
-------------------
Initials
any governmental regulations, such service at times other than regular hours to
be furnished upon not less than twenty-four (24) hours advance notice from
Tenant, who shall bear the entire cost thereof at the rate established by
Landlord). Failure by Landlord to any extent to provide defined services or any
other services not enumerated, or any cessation thereof, shall not render
Landlord liable in any respect for damages to either person or property, be
construed as an eviction of Tenant, work an abatement of rent or relive Tenant
from fulfillment of any covenant in this Lease, except where such failure occurs
as a result of Landlord's failure to pay service providers in a timely manner.
If any of the equipment or machinery useful or necessary for provision of
utility services, and for which Landlord is responsible, breaks down, or for any
cause ceases to function properly, Landlord shall use reasonable diligence to
repair the same promptly, but Tenant shall have no claim for rebate of rent or
damages of any type on account of any interruption in service occasioned from
the repairs. Landlord reserves the right from time to time to make changes in
the utilities and services provided by Landlord to the Property. Any
interruption of utility services to the lease space, of any type, shall be the
sole responsibility of Tenant, and Landlord shall not be liable in any way for
this disruption of service.
4.2 Theft or Burglary. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Leased Premises or the Property.
4.3 Janitorial Service. Landlord shall furnish janitorial services to
the Leased Premises and public areas of the Building five (5) times per week
during the term of this Lease, excluding holidays. Landlord shall not provide
janitorial service to kitchens or storage areas included in the Lease Premises.
Should Tenant opt to provide janitorial service at Tenant's sole cost and
expense, then Landlord shall make no provision for abatement of rent resulting
from this option by Tenant.
4.4 Excessive Utility Consumption. Tenant shall pay all utility costs
occasioned by electrodata processing machines, telephone equipment, computers
and other equipment of high electrical consumption as determined by Landlord,
including (without limitation) the cost of installing, servicing and maintaining
any special or additional inside or outside wiring or lines, meters or
submeters, transformers, poles, air conditioning costs, or the cost of any other
equipment necessary to increase the amount or type of electricity or power
available to the Leased Premises. As of the date of this lease, both Landlord
and Tenant agree that the dollar amount of the excessive utility consumption
shall be $800.00 per month as described in Section 1.7 and shall remain at this
level each and every month until Landlord notifies Tenant, in writing, of an
adjustment in the amount. Any adjustment must be given to Tenant in writing at
least 30 days prior to the increase, and must be supported by utility bills
which support the increase due to increased consumption or rate increase. In the
event Tenant and Landlord cannot not agree on the amount of the excessive
utility consumption charge, then the Tenant shall have the right to submit a
written request to the Landlord for approval to install a submetering device(s),
at Tenant expense, to meter the electrical consumption for this lease space. If
this request is approved by the Landlord, the Tenant shall then be billed at the
end of each month, and payment of the excessive utility consumption charge shall
be included with payment of the monthly rental amount due each month. The
monthly excessive utility consumption charge shall be determined by multiplying
the electrical consumption calculated from the reading of the submeter(s) by the
same and most current unit billing rate used by the the electrical utility
company providing electrical services to the building. Landlord agrees to
consider a written request from the Tenant to install a submetering device(s) to
determine excessive utility consumption, but Landlord shall not be bound by the
terms of this Lease Agreement to approve such a request from the Tenant.
4.5 Window Coverings. Landlord may require Tenant to furnish and
install window coverings on all exterior windows to maintain a uniform exterior
appearance. Tenant shall not remove or replace these window coverings or install
any other window covering which would affect the exterior appearance of the
Building. Tenant may install lined or unlined over draperies on the interior
sides of the window coverings for interior appearance or to reduce light
transmission, provided such over draperies do not (in Landlord's determination)
affect the exterior appearance of the Building or affect the operation of the
Building's heating, ventilating and air conditioning systems.
4.6 Charge for Service. All costs of Landlord for providing the
services set forth in Article 4 (except those charges paid by Tenant pursuant to
Section 4.4) shall be subject to the additional rent provisions in Section 2.3
and shall be payable as therein provided,
ARTICLE 5 - REPAIRS AND MAINTENANCE
5.1 Landlord Repairs. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Leased
Premises during the term of this Lease except as are set forth in this Lease.
Landlord shall maintain only the roof, foundation, parking and Common Areas, the
structural elements of the Building, including without limitation the exterior
walls, doors, corridors, windows and other structures or equipments serving the
Leased Premises. Landlord's cost of maintaining and repairing the items set
forth are subject to the additional rent provisions in Section 2.3. In addition,
Landlord shall repair and pay for the portion of any damage actually caused by
any negligent act or omission of Landlord, its
/s/
-------------------
Initials
agents, servants or employees, and the costs thereof shall not be includible in
operating expenses. In any case that Tenant notifies Landlord in writing of the
need for a repair, replacement, alteration or addition that is Landlord's
obligation to perform hereunder, Landlord, upon receipt of such written notice,
shall commence as soon as reasonably practicable, and thereafter diligently
prosecute such repair or replacement to completion, such prosecution to be
conducted in a manner reasonably designed to minimize any interference with
Tenant's business operations that might be occasioned thereby. Landlord shall
not be liable to Tenant, except as expressly provided in this Lease, for any
damage or inconvenience and Tenant shall not be entitled to any damages nor to
any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Landlord under this Lease.
5.2 Tenant Repairs. Tenant, at its own costs and expense, shall
maintain the Leased Premises in a first-class condition (except for those items
that are the responsibility of Landlord under Section 5.1) and shall repair or
replace any damage or injury to all or any part of the Leased Premises and/or
the Property, caused by any act or omission of Tenant or Tenant's agents,
employees, invitees, Licensees or visitors.
5.3 Request for Repairs. All request for repairs or maintenance that
are the responsibility of Landlord pursuant to any provision of this Lease must
be made in writing to Landlord at the address in Section 1.9.
5.4 Tenant Damage. Tenant shall not allow any damage to be committed on
any portion of the Leased Premises or Property, and at the termination of this
Lease, by lapse of time or otherwise, Tenant shall deliver the Leased Premises
to Landlord in as good condition as existed at the Commencement Date of this
Lease, ordinary wear and tear excepted. The cost and expense of any repairs
necessary to restore the condition of the Leased Premises shall be borne by
Tenant.
ARTICLE 6. - ALTERATION AND IMPROVEMENTS
6.1 Construction. If any construction of tenant improvements is
necessary for the initial occupancy of the Leased Premises such construction
shall be accomplished and the cost of such construction shall be borne by
Landlord and/or Tenant in accordance with a separate Leasehold Improvements
Agreement (herein so called) between Landlord and Tenant. Additionally, if any
construction, modification or renovation is necessary on the Leased Premises as
a result of the enactment of any federal, state or local law, act, regulation or
ordinance, including the ADA, such construction, modification or renovation
shall also be accomplished and the cost of such construction, modification or
renovation shall be borne by the party responsible for said construction,
modification or renovation in accordance with the leasehold Improvements
Agreement attached to this Lease. In accordance with the ADA, Tenant shall be
responsible for all readily achievable (as defined in the ADA) changes,
provisions of auxiliary aids and modification of policies within the Leased
Premises; Landlord shall only be responsible for making readily achievable
changes in Common Areas and for modifying policies, practices or procedures
applicable to all tenants. Except as expressly provided in this Lease or in the
Leasehold Improvements Agreement (if any), Tenant acknowledges and agrees that
Landlord has not undertaken to perform any modification, alteration or
improvements to the Leased Premises, and Tenant further waives any defects in
the Leased Premises and acknowledges and accepts (1) the Leased Premises as
suitable for the purpose for which they are leased and (2) the Property and
every part and appurtenance thereof as being in good and satisfactory condition.
Upon the request of Landlord, Tenant shall deliver to Landlord a completed
acceptance of premises memorandum in Landlord's standard form.
6.2 Tenant Improvements. Tenant shall not make or allow to be made any
alterations, physical additions or improvements in or to the Leased Premises
without first obtaining the written consent of Landlord which consent shall not
be unreasonably withheld, conditioned or delayed. Subject to the terms and
conditions of Paragraph 3 of the Rules and Regulations attached to this
Lease, Tenant, upon prior written notice to Landlord (but without any
requirement of obtaining Landlord's consent), shall have the right to make
interior nonstructural alterations to the Leased Premises. If, after its receipt
and review of any such notice, which notice shall specify in reasonable detail
the alterations to be made by Tenant, Landlord reasonably believes that the
interior non structural alteration in question will reduce the rental value of
the Leased Premises, then landlord, at its option, may within sixty (60) days
after its receipt of Tenant's written notice, deliver to Tenant a notice in
which Landlord designates the alteration in question as one that it may require
Tenant to remove at the end of the term of this Lease (each such alteration
being hereinafter referred to as "designated alteration"). Any alterations,
physical additions or improvements to the Leased Premises made by or installed
by either party hereto shall remain upon and be surrendered with the Leased
Premises and become the property of Landlord upon the expiration or earlier
termination of this lease without credit to Tenant. Landlord and Tenant both
agree that the following items belong to the Tenant and Tenant has the right to
remove these items upon the expiration or earlier termination of this lease: (1)
generator and associated electrical switching equipment; (2) fire suppression
system [equipment may be removed, but control valve located at point of
connection to water supply line must be left in place];(3) Overhead racks &
cabinets; and, (4) DC power plant. Additionally, at Landlord's option, Tenant
will be required, at Tenant's sole expense, to remove any physical improvements
or additions and/or repair any alterations in order to restore the Leased
Premises to the condition necessary, without any cost to the Landlord, to lease
the space to another office tenant; this may include carpet, acoustical lay-in
ceiling system with electrical light fixtures, finished walls, and HVAC wall
units, and that all costs of removal and/or restoration and alterations to be
the responsibility and expense of the Tenant.
/s/
-------------------
Initials
Such repairs to be replaced consistent with other space in the building.
Notwithstanding the preceding sentence to the contrary, any telecommunications
cable and conduit shall be removed at Tenant's discretion and at Tenant's sole
expense. This clause shall not apply to movable equipment, furniture, movable
trade fixtures owned by Tenant, which may be removed by Tenant at the end of the
term of this Lease if Tenant is not then in default and if such equipment and
furniture are not then subject to any other rights, liens and interests of
Landlord. Tenant shall have no authority or power, express or implied, to create
or cause any mechanic's or materialmen's lien, charge or encumbrance of any kind
against the Leased Premises, the Property or any portion thereof. Tenant shall
promptly cause any such liens that have arisen by reason of any work claimed to
have been undertaken by or through Tenant to be released by payment bonding or
otherwise within thirty (30) days after request by Landlord, and shall indemnify
Landlord against losses arising out of any such claim (including, without
limitation, legal fees and court costs).
6.3 Common and Service Area Alterations. Landlord shall have the right
to decorate and to make repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in about or on the Property or
any part thereof, and to change, alter, relocate, remove or replace service
areas and/or Common Areas, to place, inspect, repair and replace in the Leased
Premises (below floors, above ceilings or next to columns) utility lines, pipes
and the like to serve other areas of the Property outside the Leased Premises
and to otherwise alter or modify the Property, and for such purposes to enter
upon the Leased Premises and, during the continuance of any such work, to take
such measures for safety or for the expediting of such work as may be required,
in Landlord's judgment, all without affecting any of Tenant's obligations
hereunder.
ARTICLE 7 - CASUALTY AND INSURANCE
7.1 Substantial Destruction. If in the determination of Landlord the
Leased Premises should be totally destroyed by fire or other casualty, or if in
the determination of Landlord the Leased Premises should be damaged so that
rebuilding cannot reasonably be completed substantially within one hundred and
eighty (180) working days after Landlord's receipt of written notification by
Tenant of the destruction, or if the Leased Premises are damaged or destroyed by
casualty not covered by the standard broad form of fire and extended coverage
insurance then in common use in the State of Texas, then, at either Party's
option, this Lease may be terminated and, in such event, the rent shall be
abated for the unexpired portion of the Lease, effective as of the date of the
written notification.
7.2 Partial Destruction. If the following damage or destruction to the
Leased Premises by fire or other casualty, this Lease is not terminated pursuant
to section 7.1 hereof, Landlord shall proceed, to the extent of Insurance
proceeds actually received by Landlord after the exercise by any mortgagee of
the Property of an option to apply proceeds against Landlord's debt to such
mortgagee, with reasonable diligence to rebuild or repair the Building or other
improvements to substantially the same conditions 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 Tenant, its
agents, employees, invitees or those for whom Tenant is responsible, the Base
Rent payable under this Lease during the period for which the Leased Premises
are untenantable shall be reduced to an amount determined by multiplying the
Base Rent that would otherwise by payable but for this provision by the ratio
that the portion of the Leased Premises not rendered untenantable bears to the
total net rentable area of the Leased Premises prior to the casualty. Landlord's
obligation to rebuild or restore under this Section shall be limited to
restoring the Leased Premises to substantially the condition in which the same
existed prior to the casualty, exclusive of improvements for which Tenant is
responsible under the terms of the Leasehold Improvements Agreement, if any,
described above in Section 6.1, and Tenant shall, promptly after the completion
of such work by Landlord, proceed with reasonable diligence and at Tenant's sole
cost and expense to restore those improvements for which Tenant is responsible
under the terms of such Leasehold Improvements Agreement to substantially the
condition in which the same existed prior to the casualty and to otherwise make
the Leased Premises suitable for Tenant's use. If Landlord fails to
substantially complete the necessary repairs or rebuilding within one hundred
and eighty (180) work days from the date of Landlord's receipt of written
notification by tenant of the destruction, Tenant may at its option terminate
this Lease by delivering written notice of termination to Landlord, whereupon
all rights and obligations under this Lease shall cease to exist.
7.3 Property Insurance. Landlord shall at all times during the term
of this Lease insure the Property against all risk of direct physical loss in an
amount and with such deductibles as Landlord considers appropriate; provided,
Landlord shall not be obligated in any way or manner to insure any personal
property Including, but not limited to, any furniture, machinery, equipment,
goods or supplies) of Tenant upon or within the Leased Premises, any fixtures
installed or paid for by Tenant upon or within the Leased Premises, or any
improvements which Tenant may construction on the Leased Premises. Tenant shall
have no right in or claim to the proceeds of any policy of insurance maintained
by Landlord even if the cost of such insurance is borne by Tenant as set forth
in Article 2. Landlord shall have the right to self-insure against the
above-described risk. Tenant at all times during the term of this Lease shall,
at its own expense, keep in full force and effect insurance against fire and
other such risks as are from time to time included in standard all-risk
insurance (including coverage against vandalism and malicious mischief) for the
full insurable value of Tenant's merchandise, trade fixtures, furnishings, wall
coverings, carpeting, drapes, equipment, improvements and betterments,
furniture, supplies and all items of personal property of exempt located on or
within the Leased Premises.
/s/
-------------------
Initials
7.4 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Tenant and its, underwriters hereby waive and release
Landlord's Representative from any and all right of recovery, claim, action or
cause of action, against Landlord and Landlord's Representative, their agents,
officers and employees, for any loss or damage that may occur to the Leased
Premises, improvements to the Property, or personal property within the
Property, by reason of fire or the elements, regardless of cause or origin,
including negligence of Landlord or Landlord's Representative and their agents,
officers and employees. Tenant agrees to immediately give its insurance
companies which have issued policies of insurance covering all risk of direct
physical loss, written notice of the terms of the waivers contained in this
Section, and to have the insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverages by reason of the waivers.
7.5 Hold Harm1ess. Landlord and Landlord's Representative shall not be
liable to Tenant or to Tenant's customers, employees, agents, guests or
invitees, or to any other person whomever, for any injury to persons or damage
to property on or about the Leased Premises or the Common Area, including but
not limited to, consequential damage, (1) caused by any act or omission of
Tenant, its employees, subtenants, licensees and invitation of Tenant, or (2)
arising out of the use of the Leased Premises or the Property by Tenant, its
employees, subtenants, licensees, concessionaires or invitees, or (3) arising
out of any breach or default by Tenant in the performance of its obligations
hereunder, or (4) caused by the improvements located in the leased Premises
becoming out of repair or by defect in or failure of equipment, pipes or wiring,
or by broken glass, or by the backing up of drains, or by gas, water, steam,
electricity or oil leaking, escaping or flowing into the Leased Premises or
Property, or (5) arising out of the failure or cessation of any service provided
by Landlord and Landlord's Representative (including security service and
devices), and Tenant hereby agrees to indemnify Landlord and Landlord's
Representative (including security service and devices), and Tenant hereby
agrees to indemnify Landlord and Landlord's Representative and hold Landlord and
Landlord's Representative harmless from any liability, loss, expense or claim
(including, but not limited to reasonable attorneys' fees) arising out of such
damage or injury. Nor shall Landlord or Landlord's Representative be liable to
Tenant for any loss or damage that may be occasioned by or through the acts or
omissions of other tenants of the Property or of any other persons whomsoever,
excepting only duly authorized employees and agents of Landlord and Landlord's
Representative acting within the scope of their authority. Further, Tenant
specifically agrees to be responsible for and Indemnify and hold Landlord and
Landlord's Representatives harmless from any and all damages or expenses of
whatever kind arising out of or caused by a burglary, theft, vandalism,
malicious mischief or other illegal acts performed in, at or from the Leased
Premises.
7.6 Liability Insurance. Tenant at all times during the lease term
shall, at its own expense, keep in full force and effect commercial general
liability insurance with "personal injury" coverage and contractual liability
coverage, with a minimum combined single limit of $1,000,000.00. Landlord and
Landlord's Representative shall be named as additional insureds on said policy.
All insurance policies or duly executed certificates for the same required to be
carried by Tenant under this Lease, together with satisfactory evidence of the
payment of the premium thereof, shall be deposited with Landlord on the date
Tenant first occupies the Leased Premises and upon renewals of such policies not
less than fifteen (15) days prior to the expiration of the term of such
coverage. All insurance required to be carried by tenant under this Lease shall
be in form and content, and written by insurers acceptable to Landlord, in its
sole discretion. If Tenant shall fail to comply with any of the requirements
contained herein relating to insurance, Landlord may obtain such insurance and
Tenant shall pay to Landlord, on demand as additional rent hereunder, the
premium cost thereof.
7.7 Environmental Matters. Throughout the term of this Lease, Tenant
shall prevent the presence, use, generation, release, discharge, storage,
disposal, or transportation of any Hazardous Materials (as hereinafter defined)
on, under, in above, to or from the leased Premises other than in strict
compliance with all applicable federal, stated, and local laws, rules;
regulations, and orders. For purposes of this provision, the term "Hazardous
Materials" shall mean and refer to any wastes, materials, or other substances of
any kind or character that are or become regulated as hazardous or toxic waste
or substances, or which require special handling or treatment, under any
applicable local, state, or federal law, rule regulation, or order. Tenant
shall indemnify, defend, and hold Landlord harmless from and against (a) any
loss, cost, expense, claim, or work (herein referred to as "Remedial Work")
required by, or incurred by Landlord or any other person or party in a a
reasonable belief that such Remedial Work is required by any applicable federal,
state, or local law, rule, regulation or order, or by any governmental agency,
authority, or political subdivision having jurisdiction over the Leased
Premises, and (b) any claims of third parties for loss, injury, expense, or
damage arising out of the presence, release, discharge of any hazardous
Materials on, under, in above, to or from the Leased Premises. In the event any
Remedial Work is so required under any applicable federal, state or local law,
rule regulation or order, Tenant shall promptly perform or cause to be performed
such Remedial Work in compliance with such law, rule, regulation or order. In
the event Tenant shall failed to commence the Remedial Work in a timely fashion,
or shall fail to prosecute diligently the Remedial Work to completion, such
failure shall constitute an event of default on the part of Tenant under the
terms of this Lease, and Landlord, in addition to any other rights or remedies
afforded it hereunder, may, but shall not be obligated to, cause the Remedial
Work to be performed, and Tenant shall promptly reimburse Landlord for the cost
and expense thereof upon demand. Landlord acknowledges that Tenant has provided
information to indicate that diesel fuel shall be used as the source of fuel to
power the emergency generator, located in the parking lot area of the premises.
Tenant agrees, at Tenant expense, to comply with any and all local, state, and
federal environmental and safety requirements, regulations, and ordinances which
currently exist or which may be imposed in the future by local, state, and
federal agencies, as related to the use of diesel fuel.
/s/
-------------------
Initials
ARTICLE 8 - CONDEMNATION
8.1 Substantial Taking. If in the determination of Landlord 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 purchase in lieu thereof, and in the determination of Landlord the
taking would prevent or materially interfere with the use of the Leased Premises
for the purpose for which it is then being used, this Lease shall, at the option
of either Landlord or Tenant, 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.
8.2 Partial Taking. If in the determination of Landlord 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
purchase in lieu thereof, and this Lease is not terminated as provided in
Section 8.1 above, Landlord shall restore and reconstruct, to the extent of
condemnation proceeds (excluding any proceeds or land) actually received after
the exercise by any mortgagee of the Property 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
reduced to an amount determined by multiplying the Base Rent that would
otherwise be payable but for this provision by the ratio that the portion of the
Leased Premises not rendered untenantable due to such taking bears to the total
net rentable area of the Leased Premises prior to the taking. If Landlord fails
to substantially complete such restoration and reconstruction within one-hundred
and eight working days of the date of physical possession by the condemning
authority, Tenant may at its option terminate this Lease by delivering written
notice of termination to Landlord, whereupon all rights and obligations of this
Lease shall cease to exist.
8.3 Condemnation Proceeds. All compensation awarded for any taking (or
the proceeds of private sale in lieu thereof), whether for the whole or a part
of the Leased Premises, shall be the property of Landlord (whether such award is
compensation for damages to Landlord's or Tenant's interest in the Leased
Premises), and Tenant hereby assigns all of its interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any award made
to Tenant for loss of business or for taking of Tenant's fixtures and other
property within the Leased Premises if a separate award for such items is made
to Tenant.
ARTICLE 9 - ASSIGNMENT OR SUBLEASE
9.1 Tenant Assignment. Tenant shall not assign, in whole or in part,
this lease or allow it to be assigned, in whole or in part, or mortgagee or
pledge the same, or sublet the Leased Premises, in whole or in part without the
prior written consent of landlord which consent shall not be unreasonably
withheld or delayed. Assignment by operation of law, including merger,
dissolution of corporate tenant or transfer of controlling interest of corporate
tenant may be completed with written notice to the Landlord. In no event shall
any such assignment or sublease ever release Tenant or any guarantor from any
obligation or liability hereunder. No assignee or sublessee of the Leased
Premises or any portion thereof may assign or sublet the Leased Premises or any
portion thereof. Notwithstanding anything to the contrary contained in section
9.2, Tenant may assign or sublet all but not part of this Lease to any entity
controlled by, controlling or under common control with tenant without any need
to first obtain Landlord's consent; the term "control" being defined, for
purposes hereof, in the case of a corporation, as the ownership or voting
control, directly or indirectly, of at least fifty percent (50%) of all the
voting stock, and in case of a joint venture or partnership or similar entity,
ownership, directly or indirectly, of at least fifty percent of all the general
or other partnership (or similar) interest therein. Tenant agrees that written
assignment of Landlord fully obligates the assignee to all covenants and terms
of this entire lease.
The parties agree that the decision by Tenant to enter into various
colocation and interconnection agreements with other entities in order to
connect its telecommunications facility to other telecommunications equipment
shall not be deemed an assignment or sublease of the Premises. As such, Tenant
may enter into such agreements without consent of Landlord, but Tenant agrees to
provide Landlord with notice after these agreements are completed, if so
requested by Landlord.
9.2 Conditions of Tenant Assignment. If Tenant desires to assign or
sublet all or any part of the Leased Premises, it shall so notify Landlord in
writing at least thirty (30) days in advance of the date on which Tenant desires
to make such assignment or sublease. Tenant shall provide Landlord with a copy
of the proposed assignment or sublease and such information as Landlord might
request concerning the proposed sublessee or assignee to allow Landlord to make
informed judgments as to the financial condition, reputation, operations and
general desirability of the proposed sublessee or assignee. Within fifteen (15)
days after Landlord's receipt of Tenant's proposed assignment or sublease and
all required information concerning the proposed sublessee or assignee, Landlord
shall have the following options: (1) cancel this Lease as to the Leased
Premises or portion thereof proposed to be assigned or sublet; (2) consent to
the proposed assignment or sublease, and if the rent due and payable by any
assignee or sublessee under any such permitted assignment or sublease (or a
combination of the rent payable under such assignment or sublease plus any bonus
or any other consideration or payment incident thereto) exceeds the rent payable
under this Lease for such space, Tenant shall pay to Landlord all such excess
rent and other excess consideration within ten (10) days following receipt
thereof by Tenant; or (3) refuse in its reasonable discretion and judgment to
consent to the proposed assignment; or sublease which refusal shall be deemed to
have been exercised unless Landlord gives Tenant
/s/
-------------------
Initials
written notice stating otherwise. Upon the occurrence of an event of default by
Tenant under this lease, if all or any part of the Leased Premises are then
assigned or sublet, Landlord in addition to any other remedies provided by this
lease or provided by law, may, at its option, collect directly from the assignee
or sublessee all rents becoming due to Tenant by reason of the assignment or
sublease, and Landlord shall have a security interest in all properties
belonging to Tenant on the Leased Premises to secure payment of such sums. No
collection directly by Landlord from the assignee or sublessee shall be
construed to constitute a novation or a release of Tenant or any guarantor from
the further performance of its obligations under this Lease. All reasonable
legal fees and expenses incurred by Landlord in connection with the review by
Landlord of Tenant's requested assignment or sublease pursuant to this Section,
together with any legal fees and disbursements incurred in the preparation
and/or review of any documentation, shall be the responsibility of Tenant and
shall be paid by Tenant within five (5) days of demand for payment thereof, as
rental hereunder. If the rent due and payable by any assignee or sublessee under
any such permitted assignment or sublease (or a combination of the rent payable
under such assignment or sublease plus any bonus or any other consideration or
any payment incident thereto) exceeds the rent payable under this lease for such
space, Tenant shall pay to Landlord all such excess rent and other excess
consideration within ten (10) days following receipt thereof by Tenant.
9.3 Landlord Assignment. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Property. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this lease arising after
the date of such sale, assignment or transfer.
9.4 Rights of Mortgagee. Tenant accepts this Lease subject and
subordinate to any recorded Lease, mortgage or deed of trust lien presently
existing, if any, or hereafter encumbering the Property and to all existing
ordinances and recorded restrictions, covenants, easements, and agreements with
respect to the Property. Landlord hereby is irrevocably vested with full power
and authority to subordinate Tenants interest under this lease to any mortgage
or deed of trust lien hereafter placed on the Property. Upon any foreclosure,
judicially or non-judicially, of any such mortgage, or the sale of the Property
in lieu of foreclosure, or any other transfer of Landlord's interest in the
Property, whether or not in connection with a mortgage, Tenant hereby does, and
hereafter agrees to attorn to the purchaser at such foreclosure sale or to the
grantee under any deed in lieu of foreclosure or to any other transfer of
Landlord's interest, and shall recognize such purchaser, grantee, or other
transferee as Landlord under this Lease, end no further attornment or other
agreement shall be required to effect evidence Tenant's attornment to and
recognition of such purchaser or grantee as Landlord hereunder. Such agreement
of Tenant to attorn shall survive any such foreclosure sale, trustee's sale,
conveyance in lieu thereof, or any other transfer of Landlord's interest in the
Property. Tenant, within ten (10 days after receipt of a request to do so, at
any time, before or after any such foreclosure sale, trustee's sale, conveyance
in lieu thereof, or other transfer shall execute, acknowledge and deliver to the
prospective transferee and/or mortgagee the Lease Subordination, Non-disturbance
and Attornment Agreement attached hereto as Exhibit C and incorporated by
reference herein, and any additional written instruments and certificates
evidencing such attornment as the mortgagee or other prospective transferee may
reasonably require, and Tenant hereby irrevocably appoints Landlord as Tenants
agent and attorney-in-fact for the purpose of executing, acknowledging, and
delivering any such instruments and certificates, in the event Tenant fails to
furnish the requested non-disturbance and attornment agreement as required by
this Article 9.4 . Notwithstanding anything to the contrary implied in this
Section any mortgagee under any mortgage shall have the right at any time to
subordinate any such mortgage to this Lease on such terms and subject to such
conditions as the mortgagee in its discretion may consider appropriate.
9.5 Estoppel Certificates. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt for request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, all or some of the following:
Tenant is in possession of the Leased Premises; the Lease is in full force and
effect; the Lease is unmodified (except as disclosed in such statement); Tenant
claims no present charge, lien or claim of offset against rent; the rent is paid
for the current month, but is not prepaid for more than one (1) month and will
not be prepaid for more than one (1 ) month in advance; there is no existing
default by reason of some act or omission by landlord; that Landlord has
performed all inducements required of Landlord in connection with this Lease,
including construction obligations, and Tenant accepts the Leased Premises as
constructed; and bound thereby; an agreement requiring Tenant to advise the
mortgagee of damage to or destruction of the Leased Premises by fire or other
casualty requiring reconstruction; an agreement by Tenant to give the mortgagee
written notice of Landlord's default hereunder and to permit the mortgagee to
cure such default within thirty (30) days after such notice before exercising
any remedy Tenant might possess as result of such default; and such other
matters as may be reasonably required by Landlord or Landlord's mortgagee.
Tenant's failure to deliver such statement, in addition to being a default under
this Lease, shall be deemed to establish conclusively that this Lease is in full
force and effect except as declared by Landlord, that Landlord is not in default
of any af its obligations under this Lease, and that Landlord has not received
mere than one (1) month's rent in advance.
ARTICLE 10 - DEFAULT AND REMEDIES
10.1 Default by Tenant. The following shall be deemed to be events of
default by Tenant under this Lease: (1) Tenant shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease, and
such failure continues for ten (10) days after
/s/
-------------------
Initials
receives written notice from Landlord of such failure; (2) Tenant shall abandon
any substantial portion of the Leased Premises and fails to pay rent; (3) Tenant
or any guarantor of Tenant's obligations hereunder shall file a petition or be
adjudged bankrupt or insolvent under any applicable federal, or state bankruptcy
or insolvency law or admit that it cannot meet its financial obligations as they
become due, or a receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations hereunder;
(4) Tenant or any guarantor of Tenant's obligations hereunder shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors; (5) Tenant shall do or permit to be done any act which results in a
lien being filed against the Leased Premises or the Property, and fails to have
such lien removed within thirty (30) days; (6) the liquidation, termination,
dissolution or (if the Tenant is a natural person) the death of Tenant or any
guarantor of Tenants obligations hereunder; or (7) Tenant shall be in default
of any other term, provision or covenant of this lease, other than those
specified in subparts (1) through (6), above, and such default is not cured
within ten (10) days after written notice thereof to Tenant.
10.2 Remedies for Tenants Benefit. Upon the occurrences of any event of
default set forth in this Lease, Landlord shall have the option to pursue any
one or more of the remedies set forth in this Section 11.2 without any
additional notice or demand;
(1) Without declaring this Lease terminated, Landlord may enter upon
and take possession of the Leased Premises, by picking or changing locks if
necessary, and lock out, expel or remove Tenant and any other person who may be
occupying all or any part of the Leased Premises without being liable for any
claim for damages, and relet the Leased Premises on behalf of Tenant and receive
the rent directly by reason of the reletting. Tenant agrees to pay Landlord on
demand any deficiency that may arise by reason of relettinq of the Leased
Premises further, Tenant agrees to reimburse Landlord for any expenditures made
by it in order to relet the Leased Premises, including, but not limited to,
remodeling and repair costs.
(2) Without declaring this lease terminated; Landlord may enter upon
the Leased Premises, by picking or changing locks if necessary, without being
liable for any claim for damages, and do whatever Tenant is obligated to do
under the terms of this Lease, Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in effecting compliance with Tenant's
obligations under this Lease caused by the negligence of Landlord or otherwise.
(3) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Leased Premises to Landlord, and if Tenant fails to
surrender the Leased Premises, Landlord 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 picking or changing locks if
necessary, and lock out, expel or remove Tenant and any other person who may be
occupying all or any part of the leased Premises without being liable for any
claim for damages. Tenant agrees to pay on demand the amount of all loss and
damage which Landlord may suffer for any reason due to the termination of this
lease under this Section 10.2, inc1uding (without limitation) loss and damage
due to the failure of Tenant to maintain and/or repair the Leased Premises as
required hereunder and/or due to the inability of Landlord to relet the Leased
Premises on satisfactory terms or otherwise.
Landlord's exercise, following a default by Tenant under this Lease, of any
right granted hereunder or under any applicable law to lock out or change the
locks securing the Leased Premises shall not impose upon Landlord any duty to
notify Tenant of the name and address or telephone number of the individual or
company from who a new key may be obtained, nor shall Landlord have any duty to
provide Tenant with a new key or any other means of access to the Leased
Premises. Landlord and Tenant agree that the parties hereto intend that all
rights and remedies of Landlord under this Lease or otherwise available to
Landlord under applicable law shall supercede any conflicting provisions of
Chapters 92 and 93 of the Texas Property Code, and any amendments,
modifications, recodification or other changes thereto.
Notwithstanding any other remedy set forth in this Lease, if Landlord has made
rent concessions of any type or character, waived any base rent, and Tenant
fails to take possession of the leased Premises on the Commencement Date or
otherwise defaults at any time during the term of this Lease, the rent
concessions, including any waived base rent, shall be canceled and the amount of
the base rent or other rent concessions shall be due and payable immediately as
if no rent concessions or waiver of any base rent had ever been granted. A rent
concession or waiver of the base rent shall not relieve Tenant of any obligation
to pay any other charge due and payable under this Lease or otherwise available
to Landlord under applicable law shall supercede any conflicting provisions of
Chapters 92 and 93 of the Texas Property code, and any amendments,
modifications, recodification or other changes thereto.
Notwithstanding any other remedy set forth in this Lease, if Landlord has made
rent concessions of any type or character, or waived any base rent, and Tenant
fails to take possession of the leased Premises on the Commencement Date or
otherwise defaults at any time during the term of this Lease, the rent
concessions, including any waived base rent, shall be canceled and the amount of
the base rent or other rent concessions shall be due and payable immediately as
if no rent concessions or waiver of any base rent had ever been granted. A rent
concession or waiver of the base rent shall not relieve Tenant of any obligation
to pay any other charge due and payable under this Lease, including, without
limitation, any sum due under Section 2.3 of this Lease. Notwithstanding
anything contained in this Lease to the contrary, this lease may be terminated
by Landlord only by written notice of such termination to Tenant given in
accordance with Section 14.7 below, and no other act or omission of Landlord
shall be construed as a termination of this Lease.
/s/
-------------------
Initials
10.3 Remedies Cumulative. All rights and remedies of Landlord
herein or existing at law or in equity are cumulative and the exercise of one or
more rights or remedies shall not be taken to exclude or waive the right to the
exercise of any other.
10.4 Defau1t by Landlord. If Landlord defaults in the performance of
any term, covenant or condition required to be performed by Landlord under this
Lease, Landlord shall have thirty (30) days following the receipt of written
notice from Tenant specifying such default to cure such default, provided that
if Landlord has commenced actions to cure such default within said thirty (30)
day period, Landlord shall have all reasonable and necessary time to complete
such cure
10.5 Remedies for Landlords Default. Upon the occurrence of any
default set forth in this Lease and subsequent failure by Landlord to cure or
commence actions to cure as provided in Section 10.4, Tenant shall, as Tenant's
sole remedy, have the right to maintain an action against Landlord, for actual
damages suffered as a result of Landlord's default.
10.6 Notice to Mortgagees. Provided that Tenant has received prior
written notice of the name and address of such lender, Tenant shall serve
written notice of any claimed default or breach by landlord under this Lease
upon any lender which is a beneficiary under any deed of trust or mortgage
against the Leased Premises, and no notice to Landlord shall be effective
against Landlord unless such notice is served upon said lender; notwithstanding
anything to the contrary contained herein, Tenant shall allow such lender the
same period following lender's receipt of such notice to cure such default or
breach as is afforded Landlord.
ARTICLE 11 - DEFINITIONS
11.1 Abandon. "Abandon" means the vacating of all or a substantial
portion of the leased Premises by Tenant, and Tenant is in default of the rental
or other payments due under this Lease.
11.2 Act of God or Force Majeure. An "act of God" or "force majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and/or any other cause not reasonably
within the control of Landlord or which by the exercise of due diligence
Landlord is unable wholly or in part, to prevent or overcome.
11.3 Square Feet. "Square feet" or "square foot" as used in this Lease
includes the area contained within the Leased Premises together with a common
area percentage factor of the Leased Premises proportionate to the total
building area as determined by Landlord.
ARTICLE 13 - MISCELLANEOUS
13.1 Waiver. Failure of Landlord 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
Landlord 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 Article 11 above shall not preclude pursuit of
anyone or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy hereunder or at law constitute
forfeiture or waiver of any rent or damages accruing to Landlord by reason of
the violation of any of the terms, provisions or covenants of this Lease.
Failure by Landlord to enforce one or more of the remedies provided hereunder or
at law upon any event of default shall not be deemed or construed to constitute
a wavier of the default or of any other violation or breach of any of the terms,
provisions and covenants contained in this lease. Landlord may collect and
receive rent due from Tenant without waiving or affecting any rights or remedies
that Landlord may have at law or in equity or by virtue of this lease at the
time of such payment. Institution of a forcible detainer action to re-enter the
Leased Premises shall not be construed to be an election by Landlord to
terminate this Lease.
13.2 Act of God. Landlord shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to Tenant, so long
as the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by an act of God, force majeure or by Tenant.
13.3 Attorneys Fees. If Tenant defaults in the performance of any of
the terms, covenants, agreements or conditions contained in this lease and
Landlord places in the hands of any 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, Tenant agrees to pay
Landlord's costs of collection, including reasonable attorney's fees, whether
suit is actually filed or not.
13.4 Successors. This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns.
/s/
-------------------
Initials
13.5 Rent Tax. If applicable at any point during the lease or any
option period, in the jurisdiction where the Leased Premises are situated,
Tenant 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 Landlord by Tenant under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
13.6 Interpretation. The captions appearing in this Lease are
convenience only and in no way define, limit, construe or describe the scope or
intent of any Section. Grammatical changes required to make the provisions of
the Lease apply (1) in the plural sense where there is more than one tenant, and
(2) to either corporations, associations, partnerships or individuals, males or
females, shall in all instances be assumed as though in each case fully
expressed. The laws of the State of Texas shall govern the validity, performance
and enforcement of this Lease. This Lease shall not be construed more or less
favorably with respect to either party as a consequence of this lease or various
provisions hereof having been drafted by one of the parties hereto.
13.7 Notices. All rent and other payments required to be made by
Tenant shall be payable to Landlord, in care of Manager, at Manager's address
set forth on page 1 (or if no address be set forth for Manager, to Landlord at
Landlords address set forth on page 1). All payments required to be made by
Landlord to Tenant shall be payable to Tenant at Tenant's address set forth on
page 1. Any notice or document (other than rent) required or permitted to be
delivered by the terms of this Lease shall be deemed to be delivered (whether or
not actually received) when deposited in the United States Mail, postage
prepaid, certified mail, returned receipt requested, addressed to the parties at
the respective addresses set forth on page 1 (or, in the case of Tenant, at the
Leased Premises), or to such other addresses as the parties may have designated
by written notice to each other, with copies of notices to Landlord being sent
to Landlord's address as shown on page 1. Manager shall be a co-addressee with
Landlord on all notices sent to Landlord by Tenant hereunder, and any notice
sent to Landlord and to Manager, also in accordance with this section shall be
deemed effective upon receipt and is acceptable to use a reputable courier
service.
13.8 Submission of Lease. Submission of this Lease to Tenant for
signature shall not constitute a reservation of space or an option to Lease.
This Lease is not effective until execution by and delivery to both Landlord and
Tenant.
13.9 Corporate Authority. If Tenant executes this Lease as a
corporation or a partnership (general or limited), each person executing this
Lease on behalf of Tenant hereby personally represents and warrants that: Tenant
is a duly authorized and existing corporation or partnership (general or
limited), Tenant is qualified to do business in the state in which the Leased
Premises are located, the corporation or partnership (general or limited) has
full right and authority to enter into this Lease, each person signing on behalf
of this Lease by Tenant will not result in any breach of, or constitute a
default under any mortgage, deed of trust, lease, loan credit agreement,
partnership agreement, or other contract or instrument to which Tenant is a
party or by which tenant may be bound. If any representation or warranty
contained in this Section is false, each person who executes this Lease shall be
liable, individually, as Tenant hereunder.
13.10 Multiple Tenants. If this Lease is executed by more than one
person or entity as "Tenant," each such person or entity shall be jointly and
severally liable hereunder. It is expressly understood that anyone of the named
Tenants shall be empowered to execute any modification, amendment, exhibit,
floor plan, or other document herein referred to and bind all of the named
Tenants thereto; and Landlord shall be entitled to rely on same to the extent as
if all of the named tenants had executed same.
13.11 Tenants Financial Statements. Tenant represents and warrants to
Landlord that, as of the date of execution of this Lease by Tenant, the
financial statements of Tenant provided to Landlord prior to or simultaneously
with the execution of this Lease accurately represent the financial condition of
Tenant as of the dates and for the periods indicated therein, such financial
statements are true and do not contain any untrue statement of a meterial fact
or omit to state any material fact necessary in order to make the statements
included therein not misleading and there has been no material adverse change in
the financial condition or business prospects of Tenant since the respective
dates of such financial statements. If there is, in Tenant's reasonable
judgment, a material adverse change in Tenants financial condition, Tenant will
give immediate notice of such material adverse change to Landlord. If Tenant
fails to give such immediate notice to Landlord, such failure shall be deemed an
event of default under this Lease.
13.12 Severability. If any provision of this lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. Each covenant and agreement
contained in this Lease shall be construed to be a separate and independent
covenant and agreement, and the breach of any such covenant or agreement by
Landlord shall not discharge or relieve Tenant from Tenant's obligation to
perform each and every covenant and agreement of this Lease to be performed by
Tenant.
/s/
-------------------
Initials
13.13 Landlord's Liability. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title, and interest of Landlord in the Property as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Property as herein expressly
provided.
13.14 Sale of Property, Upon any conveyance, sale or exchange of the
Leased Premises or assignment of this Lease, Landlord shall be and is hereby
entirely free and relieved of all liability under any and all of its covenants
and obligations contained in or derived from this Lease arising out of any act,
occurrence, or omission relating to the Leased Premises or this lease occurring
after the consummation of such sale or exchange and assignment.
ARTICLE 14 - AMENDMENT AND LIMITATION OF WARRANTIES
14.1 Entire Agreement. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE
PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THE SUBJECT
MATTER OF THIS LEASE OR OF ANY EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE
NOT INCORPORATED IN WRITING IN THIS LEASE.
14.2 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
14 3 Limitation of Warranties. LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FOR IN THIS LEASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
TENANT EXPRESSLY ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES OR
REPRESENTATIONS CONCERNING ANY HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL
MATTERS AFFECTING ANY PART OF THE PROPERTY, AND LANDLORD HEREBY EXPRESSLY
DISCLAIMS AND TENANT WAIVES ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
ANY SUCH MATTERS.
14.4 Waiver and Releases. TENANT SHALL NOT HAVE THE RIGHT TO WITHHOLD
OR TO OFFSET RENT OR TO TERMINATE THIS LEASE EXCEPT AS EXPRESSLY PROVIDED
HEREIN. TENANT WAIVES AND RELEASES ANY AND ALL STATUTORY LIENS AND OFFSET RIGHTS
ARTICLE 15
15.1 Tenant is hereby granted options to renew and extend the foregoing
Lease for four (4) four-year lease terms beyond the expiration of the original
Lease Term, for the duration and at the Fixed Basic Monthly Rental set forth
below:
OPTION I DURATION MONTHLY RENT
-------- -------- ------------
May 1, 2005 thru April 30, 2009 Four (4) Years
Years 1 & 2 Years 3 & 4
----------- -----------
Standard Rent $1,507.00 $1,740.00
Generator Pad 200.00 250.00
Excessive Utility Charge* Negotiable Negotiable
----------- ------------
TOTAL, PLUS UTILITY CHARGE* $1,707.00 $1,990.00
OPTION II DURATION MONTHLY RENT
--------- -------- ------------
May 1, 2009 thru April 30, 2013 Four (4) Years
Years 1 & 2 Years 3 & 4
----------- -----------
Standard Rent $1,970.00 $2,202.00
Generator Pad 300,00 350.00
Excessive Utility Charge* Negotiable Negotiable
----------- ------------
TOTAL, PLUS UTILITY CHARGE* $2,270.00 $2,552.00
OPTION III DURATION MONTHLY RENT
---------- -------- ------------
May 1, 2013 thru April 30, 2017 Four (4) Years
Years 1 & 2 Years 3 & 4
----------- -----------
Standard Rent $2,550.00 $2,782.00
Generator Pad 400.00 450.00
Excessive Utility Charge* Negotiable Negotiable
------------ ------------
TOTAL, PLUS UTILITY CHARGE* $2,950.00 $3,232.00
OPTION IV DURATION MONTHLY RENT
--------- -------- ------------
May 1, 2017 thru April 30, 2021 Four (4) Years
Years 1 & 2 Years 3 & 4
----------- -----------
Standard Rent $3,709.00 $3,940.00
Generator Pad 500.00 550.00
Excessive Utility Charge* Negotiable Negotiable
------------ ------------
TOTAL, PLUS UTILITY CHARGE* $4,209.00 $4,490.00
The Extended Term shall begin immediately upon the expiration of the
preceding term, and all terms, covenants and provisions of the Lease shall apply
during each Extended Term, except that the Fixed Basic Monthly Rent to be paid
during each Extended Term shall be that provided for
/s/
-------------------
Initials
above. Provided, however, that if on the date of the expiration of the preceding
term of this Lease, Tenant is in default beyond any grace period provided in the
performance of any of the terms or provisions of the Lease, the option to renew
and extend the Lease shall be and become null and void. If Tenant shall elect to
exercise any foregoing option, it shall do so by giving to Landlord notice in
writing of its intention to do so not later than ninety (90) days prior to the
expiration of the term that is then in force.
**Current utility charge is determined to be $750.00 per month for Years 1 and 2
of the Initial Lease Term, and $000.00 per month for Years 3 and 4 of the
Initial Lease Term. Any change in utility charge will be determined as set forth
in Article 4, paragraph 4.4 of this lease.
15.2 Tenant shall have the right to erect a satellite dish and/or
microwave communications tower upon the roof of One Liberty Place. Tenant's
right to erect such equipment shall be contingent upon Landlord's written
approval of all plans and specifications relative to both the equipment and
installation procedures prior to and during the erection of the said equipment,
and such approval shall be at Landlord's sole discretion. Tenant will take all
precautions during installation and maintenance of the equipment to assure that
the integrity of the roof structure and coatings is not jeopardized. Tenant
attests that it will obtain from any appropriate governing agencies all licenses
or permits necessary for installation and operation of said equipment.
Installation and maintenance of the communications equipment shall be at
Tenant's sole expense. Furthermore, Tenant shall repair, at Tenant's sole
expense, any damage to the roof or other parts of the building caused by the
installation and/or maintenance of the communications equipment. If Landlord
does provide approval for Tenant to install a satellite dish and/or microwave
communications tower, Tenant agrees to enter into a separate Satellite Agreement
with Landlord, which shall be attached to and become a part of this Lease
Agreement.
15.3 Tenant shall maintain at its sole expense all property and
casualty insurance required by landlord regarding the above-referenced
equipment, and Landlord shall be held harmless in the event of damage from fire,
wind, water, lightening, or any act of nature, or for damage from any cause
whatsoever.
15.4 Tenant agrees to remove the equipment under the supervision of the
Landlord at the termination of the Lease at Tenant's sole cost, and to restore
the Building to its original condition.
15.5 Landlord agrees that Tenant shall be allowed to use space approved
by Landlord, situated in the parking lot of the Building as shown in yellow on
the diagram attached to this Lease, for placement of an emergency generator.
Landlord acknowledges that such equipment is the property of Tenant, and Tenant
agrees to pay any and all costs and expenses associated with the proper use and
maintenance of such equipment. Tenant agrees to remove such equipment at the end
of the Lease Term Tenant further agrees to pay Landlord the amount of $150.00
per month as described in Section 1.7 of this lease as rent on this concrete pad
in the parking lot.
15.6 Guaranty Agreement: Tenant agrees to execute the Guaranty
Agreement, attached as Exhibit "C", and which is a part of this Lease Agreement.
EXECUTED BY TENANT ON February 26, 2001, and by Landlord on February 2001.
LANDLORD:
XXX XXXXXXX XXXXX, X.X.
By: /s/ Managing Member
---------------------------------------------
Date Signed
Name:
----------------------------
Title:
----------------------------
TENANT:
R.E. Xxxxxxxx Inc. dba COLO SOLUTIONS
By: /s/ Xxxxxx Xxxxxxxx 2/26/01
---------------------------------------------
Date Signed
Name: Xxxxxx Xxxxxxxx
----------------------------
Title: Pres & CEO
----------------------------
