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EXHIBIT 10.1
XXXXXX ATRIUM TOWER
OFFICE LEASE
THIS LEASE (herein so called) is made as of May 1, 1996, by and
between Xxxxxx Partners, Ltd. and Rosewood Property Company (collectively,
"Landlord"), and INET, INC. ("Tenant").
W I T N E S S E T H :
1. BASIC PROVISIONS:
(a) Tenant: INET, INC.
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
With a copy to: Xx Xxxxx
Xxxxxxxxxxx & Price, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
(b) Building: Xxxxxx Atrium Tower
0000 X. 00xx Xxxxxx
Xxxxx, Xxxxx
(c) Premises: Portion of second floor (as shown on EXHIBIT A-1) and all of third
and sixth floors of the Building
Approximate Rentable Area of the Premises:
11,227 square feet on the second floor;
17,571 square feet on the third floor;
17,571 square feet on the sixth floor;
Total Rentable Area of Premises is
approximately 46,369 square feet
Approximate Rentable Area of the Building:
179,411 square feet
(d) Basic Rental: 10,759.21 per month,
$129,110.50 per year for portion of Premises on second floor;
$33,677.75 per month, $404,133.00
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per year for remainder of Premises; annual rental rate per square
foot of Rentable Area: $11.50
(e) Security Deposit: $44,436.96
(f) Lease Term: Three (3) years for the portion of the Premises located on the third
and sixth floors of the Building; three (3) years and three (3)
months for the portion of the Premises located on the second floor of
the Building
(g) Commencement
Date(s): October 1, 1996 as to third and sixth floors of the Building; earlier
to occur of (i) date upon which Tenant commences to occupy the second
floor of the Premises, and (ii) date which is sixty (60) days after
the Turnover Date (as defined in Paragraph 4 hereof) as to the
portion of the Premises on the second floor of the Building.
(h) Operating Expense
Stop: The Actual Operating Expenses (as hereinafter defined) for or
allocated to the Project incurred by Landlord during calendar year
1996 (calculated upon the accrual method of accounting in accordance
with generally accepted accounting principles and adjusted
pursuant to Paragraph 6 hereof) divided by the Rentable Area of the
Building
(i) Permitted Use: General Office Use
(j) Parking: Parking for one (1) automobile per 300 square feet of Rentable Area
at no cost to Tenant; non-reserved spaces
2. LEASE GRANT. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Premises described above, which will consist of
approximately 46,369 square feet of Rentable Area (herein so called) located on
a portion of the second floor of the building described above (the "Building"),
as shown on EXHIBIT A-1 attached hereto, being approximately 11,227 square feet
of Rentable Area, the third floor of the Building as shown on EXHIBIT A-2 being
approximately 17,571 square feet of Rentable Area, and the sixth floor of the
Building as shown on EXHIBIT A-3 attached hereto, being approximately 17,571
square feet of Rentable Area. The Premises are located in the Building, which
is located on the real property described in EXHIBIT B attached hereto (the
"Land"). The Land, the Building, the parking facilities, parking garage and
other structures and improvements, landscaping, fixtures, appurtenances and
other common areas now or hereafter placed, constructed or erected thereon
comprise the project (the "Project") known as Pitman Atrium Tower in Plano,
Collin County, Texas. Tenant is hereby
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granted a nonexclusive right to use the Common Areas during the term of this
Lease for their intended purposes, in common with others, subject to the terms
and conditions of this Lease, including, without limitation, the reasonable
rules and regulations promulgated by Landlord. "Common Areas" will mean all
areas, spaces, facilities, and equipment (whether or not located within the
Building) made available by Landlord for the common and joint use of Landlord,
Tenant and others, including, but not limited to, tunnels, walkways, sidewalks
and driveways necessary for access to the Building, Building lobbies,
landscaped areas, enclosed mall areas, loading areas, public corridors, public
restrooms, Building stairs and elevators, drinking fountains and such other
areas and facilities, if any, as are designated by Landlord from time to time
as Common Areas. "Service Areas" will refer to areas, spaces, facilities and
equipment serving the Building (whether or not located within the Building) but
to which Tenant and other occupants of the Building will not have access,
including, but not limited to, mechanical, telephone, electrical and similar
rooms, and air and water refrigeration equipment. This Lease is granted subject
to the terms hereof, the rights and interests of third parties under existing
liens, ground leases, easements and encumbrances affecting such property, all
zoning regulations, rules, ordinances, building restrictions and other laws and
regulations now in effect or hereafter adopted by any governmental authority
having jurisdiction over the Project or any part thereof.
3. LEASE TERM. This Lease shall be for a term commencing on the
respective Commencement Date as defined in Paragraph 1(g) hereinabove with
respect to the portion of the Premises located on the second floor of the
Building and the remainder of the Premises, through September 30, 1999 (the
"Expiration Date"). The date the Lease Term commences with respect to the
applicable portion of the Premises as set forth hereinabove shall be referred
to in this Lease as a "Commencement Date".
4. CONSTRUCTION. In the event any construction of tenant
improvements is necessary for the Premises, such construction will be
accomplished and the cost of such construction will be paid by Tenant. Tenant
acknowledges that Landlord has not undertaken to perform any modification,
alteration or improvement to the Premises. Tenant accepts the Premises in an
"AS IS" condition, with all faults. Except as expressly provided below,
Landlord expressly disclaims any warranty or representation of any kind with
respect to the Premises. Tenant agrees to be responsible for all costs and
expense associated with refurbishment of the Premises if Tenant chooses to so
refurbish, including, but not limited to, the cost of all contractors,
subcontractors, architects, engineers, permits, taxes, and any associated fees.
Tenant hereby indemnifies, holds harmless, and agrees to defend Landlord and
its agents, employees, affiliates, officers, directors, and partners from and
against any loss, cost, liens, expenses, or liability of any kind arising in
whole or in part from such refurbishment. Any alterations, changes or
improvements to the Premises shall be made by Tenant in strict accordance with
and pursuant to the requirements of Section 8 hereof. Tenant is solely
responsible for the compliance of the Premises with all governmental
regulations, ordinances, building codes, and laws applicable to the Premises
including, but not limited to, the Americans With Disabilities Act of 1990, and
all regulations promulgated thereunder ("ADA"). Provided, however, Landlord
agrees that upon written notification by the City of Plano (or other
governmental entity having the legal right to require building code and ADA
compliance) to Tenant or Landlord that the third and sixth floor portion of the
Premises is not in compliance with applicable building codes or the ADA (as in
effect as of the Turnover Date), Landlord will be obligated to cause such
portion of the Premises to be altered, at Landlord's sole cost and expense, to
comply with applicable provisions of the building
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code and ADA. Notwithstanding the foregoing, or anything to the contrary
contained in this Lease, Landlord agrees to pay the actual costs of any work
required to cause the "shell" portion of the Premises located on the second
floor of the Building to meet the requirements of the local building code.
Promptly after the execution hereof, but in no event more than five (5)
business days after the execution hereof, and prior to Tenant's commencement of
its refurbishment work to such portion of the Premises, Tenant shall provide a
list of work, if any, required by the City of Plano building inspectors to
bring the shell into compliance with the local building code, together with
written estimates of the cost of such work, and a proposed contract with a
general contractor to complete such work. Landlord shall have five (5) days to
review the list of work, estimates, and proposed contract, and to approve same
or disapprove of same in writing. If Landlord approves the list, estimates, and
proposed contract, or fails to respond within five (5) days of its receipt of
the list of work, estimates, and proposed contract (the last day of such 5-day
period herein referred to as the "Turnover Date"), Tenant may proceed to cause
the work to be completed in accordance with the proposed contract. If Landlord
does not approve of the list of work, estimates and proposed contract, Landlord
agrees to deal directly with the building inspectors and hire its own
contractor to bring the shell into compliance with the local building code
within a reasonable period of time not to exceed forty-five (45) days from the
date of Landlord's receipt of the list of work, estimates and proposed
contract. If Landlord is causing such work to be performed, and Landlord causes
Tenant to be unable to secure a certificate of occupancy by July 1, 1996, the
Commencement Date as to the portion of the Premises on the second floor shall
automatically be extended until a certificate of occupancy is issued. Landlord
shall cooperate with Tenant in securing a certificate of occupancy.
5. TENANT'S BASIC RENTAL OBLIGATION.
(a) Basic Rental. Beginning on the respective Commencement Dates
(with respect to the portion of the Premises on the second floor of the
Building and with respect to the remainder of the Premises), Tenant shall pay
to Landlord the Basic Rental for such space as set forth in Paragraph 1(d)
above, without demand, deduction or setoff, for each month of the entire Lease
Term applicable to such space. If the day on which Basic Rental is first due is
other than the first day of a calendar month, rent for such partial month shall
be prorated on a daily basis. All Basic Rental shall be paid by Tenant to
Landlord in advance on or before the first day of each calendar month during
the Lease Term. All rental and other payments which are due hereunder shall be
made payable to Landlord. Tenant agrees to pay said rental and other payments
to Landlord at c/o Hunt Properties, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx, 00000, or at such other place as may from time to time be
designated in writing by Landlord, in lawful money of the United States of
America without any prior demand therefor and without any deduction or setoff
whatsoever.
(b) Security Deposit. Tenant shall deposit with Landlord the
amount shown above as a Security Deposit contemporaneously with the execution
hereof. Tenant's Security Deposit shall be held in accordance with the terms of
Paragraph 19(k).
6. TENANT'S ADDITIONAL RENTAL OBLIGATIONS.
(a) Additional Rental. From the date of execution hereof by
Landlord and Tenant through December 31, 1996, Tenant shall continue to pay
Additional Rental in the same amount
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as required by that certain Sublease dated December 15, 1993, between Tenant
and Tandem Telecommunications Systems, Inc.; provided, however: (i) Tenant
shall pay Additional Rental directly to Landlord for the portion of the
Premises on the second floor of the Building from July 1, 1996 (subject to
delay as provided hereinabove in the event Landlord is causing the work on the
portion of the second floor to be completed) through December 31, 1996, with an
Operating Expense Stop based upon Actual Operating Expenses incurred by
Landlord for calendar year 1995; and (ii) Tenant shall pay Additional Rental
directly to Landlord for the portion of the Premises on the third and sixth
floors of the Building from October 1, 1996 through December 31, 1996, with an
Operating Expense Stop based upon Actual Operating Expenses incurred by
Landlord for calendar year 1995. From and after January 1, 1997, Tenant shall
pay to Landlord each calendar year the Additional Rental (herein so called)
equal to Tenant's proportionate share of (i) the Actual Operating Expenses
(defined below) for the Project for such calendar year in excess of (ii) the
Operating Expense Stop defined Paragraph 1(h) above multiplied by the number of
square feet of Rentable Area in the Building. Additional Rental shall be
prorated on a daily basis for each partial calendar year in the Lease Term.
Tenant's proportionate share shall be based on the ratio which the Rentable
Area in the Premises (adjusted for office expansions by Tenant) bears to the
Rentable Area within the Building, which is 26%. Landlord and Tenant agree that
the Rentable Area of the Premises and Rentable Area of the Building as
reflected herein shall be deemed to be the actual measured area thereof for all
purposes hereof, and that Landlord has made no representation or warranty to
Tenant as to the actual dimensions of the Premises or the Building.
(b) Adjustment of Actual Operating Expenses. Notwithstanding any
language herein to the contrary, if the Building is not fully occupied during
any calendar year of the Lease Term, Actual Operating Expenses shall be
determined as if the Building had been fully occupied during such year. For the
purposes of this Lease, "fully occupied" shall mean occupancy of one hundred
percent (100%) of the Rentable Area in the Building.
(c) Actual Operating Expenses Enumerated. Actual Operating
Expenses shall include all expenses, costs and disbursements of every kind and
nature incurred or paid by Landlord in connection with the ownership and/or the
operation, maintenance, repair and security of the Project, including, without
limitation, expenses for the following:
(i) garbage and waste disposal;
(ii) janitorial service and window cleaning for the
Building and the Common Areas and Service Areas (including materials,
supplies, Building Standard light bulbs and ballasts, equipment and
tools therefor, and rental and depreciation costs related to any of
the foregoing) or contracts with third parties to provide same (the
term "Building Standard" as used herein shall mean the type, brand
and/or quality of materials Landlord designates from time to time to
be the minimum quality to be used in the Building or the exclusive
type, grade or quality of material to be used in the Building);
(iii) security;
(iv) insurance premiums (including, without limitation,
property, liability and any other types of insurance carried by
Landlord with respect to the Building and the
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Common Areas and Service Areas, the costs of which may include an
allocation of a portion of the premium of a blanket insurance policy
maintained by Landlord);
(v) real estate taxes, assessments, business taxes,
excises, and any other governmental levies and charges of every kind
and nature whatsoever, general and special, extraordinary and
ordinary, foreseen and unforeseen, which may during the Term be levied
or assessed against, or arising in connection with the ownership, use,
occupancy, operation or possession of, the Building and the Common
Areas and Service Areas, or any part thereof, or substituted, in whole
or in part, for a real estate tax assessment, excise or governmental
charge or levy previously in existence, by any authority having the
direct or indirect power to tax, including interest on installment
payments and all costs and fees (including attorneys' fees) incurred
by Landlord in contesting or negotiating with taxing authorities as to
same, but excluding any inheritance, estate, succession, transfer,
gift, franchise, corporation, income or profits tax imposed upon
Landlord;
(vi) water and sewer charges and any related water and
sewer expenses;
(vii) operation, maintenance, and repair (to include
replacement of components) of the Building, including but not limited
to all floor, wall and window coverings and personal property in the
Common Areas, Building systems (such as heat, ventilation and air
conditioning systems), elevators, escalators, and all other mechanical
or electrical systems serving the Building and the Common Areas and
Service Areas and service agreements for all such systems and
equipment; whether an expenditure is a current expense or a capital
expenditure shall be determined in accordance with generally accepted
accounting principles, consistently applied, and any capital
expenditures shall be amortized over the useful life expectancy of
such capital expenditure using the straight-line method with only such
amortized amount for any one lease year being included in Actual
Operating Expenses, e.g., $100,000 capital expenditure divided by ten
year useful life equals $10,000 per year included in Actual Operating
Expenses; notwithstanding anything otherwise set forth herein, under
no circumstances shall any costs of repair to the foundation or load
bearing structures of the Building or replacement of the roof of the
Building be included in Actual Operating Expenses.
(viii) any easement maintained for the benefit of the
Project;
(ix) license, permit and inspection fees;
(x) compliance with any fire safety or other governmental
rules, regulations, laws, statutes, ordinances or requirements imposed
by any governmental authority or insurance company with respect to the
Building during the Lease Term;
(xi) wages, salaries, employee benefits and taxes (or an
allocation of the foregoing) for personnel working full or part time
in connection with the operation, maintenance and management of the
Building and the Common Areas and Service Areas;
(xii) accounting and legal services (but excluding legal
services in connection with (x) negotiations and disputes with
specific tenants unless the matter involved affects
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all tenants of the Building, (y) any transfers of ownership of the
Project, and (z) any co-ownership matters relating to any financing
for the Project);
(xiii) administrative and management fees for the Building
(which shall not exceed 3% of the gross revenues of the Building) and
Landlord's overhead expenses directly attributable to the Building,
including without limitation the cost of an office in the Building
maintained for management of the Project;
(xiv) indoor and outdoor landscaping;
(xv) Amortization of Required Capital Improvements and
Cost Savings Improvements. "Required Capital Improvements" will mean
capital improvements or replacements made in or to the Building in
order to conform to any Applicable Law. "Cost Savings Improvements"
will mean any capital improvements or replacements which are intended
to reduce, stabilize, or limit increases in Actual Operating Expenses.
The cost of Cost Savings Improvements will be amortized by spreading
such costs uniformly over a term equal to the lesser of (a) the period
of years over which the amount by which Actual Operating Expenses are
reduced would be equal to the cost of such installation or (b) ten
(10) years. The cost of Required Capital Improvements amortizable
maintenance and repair items (e.g., painting of Common Areas,
replacement of carpet in elevator lobbies), will be amortized by
spreading such costs uniformly over a term equal to the lesser of (A)
the period employed by Landlord for federal income tax purposes or (B)
ten (10) years;
(xvi) expenses and fees (including reasonable attorneys'
fees) incurred contesting the validity or applicability of any
governmental enactments which may affect Actual Operating Expenses;
and
(xvii) the costs incurred by Landlord for (A) any and all
forms of fuel or energy utilized in connection with the operation,
maintenance, and use of the Building, Common Areas and Service Areas,
(B) sales, use, excise and other taxes assessed by governmental
authorities on energy sources, and (C) other costs of providing energy
to the Building, Common Areas and Service Areas.
(d) Exclusions from Actual Operating Expenses. Actual Operating
Expenses shall exclude the following:
(i) leasing commissions, attorneys' fees, costs and
disbursements and other expenses incurred in connection with leasing,
renovating or improving space for tenants or prospective tenants of
the Building;
(ii) costs (including permit, license and inspection fees)
incurred in renovating or otherwise improving or decorating, painting
or redecorating space for tenants or vacant space;
(iii) Landlord's costs of any services sold to tenants for
which Landlord is entitled to be reimbursed by such tenants as an
additional charge or rental over and above
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the Basic Rental and Actual Operating Expenses payable under the lease
with such tenant or other occupant;
(iv) any depreciation and amortization on the Building
except to the extent amortization is expressly permitted herein;
(v) costs incurred due to violation by Landlord of any of
the terms and conditions of this Lease or any other lease or any laws,
rules or regulations relating to the Building;
(vi) interest on debt or amortization payments on any
mortgages or deeds of trust or any other debt for borrowed money;
(vii) all items and services for which Tenant reimburses
Landlord outside of Actual Operating Expenses or pays third persons or
which Landlord provides selectively to one or more tenants or
occupants of the Building (other than Tenant) without reimbursement;
(viii) advertising and promotional expenditures;
(ix) repairs or other work occasioned by fire, windstorm
or other work paid for through insurance or condemnation proceeds;
(x) repairs resulting from any defect in the original
design or construction of the Building;
(xi) costs incurred by Landlord for trustee's fees,
corporate expenses and accounting fees to the extent relating to
Landlord's general corporate overhead and general administrative
expenses;
(xii) capital expenditures required to be capitalized in
accordance with GAAP except as specifically provided above;
(xiii) damage and repairs necessitated by the negligence or
willful misconduct of Landlord or its employees, contractors or
agents;
(xiv) costs of selling or financing the Project or the
Building;
(xv) leasing commissions, attorneys' fees, advertising
costs and other expenses incurred in connection with negotiations for
leases with tenants or prospective tenants of the Building, or similar
costs incurred in connection with disputes with tenants or prospective
tenants, or similar costs and expenses incurred in connection with
negotiations or disputes with consultants, management agents,
purchasers or mortgagees of the Building; and
(xvi) in no event shall Landlord receive from all tenants
of the Building more than one hundred percent (100%) of the amount of
any Actual Operating Expense for any calendar year.
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(e) Credits. Landlord will credit against Actual Operating
Expenses any refunds received as a result of tax contests, after deduction for
Landlord's costs in connection with same.
(f) Discretionary Items. The foregoing provisions of this
Paragraph 6 will not be deemed to require Landlord to furnish or cause to be
furnished any service or facility not otherwise required to be furnished by
Landlord pursuant to the provisions of this Lease, although Landlord, in
Landlord's absolute discretion, may choose to do so from time to time.
(g) Estimated Actual Operating Expenses. Landlord shall have the
right to estimate Additional Rental to accrue hereunder and Tenant shall pay to
Landlord one-twelfth (1/12) of the amount of such estimate monthly with each of
Tenant's Basic Rental payments. If Landlord estimates Additional Rental in
advance, then by each April 1 or as soon thereafter as practical, Landlord
shall furnish to Tenant a statement of Landlord's Actual Operating Expenses for
the previous calendar year. If for any calendar year Tenant's Additional Rental
collected for the prior year, as a result of payment of Tenant's estimated
Additional Rental or otherwise, is in excess of Tenant's Additional Rental
actually due during such prior year, then, so long as Tenant is not in default
hereunder, Landlord shall refund to Tenant any overpayment (or, at Landlord's
option, apply such amount against rentals due or to become due hereunder).
Likewise, Tenant shall pay to Landlord, within fifteen (15) days after Landlord
has given written notice thereof to Tenant in the manner specified herein, any
underpayment with respect to the prior year.
7. LANDLORD'S OBLIGATIONS.
(a) Water, Heat, Air Conditioning, Janitorial and Elevator Service
and Maintenance Obligations. Subject to the limitations hereinafter set forth,
Landlord agrees to furnish Tenant while occupying the Premises and while Tenant
is not in default under this Lease: (i) water (hot and cold) at those points of
supply provided for general use of tenants of the Building; (ii) Building
Standard heat and air conditioning in season, as determined by Landlord,
weekdays (other than holidays) between 7:00 a.m. and 7:00 p.m., and Saturdays
between 8:00 a.m. and 1:00 p.m., at such temperatures and in such amounts as
are reasonably considered by Landlord to be standard (Landlord shall only
furnish heat and air conditioning weekdays after 7:00 p.m., on Saturdays after
1:00 p.m., and on Sundays and holidays at the written request of Tenant (which
must be received by Landlord at least twenty-four (24) hours in advance, but no
later than 12:00 noon of the preceding Friday, if the request is for Saturday,
Sunday or a holiday), and at Landlord's actual cost therefor payable within
fifteen (15) days after receipt of an invoice; (iii) Building Standard
janitorial service in accordance with EXHIBIT "C" attached hereto on weekdays
other than holidays for Building installations and Building Standard window
washing; (iv) operatorless passenger elevators for ingress and egress to the
floor on which the Premises are located; and (v) replacement of Building
Standard light bulbs and fluorescent tubes, but Landlord's standard charge for
such bulbs and tubes shall be paid by Tenant. Landlord additionally agrees to
maintain in the Building the exterior walls, roof, windows, structural steel,
load-bearing nondemising walls, floors below the level of Tenant's floor
covering and the HVAC, electrical and plumbing systems serving the Premises,
but located outside the Premises, subject to the terms and conditions of this
Lease which may limit Landlord's maintenance, repair and rebuilding obligations
under various circumstances. Landlord agrees to cooperate with Tenant with
respect to Building security matters. Landlord agrees to maintain the Common
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Areas and the portion of the Building which it is obligated to maintain
pursuant to this Lease in the same quality condition as other comparable office
buildings in the Plano area.
(b) Electrical Service. Tenant's use of electrical services
furnished by Landlord shall be subject to the following:
(i) Landlord shall not be required to furnish electrical
current for computers, electronic data processing equipment, or
special lighting beyond that which is provided in the Building as of
the date hereof.
(ii) The amount of electricity consumed by Tenant shall be
determined, at the election of Landlord, either (A) based upon a
survey performed by a reputable consultant to be selected by Landlord
and paid by Tenant, or (B) through a separate meter to be installed,
maintained and read by Landlord at the sole cost of Tenant.
(iii) If Tenant's requirements for or consumption of
electrical services exceeds the usage amount specified in Paragraph
7(b)(i) hereof, then Tenant shall remove such equipment and/or
lighting to achieve compliance within ten (10) days after receiving
notice from Landlord. Notwithstanding the foregoing sentence, such
equipment and/or lighting may remain in the Premises, subject to
Landlord's prior written approval and subject to the following terms:
(A) Tenant shall pay for all costs of
installation and maintenance of submeters, wiring, air
conditioning and other items required by Landlord, in
Landlord's discretion, to accommodate Tenant's excess design
loads and capacities.
(B) Tenant shall pay to Landlord, upon demand,
the cost of the excess demand and consumption of electrical
service at rates determined by Landlord which shall be in
accordance with any Applicable Laws.
(c) Interruption of Services. Failure to any extent to make
available, or any slow-down, stoppage or interruption of any services described
in this Paragraph 7 resulting from any cause whatsoever (other than Landlord's
gross negligence) shall not render Landlord liable in any respect for damages,
nor be construed as an eviction of Tenant, nor relieve Tenant from fulfillment
of any covenant or agreement hereof. Should any service being furnished by
Landlord be interrupted for any cause whatsoever, Tenant shall notify Landlord
and Landlord shall use reasonable diligence to restore such service promptly.
For any failure by Landlord (except due to Tenant's or Tenant's agents,
contractors, employees, licensees or invitees' negligence or willful
misconduct) for any reason to provide any of the services under this Paragraph
7 if such failure materially and adversely affects the habitability of the
Premises ("Substantial Services Failure") and continues beyond a period of
forty-eight (48) consecutive hours and Landlord does not commence and continue
diligently to pursue to restore such service, after in each instance written
notice thereof is given by Tenant to Landlord (and a copy of said notice is
sent simultaneously to any mortgagee holding a lien covering the Building),
then Tenant shall have the right to cure such Substantial Services Failure, and
Landlord shall reimburse Tenant for all reasonable sums expended in so curing
said default within forty-five (45) days after Landlord's receipt of third-
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party invoices therefor. If Landlord fails to reimburse Tenant within such
forty-five (45) day period, Tenant may effect such reimbursement through the
withholding of Basic Rental and Additional Rental. In the event Tenant
undertakes to correct or cure the Substantial Services Failure, Tenant shall
indemnify, defend and hold Landlord harmless from and against any loss, cost,
claim, expense or liability arising out of the actions of Tenant or its agents
or employees. The foregoing self-help and offset rights of Tenant for a
Substantial Services Failure shall be personal solely to INET, Inc. and its
successor and affiliate, but not to any other permitted assignee or permitted
subtenant. The foregoing rental abatement, self-help and offset rights of
Tenant for a Substantial Services Failure shall constitute Tenant's sole and
exclusive remedies involving or with respect to such service failure. Tenant
agrees that there shall be no rental abatement, nor shall Tenant have the right
to avail itself of self-help or offset rights, on account of any Substantial
Services Failure caused in whole or in part by the negligence or willful
misconduct of Tenant or Tenant's agents, contractors, employees, licensees or
invitees.
8. TENANT'S COVENANTS. Tenant covenants and agrees as follows:
(a) Alterations. Tenant shall make no alterations, changes or
improvements to the Premises without first submitting to Landlord plans and
specifications and obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld, delayed, or conditioned. All work
done by Tenant shall be performed in a good and workmanlike manner by a
contractor reasonably approved by Landlord, in compliance with Applicable Laws
and at such times and in such manner as not to cause material interference with
construction in progress or with other tenants in the Building.
(b) Mechanic's and Materialmen's Liens. 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 Premises or
the Project or any portion thereof. Tenant shall promptly cause any such liens
which have arisen by reason of any work or materials claimed to have been
provided to or undertaken by or through Tenant to be released by payment,
bonding or otherwise within thirty (30) days after request by Landlord, and
Tenant shall indemnify Landlord against losses arising out of any such claim.
Tenant's indemnification of Landlord contained in this Paragraph 8(b) shall
survive the expiration or earlier termination of this Lease.
(c) Permitted Use of Premises. Tenant shall not permit the
Premises to be used for any purpose other than for the use specified in
Paragraph 1 of this Lease. Tenant will, at Tenant's sole cost, promptly comply
with all Applicable Laws applicable to the Premises. The judgment of any court
of competent jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord is a party thereto or not, that Tenant has violated
any Applicable Law will be conclusive of that fact between Landlord and Tenant.
(d) Repairs. Tenant will not in any manner deface or injure the
Building, and will pay the cost of repairing and replacing any damage or injury
done to the Building or any part thereof by Tenant or Tenant's agents,
contractors or employees. Tenant shall throughout the Lease Term keep the
Premises free from deterioration, waste and nuisance of any kind, excluding (i)
ordinary and customary wear and tear, and (ii) damage resulting from a fire or
other casualty. Tenant agrees to keep the Premises in good condition and repair
and Tenant shall make all necessary repairs and replacements to the Premises
except for those repairs to be undertaken by Landlord
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as otherwise provided herein. If Tenant fails to make such repairs or
replacements within fifteen (15) days after notice from Landlord, Landlord may
at its option make such repairs or replacements, and Tenant shall upon demand
pay Landlord for the reasonable cost thereof.
(e) Security. Tenant shall take all reasonable steps necessary to
adequately secure the Premises from unlawful intrusion, theft, fire and other
hazards, and shall keep and maintain all security devices in or on the Premises
in good working order, including, but not limited to, locks, smoke detectors
and burglar alarms, and shall cooperate with Landlord and other tenants in the
Building with respect to Building security matters.
9. ASSIGNMENT AND SUBLETTING.
(a) Assignment and Subletting. Except as provided below, Tenant
shall not sublet the Premises in whole or in part or market the Premises for
sublease and shall not sell, assign or in any manner transfer this Lease or any
interest herein, directly or indirectly (by transfer of control of Tenant, for
example), or voluntarily or by operation of law or otherwise, or permit any
transfer of Tenant's interest created hereby, or allow any lien upon Tenant's
interest by operation of law or otherwise, or permit the use or occupancy of
the Premises or any part thereof, by anyone other than Tenant, nor shall Tenant
sublease space in the Building from another tenant thereof, without Landlord's
prior written consent. If this Lease or any interest in this Lease is sold,
assigned or transferred, or Tenant subleases any part of the Premises, without
Landlord's consent, Landlord may, cumulative of any other right or remedy
available to Landlord, elect to terminate this Lease (as it affects the portion
of the Premises sought to be sublet or assigned) as of the effective date of
the proposed transfer. Landlord's acceptance of any name for listing on the
Building directory will not be deemed nor will it substitute for, Landlord's
consent, as required by this Lease, to any sublease, assignment or other
occupancy of the Premises. Notwithstanding the foregoing, Tenant may assign
this Lease without Landlord's consent if (i) Tenant sells the controlling
interest in Tenant or sells substantially all of the assets of Tenant to an
entity which assumes in writing all of Tenant's obligations under this Lease in
a form reasonably acceptable to Landlord and which successor entity has a net
worth of at least Fifteen Million and No/100 Dollars ($15,000,000) as
determined in accordance with generally accepted accounting principles, or (ii)
Tenant elects to make a public securities offering which offering does not
result in a change of control of Tenant.
(b) Consent to Assignment. Consent by Landlord to one or more
assignments or sublettings shall not operate as a waiver of Landlord's rights
as to any subsequent assignments and sublettings. Notwithstanding any
assignment or subletting, Tenant and any guarantor of Tenant's obligations
under this Lease shall at all times remain fully responsible and liable for the
payment of the rent and other sums herein specified and for compliance with all
of Tenant's other obligations under this Lease, and Landlord may proceed
against Tenant (or any guarantor) for the enforcement of such obligations
without first proceeding against any other party. No direct collection by
Landlord from any such assignee or sublessee shall be construed to constitute a
novation or a release of Tenant or any guarantor of Tenant from the further
performance of its obligations hereunder. If the proposed sublessee or assignee
is subject to compliance with additional requirements under The American with
Disabilities Act beyond those requirements which are applicable to the Tenant,
Landlord may condition Landlord's consent upon receipt of (i) plans and
specifications acceptable to Landlord for complying with the additional
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requirements, and (ii) security acceptable to Landlord that such construction
will be completed timely and lien-free. In addition, any rights which Tenant
may have relating to the renewal or extension of the Lease or the expansion of
the Premises, if any, are personal to Tenant and shall not be available to any
proposed or actual sublessee, assignee or transferee.
(c) Excess Rents. If any rents or other sums received by Tenant
under any sublease are in excess of the rent and other sums payable by Tenant
under this Lease (prorated for a sublease of less than one hundred percent
(100%) of the Premises), or if any additional consideration is paid to Tenant
by any assignee under any assignment, then such excess rents under any sublease
or such additional consideration under any assignment shall be paid by Tenant
to Landlord as additional rent hereunder within ten (10) days after Tenant
receives the same; provided, however, Tenant may deduct therefrom a pro rata
share (based upon the total third-party expenses incurred divided by the number
of months remaining in the Lease Term commencing on the date of the first
rental payment or other payment payable by such sublessee or assignee) of all
reasonable third-party expenses of Tenant (i.e., Tenant's out-of-pocket costs
paid to persons other than Tenant or any affiliate of Tenant) incurred by
Tenant in connection with the sublease or assignment.
(d) Landlord's Right to Transfer. Landlord shall have the right to
transfer, assign and convey, in whole or in part, the Building and any and all
of its rights under this Lease, and in such event, Landlord shall thereby be
released from any further obligations hereunder, and Tenant agrees to look
solely to such successor-in-interest of Landlord for performance of such
obligations.
10. INDEMNITY AND INSURANCE.
(a) Indemnity. Tenant hereby agrees to indemnify, protect, defend
and hold harmless Landlord and its partners, affiliated companies, officers,
directors, shareholders, and employees and agents (collectively, "Indemnitees")
for, from and against all liabilities, claims, fines, penalties, costs, damages
or injuries to persons, damages to property, losses, liens, causes of action,
suits, judgments and expenses (including court costs, attorneys' fees and costs
of investigation), of any nature, kind or description, excluding building code
violations in existence as of the date hereof of any person or entity, directly
or indirectly arising out of, caused by, or resulting from (in whole or part)
(1) Tenant's construction of or use, occupancy or enjoyment of the Premises,
(2) any activity, work or other things done, permitted or suffered by Tenant
and its agents and employees in or about the Premises, (3) any breach or
default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease including, but not limited to, Tenant's security
obligations set forth in Paragraph 8(e) of this Lease, (4) any act, omission,
negligence or willful misconduct of Tenant or any of its agents, contractors,
employees, business invitees or licensees, or (5) damage to Tenant's property,
or the property of Tenant's agents, employees, contractors, business invitees
or licensees, located in or about the Premises (collectively, "Liabilities"),
unless such Liabilities are caused in whole or in part by the negligence of
Landlord, its agents, contractors, employees, invitees or licensees, in which
event this indemnity shall not apply to the allocable share of such Liabilities
resulting from such negligence. Tenant shall promptly advise Landlord in
writing of any action, administrative or legal proceeding or investigation as
to which this indemnification may apply, and Tenant, at Tenant's expense, shall
assume on behalf of Landlord (and the other Indemnitees) and conduct
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with due diligence and in good faith the defense thereof with counsel
satisfactory to Landlord; provided, however, that any Indemnitee shall have the
right, at its option, to be represented therein by advisory counsel of its own
selection and at its own expense. In the event of failure by Tenant to fully
perform in accordance with this Paragraph 10(a), Landlord, at its option, and
without relieving Tenant of its obligations hereunder, may so perform, but all
costs and expenses so incurred by Landlord in that event shall be reimbursed by
Tenant to Landlord, together with interest on the same from the date any such
expense was paid by Landlord until reimbursed by Tenant, at the rate of
interest provided to be paid on judgments, by the law of the jurisdiction to
which the interpretation of this Lease is subject. This indemnification shall
not be limited to damages, compensation or benefits payable under issuance
policies, workers' compensation acts, disability benefit acts or other
employees' benefit acts and shall survive the expiration or earlier termination
of this Lease. To the extent Tenant's insurance provides the foregoing
indemnity, Landlord agrees to look to such insurance for such protection.
(b) Insurance.
(i) Tenant at all times during the Lease Term shall, at
its own expense, keep in full force and effect (A) commercial general
liability insurance providing coverage against bodily injury and
disease, including death resulting therefrom, personal injury and
property damage to a combined single limit of $3,000,000 to one or
more than one person as the result of any one accident or occurrence,
which shall include provision for contractual liability coverage
insuring Tenant for the performance of its indemnity obligations set
forth in Paragraphs 10(a) and 18 of this Lease, (B) worker's
compensation insurance to the statutory limit and employer's liability
insurance to the limit of $500,000 per occurrence, and (C) all risk
personal property insurance covering full replacement value of all of
Tenant's personal property. Landlord shall be named an additional
insured on each of said the commercial general liability insurance
policies. All of the foregoing policies shall be issued by an
insurance company or companies reasonably acceptable to Landlord.
Each of said policies shall also include a waiver of subrogation
endorsement in favor of Landlord, and an endorsement providing that
Landlord shall receive thirty (30) days prior notice of any
cancellation of, non-renewal of, reduction of coverage or material
change in coverage on said policies. Tenant hereby waives its right of
recovery of any amounts paid by Tenant or on Tenant's behalf to
satisfy applicable worker's compensation laws. Certificates of the
foregoing policies, together with satisfactory evidence of the payment
of the premiums therefor, shall be deposited with Landlord on the date
Tenant first occupies the Premises and upon renewals of such policies
not less than fifteen (15) days prior to the expiration of the term of
such coverage.
(ii) It is expressly understood and agreed that the
coverages required represent Landlord's minimum requirements and such
are not to be construed to void or limit Tenant's indemnity
obligations contained in this Lease. Neither shall (A) the insolvency,
bankruptcy or failure of any insurance company carrying Tenant, (B)
the failure of any insurance company to pay claims occurring nor (C)
any exclusion from or insufficiency of coverage be held to affect,
negate or waive any of Tenant's indemnity obligations under Paragraphs
10(a) and 18 or any other provisions of this Lease. With respect to
insurance coverages, except worker's compensation and personal
property insurance, maintained hereunder by Tenant and insurance
coverage separately obtained by
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Landlord, all insurance coverages afforded by policies of insurance
maintained by Tenant shall be primary insurance as such coverages
apply to Landlord, and such insurance coverages separately maintained
by Landlord shall be excess, and Tenant shall have its commercial
general liability insurance policies endorsed to reflect that policies
maintained by Tenant naming Landlord as an additional insured are
primary, and policies separately maintained by Landlord are excess.
The amount of liability insurance under insurance policies maintained
by Tenant shall not be reduced by the existence of insurance coverage
under policies separately maintained by Landlord. Tenant shall be
solely responsible for any premiums, assessments, penalties,
deductible assumptions, retentions, audits, retrospective adjustments
or any other kind of payment due under its policies.
(iii) Tenant's occupancy of the Premises without delivering
the certificates of insurance shall not constitute a waiver of
Tenant's obligations to provide the required coverages. If Tenant
provides to Landlord a certificate that does not evidence the
coverages required herein, or that is faulty in any respect, such
shall not constitute a waiver of Tenant's obligations to provide the
proper insurance.
(iv) Landlord shall maintain the following insurance
coverages: "All-Risk" property and casualty coverage for the Project
and Building for eighty percent (80%) of the full replacement cost of
the Building above the foundation, and all personal property of
Landlord in the Project; boiler and machinery coverage; and commercial
general liability insurance with limits of at least $3,000,000. All
deductibles or self-insured retentions shall be in commercially
reasonable amounts.
(c) Mutual Waivers of Recovery. It is the intent of Landlord and
Tenant not to hold each other responsible for that portion of any loss or
damage paid or reimbursed by an insurer of Landlord or Tenant or which would
have been reimbursed if Landlord or Tenant had carried the insurance such party
is obligated to carry under this Lease under any all risk, fire, extended
coverage or other property insurance policy maintained by Tenant with respect
to its Premises or by Landlord with respect to the Building or any commercial
general liability, boiler and machinery or other insurance policy maintained by
Landlord or Tenant. Therefore, with respect to the amount of any damage, loss,
claim or liability paid or reimbursed by an insurer under any all risk, fire,
extended coverage or property insurance policy maintained by Tenant with
respect to the Premises, or Landlord with respect to the Building, or any other
insurance policies maintained by Landlord or Tenant, Landlord, Tenant and all
parties claiming under them each mutually release and discharge each other from
such damages, losses, claims or liabilities, no matter how caused, including
negligence, and each waives any right of recovery from the other including, but
not limited to, claims for contribution or indemnity, including any deductible
or self insurance retention, which might otherwise exist on account thereof.
Any fire, extended coverage or property insurance policy maintained by Tenant
with respect to the Premises, or Landlord with respect to the Building, shall
contain, in the case of Tenant's policies, a waiver of subrogation endorsement
in favor of Landlord, and in the case of Landlord's policies, a waiver of
subrogation endorsement in favor of Tenant, or, in the event that such insurers
cannot or will not attach such waiver of subrogation endorsements, Tenant and
Landlord shall obtain the approval and consent of their respective insurers, in
writing, to the terms of this Lease; this waiver of subrogation shall also
apply to any other insurance policies maintained by Landlord or Tenant
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under this Lease. Neither Tenant nor its insurers shall be entitled to receive
any contribution from any insurance policies separately maintained by Landlord,
and Tenant agrees to indemnify, protect, defend and hold harmless Landlord and
any of Landlord's insurers from any claim, suit or cause of action asserted or
brought by Tenant's insurers for, on behalf of, or in the name of Tenant,
including but not limited to, claims for contribution, indemnity or
subrogation. Neither Landlord nor its insurers shall be entitled to receive
any contribution from any insurance policies separately maintained by Tenant,
and Landlord agrees to indemnify, protect, defend and hold harmless Tenant and
any of Tenant's insurers for, on behalf of, or in the name of Landlord,
including but not limited to, claims for contribution, indemnity or
subrogation. The mutual releases, discharges and waivers contained in this
provision shall apply EVEN IF THE LOSS OR DAMAGE TO WHICH THIS PROVISION
APPLIES IS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF LANDLORD OR TENANT.
(d) Business Interruption. Landlord shall not be responsible for,
and Tenant releases and discharges Landlord from, and Tenant further waives any
right of recovery from Landlord for, any loss from business interruption or
loss of use of the Premises suffered by Tenant in connection with Tenant's use
or occupancy of the Premises, EVEN IF SUCH LOSS IS CAUSED SOLELY OR IN PART BY
THE NEGLIGENCE OF LANDLORD.
(e) Adjustments of Claims. Landlord and Tenant shall each
cooperate with the other party and its insurers in the adjustment of any
insurance claim pertaining to this Lease.
(f) Increases in Landlord's Insurance Costs. Tenant agrees to pay
to Landlord any increase in premiums for Landlord's insurance policies
resulting from Tenant's use or occupancy of the Premises.
(g) Failure to Maintain Insurance. Any failure of Tenant to
obtain and maintain the commercial general liability insurance policies and
coverages required hereunder or failure by Tenant to meet any of the insurance
requirements of this Lease shall constitute a material breach hereof, and such
failure shall entitle Landlord to pursue, exercise or obtain any of the
remedies provided for in Paragraph 13, and Tenant shall be solely responsible
for any loss suffered by Landlord as a result of such failure. In the event of
failure by Tenant to maintain the insurance policies and coverages required by
this Lease or to meet any of the insurance requirements of this Lease,
Landlord, at its option, and without relieving Tenant of its obligations
hereunder, may obtain such insurance policies and coverages or perform any
other insurance obligation of Tenant, but all costs and expenses incurred by
Landlord in obtaining such insurance or performing Tenant's insurance
obligations shall be reimbursed by Tenant to Landlord, together with interest
on same from the date any such cost or expense was paid by Landlord until
reimbursed by Tenant, at the rate of interest provided to be paid on judgments,
by the law of the jurisdiction to which the interpretation of this Lease is
subject.
11. FIRE OR CASUALTY. In the event that (a) the Premises or the
Building should be so damaged by fire, or other casualty that rebuilding or
repairs cannot be completed within 180 days after the date of commencement of
reconstruction, as reasonably determined by Landlord, or (b) the Premises shall
be so damaged during the last year of the Lease Term to the extent that more
than thirty percent (30%) of the area thereof is rendered untenantable,
Landlord may at its option terminate this Lease within ninety (90) days after
such damage by giving written notice to
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Tenant, in which event rent shall be abated effective with the date of such
damage. If, following any such casualty, Landlord does not terminate this
Lease, or in the event of casualty damage of a lesser extent to the Building,
Landlord shall, following receipt of insurance proceeds if such proceeds are
made available to Landlord by the holder of any mortgage encumbering the
Project or the Building, rebuild or repair the Premises or the Building to
substantially the same condition in which they were immediately prior to the
happening of the fire or other casualty, except that Landlord shall not be
required to (i) spend more than the amount of insurance proceeds actually
received, or (ii) rebuild, repair or replace any part of the furniture,
equipment, fixtures and other personal property which may have been placed by
Tenant or other tenants within the Building or the Premises. Landlord shall
allow Tenant a fair diminution of rental during the time the Premises are unfit
for occupancy. If the Premises are not repaired and restored within 180 days
after the date of commencement of reconstruction, Tenant may at its option
terminate this Lease by written notice to Landlord within forty-five (45) days
after the expiration of such 180-day period.
12. CONDEMNATION. In the event that the Premises or the Building
or any part thereof shall be taken for public use or condemned under eminent
domain or conveyed under the threat of such a taking or condemnation, or access
to the Premises precluded by any such event, either Landlord or Tenant may
cancel and terminate this Lease as it affects the portion of the Premises
taken, or the portion to which access is precluded, by giving written notice to
the other within ten (10) days after the date on which title to the property
taken vests in the condemnor. Notwithstanding the foregoing, Tenant may not
terminate this Lease pursuant to the preceding sentence as a result of the
condemnation of the Building or any part thereof unless such condemnation
materially affect Tenant's use of or access to the Premises. If this Lease is
not terminated as to all of the Premises following any of said actual takings
or conveyances of any part of the Premises, then Landlord shall, to the extent
of an equitable proportion of the award for the portion of the Premises taken
(excluding any award for land) and to the extent such award is made available
to Landlord from the holder of any mortgage encumbering the Project or the
Building, make such repairs to the Premises as are necessary to constitute a
complete architectural and tenantable unit. In the event of a partial taking or
conveyance of the Premises, Landlord shall allow Tenant a fair diminution of
rental. Tenant shall not be entitled to claim, or have paid to Tenant, any
compensation or damages whatsoever for or on account of any taking or
conveyance of any right, interest or estate of Tenant under this Lease, and
Tenant hereby relinquishes and assigns to Landlord any rights to any such
compensation or damages except for moving expenses, loss of Tenant's personalty
or damage to Tenant's business. Tenant does not hereby waive or release claims
for moving expenses, inconvenience or business interruption related to a
condemnation of the Premises, but any such claim shall be asserted, if at all,
in a proceeding independent of Landlord's primary condemnation suit.
13. DEFAULT AND REMEDIES.
(a) Event of Default. The following events shall be deemed to be
events of default (herein so called) by Tenant under this lease: (i) Tenant
shall fail to pay on the due date Basic Rental, Additional Rental or any other
rental or sums payable by Tenant hereunder and such failure shall continue for
three (3) days after written notice to Tenant (or, in the case of Tenant's
failure to comply with or observe any such monetary provision of this Lease
more than twice during the Lease Term, upon the third and all subsequent such
failures, without notice from
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Landlord); (ii) Tenant shall fail to comply with or observe any other
provisions of this Lease and such failure shall continue for thirty (30) days
after written notice to Tenant or such longer period of time, not to exceed 90
days, if such default is not susceptible to cure within such thirty (30) day
period if Tenant is diligently attempting to cure such default (or, in the case
of Tenant's failure to comply with or observe any other single non-monetary
provision of this Lease more than two (2) times during the Lease Term, upon the
occurrence of the third and all subsequent such failures, without notice from
Landlord); (iii) Tenant or any guarantor of Tenant's obligations hereunder
shall make a general assignment for the benefit of creditors; (iv) any petition
shall be filed by or against Tenant or any guarantor of Tenant's obligations
hereunder under the United States Bankruptcy Code, as amended, or under any
similar law or statute of the United States or any state thereof, and such
petition shall not be dismissed within forty-five (45) days of filing, or
Tenant or any guarantor of Tenant's obligations hereunder shall be adjudged
bankrupt or insolvent in proceedings filed thereunder; (v) 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, and such appointment shall
not be vacated or otherwise terminated, and the action in which such
appointment was ordered dismissed, within forty-five (45) days of filing; or
(vi) the occurrence of an event described in clauses (iv) or (v) of this
Paragraph 13(a) (without regard to any cure periods contained herein) and the
failure thereafter of Tenant (A) to timely and fully make any payment of rent
or any other sum of money due hereunder or (B) to perform or observe any other
covenant, condition or agreement to be performed or observed by it hereunder.
(b) Remedies. Upon the occurrence of any event of default
specified in this Lease, and the expiration of any applicable cure period,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever and without releasing Tenant
from any obligation under this Lease;
(i) Landlord may enter the Premises without terminating
this Lease and perform any covenant or agreement or cure any condition
creating or giving rise to an event of default under this Lease and
Tenant shall pay to Landlord on demand, as additional rent, the amount
expended by Landlord in performing such covenants or agreements or
satisfying or observing such condition. Landlord or its agents or
employees shall have the right to enter the Premises, and such entry
and such performance shall not terminate this Lease or constitute an
eviction of Tenant.
(ii) Landlord may terminate this Lease by written notice
to Tenant (and not otherwise) or Landlord may terminate Tenant's right
of possession without terminating this Lease. In either of such
events, Tenant shall surrender possession of and vacate the Premises
immediately and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter the Premises,
in whole or in part, with or without process of law and to expel or
remove Tenant and any other person, firm or corporation who may be
occupying the Premises or any part thereof and remove any and all
property therefrom, using such lawful force as may be necessary.
(iii) In the event Landlord elects to re-enter or take
possession of the Premises after Tenant's default, with or without
terminating this Lease, Landlord may change or pick locks or alter
security devices and lock out, expel or remove Tenant and any other
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person who may be occupying all or any part of the Premises without
being liable for any claim for damages.
(iv) If Landlord elects to re-enter or take possession of
the Premises without terminating this Lease, then Tenant shall be
liable for and shall pay to Landlord all Basic Rental, and any other
amounts of money due to Landlord hereunder as of the date of such
election. Tenant shall also pay to Landlord all Basic Rental required
to be paid by Tenant during the remainder of the Lease Term as such
amounts become due, diminished by any net sums received by Landlord,
if any, through reletting the Premises during said period (after
deducting all expenses incurred by Landlord in connection with any
reletting of the Premises). Landlord is not obligated to relet the
Premises, and if no reletting occurs, Tenant shall be responsible for
the full amounts due. If Landlord elects to relet, Landlord shall have
the sole and unfettered right to relet all or any part of the Premises
for such rent and upon such terms as shall be satisfactory to Landlord
(including but not limited to the right to relet the Premises for a
term shorter or longer, than that remaining under this Lease, the
right to relet the Premises as a part of a larger area and the right
to change the character or use made of the Premises). Tenant shall not
in any event be entitled to any sums collected in connection with a
reletting of the Premises that exceed the amount of Basic Rental and
other sums of money due hereunder. Landlord shall not be required to
wait until the expiration of the Lease Term in order to collect any
such deficiencies, and shall have the right to file suit from time to
time, on one or more occasions, to collect the deficiencies then due.
Any such suit shall not prejudice in any way the right of Landlord to
bring similar actions for any subsequent deficiency or deficiencies.
(v) Notwithstanding any prior election by Landlord to not
terminate this Lease, Landlord may at any time, including subsequent
to any re-entry or taking of possession of the Premises as allowed
hereinabove, elect to terminate this Lease. Tenant shall be liable for
and shall immediately pay to Landlord the amount of all Basic Rental
and other sums of money due under this Lease as may have accrued as of
the date of termination. Tenant shall also immediately pay to
Landlord, as agreed and liquidated damages, an amount of money equal
to the Basic Rental and other amounts due for the remaining portion of
the Lease Term (had such term not been terminated by Landlord prior to
the expiration of the Lease Term), less the fair rental value of the
Premises for the residue of the Lease Term, both discounted to their
present value based upon the interest rate of eight percent (8%) per
annum. In determining fair rental value, Landlord shall be entitled to
take into account the time and expenses necessary to obtain a
replacement tenant or tenants, including anticipated expenses
hereinafter described relating to recovery, preparation and reletting
of the Premises. If Landlord elects to relet the Premises, or any
portion thereof, before presentation of proof of such liquidated
damages, the amount of rent reserved upon such reletting shall be
deemed prima facie evidence of the fair rental value of the portion of
the Premises so relet.
(vi) In addition to any sum provided to be paid above,
Tenant shall also be liable for and shall immediately pay to Landlord
all reasonable broker's fees incurred by Landlord in connection with
any reletting of the whole or any part of the Premises, the costs of
removing and storing Tenant's or any other occupant's property, the
cost of repairing, altering, remodeling, renovating or otherwise
putting the Premises into a
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condition acceptable to a new tenant or tenants, the cost of removal
and replacement of signage and all reasonable expenses by Landlord in
enforcing Landlord's remedies, including reasonable attorney's fees.
(vii) Landlord may apply Tenant's Security Deposit to the
extent necessary to make good any rent arrearage, to pay the cost of
remedying Tenant's default or to reimburse Landlord for expenditures
made or damages suffered as a consequence of Tenant's default.
Following any such application of the Security Deposit, tenant shall
pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount.
(viii) Nothing contained in this Paragraph 13(b) shall be
construed as imposing any enforceable duty upon Landlord to relet the
Premises or otherwise mitigate or minimize Landlord's damages by
virtue of Tenant's default. Landlord shall not be liable in any
manner, nor shall Tenant's obligations hereunder be diminished by the
failure of Landlord to relet the Premises, or in the event of
reletting to collect rent.
(c) Effect of Suit or Partial Collection. Institution of a
forcible detainer action to re-enter the Premises shall not be construed to be
an election by Landlord to terminate this Lease. Landlord may collect and
receive any rent due from Tenant and the payment thereof shall not constitute a
waiver of or affect any notice or demand given, suit instituted or judgment
obtained by Landlord, or be held to waive or alter the rights or remedies which
Landlord may have at law or in equity or by virtue of this Lease at the time of
such payment.
(d) 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.
(e) Notice to Mortgagees. If Landlord defaults under this Lease
and, if as a consequence of such default, Tenant will have the right to
terminate this Lease, Tenant will not exercise such right to terminate unless
and until (i) Tenant gives notice of such default (specifying the exact nature
of such default and how such default may be remedied) to any lessor under a
ground lease or any mortgagee of the Building, and (ii) such lessor and/or
mortgagee fails to cure, or to cause to be cured, such default within thirty
(30) days after such lessor's mortgagee's receipt of notice.
14. SURRENDER OF PREMISES.
(a) Surrender. Upon the Expiration Date or earlier termination of
this Lease, Tenant shall peaceably surrender to Landlord the Premises,
including the alterations, improvements and changes (except as provided in
Paragraph 14(b)) other than Tenant's fixtures remaining the property of Tenant,
broom-clean and in the condition the same were in on the Commencement Date,
subject only to (i) ordinary and customary wear and tear, and (ii) damage
resulting from a fire or other casualty.
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(b) Removal of Alterations and Tenant Property.
(i) Notwithstanding anything in this Lease to the
contrary, all permanent or built-in fixtures or improvements and all
mechanical, electrical and plumbing equipment in the Premises shall be
the property of Landlord upon the termination of this Lease. Except
as otherwise provided, all furnishings, equipment, furniture, trade
fixtures and other removable equipment installed in the Premises by
Tenant and paid for by Tenant shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease. Tenant
shall repair any damage caused by such removal.
(ii) If any furnishings, equipment, furniture, trade
fixtures or other removable equipment are not removed within fifteen
(15) days after the expiration of this Lease, then Tenant hereby
grants to Landlord the option, exercisable at any time thereafter
without the requirement of any notice to Tenant, (A) to treat such
property, or any portion thereof, as being abandoned by Tenant to
Landlord, whereupon Landlord shall be deemed to have full rights of
ownership thereof; (B) to elect to remove and store such property, or
any portion thereof, on Tenant's behalf (but without assuming any
liability to any person) and at Tenant's sole cost and expense, with
reimbursement therefor to be made to Landlord upon demand; and/or (C)
to sell, give away, donate or dispose of as trash or refuse any or all
of such property without any responsibility to deliver to Tenant any
proceeds therefrom. If (a) Landlord elects not to exercise its
contractual and/or statutory lien rights covering Tenant's property as
may be granted herein, (b) Tenant ceases to occupy the Premises, or
its right to occupy the Premises is terminated by Landlord, prior to
Landlord's termination or the expiration of this Lease, and (c) any of
Tenant's furnishings, equipment, furniture, trade fixtures or other
removable equipment are not removed within fifteen (15) days
thereafter, then Tenant hereby grants to Landlord the option,
exercisable at any time thereafter without the requirement of notice
to Tenant, (x) to treat such property, or any portion thereof, as
being abandoned by Tenant to Landlord, whereupon Landlord shall be
deemed to have full rights of ownership thereof; (y) to elect to
remove and store such property, or any portion thereof, on Tenant's
behalf (but without assuming any liability to any person) and at
Tenant's sole cost and expense, with reimbursement therefor to be made
to Landlord upon demand; and/or (z) to sell, give away, donate or
dispose of as trash or refuse any or all of such property without
responsibility to deliver to Tenant any proceeds therefrom. Landlord
shall have no liability of any kind whatsoever to Tenant in respect of
the exercise or failure to exercise the options set forth in this
Paragraph 14(b). Specifically, Tenant shall not have the right to
assert against Landlord a claim either for the value, or the use, of
any such property, either as an offset against any amount of money
owing to Landlord or otherwise. The provisions of this Paragraph 14(b)
shall supersede the provisions of Section 93.002(d) and (e) of the
Texas Property Code, as such may be amended from time to time, and any
other law which purports to restrict the options granted to Landlord
herein.
15. HOLDING OVER. If Tenant remains in possession of the Premises
after the expiration of the tenancy created hereunder and without the execution
of a new lease, Tenant shall be deemed to be occupying the Premises as a tenant
at will and subject to all of the provisions of this Lease except those
relating to term and except that the Basic Rental and Additional Rental shall
be 150% of the amount payable during the last month of the Lease Term
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(without waiver of Landlord's right to recover damages as permitted by this
Lease or by law). Said tenancy may be terminated by Landlord or Tenant by
giving written notice to the other at any time.
16. MORTGAGES. This Lease shall be subordinate to all deeds of
trust and ground leases now or hereafter encumbering the Building, and all
refinancings, replacements, renewals, modifications, extensions or
consolidations thereof. Tenant agrees to attorn to any mortgagee, ground
lessor, trustee under a deed of trust or purchaser at a foreclosure sale or
trustee's sale as Landlord under this Lease. Tenant covenants and agrees that
Tenant shall within five (5) days after Landlord's request execute in
recordable form and deliver to Landlord whatever instruments may be required to
acknowledge and further evidence the subordination of this Lease and/or the
attornment by Tenant to such mortgagee, ground lessor, trustee or purchaser. If
within five (5) business days after submission of any such instrument, Tenant
fails to execute the same, Landlord is hereby authorized to execute the same as
attorney-in-fact for Tenant. Any holder of a deed of trust covering all or any
part of the Building may at any time elect to have this Lease have priority
over its deed of trust by executing unilaterally an instrument of subordination
or placing a clause of such subordination in any pleadings or in its deed of
trust and recording the same.
17. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights:
(a) Common and Service Area Alterations. To decorate and to make
repairs, alterations, additions, changes or improvements, whether structural or
otherwise, in, about or on the exterior of the Building, 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 Premises (below floors,
above ceilings or next to columns) utility lines, pipes, cables and the like to
serve other areas of the Building outside the Premises; and to otherwise alter
or modify the Project, and for such purposes to enter upon the 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, provided Landlord's
entries in the Premises shall be subject to the terms of Paragraph 19(1).
(b) Parking. To permit Tenant and its employees to use, without
charge, the parking facilities associated with the Building only in accordance
with the reasonable rules and regulations promulgated from time to time by
Landlord and/or the operator of the parking facilities; and to prohibit Tenant
and its employees to use any on-site surface parking spaces within the Project
designated for visitors. The number of parking spaces available for Tenant's
use shall not exceed one (1) space for every 300 square feet of Rentable Area
in the Premises. Parking spaces will be unassigned, provided that Landlord may
at any time assign parking spaces. Tenant shall, if requested by Landlord,
furnish to Landlord a complete list of the license plate numbers of all
vehicles operated by Tenant and Tenant's employees and agents. Landlord shall
not be liable for any damage of any nature whatsoever to, or any theft of,
vehicles, or contents therein, in or about such parking facility.
(c) Rules and Regulations. To establish and amend in a reasonable
and non-discriminatory manner from time to time rules and regulation governing
all tenants' use and occupancy of the Building, provided that in the event of a
conflict between those rules and this
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Lease, this Lease shall control. The rules and regulations now enforced by
Landlord are available upon request.
(d) Food Preparation. To prohibit the preparation of food within
the Premises for commercial purposes or the placing of vending or dispensing
machines of any kind in or about the Premises if such vending or dispensing
machines are available to the general public.
(e) Signs. To prohibit all signs, posters, advertisements, or
notices from being painted or affixed on any of the windows, or doors, or any
other part of the Building, except of such color, size, and style, and in such
places as shall be first approved in writing by Landlord.
(f) Security Measures. To take all such reasonable measures as
Landlord may deem advisable for the security of the Building and its occupants.
Landlord, however, shall have no liability to Tenant or its employees, agents,
invitees or licensees for loss of property or personal injury except to the
extent caused by Landlord's gross negligence or willful misconduct. Tenant
shall cooperate fully in Landlord's efforts to maintain security in the
Building and shall follow all regulations promulgated by Landlord with respect
thereto.
18. HAZARDOUS MATERIAL; INDEMNITY.
(a) Indemnity. Tenant shall not cause or permit any Hazardous
Material (as defined) to be brought upon, kept or used in or about the Premises
or the Project by Tenant or its agents, employees, contractors or invitees
without the prior written consent of Landlord (which Landlord shall not
unreasonably withhold as long as Tenant demonstrates to Landlord's reasonable
satisfaction that such Hazardous Material is necessary or useful to Tenant's
business and will be used, kept and stored in a manner that complies with all
laws regulating any such Hazardous Material so brought upon or used or kept in
or about the Premises or the Project). If Tenant breaches the obligations
stated in the preceding sentence, or if the presence of Hazardous Material on
the Premises or the Project caused or permitted by Tenant results in
contamination of the Premises or the Project, or if contamination of the
Premises or the Project by Hazardous Material otherwise occurs for which Tenant
is legally liable to Landlord for damage resulting therefrom, then Tenant shall
indemnify, defend and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities or losses, including,
without limitation, diminution in value of the Premises, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, restriction
on use of rentable or usable space or of any amenity of the Premises or the
Project, damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise during or after the Lease term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean up, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on or under
the Premises or the Project due to the acts of Tenant or its employees,
contractors, or agents. Without limiting the foregoing, if the presence of any
Hazardous Material on the Premises or Project caused or permitted by Tenant or
its employees, contractors, or agents results in any contamination of the
Premises or the Project, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Premises and the Project to the
condition existing prior to the introduction of any such
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Hazardous Material to the Premises or the Project; provided that Landlord's
approval of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the Project.
The indemnifications contained in this Paragraph 18 shall survive the
expiration or earlier termination of this Lease.
(b) Definition. As used herein, the term "Hazardous Material"
means any hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the State of Texas or the United
States Government, including, but not limited to, any material or substance
that is (i) petroleum, (ii) asbestos, (iii) designated as a "hazardous
substance" pursuant to Section 311 of the Water Pollution Control Act (33
U.S.C. Section 1321), (iv) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
(v) defined as a "hazardous substance" pursuant to Section 10 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, or (vi) defined as a "regulated substance" pursuant to
Subchapter IX, Solid Waste Disposal Act, 42 U.S.C. Section 6991.
(c) Landlord's Representation. Landlord represents and warrants,
to its current actual knowledge, that neither the Building nor the Premises
contain any Hazardous Materials in levels beyond the levels allowed by
applicable law.
19. MISCELLANEOUS.
(a) Time is of the Essence. The time of the performance of all of
the covenants, conditions and agreements of this Lease is of the essence.
(b) Force Majeure. If either Landlord or Tenant is prevented or
hindered from timely satisfying any provisions set forth herein because of a
shortage of or inability to obtain materials or equipment, strikes or other
labor difficulties, governmental restrictions, casualties or any other cause
beyond such party's reasonable control, such party shall be permitted an
extension of time of performance by the number of days during which such
performance was prevented or hindered; provided, however, that this paragraph
shall not apply to the payment of rent or other monies by Landlord or Tenant,
nor shall the provisions of this paragraph postpone the date that rent is
payable pursuant to this Lease.
(c) No Personal Liability of Landlord. If Landlord shall fail to
perform any covenant, term or condition of this Lease and, as a consequence, if
Tenant shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds received at a judicial sale upon execution
and levy against the right, title and interest of Landlord in the Building and
in the rents or other income from the Building receivable by Landlord, and
neither Landlord nor Landlord's owners, partners, shareholders or venturers
shall have any personal, corporate or other liability hereunder.
(d) Quiet Enjoyment. Landlord hereby covenants and agrees that if
Tenant shall perform all of the covenants and agreements herein stipulated to
be performed on Tenant's part, Tenant shall at all times during the continuance
hereof have peaceable and quiet enjoyment and possession of the Premises
without hindrance from Landlord or any person or persons lawfully
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claiming the Premises by or through Landlord, subject, however, to the terms of
this Lease and to all mortgages, ground leases, deeds of trust, leases and
agreements to which this Lease is subordinate.
(e) Entire Agreement and Amendments. This Lease is the only
agreement between the parties hereto and their representatives and agents.
There are no representations or warranties between the parties other than the
representations and warranties contained in this document. No agreement shall
be effective to change, modify or terminate this Lease in whole or in part
unless such agreement is in writing and duly signed by the party against whom
enforcement of such change, modification or termination is sought.
(f) Interpretation. The necessary grammatical changes required to
make the provisions of this Lease apply in the plural sense where there is more
than one Tenant and to either corporations, associations, partnerships or
individuals, male or female, 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. All obligations hereunder
are performable in Collin County, Texas. If this Lease is executed by more than
one person or entity as "Tenant", each such person or entity executing this
Lease as Tenant shall be jointly and severally bound and liable hereunder.
(g) Severability. No provision of this Lease shall be construed or
interpreted in any manner which would render such provision invalid. If any
provision of this Lease is held to be invalid, such invalid provision shall be
deemed to be severable from and shall not affect the validity of the remainder
of this Lease.
(h) Terms Binding. Subject to the limitations on subletting and
assignment set forth in this Lease, all covenants, promises, conditions,
representations and agreements herein contained shall be binding upon and apply
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(i) Estoppel Certificates. Within fifteen (15) days after request
by Landlord, Tenant agrees to execute and deliver to Landlord estoppel or
offset letters as reasonably required by Landlord or by Landlord's lenders. The
letters shall certify the date of this Lease and any amendments, that Landlord
is not in default of any of the terms and provisions of this Lease or
specifying the provisions as to which Landlord is in default if Landlord shall
be in default, the date to which rent has been paid, and any other matters
which Landlord or its lenders may reasonably require. Tenant further agrees to
furnish to Landlord from time to time when requested by Landlord a letter of
acceptance in conformity with any requirements made by any existing or proposed
lenders.
(j) Late Payment Charge and Interest Payable. Landlord may impose
a late payment charge equal to four percent (4%) of any amount due if not paid
within three (3) days from the date required to be paid hereunder. In addition,
any payment due under this Lease not paid within ten (10) days after the date
herein specified to be paid shall bear interest from the date such payment is
due to the date of actual payment at the lesser of eighteen percent (18%) per
annum or the highest lawful rate of interest permitted by law.
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(k) Security Deposit. Landlord shall hold Tenant's Security
Deposit without interest, and the same shall not be considered prepaid rent or
a measure of Landlord's damages in case of default by Tenant. The remaining
balance of the Security Deposit (after application of any part thereof in
accordance with Paragraph 13(b) or for necessary repairs to the Premises) shall
be refundable to Tenant within thirty (30) days after termination of this
Lease.
(l) Access to Premises. Tenant agrees that Landlord and its agents
may enter the Premises for the purpose of inspecting and making such repairs
(structural or otherwise), additions, improvements, changes or alterations to
the Premises or the Building as may be permitted or required under this Lease
or as Landlord may elect, and to exhibit the same to prospective purchasers,
mortgagees or tenants. In the event of any such repairs, additions,
improvements, changes or alterations, Tenant shall cooperate with Landlord to
facilitate Landlord's efforts. Landlord's entries in the Premises shall be
preceded by reasonable notice (except in the case of an emergency) and shall
not unreasonably interfere with Tenant's use and occupancy of the Premises for
the Permitted Use. Tenant may designate reasonable portions of the Premises as
secured areas which Landlord and its agents may not enter, except in an
emergency, or in exercising its remedies upon default, or after the Lease Term,
without a representative of Tenant accompanying Landlord and its agents during
such entry.
(m) Notices. Notices hereunder must be hand-delivered or sent by
nationally recognized overnight courier or by certified mail, return receipt
requested, postage prepaid, addressed, if to Landlord, at c/o Hunt Properties,
Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, 00000, Attention:
Property Manager, with a copy to Xxxx Xxxxxx, Xxxxxx & Xxxxxx, 000 XxXxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000, and if to Tenant, at the address
specified for Tenant in Paragraph 1(a) above prior to the Commencement Date and
to the Premises thereafter, or to such other address as may be specified by
written notice actually received by Landlord. Notice shall be deemed given upon
tender of delivery (in the case of a hand-delivered notice) or upon posting of
same with the overnight courier service or in an official depository of the
United States Postal Service (in the case of a certified or registered letter),
provided that no notice of either party's change of address shall be effective
until fifteen (15) days after the addressees actual receipt thereof.
(n) Acceptance of Premises and Building by Tenant. EXCEPT AS TO
LANDLORD'S RESPONSIBILITY AS TO THE SHELL OF THE PORTION OF THE PREMISES ON THE
SECOND FLOOR OF THE BUILDING AS PROVIDED IN PARAGRAPH 4 HEREOF, LANDLORD HEREBY
DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED PURPOSE OR USE. THE TAKING OF POSSESSION BY
TENANT SHALL BE CONCLUSIVE EVIDENCE THAT TENANT:
(I) ACCEPTS THE PREMISES AS SUITABLE FOR THE PURPOSES FOR
WHICH THEY WERE LEASED;
(II) ACCEPTS THE BUILDING AND EVERY PART AND APPURTENANCE
THEREOF AS BEING IN GOOD AND SATISFACTORY CONDITION; AND
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(III) WAIVES ANY DEFECTS IN THE PREMISES AND ITS
APPURTENANCES EXISTING NOW OR IN THE FUTURE.
TENANT ACKNOWLEDGES THE DISCLAIMER BY LANDLORD SET FORTH HEREIN AND
WAIVES ALL CLAIMS BASED ON ANY IMPLIED WARRANTY OF SUITABILITY.
FURTHERMORE, TENANT CONFIRMS THAT ITS OBLIGATIONS TO PAY BASIC RENTAL,
ADDITIONAL RENTAL AND OTHER AMOUNTS OF MONEY DUE TO LANDLORD
HEREUNDER ARE NOT DEPENDENT OF THE CONDITION OF THE PREMISES OR THE
BUILDING, OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER.
TENANT SHALL CONTINUE TO PAY BASIC RENTAL, ADDITIONAL RENTAL AND OTHER
AMOUNTS OF MONEY DUE TO LANDLORD HEREUNDER, WITHOUT ABATEMENT, SETOFF
OR DEDUCTION, NOTWITHSTANDING ANY BREACH OR ALLEGED BREACH BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER.
Notwithstanding the foregoing, Landlord acknowledges its
obligation to (i) deliver the portion of the Premises located on the
second floor to Tenant in compliance with applicable building codes,
and (ii) cause the third and sixth floors to be brought into such
compliance as provided in Paragraph 4 hereof upon notification from
the applicable governmental authorities.
(o) Building Name. Landlord shall have the exclusive right at all
times during the Lease Term to change, modify, add to or otherwise alter the
name of the Building, and Landlord shall not be liable for claims or damages of
any kind which may be attributed thereto or result therefrom.
(p) Waiver of Landlord's Lien. Landlord hereby disclaims any
statutory or other lien rights in Tenant's personal property (but not
fixtures).
(q) Authority To Sign Lease. If Tenant is a corporation or a
partnership (general or limited), each person(s) signing this Lease as an
officer or partner of Tenant represents to Landlord that such person(s) is
authorized to execute this Lease without the necessity of obtaining any other
signature of any other officer or partner, that the execution of this Lease has
been authorized by the board of directors of the corporation or by the partners
of the partnership, as the case may be, and that this Lease is fully binding on
Tenant. Landlord reserves the right to request evidence of the approval of this
Lease and authorization of Tenant's signatories to bind Tenant, which evidence
shall be satisfactory in form and content to Landlord and its counsel.
(r) Attorneys' Fees. In the event either party is in default
beyond any applicable grace or notice period in the performance of any of the
terms of this Lease and the other party employs an attorney in connection
therewith, the non-prevailing party agrees to pay the prevailing party's
reasonable attorneys' fees.
(s) Execution of Lease. The submission of this Lease for
examination does not constitute a reservation of or option for the Premises or
any other space within the Building and shall vest no right in either party.
This Lease shall become effective only after the full execution and delivery
hereof by all of the parties hereto. This Lease may be executed in a number of
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identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one agreement; but, in
making proof of this Lease, it shall not be necessary to produce or account for
more than one such counterpart.
(t) No Attornment. All checks tendered to Landlord as and for the
Basic Rental and/or Additional Rental required hereunder shall be deemed
payments for the account of Tenant. Acceptance by Landlord of Basic Rental
and/or Additional Rental from anyone other than Tenant shall not be deemed to
operate as an attornment to Landlord by the payor of such Basic Rental and/or
Additional Rental or as a consent by Landlord to an assignment of this Lease or
subletting by Tenant of the premises to such payor, or as a modification of any
of the provisions of this Lease.
(u) Applicable Laws. As used herein, the term "Applicable Laws"
shall mean all laws, statutes, ordinances, regulations, guidelines or
requirements now in force or hereafter enacted and the requirements of any
governmental authority having jurisdiction over the Building, board of fire
underwriters, utility company serving the Building or other similar body now or
hereafter constituted, relating to or affecting the condition, use or occupancy
of the Premises, including without limitation, Title III of The Americans With
Disabilities Act of 1990, all regulations issued thereunder, and the
Accessibility Guidelines for Buildings and Facilities issued pursuant thereto,
and the Texas Architectural Barriers Act, as the same are in effect on the date
of this Lease and as hereafter amended.
(v) Arms-Length Transaction. This Lease has been entered into by
the undersigned after arms-length negotiation, with each party acknowledging
that it and its counsel, if it so chooses, have had an opportunity to review
this Lease, and therefore, the parties agree that this Lease shall not be
construed against Landlord on the ground that Landlord's representatives
prepared this Lease.
(w) Waiver. No covenant, term or condition or the breach thereof
will be deemed waived, except by written consent of the party against whom the
waiver is claimed and any waiver of the breach of any covenant, term or
condition will not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term or condition. Acceptance by
Landlord of any performance by Tenant after the time the same was due will not
constitute a waiver by Landlord of the breach or default of any covenant, term
or condition unless otherwise expressly agreed to by Landlord in writing.
(x) Computation of Rentable Area. Landlord and Tenant agree that
the square footage of Rentable Area of the Premises and the Building set forth
in this Lease shall be binding upon Landlord and Tenant.
(y) Exhibits and Riders. The following exhibits and riders are
attached hereto, incorporated herein and made a part of this Lease for all
purposes:
Exhibit A-1: Floor Plan of Premises -- second floor
Exhibit A-2: Floor Plan of Premises -- third floor
Exhibit A-3: Floor Plan of Premises -- sixth floor
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Exhibit B: Property Description
Exhibit C: Janitorial Services
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Lease as of the day and year first above written.
LANDLORD:
XXXXXX PARTNERS, LTD.
By: Xxxxxx Property Corp.,
General Partner
By: /s/ X. X. XXXXXXX, XX.
----------------------
Name: X. X. Xxxxxxx, Xx.
Title: President
ROSEWOOD PROPERTY COMPANY
By: /s/ XXXX X. XXXXXX, III
------------------------------
Xxxx X. Xxxxxx, III,
President, Commercial
Group
TENANT:
INET, INC.
a Texas Corporation
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
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