EXHIBIT 10.29
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is entered into as of
the 28 day of January, 2003 by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company ("Landlord") and Xxxxxx Communications, Inc.,
a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant have executed that certain Lease Agreement
(the "Lease") dated as of November 5, 2002 covering 210,563 square feet in the
building located at 000 X. Xxxxxxxxxx Xxxxx (the "Building") in the project
known as AmberPoint Business Park at Coppell, Building 1, as more particularly
described therein;
WHEREAS, pursuant to Section 3 of Exhibit H to the Lease, Tenant has
exercised its right to lease 48,719 square feet of Refusal Space shown on
Exhibit A attached hereto (the "Expansion Space") for the period commencing on
April 1, 2003 and ending on the Termination Date; and
WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their
agreements as to the terms and conditions governing Tenant's lease of the
Expansion Space.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants between the parties herein contained, Landlord and Tenant hereby agree
as follows:
1. Amendment of Premises. The definition of "Premises" in Paragraph 1 of
the Lease is hereby amended to the following: "that portion of the building
located at 000 X. Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx, AmberPoint Building 1 (the
"Building"), known as Suite 100, containing approximately 259,282 square feet,
and shown on Exhibit A attached hereto (the "Premises"), which square footage
includes a pro rata share of the Building's electrical and sprinkler room".
2. Term. Notwithstanding anything to the contrary set forth in the second
paragraph of Paragraph 1 of the Lease, subject to Section 7 of the Work Letter
attached hereto as Exhibit B, the Term with respect to the Expansion Space shall
commence on April 1, 2003.
3. Amendment of Base Rent. The schedule of Base Rent set forth in
Paragraph 2.a of the Lease is hereby amended in its entirety to read as follows:
Commencement Date - 3/31/03 $0.00 per square foot per year ($00.00
per month)
4/1/03 - 12/31/03 $2.53 per square foot per year for
210,563 square feet and $0.00 per square
foot per year for 48,719 square feet
($44,393.70 per month)
1/1/04 - 3/31/08 $3.90 per square foot per year for
210,563 square feet and $3.36 per square
foot per year for 48,719 square feet
($82,074.30 per month)
1
4/1/08 - 3/31/10 $4.25 per square foot per year for
210,563 square feet and $3.36 per square
foot per year for 48,719 square feet
($88,215.72 per month)
4. Operating Expenses.
(a) Paragraph 4(a) of the Lease is hereby amended to provide that
Tenant's Proportionate Share as of the Commencement Date is 84.18%.
(b) Notwithstanding anything to the contrary set forth in Paragraph 4
of the Lease, Tenant's obligation to pay Tenant's Proportionate Share of
Operating Expenses in connection with the Expansion Space during the period of
April 1, 2003 through December 31, 2003 shall be deferred until calendar year
2004 (such deferred obligation, the "Deferred Operating Expenses"). Tenant shall
pay the Deferred Operating Expenses in twelve (12) equal monthly payments
commending on January 1, 2004 and continuing through December 1, 2004 on the
same date as, but in addition to, Tenant's Operating Expense Payments payable
with respect to the Premises during calendar year 2004.
5. Amendment of Exhibit A. Exhibit A attached hereto is hereby
incorporated into and made a part of Exhibit A to the Lease.
6. Delivery of Expansion Space. Subject to Landlord's obligations with
respect to the Expansion Space in Section 7 below and any latent defects
reported to Landlord within 180 days after the Commencement Date with respect to
the Expansion Space, Tenant hereby accepts the Expansion Space (including the
suitability of the Expansion Space for the uses permitted under the Lease) in
"AS IS" condition and without relying upon any representation or warranty
(express or implied) of Landlord or any representative of Landlord, except as
expressly set forth in the Lease. Landlord has made no representation or
warranty as to the suitability of the Expansion Space for the conduct of
Tenant's business and Tenant hereby waives any other implied warranty that the
Expansion Space is suitable for Tenant's intended purposes; provided that the
foregoing shall not relieve Landlord from any obligations set forth in this
Lease.
7. Construction of Tenant Improvements in the Expansion Space. Landlord
shall construct improvements in the Expansion Space pursuant to the terms of
Exhibit B attached hereto.
8. Ratification of Lease. Except as amended hereby, the Lease shall remain
in full force and effect in accordance with its terms. The Lease, as modified
and amended hereby, is ratified and confirmed in all respects. In the event of a
conflict between the Lease and this Amendment, this Amendment shall control.
9. Governing Law. This Amendment shall be governed by the laws of the
State of Texas.
10. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
2
11. Illegality. If any provision of this Amendment is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable; this Amendment shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof;
and the remaining provisions hereof shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance herefrom.
12. Authority. Tenant and each person signing this Amendment on behalf of
Tenant represents to Landlord as follows: (i) Tenant is a duly incorporated and
validly existing under the laws of the State of Delaware, (ii) Tenant has and is
qualified to do business in Texas, (iii) Tenant has the full right and authority
to enter into this Amendment, and (iv) each person signing on behalf of Tenant
was and continues to be authorized to do so. Landlord and each person signing
this Amendment on behalf of Landlord represents to Tenant as follows: (i)
Landlord is duly incorporated and validly existing under the laws of the State
of Delaware, (ii) Landlord has the full right and authority to enter into this
Amendment, and (iii) each person signing on behalf of Landlord was and continues
to be authorized to do so.
13. Defined Terms. Each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Lease.
14. Entire Agreement. This Amendment, together with the Lease, contains all
of the agreements of the parties hereto with respect to any matter covered or
mentioned in this Amendment or the Lease, and no prior agreement, understanding
or representation pertaining to any such matter shall be effective for any
purpose.
15. Brokers. Tenant and Landlord warrant that they each have had no
dealings with any real estate broker or agent in connection with the negotiation
of this Amendment, excepting only Xxxxxxx and Xxxxxxxxx of Texas, Inc.,
representing Tenant, and Transwestern Commercial Services, Inc., representing
Landlord (collectively, the "Broker") and that they know of no other real estate
brokers or agents who are or might be entitled to a commission in connection
with this Lease. Tenant agrees to indemnify and hold harmless Landlord from and
against any liability or claim, whether meritorious or not, arising in respect
to brokers and/or agents other than Broker claiming by, through or under Tenant
or Xxxxxxx and Wakefield of Texas, Inc., including without limitation, Republic
Property, Inc. ("Republic"). Landlord agrees to indemnify and hold harmless
Tenant from and against any liability or claim, whether meritorious or not,
arising in respect to brokers and/or agents other than Broker claiming by,
through or under Landlord or Transwestern Commercial Services, Inc. Landlord
agrees to pay the commission due to Xxxxxxx and Xxxxxxxxx of Texas, Inc. in
connection with this Lease pursuant to the terms of a separate written agreement
with such broker. Notwithstanding anything to the contrary set forth herein,
Landlord has received a letter dated October 23, 2002 from Republic's attorney,
regarding an alleged agreement between Tenant and Republic, whereby Republic
claims that it is entitled to receive commissions in connection with the Lease.
Landlord and Tenant acknowledge and agree that Landlord shall not be responsible
for any payment to Republic and any and all costs and expenses in connection
with any claims by Republic for commissions or otherwise in connection with this
Amendment shall be borne by Tenant.
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
LANDLORD: TENANT:
AmberPoint at Coppell, L.L.C., a Delaware Xxxxxx Communications, Inc., a
limited liability company Delaware corporation
By: Transwestern Property Company
Southwest, L.P., d/b/a Transwestern
Commercial Services, as authorized By: /s/ Xxxx X'Xxxxxxxx,Xx.
Property Manager for AmberPoint at -----------------------------
Coppell, L.L.C. Name: Xxxx X'Xxxxxxxx, Xx.
Title: Senior Vice President,
Operations
Date: 1/27/03
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Date: 1/28/03
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Date: 1/28/03
4
EXHIBIT A
FLOOR PLAN OF EXPANSION SPACE
[GRAPHIC APPEARS HERE]
1
EXHIBIT B
WORK LETTER
This Work Letter supplements and is hereby incorporated in that certain First
Amendment to Lease (the "Amendment") dated and executed concurrently herewith by
and between AmberPoint at Coppell, L.L.C., a Delaware limited liability company
("Landlord") and Xxxxxx Communications, Inc., a Delaware corporation ("Tenant").
1. APPLICATION OF EXHIBIT
Capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Amendment. The provisions of this Work
Letter shall apply to the planning and completion of leasehold improvements
requested by Tenant (the "Expansion Improvements") for the fitting out of
the Expansion Space, as more fully set forth herein. The Expansion Space
consists of 48,179 square feet of warehouse space. All references in the
Lease (other than Paragraph 1 and Exhibit D to the Lease) to Tenant
Improvements shall be deemed to include the Expansion Improvements.
2. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
(a) Tenant's architect, Good, Xxxxxx & Xxxxxxx ("Tenant's Architect") shall
prepare space plans for the Expansion Improvements (the "Preliminary
Plans") which shall include Tenant specific preliminary power, phone
and data locations. The costs associated with preparation of the
Preliminary Plans shall be borne by Tenant; provided that Tenant shall
be entitled to be reimbursed for such costs with the Expansion
Allowance (hereinafter defined). The mechanical, electrical and
plumbing ("MEP") drawings for the Expansion Space shall be provided as
required by the City of Coppell by the Contractor's (hereinafter
defined) MEP subcontractor.
(b) Tenant's Architect shall prepare working drawings for the Expansion
Improvements ("Working Drawings") that include, either in narrative or
other form, information to provide the Contractor with adequate detail,
all Tenant specific MEP requirements for the Expansion Space (other
than HVAC requirements, if any), such as the scope and/or specific
location of electrical and plumbing improvements (i.e., location of
outlets, number of 220v outlets); however, the Working Drawings shall
not include complete engineering drawings. Notwithstanding the
Preliminary Plans, in all cases the Working Drawings (i) shall be
subject to Landlord's final approval, which approval shall not be
unreasonably withheld, (ii) shall not be in conflict with building
codes for the City or County or with insurance requirements for a
comparable industrial building, and (iii) shall be in a form
satisfactory to appropriate governmental authorities responsible for
issuing permits and licenses required for construction. The costs
associated with preparation of the Working Drawings shall be borne by
Tenant; provided that Tenant shall be entitled to be reimbursed for
such costs with the Expansion Allowance.
1
Landlord and Tenant acknowledge and agree that the HVAC system, if any,
for the Expansion Space will be designed in the field by the HVAC
subcontractor.
(c) Within seven (7) business days after the initial proposed Working
Drawings are delivered to Landlord, Landlord shall approve or
disapprove same in writing and if disapproved, Landlord shall provide
Tenant's Architect specific reasons for disapproval; provided that
Landlord shall respond within three (3) business days after receipt of
any revised Working Drawings. The foregoing process shall continue
until the Working Drawings are approved by Landlord; provided that if
Landlord fails to respond in the initial seven (7) business day period
or any subsequent three (3) business day period, Landlord shall be
deemed to have approved the last submitted Working Drawings. For
purposes of approval of Working Drawings, the proposed Working Drawings
will be considered delivered to Landlord upon delivery to Xxx Xxxxxxx,
Transwestern Commercial Services, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000X,
Xxxxxx, Xxxxx 00000 and to Xxxx Xxxxxx, Transwestern Commercial
Services, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxx 00000. For
communications to Tenant or Tenant's Architect under this Work Letter,
such communications shall be sent to Xxxxxx Xxxxxx, Good, Xxxxxx &
Xxxxxxx, 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and to Xxxxxx
Communications, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx,
00000, Attention: Xxxxxx Xxxxxx, Director, Program and Systems Support
Operations and Professional Services.
3. BUILDING PERMIT
After the final approval of the Working Drawings by Landlord and Tenant has
occurred ("Final Approval") and the Contractor has been selected, the
Contractor shall submit the Working Drawings to the appropriate
governmental body or bodies for final plan checking and a building permit,
if required. Tenant shall, at Tenant's sole cost and expense (subject to
reimbursement with the Expansion Allowance) cause to be made any change in
the Working Drawings necessary to obtain the building permit; provided,
however, after the Final Approval, no changes shall be made to the Working
Drawings, without the prior written approval of both Landlord and Tenant.
4. CONSTRUCTION OF TENANT IMPROVEMENTS
Upon Final Approval of the Working Drawings, Landlord agrees promptly to
bid the construction of the Expansion Improvements to the following four
(4) mutually approved general contractors: (i) Xxxxx & Xxxx, (ii) Resource
Commercial, (iii) ICI Construction, Inc., and (iv) Xxxxxx Construction, and
to immediately provide a copy of such bids to Tenant for Tenant's
consideration. The costs associated with the construction of the Expansion
Improvements shall be paid as set forth in Section 5 of this Work Letter.
Landlord shall see that the construction complies with all applicable
building, fire, plumbing, electrical, health, and sanitary codes,
regulations, laws, ordinances, rules and regulations of any applicable
governmental authority, the satisfaction of which shall be evidenced by a
certificate of occupancy for the Expansion Space if the same is required to
be issued; provided that in the event the Working Drawings do not comply
with such codes and regulations, all costs resulting from such
non-compliance shall be paid by Tenant. Further, Landlord shall see that
2
the construction complies with any and all restrictive covenants and/or
deed restrictions applicable to the Expansion Space.
Landlord shall recommend the selection of the Contractor to Tenant ten (10)
business days after Final Approval of the Working Drawings; and upon
Tenant's approval of the selection, Landlord shall promptly enter into a
construction contract ("Construction Contract"), subject to Tenant's
reasonable approval (which shall be not unreasonably withheld or delayed)
with the general contractor approved by Tenant (which approval shall not be
unreasonably withheld) (the "Contractor"). Landlord shall cause the
construction of the Expansion Improvements to be carried out in substantial
conformance with the Working Drawings in a good and xxxxxxx like manner
using first-class materials. The Construction Contract shall, at a minimum,
call for (i) the construction of the Expansion Improvements for a
stipulated sum contract, based on the Working Drawings; (ii) contractor
warranties as described in AIA form A201 1997 Edition; (iii) Tenant's right
to review and approve all Contractor pay applications (which approval shall
not be unreasonably withheld or delayed by Tenant); and (iv) the Contractor
to furnish evidence of the insurance set forth in Schedule 1 attached to
Exhibit D of the Lease and any other insurance required by Landlord, and
naming Landlord and Tenant as an additional insured on all liability
insurance policies. Such Construction Contract price shall be subject to
adjustment based on any changes to the Working Drawings required by Tenant
in accordance with this Work Letter. The Construction Contract may not be
amended nor the Construction Contract price increased by change order or
otherwise, without Tenant's prior written approval, which approval shall
not be unreasonably withheld or delayed.
5. TENANT IMPROVEMENT COSTS
Landlord shall provide Tenant with an allowance of $3.00 per square foot of
the Expansion Space (i.e., $146,157.00) (the "Expansion Allowance") to
reimburse Tenant for the cost of the Expansion Improvements, including
preparation of the Preliminary Plans and Working Drawings for such
improvements. Except as otherwise set forth in this Work Letter, Landlord
shall not be obligated for any costs and expenses in connection with any
construction work in or plans for the Expansion Space in excess of the
Expansion Allowance. Notwithstanding anything to the contrary set forth
herein or in the Lease, Landlord shall not provide the Expansion Allowance
until January 1, 2004 (such date being the date that Tenant commences
payment of Base Rent with respect to the Expansion Space).
No construction management fee shall be charged by Landlord or Transwestern
Commercial Services for the work contemplated by this Work Letter. Any
unused portion of the Expansion Allowance shall be available to Tenant for
reimbursement of the cost of additional improvements constructed by Tenant
in the Premises (including the Expansion Space) (but not for trade
fixtures, furniture, equipment or other items which do not constitute
leasehold improvement); provided that Tenant must request reimbursement of
such improvement costs (and present supporting documentation of such costs,
lien waivers and other appropriate documentation with respect to such
improvements to Landlord) on or before March 31, 2004. In the event Tenant
does not use the entire Expansion Allowance on or before March 31, 2004,
the unused portion of the Expansion Allowance shall be the sole property of
Landlord.
3
Tenant shall be responsible for all costs in connection with the Expansion
Improvements which exceed the Expansion Allowance. However, Tenant shall
pay all of the costs in connection with the Expansion Improvements within
thirty (30) days after Tenant's approval of the selection of the Contractor
to construct the Expansion Improvements. Such costs shall be reimbursed to
Tenant up to the amount of the Expansion Allowance on or about January 1,
2004. Additionally, any other approved costs incurred in connection with
the Expansion Improvements shall be promptly paid to Landlord by Tenant
within thirty (30) days after Tenant's receipt of the final construction
accounting.
6. CHANGE ORDERS
Tenant may from time to time request and obtain change orders during the
course of construction provided that: (i) each such request shall be
reasonable, shall be in writing and signed by or on behalf of Tenant, and
shall not result in any structural change in the Building, as reasonably
determined by Landlord, (ii) all additional charges and costs, including
without limitation architectural and engineering costs, construction and
material costs, and processing costs of any governmental entity shall be
the sole and exclusive obligation of Tenant, and (iii) any resulting delay
in the completion of the Expansion Improvements shall in no event extend
the Commencement Date with respect to the Expansion Improvements. Upon
Tenant's request for a change order, Landlord shall as soon as reasonably
possible submit to Tenant a written estimate of the increased or decreased
cost and anticipated delay, if any attributable to such requested change.
Within three (3) days of the date such estimated cost adjustment and delay
are delivered to Tenant, Tenant shall advise Landlord whether it wishes to
proceed with the change order, and if Tenant elects to proceed with the
change order, Tenant shall remit, concurrently with Tenant's notice to
proceed, the amount of the increased cost, if any, attributable to such
change order. Unless Tenant includes in its initial change order request
that the work in process at the time such request is made be halted pending
approval and execution of a change order, Landlord shall not be obligated
to stop construction of the Expansion Improvements, whether or not the
change order relates to the work then in process or about to be started.
7. COMMENCEMENT DATE FOR EXPANSION SPACE
Notwithstanding anything to the contrary in the Amendment or this Work
Letter, the Term of the Lease with respect to the Expansion Space shall
commence on the later of (i) April 1, 2003 or (ii) the Commencement Date of
the Lease; provided that no delay in the commencement of the Term with
respect to the Expansion Space shall affect the schedule of Base Rent set
forth in this Amendment and Tenant's obligations to pay Base Rent and
Tenant's Proportionate Share of Operating Expenses for the Expansion Space
(as deferred) shall commence on April 1, 2003.
8. TRADE FIXTURES AND EQUIPMENT
Tenant acknowledges and agrees that Tenant is solely responsible for
obtaining, delivering and installing in the Expansion Space all necessary
and desired furniture, trade fixtures,
4
equipment and other similar items, and that Landlord shall have no
responsibility whatsoever with regard thereto. Tenant further acknowledges
and agrees that neither the Commencement Date of the Lease with respect to
the Expansion Space nor the payment of rent shall be delayed for any period
of time whatsoever due to any delay in the furnishing of the Expansion
Space.
9. CLOSE-OUT DOCUMENTATION
Notwithstanding anything to the contrary contained in this Exhibit, in
addition to any other requirements set forth herein, Landlord shall deliver
to Tenant all of the following as soon as possible following Substantial
Completion (as defined in Exhibit D of the Lease; provided that references
in Exhibit D to Premises shall mean the Expansion Space for purposes
hereof) of the Expansion Improvements, but not later than forty-five (45)
days thereafter:
(a) The originals or copies of operation and maintenance manuals received
from the Contractor for all building systems, if any, serving the
Expansion Space.
(b) The originals or copies of all guarantees and warranties obtained by
Landlord in connection with the construction of the Expansion
Improvements.
Landlord shall cause the Contractor provide to Tenant within forty-five
(45) days after Substantial Completion of the Expansion Improvements, a list of
the name, address and telephone number of all contractors and subcontractors
that have supplied labor or furnished a major component of materials or
equipment to the Expansion Space on behalf of Landlord.
10. WARRANTIES
Landlord shall assign to Tenant on a non-exclusive basis all guarantees and
warranties received by Landlord in connection with the Expansion
Improvements. Landlord shall obtain a customary warranty from the
Contractor covering the Expansion Improvements.
11. COMPLETION VERIFICATION AND PUNCH LIST.
(a) At such time as Landlord determines that the Expansion Improvements are
Substantially Complete, Landlord shall notify Tenant of Landlord's
determination of the date on which Substantial Completion shall occur.
Tenant and Tenant's Architect and Landlord's construction manager
(Tenant's Architect and Landlord's construction manager, collectively,
the "Project Representatives"), and Tenant's construction manager shall
meet at the Expansion Space at a mutually acceptable date and time
within ten (10) days after Landlord's notice of Substantial Completion
to conduct an on-site inspection of the Expansion Improvements and to
prepare a punch list. Punch list items shall mean any details of
construction, mechanical adjustment or other matter, the non-completion
of which does not materially interfere with Tenant's intended use of
the Expansion Space, but shall not include any damage caused by the
installation or delivery of Tenant's furniture, fixtures or equipment
in the Expansion Space.
5
(b) If there is no disagreement between the parties as to Substantial
Completion, then Landlord, Tenant and the Contractor shall sign the
punch list prepared by the Project Representatives and Landlord shall
use reasonable efforts to cause all such punch list items to be
completed within thirty (30) days thereafter.
(c) The Project Representatives shall prepare a detailed written punch list
of all completions, corrections, and repairs to be made to the
Expansion Improvements based on such inspection and a copy of such
punch list shall be delivered to Landlord, and Tenant and the
Contractor. If any items which are not normal punch list items require
correction, repair or replacement, then the Expansion Improvements
shall not be deemed Substantially Complete. As used herein, the term
"Correction Work" shall mean all work attributable to replacement,
retrofitting, or other restorative or corrective work required in order
to bring any portion of the Expansion Improvements into compliance with
the Working Drawings and the Construction Contract.
(d) Tenant reserves the right to make a punch list in addition to the
Project Representative's punch list within seven (7) days after first
occupancy which shall be submitted to Landlord and the Contractor, and
provided that such punch list is not subject to dispute, Landlord
agrees to cause the Contractor to repair or bring to completion the
items required by such punch list as soon as possible thereafter.
(e) Decisions of the Project Representatives shall be determined jointly in
their professional judgments. Any unresolved disputes between the
Project Representatives shall be determined by binding arbitration
conducted by and in accordance with the rules of the American
Arbitration Association. All arbitration fees and other costs incurred
by the arbitrator in connection with any arbitration, together with
reasonable attorney fees of the prevailing party incurred in connection
with the arbitration, shall be paid by the non-prevailing party and be
assessed against such non-prevailing party as a part of the arbitration
proceedings.
12. CONSTRUCTION CONCURRENTLY WITH TENANT IMPROVEMENTS
Landlord and Tenant agree that the Expansion Improvements may be
included in the Working Drawings prepared in connection with the Tenant
Improvements pursuant to Exhibit D to the Lease. Further, the Expansion
Improvements may be constructed by the Contractor selected to construct the
Tenant Improvements at the time of construction of the Tenant Improvements. In
such case, Exhibit D to the Lease shall govern the timing and approval of the
Working Drawings and the selection of the Contractor in the event of any
conflict with this Exhibit. However, in no event shall Section 5 or Section 7 of
Exhibit D to the Lease apply to the Expansion Improvements.
6
LEASE AGREEMENT by and between AMBERPOINT AT COPPELL, L.L.C.
and XXXXXX COMMUNICATIONS, INC. dated as of November 5, 2002
TABLE OF CONTENTS
Page
1. Premises and Term........................................................1
2. Base Rent and Security and Deposit.......................................2
3. Use......................................................................3
4. Operating Expenses.......................................................5
5. Landlord's Repairs.......................................................9
6. Tenant's Repairs........................................................10
7. Alterations ............................................................11
8. Signs ..................................................................12
9. Inspection ............................................................14
10. Utilities ..............................................................15
11. Assignment and Subletting ..............................................15
12. Insurance, Fire and Casualty Damage ....................................17
13. Liability ..............................................................19
14. Condemnation............................................................20
15. Relocation..............................................................21
16. Holding Over............................................................21
17. Quiet Enjoyment.........................................................22
18. Events of Default ......................................................22
19. Remedies................................................................23
20. Landlord's Default, Remedies ...........................................25
21. Subordination ..........................................................26
i
22. Waiver of Jury Trial and Texas Deceptive Trade Practices Act ...........27
23. Mechanic's Lien ........................................................27
24. Rent Payments and Notices...............................................27
25. Environmental Requirements..............................................28
26. Rules and Regulations...................................................29
27. Security Service........................................................29
28. Parking.................................................................30
29. Miscellaneous ..........................................................33
30. Exhibits and Attachments................................................34
Exhibits
Exhibit A - Premises
Exhibit B - Legal Description of the Land
Exhibit C - Project Site Plan
Exhibit D - Work Letter
Exhibit E - Acceptance of Premises Memorandum
Exhibit F - Environmental Questionnaire and Disclosure Statement
Exhibit G - Sign Criteria
Exhibit H - Additional Provisions:
1. Cancellation Option
2. Renewal Options
3. Right of First Refusal
Exhibit I - Rules and Regulations
Exhibit J - Approved Equipment
Exhibit K - Confidentiality Agreement
ii
AmberPoint at Coppell
Building 1
000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
210,563 square feet
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
This Lease Agreement (this "Lease") is made as of the 5th day of November,
2002, by and between AmberPoint at Coppell, L.L.C., a Delaware limited liability
company, hereinafter referred to as "Landlord", and Xxxxxx Communications, Inc.,
a Delaware corporation, hereinafter referred to as "Tenant".
1. Premises and Term. In consideration of the obligation of Tenant to pay rent
as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord that portion of the building located at 000 X.
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx, AmberPoint, Building 1 (the "Building"), known
as Suite 100, containing approximately 210,563 square feet, and as shown on
Exhibit A attached hereto (the "Premises"), which square footage includes a pro
rata share of the Building's electrical and sprinkler room. The Building is
situated on the land described in Exhibit B attached hereto (the "Land"), and
the Land, the Building and all other structures, improvements, fixtures and
appurtenances now or hereafter placed, constructed or included on or appurtenant
to the Land is hereinafter called the "Project". The Project is currently known
as AmberPoint Business Park at Coppell, Building 1, and is more particularly
described on Exhibit C attached hereto.
To have and to hold the same for a term (the "Term") commencing on the date of
Substantial Completion of the Tenant Improvements (as defined in Exhibit D), as
such date shall be determined pursuant to Exhibit D attached hereto (the
"Commencement Date") and ending on March 31, 2010 (the "Termination Date").
Tenant acknowledges that it has inspected the Premises and the Building, and
subject to Landlord's obligations under Exhibit D attached hereto and any latent
defects reported to Landlord within 180 days after the Commencement Date,
accepts the Premises, the Building and common areas in their present condition
as suitable for the purpose for which the Premises are leased. Landlord shall
cause any latent defects in the Building shell and the Tenant Improvements to be
repaired at no cost to Tenant. Taking of possession of the Premises by Tenant
for purposes of conducting business after Substantial Completion shall be deemed
conclusively to establish that the Premises, the Building and common areas are
in good and satisfactory condition on the date possession was taken, subject to
latent defects reported to Landlord within 180 days after the Commencement Date
and punchlist items to be completed by Landlord in accordance with Exhibit D.
Tenant further acknowledges that no representations as to the repair of the
Premises, nor promises to alter, remodel or improve the Premises have been made
by Landlord, unless such are expressly set forth in this Lease. Landlord has
made no representation or warranty as to the suitability of the Premises for the
conduct of Tenant's business and Tenant hereby waives any other implied warranty
that the Premises are suitable for Tenant's intended purposes; provided that the
foregoing shall not relieve Landlord from any obligations set forth in this
Lease. After the Commencement Date Tenant shall, upon demand, execute and
deliver to Landlord an Acceptance of Premises Memorandum in the form of Exhibit
E attached hereto.
1
Tenant shall have access to and may occupy the Premises commencing approximately
sixty (60) days before anticipated Substantial Completion of the Tenant
Improvements to perform any Landlord-approved improvements therein, to install
furniture, equipment or other personal property of Tenant, and to prepare the
Premises for Tenant's business operations; provided that (a) Landlord is given
prior written notice of any such entry, (b) such entry shall be coordinated with
Landlord and shall not interfere with Landlord's completion of the Tenant
Improvements, (c) Tenant shall deliver to Landlord evidence that the insurance
required under Paragraph 12(b) of this Lease has been obtained, and (d) Tenant
obtains all governmental approvals required for such entry, occupancy or
improvements. Landlord agrees to reasonably cooperate with Tenant in connection
with Tenant's pursuit of such governmental approvals, provided that Landlord
shall not be required to incur any costs or expenses in connection with such
cooperation. Any such entry shall be upon all of the terms of this Lease,
provided that Tenant shall not be obligated to pay rent during such period.
Tenant shall conduct its activities therein so as not to interfere with
Landlord's construction activities, and shall do so at its own risk and expense.
If, in Landlord's reasonable judgment, Tenant's activities therein interfere
with Landlord's construction activities, Landlord may on twenty-four (24) hours
notice to Tenant, terminate Tenant's right to enter the Premises before the
Commencement Date. Further, provided that (i) such occupancy complies with all
applicable laws, (ii) a certificate of occupancy has been issued if the same is
required to permit Tenant's lawful occupancy, and (iii) Tenant does not
interfere with the progress of the general contractor performing the Landlord
Work, Tenant shall be entitled to occupy temporary offices in the Premises prior
to the Commencement Date.
2. Base Rent and Security Deposit.
a. Tenant agrees to pay to Landlord rent (the "Base Rent") for the
Premises in advance, without demand, deduction or set off, as follows:
Commencement Date - 3/31/03 $0.00 per square foot per year ($00.00 per month)
4/1/03 - 12/31/03 $2.53 per square foot per year ($44,393.70 per month)
1/1/04 - 3/31/08 $3.90 per square foot per year ($68,432.98 per month)
4/1/08 - 3/31/10 $4.25 per square foot per year ($74,574.40 per month)
A monthly installment of $44,393.70 shall be due and payable on the
date hereof, which installment shall be applied to the Base Rent due on
April 1, 2003, and the remainder of the monthly installments set forth
above shall be due and payable on or before the first day of each
calendar month succeeding the Rent Commencement Date (as defined in
Exhibit D) during the Term of this Lease.
The rental payment for any fractional calendar month at the
commencement or end of the Term of this Lease shall be prorated and
shall be payable on the first day of such partial month.
b. In addition, Tenant agrees to deposit with Landlord on the date which
is nine (9) months prior to the expiration of the Term (as the same may
be extended pursuant to the renewal options set forth in Section 2 of
Exhibit H), an amount equal to one month of Base Rent (at the rate
payable at such time) plus one month of Tenant's Proportionate Share of
Operating Expenses (as of such date) (the "Security Deposit"), which
Security Deposit shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood and agreed
that such Security Deposit is not an advance rental deposit or a
measure of Landlord's damages in case of Tenant's default. In the event
the Term is extended pursuant to the Renewal Options under Section 2 of
Exhibit H, the Security Deposit shall not be payable until Tenant fails
to exercise a Renewal Option or the date which is nine (9) months prior
to the final Renewal Term. Upon the occurrence of any event of
2
default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, use the
Security Deposit to the extent necessary to pay any arrears of rent or
other payments due Landlord hereunder, and any other damage, injury,
expense or liability caused by such event of default, and Tenant shall
pay to Landlord on demand the amount so applied in order to restore the
Security Deposit to its original amount. Although the Security Deposit
shall be deemed the property of Landlord, any remaining balance of the
Security Deposit shall be returned by Landlord to Tenant within sixty
(60) days following such time after termination of this Lease that all
of Tenant's obligations under this Lease have been fulfilled.
3. Use.
a. The Premises shall be used only for the purpose of receiving, storing,
shipping, selling (other than retail), and testing and repairing
telecommunications equipment and for such other lawful purposes as may
be incidental thereto, including without limitation, general office
use. Subject to the terms and conditions of this Lease applicable
thereto, Tenant may install a small refrigerator and microwave ovens in
employee break areas in the Premises. Outside storage, including
without limitation, trucks and other vehicles, is prohibited without
Landlord's prior written consent, provided Tenant may park one truck in
front of each dock truck door. Tenant shall at its own cost and expense
obtain any and all licenses and permits necessary for any such use.
Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the Premises and to Tenant, including without
limitation, all requirements under the provisions of Tex. Rev. Civ.
Stat. Xxx. art. 9102 and the provisions of the Americans With
Disabilities Act of 1990, as amended, the Occupational Safety and
Health Act of 1970 and the Federal Clean Air Act Amendments of 1990,
and all interpretations or regulations issued thereunder and amendments
made thereto. Tenant shall promptly, after receipt of notice thereof,
comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with,
the Premises, all at Tenant's sole expense, except to the extent the
same is caused by Landlord or Landlord's employees, agents or invitees.
Tenant shall not permit any unpleasant odors, smoke, dust, gas, noise
or vibrations to emanate from the Premises, nor allow pests or vermin
in the Premises nor take any other action which would constitute a
nuisance or would disturb or endanger any other tenants of the Project
or unreasonably interfere with their use of their respective premises.
Without Landlord's prior written consent, Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable. Tenant will not permit the Premises to
be used for any purpose or in any manner (including without limitation
any method of storage) which would render the insurance thereon void or
the insurance risk more hazardous or cause the State Board of Insurance
or other insurance authority to disallow any sprinkler credits. Tenant
shall immediately notify Landlord of the presence of any prohibited
items on or around the Premises. Landlord hereby approves Tenant's use
in the Premises of the equipment described in Exhibit J attached
hereto.
b. Subject to compliance with all applicable laws and restrictive
covenants, Tenant shall have the right to use space on the roof of the
Building over the Premises for the purpose of installing (in accordance
with Paragraph 12(a) of this Lease), operating and maintaining antenna
or other rooftop equipment ("Rooftop Equipment"), provided that the
Rooftop Equipment cannot be seen from the ground. The exact location of
the space on the roof to be used by Tenant shall be reasonably
designated by Landlord (the "Roof Space"); provided that the Roof Space
shall be located over the Premises. Landlord reserves the right to
relocate the Roof Space as reasonably necessary during the Term.
Landlord's designation shall take into account Tenant's use of the
Rooftop Equipment. Notwithstanding the foregoing, Tenant's right to
install the Rooftop Equipment shall be subject to the approval rights
of Landlord and Landlord's architect and/or
3
engineer with respect to the plans and specifications of the Rooftop
Equipment, the manner in which the Rooftop Equipment is attached to the
roof of the Building and the manner in which any cables are run to and
from the Rooftop Equipment. The precise specifications and a general
description of the Rooftop Equipment along with all documents Landlord
reasonably requires to review the installation of the Rooftop Equipment
(the "Plans and Specifications") shall be submitted to Landlord for
Landlord's written approval. Tenant shall be solely responsible for
obtaining all necessary governmental, regulatory and other required
approvals and for the cost of installing, operating, maintaining and
removing the Rooftop Equipment. Tenant shall notify Landlord upon
completion of the installation of the Rooftop Equipment. If Landlord
reasonably determines that the Rooftop Equipment does not comply with
the approved Plans and Specifications, that the Building has been
damaged during installation of the Rooftop Equipment or that the
installation was defective, Landlord shall notify Tenant of any
noncompliance or detected problems and Tenant promptly shall cure the
defects. If the Tenant fails to promptly cure the defects, Tenant shall
pay to Landlord upon demand the cost, as reasonably determined by
Landlord, of correcting any defects and repairing any damage to the
Building caused by such installation. If at any time Landlord, in its
sole discretion, deems it necessary, Tenant shall provide and install,
at Tenant's sole cost and expense, appropriate aesthetic screening,
reasonably satisfactory to Landlord, for the Rooftop Equipment (the
"Aesthetic Screening").
Landlord agrees that Tenant, upon reasonable prior written notice to
Landlord, shall have access to the roof of the Building and the Roof
Space for the purpose of installing, maintaining, repairing and
removing the Rooftop Equipment, the appurtenances and the Aesthetic
Screening, if any, all of which shall be performed by Tenant or
Tenant's authorized representative or contractors, which shall be
reasonably approved by Landlord, at Tenant's sole cost and risk. It is
agreed, however, that only authorized engineers, employees or properly
authorized contractors of Tenant or persons under their direct
supervision will be permitted to have access to the roof of the
Building and the Roof Space. It is further understood and agreed that
the installation, maintenance, operation and removal of the Rooftop
Equipment, the appurtenances and the Aesthetic Screening, if any, is
not permitted to damage the Building or the roof thereof, or interfere
with the use of the Building and roof by Landlord. Tenant agrees to be
responsible for any damage caused to the roof or any other part of the
Building, which may be caused by Tenant or any of its agents or
representatives.
Tenant agrees to install only equipment of types and frequencies which
will not cause unreasonable interference to Landlord or existing
tenants of the Building. In the event Tenant's equipment causes such
interference, Tenant will change the frequency on which it transmits
and/or receives and take any other steps necessary to eliminate the
interference. If said interference cannot be eliminated within a
reasonable period of time, in the reasonable judgment of Landlord, then
Tenant agrees to remove the Rooftop Equipment from the Roof Space.
Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Rooftop Equipment in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards, regulations and
requirements, now in effect or hereafter promulgated applicable to the
Project. Landlord and its agents assume no responsibility for the
licensing, operation and/or maintenance of Tenant's equipment. The
Rooftop Equipment shall be connected to Landlord's power supply in
strict compliance with all applicable Building, electrical, fire and
safety codes. Neither Landlord nor its agents shall be liable to Tenant
for any stoppages or shortages of electrical power furnished to the
Rooftop Equipment or the Roof Space because of any act, omission or
requirement of the public utility serving the Building, or the act or
omission of any other tenant, invitee or licensee or their respective
agents, employees or contractors, or for any other cause beyond the
reasonable
4
control of Landlord, and Tenant shall not be entitled to any rental
abatement for any such stoppage or shortage of electrical power.
Neither Landlord nor its agents shall have any responsibility or
liability for the conduct or safety of any of Tenant's representatives,
repair, maintenance and engineering personnel while in or on any part
of the Building or the Roof Space.
The Rooftop Equipment, the appurtenances and the Aesthetic Screening,
if any, shall remain the personal property of Tenant, and Tenant may
remove the Rooftop Equipment at its cost at any time during the Term.
The Rooftop Equipment and Aesthetic Screening, if any, shall be removed
by Tenant at its own expense at the expiration or earlier termination
of this Lease or Tenant's right to possession hereunder. Tenant shall
repair any damage caused by such removal, including the patching of any
holes to match, as closely as reasonably possible, the color
surrounding the area where the equipment and appurtenances were
attached. Tenant agrees to maintain all of the Tenant's equipment
placed on or about the roof or in any other part of the Building in
proper operating condition and maintain same in satisfactory condition
as to appearance and safety in Landlord's sole discretion. Such
maintenance and operation shall be performed in a manner to avoid any
interference with any other tenants or Landlord. Tenant agrees that at
all times during the Term, it will keep the roof of the Building and
the Roof Space free of all trash or waste materials produced by Tenant
or Tenant's agents, employees or contractors.
Tenant shall not use the Roof Space and/or Rooftop Equipment to provide
communication services to an unaffiliated tenant, occupant or licensee
of the Building or another building, or to facilitate the provision of
communication services on behalf of another communication services
provider to an unaffiliated tenant, occupant or licensee of the
Building or any other building. Tenant shall protect, defend, indemnify
and hold harmless Landlord from and against claims, damages,
liabilities, costs and expenses of every kind and nature, including
attorneys' fees, incurred by or asserted against Landlord arising out
of Tenant's installation, maintenance, replacement, use or removal of
the Rooftop Equipment. Tenant shall pay no additional rent with respect
to the use of Roof Space for the Rooftop Equipment.
4. Operating Expenses.
a. During the Term, Tenant agrees to pay as additional rental Tenant's
Proportionate Share (hereinafter defined) of all Operating Expenses
(hereinafter defined) for the Project. "Tenant's Proportionate Share"
as used in this Lease shall mean a fraction, the numerator which is the
square feet of space contained in the Premises and the denominator of
which is the square feet of space contained in the Building, as
adjusted from time to time based on changes in the space within the
Building leased by Tenant. Tenant's Proportionate Share as of the
Commencement Date is 68.4%. Notwithstanding the foregoing, Landlord may
equitably increase Tenant's Proportionate Share for any item of expense
or cost reimbursable by Tenant that relates to a repair, replacement or
service that benefits only the Premises or only a portion of the
Project that includes the Premises. Further, notwithstanding the
foregoing, in the event the Building is not fully occupied, Landlord
may equitably increase Tenant's Proportionate Share for the cost of
water so that Tenant pays for its actual water usage, because water
usage is not separately metered for each tenant. Landlord shall fairly
allocate expenses throughout the Project so that expenses that
unequally benefit one or more buildings or tenants shall be
appropriately allocated among the appropriate parties.
b. The term "Operating Expenses" shall mean all expenses incurred by
Landlord with respect to the ownership, maintenance and operation of
the Project, including but not limited to,
5
maintenance and repair costs; management fees; all services, supplies,
repairs, replacements or other expenses for maintaining and operating
all portions of the Project, including without limitation, paving and
parking areas, roads, roofs, alleys and driveways, mowing, landscaping,
exterior painting, utility lines, lighting, electrical systems and
other mechanical and building systems; insurance premiums; utilities;
Taxes (hereinafter defined), insurance deductibles to the extent that
such amounts are paid for costs that otherwise qualify as Operating
Expenses; security services, if any; trash collection; upgrades,
changes in, or additions to water and sewage; assessments due to
restrictive covenants, paving assessments, owners' associations, and
other similar assessments that accrue against the Project, whether the
same are now are hereafter applicable to the Project; and additions or
alterations made by Landlord to the Project in order to comply with
applicable laws or that are intended to reduce Operating Expenses of
the Project, provided that the cost of such additions or alterations
which constitute capital expenditures (as distinguished from
replacement parts or components and repairs and maintenance installed
or performed in the ordinary course of business) shall be depreciated
or amortized by Landlord over the estimated useful life of such item,
as reasonably determined by Landlord in accordance with sound
management practices, consistently applied, and such depreciated costs
are only included in the Operating Expense for that portion of such
useful life of such additions or alterations that falls within the Term
("Included Capital Expenses"). The foregoing list does not in any way
relieve Tenant of its repair obligations under Paragraph 6. Operating
Expenses shall not include repairs, restoration or other work
occasioned by fire, windstorm or other casualty covered by the
insurance to be maintained by Landlord pursuant to subparagraph 12(a)
below; expenses incurred in leasing to or procuring of tenants; leasing
commissions; advertising expenses; expenses for the renovating of space
for tenants; interest, principal, loan fees, penalty payments or any
other debt costs on any mortgage on the Project; rental payments on any
ground lease of the Project; compensation paid to any employee of
Landlord above the grade of building superintendent; any depreciation
allowance or expense (other than Included Capital Expenses); costs to
correct defects in the initial construction of the Building, including
any repair or correction of latent defects or any structural repairs
(as opposed to the cost of normal repair, maintenance and replacement
expected with the construction materials and equipment installed in
light of their specifications); any cost or expenditure for which
Landlord is reimbursed by sources other than tenants of the Project, by
insurance proceeds or otherwise; the cost of any service furnished to
any tenant of the Project which Landlord does not make available to
Tenant; franchise or income taxes imposed upon Landlord, except to the
extent imposed in lieu of all or any part of Taxes; legal and
accounting fees associated with the creation and operation of the
entity which constitutes Landlord or that are solely for the benefit of
Landlord (as opposed to generally for the benefit of the Project) such
as for collecting delinquent rents, preparing tax returns for the
entity constituting Landlord (as opposed to accounting for the
Project); the wages or fringe benefits payable to any employee of
Landlord other than engineers who provide services related directly to
the management, maintenance, operation or repair of the Project; and
any fines, penalties, or interest.
c. "Taxes" shall mean (i) all real estate taxes and other taxes or
assessments which are levied by a taxing authority against the Project
or any portion thereof, (ii) any tax, surcharge or assessment which
shall be levied as a supplement to or in lieu of real estate taxes,
(iii) the reasonable costs and expenses of an independent tax
consultant, if any, engaged for the purpose of reviewing or contesting
the validity or amount of such real estate or other taxes or otherwise
providing advice with respect thereto, and (iv) any rental, excise,
sales, transaction, privilege or other tax or levy, however
denominated, imposed upon or measured by the rental reserved hereunder
or on Landlord's business of leasing the Premises or the Project. Taxes
shall not include Landlord's net income taxes, capital, stock,
succession, transfer, franchise, gift, estate or inheritance tax,
6
except to the extent that such tax shall be imposed in lieu of any
portion of Taxes, or any fines, penalties or court costs. TENANT HEREBY
WAIVES ALL RIGHTS TO PROTEST THE APPRAISED VALUE OF THE PROPERTY OR
APPEAL THE SAME AND ALL RIGHTS TO RECEIVE NOTICES OF REAPPRAISALS
INCLUDING WITHOUT LIMITATION THE RIGHTS SET FORTH IN SECTIONS 41.413
AND 42.015 OF THE TEXAS TAX CODE. Landlord shall engage an independent
tax consultant during each calendar year of the Term to advise Landlord
with respect to ad valorem taxes. Landlord agrees to follow such
consultant's recommendation regarding whether or not to protest ad
valorem taxes for any particular calendar year. Upon request from
Tenant, Landlord shall provide Tenant with a copy of such consultant's
recommendation with respect to the immediately preceding or current
calendar year. Costs of protest shall be included in Operating
Expenses. The Project is subject to a real property tax abatement
agreement with the City of Coppell. Landlord agrees to cooperate with
Tenant in connection with Tenant's pursuit of additional real property
tax abatements and personal property tax abatements from the City of
Coppell, provided that Landlord shall not be required to incur any
costs or expenses in connection with such cooperation.
d. Except as set forth in this Paragraph 4(d), during each month of the
Term of this Lease, on the same day that Base Rent is due hereunder,
Tenant shall pay to Landlord an amount equal to 1/12 of the estimated
annual cost of Tenant's Proportionate Share of Operating Expenses (the
"Operating Expense Payments"). Notwithstanding anything to the contrary
set forth herein, Tenant shall not be required to pay Tenant's
Proportionate Share of Operating Expenses during the period from and
after the Commencement Date through March 31, 2003. Further
notwithstanding anything to the contrary set forth herein, Tenant shall
pay Tenant's Proportionate Share of Operating Expenses during the
period of April 1, 2003 through December 31, 2003 as if the Premises
contained 140,000 square feet (i.e., Tenant shall not be required to
pay Tenant's Proportionate Share of Operating Expenses during the
period of April 1, 2003 through December 31, 2003 on 70,563 square feet
of the Premises (or any portion of the Premises in excess of 140,000
square feet if the size of the Premises is adjusted pursuant to the
following paragraph).
The square feet of the Premises is expected to be 210,563 square feet,
which square footage includes a pro rata share of the Building's
electrical and sprinkler room. Provided that prior to commencement of
construction of the Tenant Improvements Landlord and Tenant agree on
the square footage of the Premises shown on the Working Drawings,
Tenant shall have the right to measure the Premises within thirty (30)
days after Substantial Completion of the Tenant Improvements to confirm
that demising wall(s) shown on the Working Drawings were constructed in
the location(s) shown thereon. In the event the demising wall(s) were
not constructed in the location(s) shown on the Working Drawings, the
square footage of the Premises set forth in this Lease shall be
adjusted to reflect the actual square footage of the Premises as
constructed (based on the actual location of the demising wall(s) and
determined by the same method as agreed to prior to construction of the
Tenant Improvements), and Landlord and Tenant shall execute an
amendment to reflect the necessary amendments as a result of such
change.
7
The initial Operating Expense Payments are based upon the estimated
amounts for the current year, and shall be increased or decreased
annually to reflect the projected actual cost of all such items.
Operating Expense categories and the initial Operating Expense Payments
for each are as follows:
1. Taxes $0.65 per square foot per year
2. Insurance $0.07 per square foot per year
3. All other Operating Expenses $0.23 per square foot per year
Initial Estimate of Operating Expense Payment $0.95 per square foot
per year
e. Notwithstanding the foregoing, Landlord agrees that for the purpose of
determining Tenant's Proportionate Share of Operating Expenses,
Controllable Operating Expenses (hereinafter defined) shall not be
increased by more than eight percent (8%) per calendar year on a
cumulative basis, compounded annually. For purposes hereof,
"Controllable Operating Expenses" shall mean management fees, landscape
maintenance costs, the cost of recurring third party services, if any,
provided by Landlord (such as courtesy patrols and trash collection, if
any, but excluding services for repair and maintenance) and upgrades,
changes in, or additions to water and sewage. For example, if
Controllable Operating Expenses during calendar year 2003 were
$100,000, the cap on Controllable Operating Expenses for calendar year
2007 would be $136,0458.99 ($100,000 times 1.08 times 1.08 times 1.08
times 1.08). Landlord shall not receive more than one hundred percent
(100%) of Operating Expenses and shall not recover any type of cost
more than once. Landlord shall estimate the Operating Expenses of the
Project and advise Tenant of Tenant's Proportionate Share thereof by
December 31 of each calendar year, or as soon as practicable
thereafter. If Landlord does not provide Tenant with an estimate of
Tenant's Proportionate Share of Operating Expenses by January 1 of any
calendar year, Tenant shall continue to pay a monthly installment based
on the previous year's estimate until such time as Landlord provides
Tenant with an estimate of Tenant's Proportionate Share of Operating
Expenses for the current year. Upon receipt of such current year's
estimate, an adjustment shall be made for any month during the current
year with respect to which Tenant paid monthly installments of
Operating Expenses based on the previous years estimate. Tenant shall
pay Landlord for any underpayment within thirty (30) days after receipt
of an invoice therefor. Any overpayment shall be credited against the
installment(s) of rent (including Base Rent and Tenant's Proportionate
Share of Operating Expenses) next coming due under the Lease. Landlord
may revise such estimates no more than one time per fiscal year if it
obtains more accurate information, such as the final real estate tax
assessment or tax rate for the Project.
f. Landlord shall deliver to Tenant a report for the previous calendar
year by April 30 of each year or as soon as practicable thereafter,
setting forth the actual Operating Expenses incurred and a statement of
Tenant's Proportionate Share ("Operating Expense Report"). If Tenant's
total Operating Expense Payments for any calendar year are less than
Tenant's Proportionate Share of Operating Expenses for such calendar
year, then Tenant shall pay the difference to Landlord within thirty
(30) days after receipt of the Operating Expense Report. If Tenant's
total Operating Expense Payments for any year are greater than Tenant's
Proportionate Share of Operating Expenses for such year, then Landlord
shall retain such excess and credit it against Tenant's next
installments of rent (including Base Rent and Tenant's Proportionate
Share of Operating Expenses), except during the last year of the Term
of this Lease, in which event, Landlord shall, within thirty (30) days
after delivery of the Operating Expense Report, refund any excess to
Tenant provided that Tenant is not in default under this Lease. The
obligations set forth in this Paragraph shall survive the termination
of this Lease.
8
g. Landlord shall maintain books and records so that they fairly and
accurately reflect the Operating Expenses on a consistent basis and in
accordance with sound management practices. Tenant, at its sole
expense, shall have the right no more frequently than once per calendar
year, following thirty (30) days prior written notice to Landlord,
which notice must be given within 120 days after Tenant's receipt of
the Operating Expense Report, to audit Landlord's books and records
relating to Operating Expenses at Landlord's office during Landlord's
normal business hours. Such audit shall be performed by a certified
public accountant. Tenant shall be solely responsible for all costs,
expenses and fees incurred for the audit. Within sixty (60) days after
the books and records are made available to Tenant, Tenant shall have
the right to give Landlord written notice (an "Objection Notice")
stating in reasonable detail any objection to Landlord's statement of
Operating Expenses for such year. If Tenant fails to give Landlord an
Objection Notice within the sixty (60) day period, Tenant shall be
deemed to have approved the Operating Expense Report for that year. If
Tenant provides Landlord with a timely Objection Notice, Landlord and
Tenant shall work together in good faith for thirty (30) days to
resolve any issues raised by Tenant's Objection Notice. If such
negotiations fail, Landlord shall within thirty (30) days after the
expiration of the thirty (30) day negotiation period cause an
independent certified public accountant that is mutually acceptable to
the parties, to issue a final and conclusive resolution of all issues
raised by Tenant's Objection Notice. If it is determined that the
Operating Expenses for the calendar year are greater than reported,
Tenant shall pay Landlord the amount of any underpayment within thirty
(30) days after receipt of written demand therefor. If it is determined
that the Operating Expenses for the calendar year are less than
reported, Landlord shall pay Tenant the amount of any overpayment
within thirty (30) days after receipt of written demand therefor. The
records obtained by Tenant during any such audit and the results
thereof shall be treated as confidential and Tenant and its certified
public accountant must agree, in their contract for such services, to
such confidentiality restrictions and shall specifically agree that the
results shall not be made available to any other tenant of the Project.
In no event shall Tenant be permitted to examine Landlord's records or
to dispute any Operating Expense Report unless Tenant has paid and
continues to pay all rent when due. Notwithstanding the foregoing, if
it is determined that Operating Expenses for the year in question were
less than stated by more than 5%, Landlord, within 30 days after its
receipt of paid invoices therefor from Tenant, shall reimburse Tenant
for the reasonable amounts paid by Tenant to third parties in
connection with such audit by Tenant.
5. Landlord's Repairs. Landlord shall, maintain only the parking
areas and other common areas of the Project, including but not limited to
driveways, alleys, landscape and grounds within and surrounding the Project, the
roof, foundation (including damage to the concrete floors resulting from
structural damage required to be repaired by Landlord) and the structural
soundness of the exterior walls of the building in good repair, reasonable wear
and tear excepted and shall operate the Project in a manner comparable to other
similar developments in the vicinity of the Project. The cost of such
maintenance and repair shall be included in Operating Expenses as provided in
Paragraph 4 above. The term "walls" as used herein shall not include windows,
glass or plate glass, doors, special store fronts, dock bumpers, dock plates or
levelers or office entries. Landlord shall, in addition, correct at Landlord's
sole cost, defects in construction of the Building shell in substantial
accordance with plans and specifications therefor and failure of the common
areas of the Project to comply with governmental regulations as of the
Commencement Date. Landlord shall perform all maintenance and repairs in a good
and workmanlike manner in accordance with all applicable governmental laws,
ordinances, and regulations.
Tenant shall within five (5) days of actual knowledge thereof, give
Landlord written notice of defect or need for repairs for which Landlord is
responsible, after which Landlord shall repair same or
9
cure such defect within thirty (30) days after Landlord's receipt of written
notice from Tenant of the need for the same; provided that if such repair or
cure cannot reasonably be completed within such thirty (30) day period, Landlord
shall commence such repair or cure within thirty (30) days after receipt of
written notice from Tenant and shall thereafter diligently pursue completion of
such repair or cure. The foregoing notwithstanding, in an Emergency Situation
(hereinafter defined) if Tenant uses reasonable efforts to provide Landlord with
oral notice of such Emergency Situation and is unable to notify Landlord by
telephone or by any other means within a reasonable time period considering the
nature of the situation, Tenant shall be entitled to make any repairs and
replacements as shall be necessary and Landlord shall reimburse Tenant for the
reasonable costs paid to third parties by Tenant in connection with such repairs
and replacements within thirty (30) days after receipt of an invoice therefor.
For purposes of this paragraph, an "Emergency Situation" shall be any failure to
maintain or repair which threatens imminent loss of life or bodily harm or
immediate and material damage to inventory or property. Subject to Paragraph
12(e) below, if any part of the Premises is damaged by any act of Landlord, its
employees, agents, or contractors, Landlord shall repair or replace such damaged
property or pay Tenant the reasonable cost of repairing or replacing such
damaged property, whether or not Tenant would otherwise be obligated to pay the
cost of maintaining or repairing such property. Subject to Paragraph 12(e)
below, and notwithstanding the foregoing, Tenant shall repair and pay for any
damage to the Project caused by Tenant, or Tenant's employees, agents or
invitees, or caused by Tenant's default hereunder.
6. TENANT'S REPAIRS.
a. Tenant shall at its own cost and expense keep and maintain all parts of
the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all
necessary repairs and replacements, including but not limited to,
windows, glass and plate glass, doors, any special office entry,
interior walls and finish work, floors (including the concrete
flooring, except for damage to be repaired by Landlord set forth in
Paragraph 5 above) and floor covering, downspouts, gutters, heating and
air conditioning and ventilation systems, dock boards, truck doors,
dock bumpers, plumbing work and fixtures, termite and pest
extermination, regular removal of trash and debris. Such repairs and
replacements may include capital expenditures and repairs whose benefit
may extend beyond the Term of this Lease. Notwithstanding anything to
the contrary set forth in this Lease, Tenant shall not be required to
replace the air conditioning in the warehouse area of the Premises
(including the test area that is restored to warehouse area) or to
deliver the air conditioning in the warehouse area (including the test
area that is restored to warehouse area) of the Premises in good
working order at the end of the Term; but Tenant shall be required to
deliver the heating units in the warehouse area (including the test
area that is restored to warehouse area) of the Premises in good
working order. Further, Tenant shall be entitled to use air the
conditioning units in the warehouse and test areas of the Premises and
components and parts in such air conditioning units to repair and/or
replace the air conditioning units in the office area of the Premises;
provided that the foregoing shall not diminish or affect Tenant's
obligation to deliver the heating units in the warehouse area of the
Premises (including the test area that is restored to warehouse area)
in good working order. In Tenant shall not be obligated to repair any
damage caused by fire, tornado or other casualty covered by the
insurance to be maintained by Landlord pursuant to subparagraph 12(a)
below, except that Tenant shall be obligated to repair all wind damage
to glass except with respect to tornado or hurricane damage.
b. Tenant shall not damage any structural support, foundation or any
demising wall or disturb the integrity and support provided by any
demising wall and shall, at its sole cost and expense,
10
promptly repair any damage or injury to any of the foregoing caused by
Tenant or its employees, agents or invitees.
c. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. The maintenance contractor
and the contract must be reasonably approved by Landlord. The service
contract must include all services suggested by the equipment
manufacturer within the operation/maintenance manual and must become
effective (and a copy thereof delivered to Landlord) within fifteen
(15) days after the date Tenant takes possession of the Premises after
Substantial Completion for purposes of carrying out its business.
7. Alterations.
a. Tenant shall not make any alterations, additions or improvements to the
Premises (including but not limited to roof and wall penetrations)
without the prior written consent of Landlord. Notwithstanding anything
herein to the contrary, Tenant may, without the consent of Landlord,
but at its own cost and expense and in a good workmanlike manner erect
or make non-structural improvements or alterations with a total value
of less than $50,000.00 provided that (i) the improvements or
alterations do not affect the sprinkler system or electrical system of
the Building, (ii) Tenant provides Landlord with notice prior to
commencing such improvements or alterations, (iii) the improvements or
alterations do not affect the exterior of the Premises, (iv) the
improvements or alterations do not alter the basic character of the
Building or overload or damage the Building, (v) the improvements or
alterations comply with all applicable governmental laws, ordinances,
regulations and other requirements, (vi) Tenant does not require access
to any portion of the Building outside of the Premises, and (vii)
Tenant provides Landlord with "as built" drawings for any improvements
or alterations made by Tenant. Any alterations, additions or
improvements made by or on behalf of Tenant to the Premises and
approved by Landlord ("Tenant Alterations") shall be made by
contractors reasonably acceptable to Landlord pursuant to plans and
specifications approved by Landlord. Tenant shall reimburse Landlord
for its reasonable costs in reviewing plans and specifications for
Tenant's alterations in an amount not to exceed $500.00 provided that
Landlord is not required to hire an outside consultant to review such
plans and specifications. Landlord's right to review plans and
specifications shall be solely for its own benefit, and Landlord shall
have no duty to see that such plans and specifications or the Tenant
Alterations constructed pursuant thereto comply with applicable laws,
codes, rules or regulations. Tenant shall provide Landlord with the
identities and mailing addresses of all persons performing work or
supplying materials in connection with the Tenant Alterations, prior to
beginning such construction. Tenant shall assure payment for the
completion of all work in connection with the Tenant Alterations free
and clear of liens and shall provide certificates of insurance for
worker's compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against
liability for personal injury or property damage during construction of
any Tenant Alterations. Upon completion of any Tenant Alterations,
Tenant shall deliver to Landlord sworn statements setting forth the
names of all contractors and subcontractors who performed work on the
Tenant Alterations and final lien waivers from all such contractors and
subcontractors. Tenant Alterations shall also include improvements and
alterations made by Tenant without the requirement of Landlord's
approval.
b. All Tenant Alterations shall be and remain the property of Tenant
during the Term of this Lease and Tenant shall, if Landlord elects as
hereinafter provided, remove all Tenant Alterations and restore the
Premises to its original condition by the date of termination of this
Lease or upon earlier
11
vacating of the Premises; provided, however, that unless Landlord
elects and notifies Tenant at the time of its review and approval of
proposed Tenant Alterations that such Tenant Alterations must be
removed, such Tenant Alterations shall become the property of Landlord
as of the date of termination of this Lease or upon earlier vacating of
the Premises and shall be delivered up to the Landlord with the
Premises. Notwithstanding the foregoing, Tenant shall have the right to
remove all Tenant Alterations (other than the Tenant Improvements or
any replacements of the Tenant Improvements) at the expiration or
earlier termination of the Lease unless Landlord notifies Tenant at the
time Landlord approves such Tenant Alteration(s) that Tenant shall not
be entitled to remove such Tenant Alteration(s) at the expiration or
earlier termination of this Lease. All shelves, bins, machinery and
trade fixtures installed by Tenant may be removed by Tenant prior to
the termination of this Lease if Tenant so elects, and shall be removed
by the date of termination of this Lease or upon earlier vacating of
the Premises if required by Landlord. Upon any such removal Tenant
shall restore the Premises to its original condition, ordinary wear and
tear excepted. All such removals and restoration shall be accomplished
in a good and workmanlike manner so as not to damage the primary
structure or structural qualities of the Building and the improvements
situated in the Premises.
c. Notwithstanding anything to the contrary set forth in this Lease,
Landlord shall have the right to require Tenant to restore those areas
of the Premises constituting the testing area (which Landlord and
Tenant agree contains approximately 30,000 square feet of space based
on the Working Drawings; provided that such square footage shall be
subject to adjustment based on any changes to the Working Drawings or
changes to the testing area during the Term of this Lease) to the
condition of the warehouse space constituting the Premises, which
restoration shall include raising sprinkler heads, installation of
warehouse lights, painting exposed walls white, demising the office
area from the testing area and performing any electrical adjustments
required for the office area to function independently from the
remaining portion of the Premises. In the event Landlord elects to
require Tenant to restore the testing area to warehouse space, Landlord
shall give notice to Tenant of such election not less than 60 days
prior to the expiration of this Lease, and in the event the Lease is
terminated prior to the scheduled Termination Date, Landlord shall
notify Tenant of such restoration requirement upon the termination of
this Lease. Landlord agrees that subject to Tenant's compliance with
the terms and conditions of this Paragraph 7, Tenant shall be entitled
to (i) construct up to 42,000 square feet of office space in the
Premises (i.e., an additional 27,000 square feet than initially
contemplated under this Lease), and (ii) construct additional test area
space in the Premises; provided that at the end of the Term, the
Premises contain at least 15,000 square feet of office area.
8. Signs.
a. Tenant shall not make any changes to the exterior of the Premises,
install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door
lettering, placards, decorations or advertising media of any type which
can be viewed from the exterior of the Premises, without Landlord's
prior written consent. Landlord shall not unreasonably delay in
notifying Tenant whether Landlord consents to Tenant's request for such
changes or installations. Upon surrender or vacation of the Premises,
Tenant shall remove all signs and repair, paint, and/or replace the
Building facia surface to which its signs are attached. Tenant shall
obtain all applicable governmental permits and approvals for sign and
exterior treatments and shall indemnify Landlord from and against all
claims arising in connection with any sign or other exterior treatment
installed by Tenant. The current sign criteria for the Project is
attached hereto as Exhibit G.
12
b. Notwithstanding the foregoing, so long as (i) Tenant is not in default
under the terms of this Lease beyond the expiration of any applicable
notice and cure periods; (ii) Tenant is in occupancy of the Premises;
and (iii) Tenant has not assigned this Lease, Tenant shall have the
right, at Tenant's expense (subject to the Signage Allowance
(hereinafter defined)), to install an illuminated corporate
identification sign on the exterior facade of the Building where the
Premises are located (such sign, the "Building Sign"); provided that
(i) the Building Sign shall be in a location approved by Landlord,
which approval shall not be unreasonably withheld, delayed or
conditioned, (ii) Tenant obtains all necessary approvals from the City
of Coppell and all other governmental authorities (including any
applicable airport having jurisdiction over Tenant, the Project, or the
Building Sign), (iii) the Building Sign conforms to all applicable
laws, rules and regulations of any governmental authorities having
jurisdiction over the Building Sign or the Project and all restrictive
covenants applicable to the Project, and (iv) Tenant obtains Landlord's
written consent to any proposed signage and lettering prior to its
fabrication and installation. Landlord agrees that it will not
unreasonably delay notification to Tenant of its approval or
disapproval of any proposed signage. Tenant shall have the exclusive
right to exterior signage on the facade of the Building on the east
exterior wall of the Building which fronts Northpoint Drive. All other
tenants in the Building shall be entitled to exterior Building signage
over such tenant's primary entrance to its premises on any exterior
wall of the Building other than the east exterior wall fronting
Northpoint Drive. Landlord reserves the right to withhold consent to
any sign that, in the judgment of Landlord, is not harmonious with the
design standards of the Project. To obtain Landlord's consent, Tenant
shall submit design drawings to Landlord showing the type and sizes of
all lettering; the colors, finishes and types of materials used. Tenant
shall pay all costs associated with the Building Sign (subject to the
Signage Allowance), including without limitation, installation
expenses, maintenance and repair costs, utilities and insurance. Tenant
agrees that Landlord shall have the right, at its sole cost, after
notice to Tenant, to temporarily remove and replace the Building Sign
in connection with and during the course of any repairs, changes,
alterations, modifications, renovations or additions to the Building.
Tenant shall maintain the Building Sign in good condition. Upon
expiration or earlier termination of the Lease, Tenant shall, at its
sole cost and expense, remove the Building Sign and repair all damage
caused by such removal. If during the Term (and any extensions thereof)
(a) Tenant is in default under the terms of the Lease after the
expiration of applicable notice and cure periods; or (b) Tenant vacates
the Premises for a period of 90 or more consecutive days; or (c) Tenant
assigns the Lease, then Tenant's rights granted herein with respect to
the Building Sign will terminate and Landlord may remove the Building
Sign at Tenant's sole cost and expense.
c. Further, so long as (i) Tenant is not in default under the terms of
this Lease beyond the expiration of any applicable notice and cure
periods; (ii) Tenant is in occupancy of the Premises; and (iii) Tenant
has not assigned the Lease, Landlord shall, at Tenant's request and at
Tenant's sole cost and expense (subject to the Signage Allowance),
place Tenant's name in Landlord's standard graphics for the Project on
the existing multi-tenant Building monument sign (the "Monument Sign")
located at the front of the Building. Following installation of the
Tenant's name on the Monument Sign, Tenant shall remain liable for all
costs related to the maintenance of Tenant's signage on the Monument
Sign. Tenant must obtain Landlord's written consent to any proposed
lettering prior to its fabrication and installation. Landlord agrees
that it will not unreasonably delay notification to Tenant of its
approval or disapproval of any proposed signage. Landlord reserves the
right to withhold consent to any lettering that, in the judgment of
Landlord, is not harmonious with the design standards of the Building.
Any other tenants' signage on the Monument Sign shall be, at Landlord's
sole option, (x) in lettering which is smaller in size, or (y) in
lettering which covers less area on the Monument Sign, than the signage
identifying Tenant. If during the Term (and any extensions thereof) (a)
Tenant is in default under the terms of the Lease after the
13
expiration of applicable notice and cure periods; or (b) Tenant vacates
the Premises for a period of 90 or more consecutive days; or (c) Tenant
assigns the Lease, then Tenant's rights granted herein with respect to
the Monument Sign will terminate and Landlord may remove the Tenant's
signage at Tenant's sole cost and expense.
d. Additionally, so long as (i) Tenant is not in default under the terms
of this Lease beyond the expiration of any applicable notice and cure
periods; (ii) Tenant is in occupancy of the Premises; and (iii) Tenant
has not assigned the Lease, Tenant shall have the right, at Tenant's
expense, to install, at Tenant's sole cost and expense (subject to the
Signage Allowance), signage on the roof of the Building over the
Premises (and not over any other space in the Building) (the "Roof
Sign") provided that the (a) Roof Sign (I) does not extend above the
parapet of the Building, (II) cannot be seen from xxx xxxxxx xxxxx,
(XXX) does not void or have an adverse effect on the Building's roof
warranty, (b) Tenant obtains all necessary approvals from the City of
Coppell and all other governmental authorities (including any
applicable airport having jurisdiction over Tenant, the Project, or the
Roof Sign), (c) the Roof Sign conforms to all applicable laws, rules
and regulations of any governmental authorities having jurisdiction
over the Roof Sign or the Project and all restrictive covenants
applicable to the Project, and (d) Tenant obtains Landlord's written
consent to any proposed signage and lettering prior to its fabrication
and installation. Landlord agrees that it will not unreasonably delay
notification to Tenant of its approval or disapproval of any proposed
signage. Landlord reserves the right to withhold consent to any sign
that, in the judgment of Landlord, is not harmonious with the design
standards of the Project. To obtain Landlord's consent, Tenant shall
submit design drawings to Landlord showing the type and sizes of all
lettering; the colors, finishes and types of materials used. Tenant
shall pay all costs associated with the Roof Sign (subject to the
signage Allowance), including without limitation, installation
expenses, maintenance and repair costs, utilities and insurance. Tenant
agrees that, subject to inclusion in Operating Expenses, Landlord shall
have the right, after notice to Tenant, to temporarily remove and
replace the Roof Sign in connection with and during the course of any
repairs, changes, alterations, modifications, renovations or additions
to the roof or the Building. Tenant shall maintain the Roof Sign in
good condition. Upon expiration or earlier termination of the Lease,
Tenant shall, at its sole cost and expense, remove the Roof Sign and
repair all damage caused by such removal. If during the Term (and any
extensions thereof) (a) Tenant is in default under the terms of the
Lease after the expiration of applicable notice and cure periods; or
(b) Tenant vacates the Premises for a period of 90 or more consecutive
days; or (c) Tenant assigns the Lease, then Tenant's rights granted
herein with respect to the Roof Sign will terminate and Landlord may
remove the Roof Sign at Tenant's sole cost and expense.
e. Provided Tenant is not in default, Landlord agrees to contribute the
sum of $15,000.00 (the "Signage Allowance") toward the cost of the
Building Sign, Tenant's signage on the Monument Sign and the Roof Sign.
The Signage Allowance may only be used for the cost of the design,
fabrication and installation of the Building Sign, Tenant's signage on
the Monument Sign and the Roof Sign. The Sign Allowance shall be paid
to Tenant within 30 days after receipt of the following documentation:
(i) a written request for reimbursement by Tenant accompanied by
invoices evidencing the expenses incurred by Tenant in connection with
the Building Sign and the Roof Sign, and (ii) mechanics lien waivers
covering all work for which disbursement is being requested.
9. Inspection. Landlord and Landlord's agents and representatives shall have
the right, after twenty-four (24) hours advance notice, which notice may be oral
(provided that notice shall not be provided by voice mail) (except in the case
of an emergency, in which event no notice shall be required), to enter and
inspect the Premises at any reasonable time for the purpose of ascertaining the
condition of the Premises, in order to make such repairs as may be required or
permitted to be made by Landlord under
14
the terms of this Lease, or for any other business purpose. During the period
that is six (6) months prior to the end of the Term hereof, Landlord and
Landlord's agents and representatives shall have the right to enter the Premises
at any reasonable time during business hours for the purpose of showing the
Premises and shall have the right to erect on the Premises a suitable sign
indicating the Premises are available. Except in cases of emergency, Tenant may
require that any person accessing the Premises after Tenant's initial occupancy
thereof execute a confidentiality agreement in the form of Exhibit K attached
hereto and/or comply with Tenant's reasonable safety requirements and provided
that Tenant makes such representative available, Tenant shall have the right to
have a representative of Tenant accompany Landlord, its agents and
representatives during any such entry. Tenant shall give written notice to
Landlord at least thirty (30) days prior to vacating the Premises and shall
arrange to meet with Landlord for a joint inspection of the Premises immediately
following Tenant's removal of its property from the Premises for purposes of
determining Tenant's responsibility for repairs and restoration. Tenant and
Landlord shall use good faith efforts to agree on Tenant's responsibility for
repairs and restoration. In the event Tenant and Landlord cannot agree on
Tenant's responsibility, Tenant and Landlord agree that Landlord's architect's
determination thereof shall be conclusively deemed correct.
10. Utilities. Landlord agrees to provide at its cost water, electricity and
telephone service connections to the Premises; provided that Tenant shall pay
for all water, electricity, gas, heat, light, power, telephone, sewer, sprinkler
charges and other utilities and services used on or for the Premises, together
with any taxes, penalties, surcharges or the like pertaining thereto and any
maintenance charges for utilities. Tenant shall furnish all electric light bulbs
and tubes used in connection with the Premises. If any such services are not
separately metered to Tenant, Tenant shall pay a reasonable proportion as
determined by Landlord of all charges jointly metered with other premises in the
Project. Landlord shall in no event be liable for any interruption or failure of
utility services on the Premises. Notwithstanding anything to the contrary
contained in this Paragraph 10, if: (i) in the event of a cessation of water or
electricity to the Premises for a period in excess of five (5) consecutive
business days after Tenant notifies Landlord of such cessation (the
"Interruption Notice"); (ii) such cessation is caused solely and directly by
Landlord or Landlord's agents or contractors; (iii) such cessation is not caused
by a fire or other casualty (in which case Paragraphs 12 and 14 hereof shall
control); and (iv) as a result of such cessation, the Premises or a portion
thereof, is rendered untenantable (meaning that Tenant is unable to use all or a
portion of the Premises in the normal course of its business) and Tenant in fact
ceases to use the Premises, or portion thereof, then Tenant, as its sole remedy,
shall be entitled to receive an abatement of monthly rent payable hereunder
during the period beginning on the sixth (6th) consecutive business day of such
cessation and ending on the day when the service in question has been restored.
In the event the entire Premises has not been rendered untenantable by the
cessation in service, the amount of abatement that Tenant is entitled to receive
shall be prorated based upon the percentage of the Premises so rendered
untenantable and not used by Tenant.
11. Assignment and Subletting.
a. Except in accordance with this Paragraph 11, Tenant will not assign
this Lease, or allow same to be assigned by operation of law or
otherwise, or sublet the Premises or any part thereof, or mortgage or
transfer its leasehold interest or grant any concession or license
within the Premises, without the prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall have the right to designate
certain areas of the Premises solely for use in connection with certain
customer products. Tenant may assign its entire interest under this
Lease, without the consent of Landlord, to (i) an affiliate,
subsidiary, or parent of Tenant, or a corporation, partnership or other
legal entity wholly owned by Tenant (collectively, an "Affiliated
Party"), or (ii) a successor to Tenant by purchase, merger,
consolidation or reorganization, provided that all of the following
conditions are satisfied (each such Transfer a "Permitted Transfer"):
(1) Tenant is not in default
15
under this Lease beyond any applicable notice and cure period; (2) the
permitted use does not allow the Premises to be used for retail
purposes; (3) Tenant shall give Landlord written notice at least 10
days prior to the effective date of the proposed Permitted Transfer;
(4) with respect to a proposed Permitted Transfer to an Affiliated
Party, Tenant continues to have a net worth equal to or greater than
Tenant's net worth at the date of this Lease; and (5) with respect to a
purchase, merger, consolidation or reorganization or any Permitted
Transfer which results in Tenant ceasing to exist as a separate legal
entity, (a) Tenant's successor shall own all or substantially all of
the assets of Tenant, and (b) Tenant's successor shall have a net worth
which is at least to Tenant's net worth on the date of this Lease.
Tenant's notice to Landlord shall include information and documentation
showing that each of the above conditions has been satisfied. If
requested by Landlord, Tenant's successor shall sign a commercially
reasonable form of assumption agreement. As used herein, (A) "parent"
shall mean a company which owns a majority of Tenant's voting equity;
(B) "subsidiary" shall mean an entity wholly owned by Tenant or at
least 51% of whose voting equity is owned by Tenant; and (C)
"affiliate" shall mean an entity controlled by, controlling or under
common control with Tenant. Notwithstanding the foregoing, if any
parent, affiliate or subsidiary to which this Lease has been assigned
or transferred subsequently sells or transfers its voting equity or its
interest under this Lease other than to another parent, subsidiary or
affiliate of the original Tenant named hereunder, such sale or transfer
shall be deemed to be a Transfer requiring the consent of Landlord
hereunder. Notwithstanding any permitted assignment or subletting,
Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and
for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Tenant shall deliver to
Landlord a copy of each assignment or sublease entered into by Tenant
promptly after the execution thereof. No assignee or sublessee of the
Premises or any portion thereof may assign or sublet the Premises or
any portion thereof. 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/or sublettings. All reasonable legal
fees and expenses incurred by Landlord in connection with any
assignment or sublease proposed by Tenant in an amount not to exceed
$1,500.00 will be the responsibility of Tenant and will be paid by
Tenant within thirty (30) days after receipt of an invoice from
Landlord. Upon the occurrence of an event of default under Paragraph
18(a) below, if the Premises or any part thereof are then sublet,
Landlord, in addition to any other remedies herein provided or provided
by law, may at its option collect directly from such subtenant all
rents becoming due to Tenant under such sublease and apply such rent
against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of
Tenant from the further performance of Tenant's obligations hereunder.
b. If Tenant shall propose to sublet or assign this Lease, it shall so
notify Landlord in writing not less than thirty (30) days prior to the
date of the proposed assignment or subletting, such notice setting
forth the name of the proposed subtenant or assignee, the term, use,
rental rate and other particulars of the proposed subletting or
assignment, including without limitation, proof satisfactory to
Landlord that the proposed subtenant or assignee is financially
responsible and will immediately occupy and thereafter use the entire
Premises (or any sublet portion thereof) for the remaining Term of this
Lease (or for the entire term of the sublease, if shorter).
c. Landlord shall have the option, in the event of any proposed assignment
of the Lease which is not a Permitted Transfer or a proposed sublease
of the entire Premises which is not a Permitted Transfer, to cancel
this Lease to be effective as of the date the assignment or sublease
described in Tenant's notice becomes effective. The option shall be
exercised, if at all, by Landlord's giving Tenant written notice
thereof within twenty (20) days following Landlord's receipt of
Tenant's
16
proposed assignment. Further, upon any such cancellation Landlord and
Tenant shall have no further obligations or liabilities to each other
under this Lease, except with respect to obligations or liabilities
which accrue hereunder, as of such cancellation date in the same manner
as if such cancellation date were the date originally fixed for the
expiration of the Term hereof. Without limitation, Landlord may lease
the Premises to the prospective assignee or subtenant, without
liability to the Tenant. Landlord's failure to exercise any right
hereunder shall not waive Landlord's right as to any subsequent
proposed assignment or sublease, nor shall any such failure be deemed
to constitute Landlord's approval of the proposed assignment or
sublease.
d. In respect of any proposed assignment or sublease that is not a
Permitted Transfer, if Landlord does not cancel this Lease, Landlord
shall, within thirty (30) days after Landlord's receipt of Tenant's
written request to the proposed assignment or sublease, notify Tenant
whether Landlord consents or withholds its consent to the proposed
sublease or assignment, which consent may be withheld in Landlord's
sole discretion. If Landlord fails to so notify Tenant within such
thirty (30) day period, Landlord shall be deemed to have consented to
such assignment or sublease. To the extent the rentals or income
derived from any sublease or assignment exceed the rentals due
hereunder, fifty percent (50%) of such excess rentals and income (after
payment of reasonable and customary third party out of pocket costs
actually paid by Tenant in connection with such assignment or sublease,
evidence of which shall be provided to Landlord) shall be the property
of and paid over to Landlord in consideration for Landlord's consent to
the applicable assignment or sublease.
e. Landlord shall have the right to transfer and assign, in whole or in
part, any of its rights under this Lease, and in the Building and the
Project, and in the event the assignee assumes all the obligations of
Landlord hereunder, Landlord shall by virtue of such transfer or
assignment be released from such obligations accruing after the date of
such transfer or assignment, but shall remain liable for all such
obligations accruing on or before the date of such transfer or
assignment.
12. Insurance; Fire and Casualty Damage; Waiver of Subrogation.
a. Landlord agrees to maintain standard all-risk property insurance
covering the Building in an amount not less than the full replacement
cost thereof. Such insurance shall be for the sole benefit of Landlord
and under its sole control. Any insurance provided for in this
subparagraph 12(a) may be effected by self-insurance or by a policy or
policies of blanket insurance covering additional items or locations or
assureds.
b. Tenant, at its expense, shall procure maintain during the Term of this
Lease special form all risk property insurance covering the full
replacement cost of all property and improvements installed or placed
in the Premises, including without limitation the tenant improvements
described in Exhibit D attached hereto; worker's compensation insurance
with no less that the minimum limits required by law and employer's
liability insurance with a minimum limit of One Million and 00/100
Dollars ($1,000,000) per occurrence. Tenant shall also, at Tenant's
sole cost and expense, for the benefit of Landlord, Landlord's manager
and Tenant, maintain comprehensive commercial general liability with
broad liability endorsement insurance against claims for personal
injury, death or property damage occurring upon, in or about the
Premises. Such insurance shall afford protection to Landlord, its
managing agent and Tenant to the limit of not less than Three Million
and 00/100 Dollars ($3,000,000.00) per occurrence, Three Million and
00/100 Dollars ($3,000,000.00) aggregate, combined single limit bodily
injury and property damage. An increased coverage excess or umbrella
policy may be provided and utilized by Tenant to increase
17
the coverage provided by individual or blanket policies in lower
amounts to achieve the required aggregate coverage, provided that such
policies otherwise comply with the provisions of this Section 12. Such
policies of insurance shall insure on an occurrence and not a
claims-made basis, be written in companies reasonably satisfactory to
Landlord, name Landlord, Landlord's directors, officers, shareholders,
agents and employees as additional insureds thereunder, not be
cancelable unless 30 days prior written notice shall have been given to
Landlord, and such policies, or a memorandum or certificate of such
insurance, shall, prior to Tenant taking possession of the Premises, be
delivered to Landlord endorsed "Premium Paid" by the company or agency
issuing the same or accompanied by other evidence satisfactory to
Landlord that the premium thereon has been paid.
c. If the Premises or the Building (including machinery or equipment used
in its operation) shall be damaged by fire or other casualty and if
such damage does not render all or a substantial portion of the
Premises or the Building untenantable, then Landlord shall repair and
restore the same with reasonable promptness, subject to reasonable
delays for insurance adjustments and delays caused by matters beyond
Landlord's reasonable control but Landlord shall not be obligated to
expend therefor an amount in excess of the proceeds of insurance
recovered with request thereto. If any such damage renders all or a
substantial portion of the Premises or the Building untenantable,
Landlord shall, within sixty (60) days of such damage or destruction,
deliver to Tenant an estimate (the "Estimate") of the duration of the
period in which the Premises will be untenantable, as reasonably
determined by Landlord. If such estimated period shall be for more than
one hundred eighty (180) days from the date of such damage, then
Landlord, or Tenant if in addition thereto at least fifty percent (50%)
of the Premises is untenantable, shall have the right to terminate this
Lease (with appropriate prorations of Rent being made for Tenant's
possession subsequent to the date of such damage of those tenantable
portions of the Premises) upon giving written notice to the other
within fifteen (15) days after the delivery to Tenant of Landlord's
repair estimate. Unless this Lease is terminated as provided in the
preceding sentence and so long as such damage does not result from
Tenant's fault or neglect, Landlord shall proceed with reasonable
promptness to repair and restore the Premises, subject to reasonable
delays for insurance adjustments and delays caused by matters beyond
Landlord's reasonable control. Landlord shall have no liability to
Tenant, and except as provided below, Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of such
repairs and restoration. However, provided that in the event Landlord
fails to substantially complete such rebuilding or repairs to the
Premises within the estimated period of time set forth in the Estimate
(which period shall be extended for Reconstruction Delays), then Tenant
may, at its option, terminate this Lease by delivering written notice
of termination to Landlord on or before the earlier to occur of (i)
fifteen (15) days after the expiration of the time period set forth in
the Estimate, and (ii) substantial completion of the rebuilding or
repair of the Premises. For purposes of this Lease, the term
"Reconstruction Delays" shall mean (x) any delays caused by Tenant; and
(y) any delays caused by events of force majeure. Rent shall xxxxx on
those portions of the Premises as are, from time to time, untenantable
as a result of such damage (except fires or casualties resulting from
Tenant's fault or neglect). Notwithstanding anything to the contrary
herein set forth, Landlord shall have no duty pursuant to this
Paragraph 12(c) to repair or restore any portion of the alterations,
additions or improvements in the Premises or the decoration thereto
except to the extent that such alterations, additions, improvements and
decoration were provided by Landlord, at Landlord's cost, at the
beginning of the Term.
d. Notwithstanding Landlord's restoration obligation, in the event any
mortgagee under a deed of trust, security agreement or mortgage on the
Building should require that the insurance proceeds be used to retire
or reduce the mortgage debt or if the insurance company issuing
Landlord's fire
18
and casualty insurance policy fails or refuses to pay Landlord the
proceeds under such policy, Landlord shall have no obligation to
rebuild and this Lease shall terminate upon notice by Landlord to
Tenant.
e. Notwithstanding anything to the contrary set forth in this Lease,
Landlord and Tenant hereby waive any rights they may have against the
other (including, but not limited to, a direct action for damages) on
account of any loss or damage occasioned to Landlord or Tenant, as the
case may be, TO THEIR RESPECTIVE PROPERTY, THE PREMISES, ITS CONTENTS
OR TO ANY OTHER PORTION OF THE BUILDING OR THE PROJECT ARISING FROM ANY
RISK (WITHOUT REGARD TO THE AMOUNT OF COVERAGE OR THE AMOUNT OF
DEDUCTIBLE) COVERED BY OR WHICH WOULD BE COVERED BY THE ALL RISK
REPLACEMENT COST PROPERTY INSURANCE REQUIRED TO BE CARRIED BY TENANT
AND LANDLORD, RESPECTIVELY, UNDER SUBPARAGRAPHS 12(a) AND 12(b) ABOVE
(EVEN IF (i) SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT, NEGLIGENCE OR
OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF THE RELEASED PARTY OR THE
RELEASED PARTY'S DIRECTORS, EMPLOYEES, AGENTS OR INVITEES, OR (ii) THE
RELEASED PARTY IS STRICTLY LIABLE FOR SUCH LOSS OR DAMAGE). The
foregoing waiver shall be effective even if either or both parties fail
to carry the insurance required by subparagraphs 12(a) and 12(b) above.
If a party waiving rights under this Paragraph is carrying an all risk
full replacement cost insurance policy in the promulgated form used in
the State of Texas and an amendment to such promulgated form is passed,
such amendment shall be deemed not a part of such promulgated form
until it applies to the policy being carried by the waiving party.
Without in any way limiting the foregoing waivers and to the extent
permitted by applicable law, the parties hereto each, on behalf of
their respective insurance companies insuring the property of either
Landlord or Tenant against any such loss, waive any right of
subrogation that Landlord or Tenant or their respective insurers may
have against the other party or their respective officers, directors,
employees, agents or invitees and all rights of their respective
insurance companies based upon an assignment from its insured. Each
party to this Lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers
contained in this Paragraph and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of said
insurance coverage by reason of said waivers. The foregoing waiver
shall be effective whether or not the parties maintain the required
insurance.
13. Liability.
a. Subject to Landlord's express waivers under Paragraph 12(e) above,
Tenant agrees to indemnify and save Landlord and Landlord's directors,
officers, shareholders, agents and employees harmless against and from
any and all claims by or on behalf of any person or persons, firm or
firms, corporation or corporations, arising from any breach or default
on the part of Tenant in the performance of any covenant or agreement
on the part of Tenant to be performed, pursuant to the terms of this
Lease, or arising from the use of the Premises or any act or negligence
on the part of Tenant or its agents, contractors, servants, employees
or licensees, or arising from any accident, injury or damage to the
extent caused by Tenant, its agents, and employees to any person, firm
or corporation occurring during the Term of this Lease or any renewal
thereof, in or on the Premises and Project, and from and against all
costs, reasonable counsel fees, expenses and liabilities incurred in or
about any such claim or action or proceeding brought thereon; and in
case any action or proceeding be brought against Landlord, and
Landlord's directors, officers, shareholders, agents and employees by
reason of any such claim, Tenant, upon notice from
19
Landlord, covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to Landlord.
b. Tenant agrees, to the extent not expressly prohibited by law, that
Landlord and Landlord's directors, officers, shareholders, agents,
employees and servants shall not be liable to Tenant for any injury to
person or damage to property sustained by Tenant or any person claiming
through Tenant resulting from any accident or occurrence in the
Premises or any other portion of the Project caused by the Premises or
any other portion of the Building becoming out of repair or by defect
in or failure of equipment, pipes, or wiring, or by broken glass, or by
the backing up of drains, or by gas, water, steam, electricity, or oil
leaking, escaping or flowing into the Premises (except where due to
Landlord's gross negligence or willful failure to make repairs required
to be made pursuant to other provisions of this Lease, after the
expiration of a reasonable time after written notice to Landlord of the
need for such repairs), nor shall Landlord be liable to Tenant for any
loss or damage that may be occasioned by or through the acts or
omissions of other tenants of the Building or of any other persons
whomsoever, including, but not limited to riot, strike, insurrection,
war, court order, requisition, order of any governmental body or
authority, acts of God, fire or theft.
c. Tenant shall comply with all applicable laws and ordinances, all orders
and decrees of court and all requirements of other governmental
authorities, and shall not, directly or indirectly, make any use of the
Premises which may thereby be prohibited or be dangerous to person or
property or which may jeopardize any insurance coverage, or may
increase the cost of insurance or require additional insurance
coverage. If by reason of the failure of Tenant to comply with the
provisions of this Paragraph 13, any insurance coverage is jeopardized
or insurance premiums are increased, Landlord shall have the option
either to terminate this Lease or to require Tenant to make immediate
payment of the increased insurance premium.
d. Landlord shall be responsible for compliance with all applicable laws
and ordinances, all orders and decrees of court and all requirements of
other governmental authorities with respect to the Building shell and
the common areas of the Project and Landlord shall not make any use of
the common areas of the Project which may thereby be prohibited or be
dangerous to person or property or which may jeopardize any insurance
coverage required to be carried by Tenant hereunder. Landlord
represents that the Building shell has passed all inspections required
by the City of Coppell applicable thereto.
e. The provisions of this Paragraph shall survive the expiration or sooner
termination of this Lease. If Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the
right, title and interest of Landlord in the Project as the same may
then be encumbered and Landlord shall not be liable for any deficiency.
f. In no event shall Landlord be liable to Tenant for consequential or
special damages by reason of a failure to perform (or a default) by
Landlord hereunder or otherwise. In no event shall Tenant have the
right to levy execution against any property of Landlord other than its
interest in the Project as hereinbefore expressly provided.
14. Condemnation.
a. If the whole of or any substantial part of the Premises is taken by any
public authority under the power of eminent domain, or taken in any
manner for any public or quasi-public use, so as to render (in
Landlord's reasonable judgment) the remaining portion of the Premises
unsuitable for
20
the purposes intended hereunder, then the Term of this Lease shall
cease as of the day possession shall be taken by such public authority
and Landlord shall make a pro rata refund of any prepaid rent. All
damages awarded for such taking under the power of eminent domain or
any like proceedings shall belong to and be the property of Landlord,
and Tenant hereby assigns to Landlord its interest, if any, in said
award. In the event that fifty percent (50%) or more of the Building
area or appurtenances or fifty percent (50%) or more of the value of
the Building is taken by public authority under the power of eminent
domain, then, at Landlord's option, by written notice to Tenant mailed
within sixty (60) days from the date possession shall be taken by such
public authority, Landlord may terminate this Lease effective upon a
date within ninety (90) days from the date of such notice to Tenant.
Further, if the whole or any part of the Premises is taken by public
authority under the power of eminent domain, or taken in any manner for
any public or quasi-public use, so as to render the remaining portion
of the Premises unsuitable, in Tenant's reasonable opinion, for the
purposes intended hereunder, upon delivery of possession to the
condemning authority pursuant to the proceedings, Tenant may, at its
option, terminate this Lease as to the remainder of the Premises by
written notice to Landlord. Such notice is to be given to Landlord
within thirty (30) days after Tenant receives notice of the taking.
Tenant shall not have the right to terminate this Lease pursuant to the
proceeding sentence unless (i) the business of Tenant conducted in the
portion of the Premises taken cannot, in Tenant's reasonable judgment,
be carried on with substantially the same utility and efficiency in the
remainder of the Premises (or any substitute space securable by
Landlord pursuant to clause (ii) hereof); and (ii) Tenant cannot secure
substantially similar (in Tenant's reasonable judgment) alternate space
upon the same terms and conditions as set forth in this Lease
(including rental) from Landlord in the Building. Any notice of
termination shall specify the date, no more than sixty (60) days after
the giving of such notice as the date, for such termination.
b. Anything in this Paragraph 14 to the contrary notwithstanding, Tenant
shall have the right to prove in any condemnation proceedings and to
receive any separate award which may be made for damages to or
condemnation of Tenant's moveable trade fixtures and equipment, for
moving expenses, and for loss of the value of this Lease, including
increased rent payable for a new location and additional costs incurred
with execution of a replacement lease; provided however, Tenant shall
in no event have any right to receive any award with respect to any
interest in the Building (including any loss of Tenant Improvements or
Tenant Alterations). Anything in this Paragraph 14 to the contrary
notwithstanding, in the event of a partial condemnation of the Building
or Premises and this Lease is not terminated, Landlord shall, at its
sole cost and expense and as soon as reasonably practicable, restore
the Building and Premises to a complete architectural unit and the Base
Rent provided for herein during the period from and after the date of
delivery of possession pursuant to such proceeding to the termination
of this Lease shall be reduced to a sum equal to the product of the
Base Rent provided for herein multiplied by a fraction, the numerator
of which is the number of square feet in the Premises after such taking
and after the same has been restored to a complete architectural unit,
and the denominator of which is the number of square feet in the
Premises prior to such taking, which shall be further equitably
adjusted to account for lost parking spaces.
15. Relocation. Intentionally deleted
16. Holding Over. At the termination of this Lease by lapse of time or
otherwise, Tenant will deliver immediate possession to Landlord. In the event
Tenant or any party under Tenant claiming rights to this Lease, retains
possession of the Premises after the expiration or earlier termination of this
Lease, such possession shall constitute and be construed as a tenancy at will
only, subject, however, to all of the terms, provisions, covenants and
agreements on the part of Tenant hereunder; such parties shall be
21
subject to immediate eviction and removal in accordance with applicable law and
Tenant or any such party shall pay Landlord as rent for the period of such
holdover an amount equal to one and one-half (1 1/2) times the Base Rent in
effect immediately preceding expiration or termination, as applicable, prorated
on a daily basis, plus Tenant's Proportionate Share of the Operating Expenses.
Tenant shall also pay any and all direct damages sustained by Landlord as a
result of such holdover. The rent during such holdover period shall be payable
to Landlord from time to time on demand; provided, however, if no demand is made
during a particular month, holdover rent accruing during such month shall be
paid in accordance with the provisions of Paragraphs 2 and 4 above. Tenant will
vacate the Premises and deliver same to Landlord immediately upon Tenant's
receipt of notice from Landlord to so vacate. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend the Term of this
Lease; no payments of money by Tenant to Landlord after the expiration or
earlier termination of this Lease shall reinstate, continue or extend the Term
of this Lease; and no extension of this Lease after the expiration or earlier
termination thereof shall be valid unless and until the same shall be reduced to
writing and signed by both Landlord and Tenant.
17. Quiet Enjoyment. Provided Tenant timely pays rent hereunder and observes
and performs all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have the quiet possession of
the Premises for the entire Term hereof, subject to all of the provisions of
this Lease and all laws and restrictive covenants to which the Project is
subject.
18. Events of Default. The following events shall be events of default by
Tenant under this Lease:
a. With respect to the first two (2) failures within any twelve (12) month
period during the Term, the failure of Tenant to pay to Landlord any
installment of the rent herein reserved when due, or any payment with
respect to operating expenses hereunder when due, or any other payment
or reimbursement to Landlord required herein when, due, and such
failure shall continue for a period of ten (10) days after written
notice to Tenant. With respect to any other payment of rent, payment
with respect to operating expenses or any other payment or
reimbursement, the failure of Tenant to pay Landlord such amount when
due, it being agree that after the first two (2) failures in any twelve
(12) month period, no notice of the delinquent payment shall be
required.
b. Tenant shall make a transfer in fraud of creditors, or shall make an
assignment for the benefit of creditors.
c. Tenant shall file a petition under any section or chapter of the
Federal Bankruptcy Code, as amended, or under any similar law or
statute of the United States or any State thereof: or Tenant shall be
adjudged bankrupt or insolvent in proceedings filed against Tenant
thereunder.
d. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
f. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 18), and shall
not cure such failure within thirty (30) days after written notice
thereof to Tenant, provided it such failure is not capable of being
cured using diligent efforts, Tenant shall commence such cure within
such thirty (30) period and thereafter diligently pursue its
completion.
In the event Tenant fails to take possession of and occupy the Premises
within thirty (30) days following the Commencement Date or if Tenant
vacates all or substantially all of the Premises for any period of
thirty (30) or more consecutive days (other than a vacancy due to a
casualty or condemnation), Tenant shall keep all Building systems in
the Premises operating at levels
22
necessary to prevent damage to the Building or the Building systems, as
reasonably determined by Landlord.
19. Remedies. Upon the occurrence of any such events of default described in
Paragraph 18 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
a. Terminate this Lease, in which event, Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of
the Premises and expel or remove Tenant and any other person who may be
occupying such Premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefor.
Landlord shall be entitled to recover all loss and damage Landlord may
suffer by reason of such termination, whether through inability to
relet the Premises on satisfactory terms or otherwise, including
without limitation, the following (without duplication of any element
of damages):
(i) accrued rent to the date of termination and late charges,
brokers' fees and commissions, attorneys' fees, moving
allowances and any other costs incurred by Landlord in
connection with making or executing this Lease, the cost of
recovering the Premises and the costs of reletting the Premises
(including, without limitation, advertising costs, brokerage
fees, leasing commissions, reasonable attorneys' fees and
refurbishing costs and other costs in readying the Premises for
a new tenant, multiplied by a fraction, the numerator of which
is the number of months then remaining in the Term of this Lease
and the denominator of which is the total number of months in
the new tenant's lease); and
(ii) the present value of the rent (discounted at a rate of interest
equal to eight percent [8%] per annum [the "Discount Rate"])
that would have accrued under this Lease for the balance of the
Term but for such termination, reduced by the present value of
the reasonable fair market rental value of the Premises for such
balance of the Term (discounted at the Discount Rate).
b. Without judicial process, immediately terminate Tenant's right of
possession of the Premises (whereupon all obligations and liability of
Landlord hereunder shall terminate), but not terminate this Lease, and,
without notice, demand or liability, enter upon the Premises or any
part thereof, take absolute possession of the same, expel or remove
Tenant and any other person or entity who may be occupying the Premises
and change the locks. If Landlord terminates Tenant's possession of the
Premises under this subparagraph 19(b), (i) Landlord shall have no
obligation whatsoever to tender to Tenant a key for new locks installed
in the Premises, (ii) Tenant shall have no further right to possession
of the Premises and (iii) Landlord will have the right to relet the
Premises or any part thereof on such terms as Landlord deems advisable,
taking into account the factors described in subparagraph 19(d). Any
rent received by Landlord from reletting the Premises or a part thereof
shall be applied first, to the payment of any amounts other than rent
due hereunder from Tenant to Landlord (in such order as Landlord shall
designate), second, to the payment of the reletting expenses (which
shall mean the product of the expenses of reletting, including, without
limitation, refurbishing costs, advertising costs, brokerage fees, and
leasing commissions, legal, and other reasonably necessary expenses,
multiplied by a fraction, the numerator of which is the number of
months then remaining in the Term of this Lease and the denominator of
which is the total number of months in the new tenant's lease), and
third, to the payment of rent due and unpaid hereunder (in such order
as Landlord shall designate), and Tenant shall satisfy and pay to
Landlord any deficiency upon demand therefor from time to time.
23
Landlord shall not be responsible or liable for any failure to relet
the Premises or any part thereof or for any failure to collect any rent
due upon any such reletting. However, to the extent required by law,
Landlord shall use reasonable efforts to mitigate its damages resulting
from Tenant's default hereunder. No such re-entry or taking of
possession of the Premises by Landlord shall be construed as an
election on Landlord's part to terminate this Lease unless a written
notice of such termination is given to Tenant pursuant to subparagraph
19(a) above. If Landlord relets the Premises, either before or after
the termination of this Lease, all such rentals received from such
lease shall be and remain the exclusive property of Landlord and Tenant
shall not be, at any time, entitled to recover any such rental.
Landlord may at any time after a reletting elect to terminate this
Lease.
c. Without judicial process, enter upon the Premises and do whatever
Tenant is obligated to do under the terms of this Lease and Tenant
agrees to reimburse Landlord on demand for any reasonable expenses
which Landlord may incur in effecting compliance with Tenant's
obligations under this Lease.
d. For purposes of determining any recovery of rent or damages by Landlord
that depends upon what Landlord could collect by using reasonable
efforts to relet the Premises, whether the determination is required
under subparagraph 19(b) or otherwise, it is understood and agreed
that:
(i) Landlord may reasonably elect to lease other comparable,
available space in the Building, if any, before reletting the
Premises.
(ii) Landlord may reasonably decline to incur out-of-pocket costs to
relet the Premises, other than customary leasing commissions and
legal fees for the negotiation of a lease with a new tenant.
(iii) Landlord may reasonably decline to relet the Premises at rental
rates below the lesser of (A) the rental rate set forth in this
Lease or (B) the then prevailing market rental rates, because of
the negative impact lower rental rates would have on the value
of the Building and because of the uncertainty of actually
receiving from Tenant the greater damages that Landlord would
suffer from and after reletting at the lower rates.
(iv) Before reletting the Premises to a prospective tenant, Landlord
may reasonably require the prospective tenant to demonstrate the
same financial condition that Landlord would require as a
condition to leasing other space in the Project to the
prospective tenant.
Listing the Premises with a broker and advertising the Premises for
lease in a manner consistent with parts (i) through (iv) above shall
constitute prima facie evidence of reasonable efforts on the part of
Landlord to relet the Premises.
e. In the event Tenant fails to pay any installment of Base Rent,
Operating Expense Payments, or any reimbursement, additional rental, or
any other payment hereunder as and when such payment is due, to help
defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an
amount equal to five percent (5%) of such installment, reimbursement,
additional rental or any other payment and the failure to pay such late
charge within ten (10) days after demand therefor shall be an event of
default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at
law and shall not be construed as liquidated damages or as limiting
24
Landlord's remedies in any manner. Notwithstanding the foregoing,
Landlord shall not charge a late charge on the first two (2) late
payments in any twelve (12) month period so long as such late payments
are made within ten (10) days after written notice that such payments
were not made when due.
f. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No act or
thing done by the Landlord or its agents during the Term hereby granted
shall be deemed a termination of this Lease or an acceptance of the
surrender of the Premises, and no agreement to terminate this Lease or
accept a surrender of said Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of
any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or
breach of any of the terms, provisions and covenants herein contained.
Landlord's acceptance of the payment of rental or other payments
hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect to such
default or any subsequent default. If, on account of any event of
default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for
Landlord to employ or consult with an attorney concerning or to enforce
or defend any of Landlord's rights or remedies hereunder, Tenant agrees
to pay any reasonable attorney's fees so incurred.
g. Notwithstanding anything herein to the contrary, except as set forth in
Paragraph 25(b), in no event will the measure of damages include, nor
will Tenant be liable to Landlord for, any amounts for loss of profits,
income or savings or indirect, consequential or punitive damages.
20. Landlord's Default, Remedies. Notwithstanding any other provision
hereof, if Landlord fails to perform any maintenance or repair obligation of
Landlord as set forth herein and (i) the lack of such maintenance and repair by
Landlord materially impairs Tenant's use of or access to the Premises, (ii) the
need for such maintenance and repair is not caused by Tenant or Tenant's
contractors, agents or employees, and (iii) Landlord fails to make any required
repairs within thirty (30) days after the receipt of Tenant's written notice or,
in the event the nature of Landlord's obligation is such that more than thirty
(30) days are required for its performance and Landlord fails to commence
performance within the thirty (30) day period and thereafter diligently pursue
the completion of same using commercially reasonable efforts, Tenant may, at its
option, make such repair or replacement on Landlord's behalf and recover from
Landlord Tenant's reasonable out-of-pocket costs and expenses in connection with
the exercise of such right; provided that if the repair or replacement affects
any portion of the Building which are the subject of any warranty or
maintenance/service agreement (such as, without limitation, the roof), Tenant
shall use Landlord's designated contractor (or other contractor reasonably
acceptable to Landlord) for such repair and/or replacement so as not to impair
or invalidate the warranty or maintenance/service agreement. In the case of any
damage to such components or systems caused by Tenant or Tenant's agents,
employees or contractors, the cost to repair the same shall be paid for by
Tenant. Landlord shall reimburse Tenant for such reasonable out-of-pocket costs
within thirty (30) days after receipt of an invoice therefor. Further, if
Landlord fails to provide Tenant with access to the roof in violation of
Paragraph 3(b) of this Lease and such failure continues for a period of ten (10)
days after Landlord's receipt of written notice thereof, Tenant shall be
entitled to access the roof for the purposes set forth in
25
Paragraph 3(b) without the consent of Landlord; provided that such access shall
be subject to the terms and conditions of Paragraph 3(b) hereof.
21. Subordination.
a. This Lease and all rights of Tenant hereunder are subject and
subordinate (i) to any mortgage or deed of trust, blanket or otherwise,
which does now or may hereafter affect the Building (and which may also
affect other properties) and (ii) to any and all increases, renewals,
modifications, consolidations, replacements and extensions of any such
mortgage or deed of trust. Tenant shall within ten (10) days from
Landlord's demand, execute, acknowledge and deliver to Landlord any and
all instruments and certificates that may be necessary or proper to
more effectively subordinate this Lease and all rights of Tenant
hereunder to any such mortgage or deed of trust or to confirm or
evidence such subordination. Tenant covenants and agrees, in the event
any proceedings are brought for the foreclosure of any such mortgage or
if the Building be sold pursuant to any such deed of trust, to attorn
to the purchaser, upon any such foreclosure sale or trustee's sale if
so requested by such purchaser and to recognize such purchaser as the
landlord under this Lease. As of the date of this Lease, there is no
mortgage or deed of trust covering the Building. In the event a
mortgage or deed of trust is placed on the Building subsequent to the
date of this Lease, upon written request by Tenant, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination and
attornment agreement from the holder of such future mortgage or deed of
trust on such mortgage holder's then current standard form of
agreement. "Reasonable efforts" of Landlord shall not require Landlord
to incur any cost, expense or liability to obtain such agreement, it
being agreed that Tenant shall be responsible for any fee or review
costs charged by such mortgage holder. Notwithstanding the foregoing in
this Paragraph 21(a) to the contrary, Tenant's agreement to subordinate
this Lease to a future mortgage or deed of trust, is conditioned upon
Tenant's receipt of a non-disturbance, subordination, and attornment
agreement in favor of Tenant from any mortgagee who comes into
existence after the Commencement Date. Such non-disturbance,
subordination, and attornment agreement in favor of Tenant shall
provide that, so long as Tenant is paying the Rent due under the Lease
and is not otherwise in default under the Lease beyond any applicable
cure period, its right to possession and the other terms of the Lease
shall remain in full force and effect (Tenant's Non-Disturbance
Rights"). Such non-disturbance, subordination, and attornment agreement
may include other commercially reasonable provisions in favor of the
mortgagee.
b. Tenant agrees to execute and deliver at any time and from time to time,
upon the request of Landlord or of any holder(s) of any of the
indebtedness or other obligations secured by any of the mortgages or
deeds of trust referred to in this Paragraph, any instruments or
certificates which, in the sole judgment of the Landlord or of such
holder(s), may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment, provided such
instruments or certificates are in forms reasonably acceptable to
Tenant and so long as such holder(s) confirms Tenant's Non-Disturbance
Rights.
c. Tenant agrees that the holder of any mortgage or deed of trust covering
the Building may elect (which election shall be revocable) to have this
Lease superior to any lien of its mortgage or deed of trust and, in the
event of such election and upon notification by such mortgagee or
trustee to Tenant to that effect, this Lease shall be deemed superior
to the said mortgage or deed of trust, whether this Lease is dated
prior to or subsequent to the date of said mortgage or deed of trust.
26
22. Waiver of Trial by Jury and Texas Deceptive Trade Practices Act.
a. LANDLORD AND TENANT WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY
TENANT, AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON
ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY
ITS EFFECT.
b. Tenant represents that Tenant is not a "consumer" as defined under the
Texas Deceptive Trade Practices - Consumer Protection Act, Section
17.41 et. seq. of the Texas Business and Commerce Code.
23. Mechanic's Liens. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the Premises,
including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such
lien shall attach to, if at all, only the leasehold interest granted to
Tenant by this instrument. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work
performed on the Premises on which any lien is or can be asserted and that
it will save and hold Landlord harmless from any and all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord
in the Premises or under the terms of this Lease. In the event a lien is
filed against the Building, the Project or the Premises as a result of work
performed by or on behalf of Tenant, Tenant shall within ten (10) days of
receiving such notice of lien or claim cause such lien to be released of
record (by payment or bond). Nothing in the Paragraph 23 shall impair
Tenant's right to contest the lien or claim in good faith by appropriate
proceedings, and in the event of such protest, Tenant shall pay promptly
any final adverse judgment entered in any such proceeding.
24. Rent Payments and Notices.
a. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord c/o Transwestern Commercial
Services, X.X. Xxx 000000, Xxxxxx, Xxxxx 00000-0000 or at such other
address as Landlord may specify from time to time by written notice
delivered in accordance herewith. Tenant's obligation to pay rent and
any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
b. Any notice or communication (other than payments to Landlord required
hereunder) required or permitted in this Lease shall be given in
writing, sent by (a) personal delivery, with proof of delivery, (b)
expedited delivery service, with proof of delivery, or (c) United
States mail, postage prepaid, registered or certified mail, return
receipt requested or, addressed as provided below or to such other
address or to the attention of such other person as shall be designated
from time to time in writing by the applicable party and sent in
accordance herewith. Any such notice or communication shall be deemed
to have been given either at the time of personal delivery or, in the
case of delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein.
27
Landlord: Tenant:
AmberPoint at Coppell, L.L.C., Xxxxxx Communications, Inc.
c/o Transwestern Commercial Services 0000 Xxxxxxxxx Xxxxxx
Attn: Property Manager Xxxxx Xxxxxxx, XX 00000
00000 Xxxxxxx Xxxx Attention: Senior Vice
Suite 140 President of
Xxxxxx, Xxxxx 00000 Operations
With a copy to
Xxxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Vice President
and General
Counsel
c. All parties included within the terms "Landlord" and "Tenant",
respectively, shall be bound by notices given in accordance with the
provisions of this Paragraph to the same effect as if each had received
such notice.
25. Environmental Requirements.
a. Except for Hazardous Material (hereinafter defined) contained in
products used and stored by Tenant in de minimis quantities for
ordinary cleaning and office purposes, Tenant shall not permit or cause
any party to bring any Hazardous Material upon the Premises or
transport, store, use, generate, manufacture or release any Hazardous
Material in or about the Premises or the Project without Landlord's
prior written consent. Tenant, at its sole cost and expense, shall
operate its business in the Premises in strict compliance with all
Environmental Requirements (hereinafter defined) and shall remediate in
a manner satisfactory to Landlord any Hazardous Materials released on
or from the Project by Tenant, its agents, employees, contractors,
subtenants or invitees. Tenant shall complete and certify to disclosure
statements as requested by Landlord from time to time relating to
Tenant's transportation, storage, use, generation, manufacture or
release of Hazardous Materials on the Premises or the Project. The term
"Environmental Requirements" means all applicable present and future
statutes, regulations, ordinances, rules, codes, judgments, orders or
other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions
on, under, or about the Premises or the environment, including without
limitation, the following: the Comprehensive Environmental Response,
Compensation and Liability Act; the Resource Conservation and Recovery
Act; and all state and local counterparts thereto, and any regulations
or policies promulgated or issued thereunder. The term "Hazardous
Materials" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic under
any Environmental Requirements, asbestos and petroleum, including crude
oil or any fraction thereof, natural gas, synthetic gas usable for fuel
(or mixtures of natural gas and such synthetic gas) and toxic mold. As
defined in Environmental Requirements, Tenant is and shall be deemed
the "operator" of Tenant's "facility" and the "owner" of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees,
contractors or invitees, and the wastes, by-products or residues
generated, resulting or produced therefrom.
b. TENANT SHALL INDEMNIFY, DEFEND AND HOLD LANDLORD HARMLESS FROM AND
AGAINST ANY AND ALL LOSSES (INCLUDING WITHOUT LIMITATION, DIMINUTION IN
VALUE OF THE PREMISES OR THE PROJECT AND LOSS OF RENTAL INCOME FROM THE
PROJECT), CLAIMS, DEMANDS, ACTIONS, SUITS, DAMAGES (INCLUDING WITHOUT
28
LIMITATION, PUNITIVE DAMAGES), EXPENSES (INCLUDING WITHOUT LIMITATION,
REMEDIATION, REMOVAL, REPAIR, CORRECTIVE ACTION, OR CLEANUP EXPENSES)
AND COSTS (INCLUDING WITHOUT LIMITATION, ACTUAL ATTORNEYS' FEES,
CONSULTANT FEES OR EXPERT FEES AND FURTHER INCLUDING WITHOUT
LIMITATION, REMOVAL OR MANAGEMENT OF ANY ASBESTOS BROUGHT INTO THE
PREMISES OR DISTURBED IN BREACH OF THE REQUIREMENTS OF THIS PARAGRAPH
25, REGARDLESS OF WHETHER SUCH REMOVAL OR MANAGEMENT IS REQUIRED BY
LAW) WHICH ARE BOUGHT OR RECOVERABLE AGAINST, OR SUFFERED OR INCURRED
BY LANDLORD AS A RESULT OF ANY RELEASE OF HAZARDOUS MATERIALS FOR WHICH
TENANT IS OBLIGATED TO REMEDIATE AS PROVIDED ABOVE OR ANY OTHER BREACH
OF THE REQUIREMENTS UNDER THIS PARAGRAPH 25 BY TENANT, ITS AGENTS,
EMPLOYEES, CONTRACTORS, SUBTENANTS, ASSIGNEES OR INVITEES, REGARDLESS
OF WHETHER TENANT HAD KNOWLEDGE OF SUCH NONCOMPLIANCE. The obligations
of Tenant under this Paragraph 25 shall survive any termination of this
Lease. Further, in the event a lawsuit is filed against Landlord as a
result of any release of Hazardous Materials for which Tenant is
obligated to remediate as provided above or any other breach of the
requirements under this Paragraph 25 by Tenant, its agents, employees,
contractors, subtenants, assignees or invitees, AND SUCH LAWSUIT
CONTAINS ALLEGATIONS AGAINST LANDLORD BASED ON LANDLORD'S NEGLIGENCE OR
ALLEGING LANDLORD IS STRICTLY LIABLE AND LANDLORD IS NOT FOUND TO BE
NEGLIGENT OR STRICTLY LIABLE, TENANT SHALL INDEMNIFY LANDLORD FROM AND
AGAINST ALL COSTS ASSOCIATED WITH SUCH LAWSUIT, INCLUDING ATTORNEYS'
FEES AND COURT COSTS.
c. Tenant shall complete and deliver the Environmental Questionnaire
attached hereto as Exhibit F (the "Questionnaire") on or before Tenant
occupies the Premises. Tenant represents and warrants to Landlord, with
the understanding that Landlord will rely on same, that the
Questionnaire, when delivered to Landlord will be true and correct and
will not contain any material misrepresentations or omissions.
Landlord's obligations hereunder are subject to Landlord's receipt and
approval of the Questionnaire.
26. Rules and Regulations. Tenant shall, at all times during the Term of this
Lease, comply with all rules and regulations at any time or from time to time
established by Landlord covering the use of the Premises and the Project,
provided such rules and regulations are applicable to all tenants in the
Project. Landlord shall not discriminate against Tenant in enforcement of the
rules and regulations. The current rules and regulations applicable to the
Project are attached as Exhibit I to this Lease. In the event of any conflict
between said rules and regulations and other provisions of this Lease, the other
terms and provisions of this Lease shall control. Landlord shall not have any
liability or obligation to Tenant for the breach of any rules or regulations by
other tenants in the Project.
27. Courtesy Patrols. Tenant acknowledges and agrees that, while Landlord may
(but shall not be obligated to) patrol the Project, Landlord is not providing
any security services with respect to the Premises and that Landlord shall not
be liable to Tenant for, and Tenant waives any claims against Landlord with
respect to, any loss by theft or any other damage suffered by Tenant in
connection with any unauthorized entry into the Premises or onto the Project or
any other breach of security with respect to the Premises or the Project, EVEN
IF SUCH LOSS OR DAMAGE IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE (BUT NOT THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF LANDLORD. Tenant shall be responsible
for the security of its employees and of the Premises and agrees to provide same
at its expense.
29
28. Parking. Tenant shall be entitled use up to 150 unreserved parking spaces
in common with other tenants of the Project in those areas designated for
non-reserved parking; provided that up to 5 of such 150 unreserved parking
spaces may be designated as visitor spaces. Landlord may allocate parking spaces
among Tenant and other tenants in the Project if Landlord determines that such
parking facilities are becoming crowded. Landlord shall not be responsible for
enforcing Tenant's parking rights against any third parties.
29. Miscellaneous.
a. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
b. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Tenant agrees to furnish to Landlord,
promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation
evidencing the due authorization of Tenant to enter into this Lease.
Tenant does hereby covenant and warrant that Tenant is duly organized
and validly existing under the laws of its state of formation, and, if
such entity is existing under the laws of a jurisdiction other than
Texas, qualified to transact business in Texas, Tenant has full right
and authority to enter into this Lease and to perform all Tenant's
obligations hereunder, and each person signing this Lease on behalf of
Tenant is duly and validly authorized to do so. Landlord does hereby
covenant and warrant that Landlord is duly organized and validly
existing under the laws of its state of formation, and, is qualified to
transact business in Texas to the extent required by Texas law,
Landlord has full right and authority to enter into this Lease and to
perform all Landlord's obligations hereunder, and each person signing
this Lease on behalf of Landlord is duly and validly authorized to do
so.
c. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation
of this Lease.
d. Tenant agrees from time to time within fifteen (15) days after request
of Landlord, to deliver to Landlord, or Landlord's designee, an
estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired Term of
this Lease and such other matters pertaining to this Lease as may be
reasonably requested by Landlord. It is understood and agreed that
Tenant's obligation to furnish such estoppel certificates in a timely
fashion is a material inducement for Landlord's execution of this
Lease.
e. All obligations and indemnities of either party hereunder not fully
performed as of the expiration or earlier termination of the Term of
this Lease shall survive the expiration or earlier termination of the
Term hereof, including without limitation all payment obligations with
respect to Base Rent, Operating Expenses, taxes and insurance and all
obligations concerning the condition of the Premises. Tenant shall
promptly pay to Landlord such estimated amounts determined in
accordance with Paragraph 9. Any amounts held by Landlord in excess of
any amounts due by Tenant shall be first credited against the amount
payable by Tenant under this Paragraph 29(e) then any excess promptly
returned to Tenant.
30
f. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby,
and it is also the intention of the parties to this Lease that in lieu
of each clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as a part of this Lease contract a clause
or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
g. This Lease shall not be valid or binding unless and until duly executed
by Landlord and Tenant. This Lease, including the exhibits and addenda,
embodies the entire agreement between the parties hereto with relation
to the transaction contemplated hereby, and there have been and are no
oral or other covenants, agreements, representations, warranties or
restrictions between the parties hereto, other than those specifically
set forth herein. To be effective, any amendment or modification of
this Lease must be in writing and signed by Landlord and Tenant. THERE
ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES HERETO.
h. Tenant and Landlord warrant that they each have had no dealings with
any real estate broker or agent in connection with the negotiation of
this Lease, excepting only Xxxxxxx and Xxxxxxxxx of Texas, Inc.,
representing Tenant, and Transwestern Commercial Services, Inc.,
representing Landlord (collectively, the "Broker") and that they know
of no other real estate brokers or agents who are or might be entitled
to a commission in connection with this Lease. Tenant agrees to
indemnify and hold harmless Landlord from and against any liability or
claim, whether meritorious or not, arising in respect to brokers and/or
agents other than Broker claiming by, through or under Tenant or
Xxxxxxx and Wakefield or Texas, Inc., including without limitation,
Republic Property, Inc. ("Republic"). Landlord agrees to indemnify and
hold harmless Tenant from and against any liability or claim, whether
meritorious or not, arising in respect to brokers and/or agents other
than Broker claiming by, through or under Landlord or Transwestern
Commercial Services, Inc. Landlord agrees to pay the commission due to
Xxxxxxx and Xxxxxxxxx of Texas, Inc. in connection with this Lease
pursuant to the terms of a separate written agreement with such broker.
Notwithstanding anything to the contrary set forth herein, Landlord has
received a letter dated October 23, 2002 from Republic's attorney,
regarding an alleged agreement between Tenant and Republic, whereby
Republic claims that it is entitled to receive commissions in
connection with this Lease. Landlord and Tenant acknowledge and agree
that Landlord shall not be responsible for any payment to Republic and
any and all costs and expenses in connection with any claims by
Republic for commissions or otherwise in connection with this Lease
shall be borne by Tenant.
i. This Lease shall be governed by and construed in accordance with the
laws of the State of Texas.
j. Time is of the essence in this Lease and in each and all of the
provisions hereof. Whenever a period of days is specified in this
Lease, such period shall refer to calendar days unless otherwise
expressly stated in this Lease.
k. For any obligation that prescribes action to be taken by Landlord or
Tenant, the party taking the action shall not be liable or responsible
for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, terrorism, criminal acts by third
parties, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the reasonable control
of such party; provided, however, in no event shall the foregoing apply
to the financial obligations
31
of either Landlord or Tenant to the other under this Lease, including
Tenant's obligation to pay rent or any other amount payable to Landlord
hereunder.
l. The obligations of Tenant under each indemnity agreement and hold
harmless agreement contained herein shall survive the expiration or
termination of this Lease.
m. Neither this Lease nor a memorandum of lease shall be filed by or on
behalf of Tenant in any public record. Landlord may prepare and file,
and upon request by Landlord, Tenant will execute a memorandum of
lease.
n. This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease and no prior
agreement, understanding or representation pertaining to any such
matter shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by
the parties hereto or their respective successors in interest.
o. The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not constitute a merger of the Landlord's
fee estate in the Project and the leasehold interest created hereby;
and upon such surrender or cancellation of this Lease, Landlord shall
have the option, in Landlord's sole discretion, to (a) either terminate
all or any existing subleases or subtenancies, or (b) assume Tenant's
interest in any or all subleases or subtenancies. The acquisition by
Landlord of Tenant's interests under this Lease shall not result in the
merger of Landlord's fee estate with Tenant's leasehold estate.
p. To the best of Landlord's actual current knowledge:
(i) Landlord holds indefeasible title to the Project;
(ii) Landlord has not received notice of any pending or
threatened litigation or pending or threatened condemnation
proceedings that affect, or may affect, the Project;
(iii) Landlord is a Delaware limited liability company, validly
existing and in good standing, with full right, power and
authority to enter into this Lease, to consummate this Lease,
and to perform the covenants and agreements of Landlord, all as
contemplated by this Lease, and all actions necessary to
authorize Landlord to enter into and carry out its obligations
under this Lease; and
(iv) Landlord has not (A) made a general assignment for the
benefit of creditors; (B) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by
Landlord's creditors; (C) suffered the appointment of a receiver
to take possession of all, or substantially all, of Landlord's
assets; (D) admitted in writing Landlord's inability to pay its
debts as they come due; or (E) made an offer of settlement,
extension, or composition to its creditors generally.
(v) Landlord has delivered to Tenant that certain Phase I
Environmental Site Assessment Update Report for the land located
at SEQ Xxxxx Xxxx Xxxx xxx Xxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx dated December 21, 2001 prepared by HBC Engineering, Inc.
Project No. 94017690A (the "Environmental Report"). The
Environmental Report is the most recent environmental report in
its possession. Landlord makes no representations or warranties
regarding the completeness or accuracy of the Environmental
Report. To Landlord's actual
32
current knowledge, except as set forth in the Environmental
Report, there are no "recognized environmental conditions" (as
defined below) present on or in the Project that would have an
adverse effect on any occupants of the Project. As used herein,
the term "recognized environmental condition" shall have the
meaning given to such term in ASTM Standard E 1527-00, entitled
Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process.
As used herein, the phrase "Landlord's actual current knowledge"
or similar phrase shall mean the actual current knowledge of
Xxxx Xxxxxxx, Vice President of AmberJack, Ltd., managing member
of Landlord, without duty of inquiry. Landlord represents that
Xxxx Xxxxxxx is the employee of AmberJack, Ltd. most likely to
have knowledge of the facts represented in this Paragraph 29.
30. Exhibits and Attachments All exhibits, attachments, riders and addenda
referred to in this Lease are incorporated in this Lease and made a part hereof
for all intents and purposes.
Exhibit A Description of Premises
Exhibit B Legal Description of Land
Exhibit C Project Site Plan
Exhibit D Work Letter
Exhibit E Acceptance of Premises Memorandum
Exhibit F Environmental Questionnaire
Exhibit G Sign Criteria
Exhibit H Additional Provisions
1. Cancellation Option
2. Renewal Options
3. Right of First Refusal
Exhibit I Rules and Regulations
Exhibit J Approved Equipment
Exhibit K Confidentiality Agreement
SIGNATURES ON FOLLOWING PAGE
33
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first above written.
LANDLORD: TENANT:
AmberPoint at Coppell, L.L.C., a Delaware Xxxxxx Communications, Inc.,
limited liability company a Delaware corporation
By: Transwestern Property Company
Southwest, L.P., d/b/a Transwestern
Commercial Services, as authorized By:
Property Manager for AmberPoint at --------------------------
Coppell, L.L.C. Name: Xxxx X'Xxxxxxxx, Xx.
Title: Senior Vice President,
Operations
Date:
------------------------
By:
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Date:
---------------------------------
By:
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Date:
---------------------------------
34
EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
1
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
BEING a tract of land out of the Xxxxx Xxxxx Survey, Abstract No. 968 in the
City of Coppell, Dallas County, Texas, and being part of Xxx 0, Xxxxx X xx xxx
Xxxxxxxxxx Xxxxxxxx Xxxx Addition to the City of Coppell as described in Volume
2002023, Page 00071 (D.R.D.C.T.), and being part of a tract of land described in
deed to Xxxxxxxxxx Xxxx, L.L.C., recorded in Volume 2001173, Page 3803,
(D.R.D.C.T.), and being more particularly described as follows:
COMMENCING at a 1/2-inch found iron rod with cap stamped Xxxxxxxx & Xxxxxxxx in
the centerline of Northpoint Drive (80 foot right-of-way), said point being the
northwest corner of a tract of land described in Special Warranty Deed to the
City of Coppell as recorded in Volume 96164, Page 207, D.R.D.C.T., and being in
the east line of Freeport North Addition, an addition to the City of Coppell, as
recorded in Volume 84203, Page 1835, D.R.D.C.T.;
THENCE North 00 degrees 07 minutes 07 seconds East, along said east line, a
distance of 30.00 feet to a point on a non-tangent circular curve to the left,
having a radius of 410.16 feet and whose chord bears North 75 degrees 33 minutes
23 seconds East, a distance of 220.98 feet, said point being on the north
right-of-way line of Northpoint Drive (60 feet wide);
THENCE Northeasterly, along said north right-of-way line and along said circular
curve to the left, through a central angle of 31 degrees 15 minutes 17 seconds
and an arc distance of 223.74 feet to the point of reverse curvature of a
circular curve to the right, having a radius of 480.00 feet and whose chord
bears North 68 degrees 41 minutes 11 seconds East, a distance of 146.16 feet;
THENCE Northeasterly, continuing along said north right-of-way line and along
said circular curve to the right, through a central angle of 17 degrees 30
minutes 53 seconds and an arc distance of 146.73 feet to the POINT OF BEGINNING;
THENCE North 00 degrees 07 minutes 17 seconds East, along said east line, a
distance of 384.27 feet to a 5/8-inch iron rod found for a corner;
THENCE North 00 degrees 56 minutes 17 seconds West, along the east line of said
Freeport North Addition, a distance of 90.42 feet to a 1/2-inch iron rod found
for a corner;
THENCE North 89 degrees 46 minutes 32 seconds West, along the north line of said
Freeport North Addition, a distance of 2.29 feet to a 1/2-inch iron rod found
for the southeast corner of Xxxxx Containers Addition, an addition to the City
of Coppell, as recorded in Volume 88206, Page 3786, D.R.D.C.T.;
THENCE North 00 degrees 07 minutes 49 seconds East, along the east line of said
Xxxxx Containers Addition, a distance of 339.95 feet, to a point for a corner;
THENCE South 89 degrees 56 minutes 23 seconds East, departing said east line, a
distance of 842.53 feet, to a point on the west right-of-way-line of said
Northpoint Drive (60 feet wide);
THENCE South 00 degrees 03 minutes 37 seconds West, along said west right-of-way
line, a distance of 382.77 feet to the point of curvature of a circular curve to
the right, having a radius of 420.00 feet and whose chord bears South 45 degrees
02 minutes 07 seconds West, a distance of 593.71 feet;
THENCE Southwesterly, along said northwest right-of-way line and along said
circular curve to the right, through a central angle of 89 degrees 57 minutes 00
seconds and an arc distance of 659.37 feet to the
1
point of tangency;
THENCE North 89 degrees 59 minutes 23 seconds West, continuing along said north
right-of-way line, a distance of 315.43 feet to the point of curvature of a
circular curve to the left, having a radius of 480.00 feet and whose chord bears
South 83 degrees 43 minutes 37 seconds West, a distance of 105.07 feet;
THENCE Southwesterly, along said northwest right-of-way line and along said
circular curve to the left, through a central angle of 12 degrees 33 minutes 59
seconds and an arc distance of 105.28 feet to the POINT OF BEGINNING AND
CONTAINING 637,617 square feet or 14.64 acres of land, more or less.
2
EXHIBIT C
PROJECT SITE PLAN
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
1
EXHIBIT C
PROJECT SITE PLAN
2
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
1. APPLICATION OF EXHIBIT
Capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Work Letter
shall apply to the planning and completion of leasehold improvements
requested by Tenant (the "Tenant Improvements") for the fitting out of the
initial Premises, as more fully set forth herein. The Premises shall
initially consist of approximately 15,000 square feet of office space (the
"Office Premises"), approximately 30,000 square feet of testing and repair
space (the "Testing Premises") and approximately 165,563 square feet of
warehouse space (the "Warehouse Premises").
2. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
(a) Preliminary Plans. Tenant's architect, Good, Xxxxxx & Xxxxxxx
("Tenant's Architect") shall prepare space plans for the Tenant
Improvements (the "Preliminary Plans") which shall include, without
limitation, architectural, engineering (including mechanical,
electrical and plumbing ("MEP"), except for the Warehouse Premises,
which shall be provided as required by the City of Coppell by the
Contractor's MEP subcontractor)) and design drawings showing the
locations of doors, partitioning, electrical fixtures, outlets and
switches, plumbing fixtures, floor loads and other requirements, and a
list of all specialized installations, improvements upgrade
specifications determined by Tenant as required for its use of the
Office Premises and the Testing Premises. The Preliminary Plans shall
also include Tenant specific preliminary power, phone and data
locations in the Warehouse Premises. The costs associated with
preparation of the Preliminary Plans shall be borne by Tenant; provided
that Landlord shall provide Tenant with an allowance up to $45,000.00
(the "Plan Allowance") to be used solely for the cost of the
preparation of the Preliminary Plans and/or the Working Drawings
(hereinafter defined). Within thirty (30) days after receipt of
invoices for such costs, Landlord shall disburse the Plan Allowance to
Tenant or Tenant's Architect up to the actual cost of the preparation
of such plans as evidenced by such invoices.
(b) Working Drawings. Tenant's Architect shall prepare working drawings
only for the Tenant Improvements in the Office Premises and the Testing
Premises (the "Working Drawings") based upon the Preliminary Plans;
provided that the Working Drawings shall include, either in narrative
or other form, information to provide the Contractor with adequate
detail, all Tenant specific MEP requirements for the Warehouse Premises
(other than HVAC requirements), such as the scope and/or specific
location of electrical and plumbing improvements (i.e., location of
outlets, number of 220v outlets); however, the Working Drawings shall
not include complete engineering drawings for the Warehouse Premises.
The Working Drawings shall include architectural and MEP drawings and
construction drawings for the Tenant Improvements in the Office
Premises and Testing Premises based on the Preliminary Plans.
Notwithstanding the Preliminary Plans, in all cases the Working
Drawings (i) shall be subject to Landlord's final approval, which
approval shall not be unreasonably withheld, (ii) shall not be in
conflict with building codes for the City or County or with insurance
requirements for a comparable industrial building, and (iii) shall be
in a form satisfactory to appropriate governmental authorities
responsible for issuing permits and licenses required for construction.
The costs associated with preparation of the Working Drawings shall be
borne by Tenant; provided that Landlord shall provide Tenant with an
allowance up to $23,490.00 (the "Working Drawings Allowance") to be
used solely for the cost of the preparation of the Working Drawings and
the Preliminary Plans. Within thirty (30) days after receipt of
invoices for such costs, Landlord shall disburse the Working Drawings
Allowance to
1
Tenant or Tenant's Architect up to the actual cost of the preparation
of such plans as evidenced by such invoices. Landlord and Tenant
acknowledge and agree that the HVAC system for the Warehouse Premises
will be designed in the field by the HVAC subcontractor.
(c) Approval of Working Drawings. Within seven (7) business days after the
initial proposed Working Drawings are delivered to Landlord, Landlord
shall approve or disapprove same in writing and if disapproved,
Landlord shall provide Tenant's Architect specific reasons for
disapproval; provided that Landlord shall respond within three (3)
business days after receipt of any revised Working Drawings.
Notwithstanding the foregoing, in the event the Working Drawings are
delivered to Landlord during the period of December 20, 2002 through
January 2, 2003, Landlord shall have until January 10, 2003 to approve
or disapprove such Working Drawings; provided that Landlord shall use
reasonable efforts to notify Tenant of such approval or disapproval as
soon as reasonably possible. The foregoing process shall continue until
the Working Drawings are approved by Landlord; provided that if
Landlord fails to respond in the initial seven (7) business day period
or any subsequent three (3) business day period, Landlord shall be
deemed to have approved the last submitted Working Drawings. For
purposes of approval of Working Drawings, the proposed Working Drawings
will be considered delivered to Landlord upon delivery to Xxx Xxxxxxx,
Transwestern Commercial Services, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000X,
Xxxxxx, Xxxxx 00000 and to Xxxx Xxxxxx, Transwestern Commercial
Services, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxx 00000. For
communications to Tenant or Tenant's Architect under this Work Letter,
such communications shall be sent to Xxxxxx Xxxxxx, Good, Xxxxxx &
Xxxxxxx, 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and to Xxxxxx
Communications, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx,
00000, Attention: Xxxxxx Xxxxxx, Director, Program and Systems Support
Operations and Professional Services.
3. BUILDING PERMIT
After the final approval of the Working Drawings by Landlord and Tenant
has occurred ("Final Approval") and the Contractor has been selected, the
Contractor shall submit the Working Drawings to the appropriate governmental
body or bodies for final plan checking and a building permit. Tenant shall cause
to be made any change in the Working Drawings necessary to obtain the building
permit; provided, however, after the Final Approval, no changes shall be made to
the Working Drawings, without the prior written approval of both Landlord and
Tenant.
4. CONSTRUCTION OF TENANT IMPROVEMENTS
Upon Final Approval of the Working Drawings, Landlord agrees promptly to
bid the construction of the Tenant Improvements to the following four (4)
mutually approved general contractors: (i) Xxxxx & Xxxx, (ii) Resource
Commercial, (iii) ICI Construction, Inc., and (iv) Xxxxxx Construction, and
to immediately provide a copy of such bids to Tenant for Tenant's
consideration. The costs associated with the construction of the Tenant
Improvements shall be paid as set forth in Section 5 of this Work Letter.
Landlord shall see that the construction complies with all applicable
building, fire, plumbing, electrical, health, and sanitary codes,
regulations, laws, ordinances, rules and regulations of any applicable
governmental authority, the satisfaction of which shall be evidenced by a
certificate of occupancy for the Premises; provided that in the event the
Working Drawings do not comply with such codes and regulations, all costs
resulting from such non-compliance shall be paid by Tenant. Further,
Landlord shall see that the construction complies with any and all
restrictive covenants and/or deed restrictions applicable to the Premises.
Notwithstanding the foregoing, in the event the construction of the
customer viewing platform described below triggers any modifications to the
Building or the Tenant Improvements in order for the Building and the
Tenant Improvements to comply with applicable laws, including the
provisions of Tex. Rev. Civ. Stat. Xxx. art. 9102 and the provisions of the
Americans With Disabilities Act of 1990, as amended, Tenant shall, at
Tenant's option, (i) pay for the cost of the required modifications, and
such costs shall be considered Excess Costs under Section 5 below, or (ii)
remove the installation of the customer viewing platform from the Tenant
Improvements.
Landlord shall recommend the selection of the Contractor (hereinafter
defined) to Tenant ten (10)
2
business days after Final Approval of the Working Drawings; and upon
Tenant's approval of the selection, Landlord shall promptly enter into a
construction contract ("Construction Contract"), subject to Tenant's
reasonable approval (which shall be not unreasonably withheld or delayed)
with the general contractor approved by Tenant (which approval shall not be
unreasonably withheld) ("Contractor"). Landlord shall cause the
construction of the Tenant Improvements to be carried out in substantial
conformance with the Working Drawings in a good and xxxxxxx like manner
using first-class materials. The Construction Contract shall, at a minimum,
call for (i) the construction of the Tenant Improvements for a stipulated
sum contract, based on the Working Drawings; (ii) contractor warranties as
described in AIA form A201 1997 Edition; (iii) Tenant's right to review and
approve all Contractor pay applications (which approval shall not be
unreasonably withheld or delayed by Tenant); and (iv) the Contractor to
furnish evidence of the insurance set forth in Schedule 1 attached hereto
in the amounts set forth on Schedule 1 attached to this Exhibit and any
other insurance required by Landlord, and naming Landlord and Tenant as an
additional insured on all liability insurance policies. Such Construction
Contract price shall be subject to adjustment based on any changes to the
Working Drawings required by Tenant in accordance with this Work Letter.
The Construction Contract may not be amended nor the Construction Contract
price increased by change order or otherwise, without Tenant's prior
written approval, which approval shall not be unreasonably withheld or
delayed.
5. TENANT IMPROVEMENT COSTS
A. Landlord will initially provide at no additional cost to Tenant, the
following improvements which Landlord acknowledges currently exist at the
Building and/or the Premises:
(i) Warehouse Premises, including the following:
(a) 32 dock high (48" above grade) truck doors, door track angle
iron protectors, and bumpers (existing "as is");
(b) 2 dock high truck doors out of the 32 doors shall be utilized
as waste disposal openings in the warehouse wall (existing "as
is");
(c) 2 doors with ramp (15' high x 12' wide) (existing "as is");
(d) Ashford sealant on warehouse floor (existing "as is"); and
(e) Underside of the roof deck delivered white (existing "as is").
(ii) Existing Building has 70 watt metal halide surface mounted exterior
fixtures which are activated by light sensitive photocells.
(iii) Underground electric service from the utility company to a
pad-mounted transformer (existing "as is"). Electric service of 480/277
volt, three-phase, four-wire.
(iv) ESFR fire protection sprinkler system (existing "as is").
B. Landlord shall perform the following Tenant Improvements at
Landlord's sole cost and expense.
(i) 8 of the 32 dock high (48" above grade) truck doors described in
A.(i)(a) above doors shall be equipped with 25,000 lbs. levelers, interior
swing lights, dock seals and interior/exterior traffic control lights;
(ii) Interior Warehouse Premises walls painted white;
(iii) Installation of metal halide lighting fixtures on 18' centers (25 FC
at 3' above ff) in the Warehouse Premises, mounted for possible relocation
within 8'; and
3
(iv) One quad box with 110 V, 20 amps for every other column in the
Warehouse Premises and between each set of dock doors. Two (2) 220 V
locations in the Warehouse Premises.
C. The sum of the allowances set forth below for the construction of
certain Tenant Improvements, in the amount of $1,300,008.00, will be
referred to herein as the "Construction Allowance", and all permits
required to construct the Tenant Improvements listed in this Section 5
shall be paid from the Construction Allowance. In the event the cost of the
Tenant Improvements (other than the work described in Section B(i) - (iv)
above to be paid for by Landlord) exceeds the Construction Allowance,
Tenant shall pay for the cost of such Tenant Improvements as provided
below.
(i) $450,000 allowance to construct the Office Premises, including the
cost and installation of protection bollards and safety rails around
warehouse office, the cost and installation of electric panels and
office demising wall corners and employee door openings to the Office
Premises, all as designated on the Working Drawings.
(ii) $450,000 allowance to construct the Testing Premises.
(iii) $5,000.00 allowance for battery charger area.
(iv) $54,454.00 allowance for fire alarm system.
(v) $314,169.00 allowance for spot air cooling as defined by Tenant in
the Preliminary Plans (including any additional insulation,
electrical upgrades, and other improvements required for air
conditioning systems to perform properly) and heating of the
Warehouse Premises.
(vi) $4,385.00 allowance or ten (10) additional exterior lights on the
Building.
(vii) $10,000.00 allowance to construct an approximate 10' x 16' customer
viewing platform; provided that in the event Tenant elects not to
construct the viewing platform, the $10,000.00 allowance may be
applied by Tenant to pay for other Tenant Improvements (i.e., the
allowance will be available to Tenant even if Tenant elects not to
construct the platform).
(viii) $12,000.00 allowance to convert existing dock doors to windows or to
saw-cut eastern wall of the Premises to create windows (provided that
in the event Tenant saw-cuts the wall of the Premises, a portion of
such allowance shall be used to pay for the cost of the structural
engineer engaged by Landlord to approve such work).
Notwithstanding the foregoing, any of the Construction Allowance may be
used for any of the work described in Section 5(i) through (viii).
No construction management fee shall be charged by Landlord or Transwestern
Commercial Services for the work contemplated by this Work Letter. Landlord
shall provide Tenant with a construction management allowance (the "CM
Allowance") up to $84,100.00 for the payment the costs and expenses of
Tenant's third party construction manager. Landlord shall disburse the CM
Allowance within thirty (30) days after receipt of an invoice from Tenant's
third party construction manager for services performed in connection with
the Tenant Improvements, but in no event prior to Substantial Completion of
the Tenant Improvements. In the event Tenant does not use the entire Plan
Allowance, the Working Drawing Allowance, the Construction Allowance or the
CM Allowance for the purposes set forth herein, Tenant shall be entitled to
use up to $30,000.00 of such unused allowances as reimbursement for third
party moving expenses incurred by Tenant in connection with Tenant's move
to the Premises. Tenant must request reimbursement of such third party
moving expenses (and present supporting documentation of such costs to
Landlord, as appropriate) within three (3) months after Tenant's
commencement of business operations in the Premises. Any other unused
portion of the Plan Allowance, the Working Drawing Allowance and the CM
Allowance shall be the sole property of Landlord. Any unused portion of the
Construction Allowance shall be available to Tenant for reimbursement of
the cost of additional improvements constructed by Tenant in the Premises
(but not for trade fixtures, furniture, equipment or other items which do
not constitute
4
leasehold improvement); provided that Tenant must request reimbursement of
such improvement costs (and present supporting documentation of such costs,
lien waivers and other appropriate documentation with respect to such
improvements to Landlord) on or before March 31, 2004. Any other unused
portion of the Construction Allowance after March 31, 2004 shall be the
sole property of Landlord.
In the event the cost of the Tenant Improvements for which allowances are
provided exceeds the total Construction Allowance or Tenant requests
additional improvements in excess of any unused portion of the Construction
Allowance after deduction of the cost of the Tenant Improvements for which
allowances are provided (such costs in excess over the Construction
Allowance being herein referred to as the "Excess Costs"), Tenant shall pay
one-half of the Excess Costs to Landlord upon demand and the remainder
shall be promptly paid to Landlord by Tenant within thirty (30) days after
Tenant's receipt of the final construction accounting. However, if Tenant
is not in default after the expiration of all applicable notice and cure
periods at the time Tenant notifies Landlord of its election to receive the
Additional Allowance (hereinafter defined), Tenant shall have the right to
have Landlord pay an additional sum not to exceed $5.00 per square foot of
the Premises toward the cost of the Tenant's Improvements and/or additional
improvements constructed by Tenant in the Premises (but not for trade
fixtures, furniture, equipment or other items which do not constitute
leasehold improvements) (such amount, the "Additional Allowance"). In the
event Tenant elects to receive all or any portion of the Additional
Allowance, Tenant shall provide written notice of such election prior to
March 1, 2004. If Landlord provides any portion of the Additional
Allowance, commencing on April 1, 2004, Base Rent shall be increased by an
amount equal to $0.24 per square foot per year for each $1.00 per square
foot of the Premises of Additional Allowance paid by Landlord (prorated for
less than full $1.00 increments).
6. CHANGE ORDERS
Tenant may from time to time request and obtain change orders during the
course of construction provided that: (i) each such request shall be
reasonable, shall be in writing and signed by or on behalf of Tenant, and
shall not result in any structural change in the Building, as reasonably
determined by Landlord, (ii) all additional charges and costs, including
without limitation architectural and engineering costs, construction and
material costs, and processing costs of any governmental entity shall be
the sole and exclusive obligation of Tenant, and (iii) any resulting delay
in the completion of the Tenant Improvements shall in no event shall extend
the Commencement Date of the Lease. Upon Tenant's request for a change
order, Landlord shall as soon as reasonably possible submit to Tenant a
written estimate of the increased or decreased cost and anticipated delay,
if any attributable to such requested change. Within three (3) days of the
date such estimated cost adjustment and delay are delivered to Tenant,
Tenant shall advise Landlord whether it wishes to proceed with the change
order, and if Tenant elects to proceed with the change order, Tenant shall
remit, concurrently with Tenant's notice to proceed, the amount of the
increased cost, if any, attributable to such change order. Unless Tenant
includes in its initial change order request that the work in process at
the time such request is made be halted pending approval and execution of a
change order, Landlord shall not be obligated to stop construction of the
Tenant Improvements, whether or not the change order relates to the work
then in process or about to be started.
7. COMMENCEMENT DATE AND DELAYS
Notwithstanding anything to the contrary in Paragraph 1 of the Lease,
the Term of the Lease shall commence on the earlier to occur of (i) the date
Tenant occupies the Premises for the commencement of business operations and
(ii) Substantial Completion (as herein defined) of the Tenant Improvements (the
"Commencement Date"); provided that in the event the Commencement Date is later
than April 1, 2003 (the "Rent Commencement Date"), the Termination Date set
forth in Paragraph 1 of the Lease shall not be adjusted and Tenant's obligations
to pay Base Rent and Tenant's Proportionate Share of Operating Expenses shall
commence on the Rent Commencement Date. In no event shall the Rent Commencement
Date be extended or delayed beyond April 1, 2003.
The term "Substantial Completion" shall mean when the Tenant Improvements
are sufficiently
5
completed so that the Tenant can reasonably use the Premises for the
commencement of business, including without limitation, each of the
following events have occurred:
(i) The Tenant Improvements have passed all governmental inspections
and all conditions have been met to allow for lawful occupancy of the
Premises; and
(ii) The Tenant Improvements shall have been substantially completed
(except for punch-list items) in accordance with the Working Drawings and
Tenant's Architect shall have certified to Tenant that such substantial
completion has occurred; provided that in the event Tenant's Architect
fails to provide such certification or objections thereto within four (4)
business days after request by Landlord, then such certification shall not
be required.
If the Tenant Improvements are not Substantially Complete on or before the
date which is six (6) months after the projected completion time set forth
in the Construction Contract solely by reason of Landlord Delays
(hereinafter defined) or Unavoidable Delays (hereinafter defined), then
Tenant may terminate the Lease without penalty by written notice to
Landlord on or before the earlier to occur of (i) Substantial Completion of
the Tenant Improvements, and (ii) ten (10) days after such six (6) month
period, and the Lease will automatically terminate as of the date of such
notice. Notwithstanding the foregoing, in the event an Unavoidable Delay
commences during the last ninety (90) days of the six (6) month period
referenced above, such six (6) month period shall be extended for the
period of such Unavoidable Delay; provided that in no event shall such
extension exceed ninety (90) days. As use herein, "Landlord Delay" shall
mean actual delay after the projected completion date set forth in the
Construction Contract in Substantial Completion of the Tenant Improvements
solely caused by one or more of the following events:
(x) Landlord's failure to timely review and approve (including
deemed approval) of the Working Drawings;
(y) Landlord's failure to approve any other item or perform any
other Landlord obligation in accordance with and by the dates
specified herein or in the Construction Contract.
As used herein, the term "Unavoidable Delay" shall mean a delay which is
due to strikes, riots, acts of God, shortages of labor or materials (as
opposed to Tenant's selection of specific items that are not available but
alternative selections are available), war, terrorism, or other similar
causes beyond the reasonable control of Landlord or Tenant, all which arise
after the execution of the Construction Contract.
8. TRADE FIXTURES AND EQUIPMENT
Tenant acknowledges and agrees that Tenant is solely responsible for
obtaining, delivering and installing in the Premises all necessary and
desired furniture, trade fixtures, equipment and other similar items, and
that Landlord shall have no responsibility whatsoever with regard thereto.
Tenant further acknowledges and agrees that neither the Commencement Date
of the Lease nor the payment of rent shall be delayed for any period of
time whatsoever due to any delay in the furnishing of the Premises with
such items.
9. CLOSE-OUT DOCUMENTATION
Notwithstanding anything to the contrary contained in this Exhibit, in
addition to any other requirements set forth herein, Landlord shall deliver
to Tenant all of the following as soon as possible following Substantial
Completion of the Tenant Improvements, but not later than forty-five (45)
days thereafter:
(a) The originals or copies of operation and maintenance manuals received
from the Contractor for all building systems serving the Premises.
(b) The originals or copies of all guarantees and warranties obtained by
Landlord in connection with
6
the construction of the Tenant Improvements.
Landlord shall cause the Contractor provide to Tenant within forty-five
(45) days after Substantial Completion of the Tenant Improvements, a list of the
name, address and telephone number of all contractors and subcontractors that
have supplied labor or furnished a major component of materials or equipment to
the Premises on behalf of Landlord.
10. WARRANTIES
Landlord shall assign to Tenant on a non-exclusive basis all guarantees and
warranties received by Landlord in connection with the Tenant Improvements.
Landlord shall obtain a customary warranty from the Contractor covering the
Tenant Improvements.
11. COMPLETION VERIFICATION AND PUNCH LIST.
(a) Landlord shall notify Tenant on or before fifteen (15) days (but not
more than thirty (30) days) prior to the estimated Substantial
Completion date. Landlord shall reconfirm the Substantial Completion
date at least five (5) days prior to such date. At such time as
Landlord determines that the Tenant Improvements are Substantially
Complete, Landlord shall notify Tenant of Landlord's determination of
the date on which Substantial Completion shall occur (the actual date
on which Substantial Completion occurs shall be the "Substantial
Completion Date". Tenant and Tenant's Architect and Landlord's
construction manager (Tenant's Architect and Landlord's construction
manager, collectively, the "Project Representatives"), and Tenant's
construction manager shall meet at the Premises at a mutually
acceptable date and time within five (5) days after Landlord's five (5)
day advance notice to conduct an on-site inspection of the Tenant
Improvements and to prepare a punch list. Punch list items shall mean
any details of construction, mechanical adjustment or other matter, the
non-completion of which does not materially interfere with Tenant's
intended use of the Premises, but shall not include any damage caused
by the installation or delivery of Tenant's furniture, fixtures or
equipment in the Premises.
(b) If there is no disagreement between the parties as to Substantial
Completion, then Landlord, Tenant and the Contractor shall sign the
punch list prepared by the Project Representatives and Landlord shall
use reasonable efforts to cause all such punch list items to be
completed within thirty (30) days thereafter.
(c) The Project Representatives shall prepare a detailed written punch list
of all completions, corrections, and repairs to be made to the Tenant
Improvements based on such inspection and a copy of such punch list
shall be delivered to Landlord, and Tenant and the Contractor. If any
items which are not normal punch list items require correction, repair
or replacement, then the Tenant Improvements shall not be deemed
Substantially Complete. As used herein, the term "Correction Work"
shall mean all work attributable to replacement, retrofitting, or other
restorative or corrective work required in order to bring any portion
of the Landlord's Work or Tenant Improvements into compliance with the
Construction Drawings and the Construction Contract.
(d) Tenant reserves the right to make a punch list in addition to the
Project Representative's punch list within seven (7) days after first
occupancy which shall be submitted to Landlord and the Contractor, and
provided that such punch list is not subject to dispute, Landlord
agrees to cause the Contractor to repair or bring to completion the
items required by such punch list as soon as possible thereafter.
(e) Decisions of the Project Representatives shall be determined jointly in
their professional judgments. Any unresolved disputes between the
Project Representatives shall be determined by binding arbitration
conducted by and in accordance with the rules of the American
Arbitration Association. All arbitration fees and other costs incurred
by the arbitrator in connection with any arbitration, together with
reasonable attorney fees of the prevailing party incurred in connection
with the arbitration, shall be paid by the non-prevailing party and be
assessed against such non-prevailing party as a part of the arbitration
proceedings.
7
SCHEDULE I
TO EXHIBIT D
CONTRACTOR INSURANCE REQUIREMENTS
The Contractor shall purchase and maintain commercial general liability
insurance as required to protect himself and the Owner from claims set forth
below which may arise out of or result from operations of the Contractor or any
subcontractor under the Contract, whether such claims arise during Contract
performance or subsequent to completion of operations under the Contract and
whether such operations be by himself or by any subcontractor or by anyone
directly or indirectly employed by any of them or by anyone for whose acts any
of them may be liable. Insurance shall be purchased from a company licensed to
do business in the state in which the Project is located.
Claims under Workers' Compensation, disability benefit and
other similar employee benefit acts.
Claims for damages because of bodily injury, occupational
sickness or disease, or death of its employees and claims insured by
usual personal injury liability coverage.
Claims for damages because of bodily injury, sickness or
disease, or death of any person other than its employees and claims
insured by usual personal injury liability coverage.
Claims for damages other than to the work itself, because of
injury to or destruction of tangible property, including loss of use
resulting therefrom.
Claims for damages insured by usual bodily injury liability
coverage which are sustained (1) by any person as a result of an
offense directly or indirectly related to the employment of such person
by the Contractor, or (2) by any other person.
Claims for damages because of bodily injury or death of any
person or property damage arising out of the ownership, maintenance or
use of any motor vehicle.
Contractor's liability insurance shall be written on commercial general
liability form with all coverages indicated. Coverage shall be on an
"occurrence" basis not an "accident" basis. The insurance specified shall be
considered as minimum requirements. The Contractor is responsible for providing
any additional insurance he deems necessary to protect his interest from other
hazards or claims in excess of the minimum coverage. Coverages shall include:
Products - Completed operations
Blanket Contractual - With exclusions relating to construction
operations deleted
Property Damage
Personal Injury
Blanket Explosion, Collapse and Underground Property Damage
Independent Contractors
Umbrella, Excess Liability
The insurance required shall be written for not less than any limits of
liability specified below or required by law, whichever is greater, and shall
include contractual liability insurance as applicable to the Contractor's
obligations. The Contractor's minimum limits of liability are as follows:
Worker's Compensation based on statutory requirements including
employers liability with a limit of $100,000 for each employee. All
worker's compensation policies shall carry the "all states"
endorsement.
Contractors public liability, including bodily injury and death, and
property damage liability with a minimum combination single limit of
$1,000,000 with AmberPoint at Coppell, L.L.C. as additional insured.
The insurance coverage can be provided under a commercial general
liability policy or
1
under a combination of the comprehensive general liability coverage and
umbrella or excess liability coverage. The above coverage or
combination of coverage must provide a minimum total annual aggregate
limit of $5,000,000 for products liability including completed
operations, and a separate annual aggregate limit of $5,000,000 for all
other coverage.
Products Liability including completed operations with public liability
and property damage liability combined limit of $1,000,000 each
occurrence and $2,000,000 annual aggregate. This liability insurance
shall be continued in force for no less than two years after final
acceptance of the work.
Independent Contractor's liability insurance with a public liability
and property damage liability combined limit of $1,000,000 for each
occurrence and $5,000,000 annual aggregate.
Blanket contractual liability with a public liability and property
damage liability combined limit of $1,000,000 each occurrence and
$5,000,000 annual aggregate.
Comprehensive automobile liability insurance including owned, hired and
non-owned vehicles with minimum combination single limit of $1,000,000
each occurrence for personal injury liability including without
limitation bodily injury and death and property damage liability. This
insurance coverage can be provided under a comprehensive automobile
liability policy, or under a combination of the comprehensive
automobile liability coverage and umbrella or excess liability
coverage.
2
EXHIBIT E
ACCEPTANCE OF PREMISES MEMORANDUM
1. PARTIES
This Exhibit is attached to and made a part of that certain Lease
Agreement dated as of November 5, 2002, by and between AmberPoint at
Coppell, L.L.C., a Delaware limited liability company, as "Landlord",
and Xxxxxx Communications, Inc., a Delaware corporation, as "Tenant",
for the Premises known as AmberPoint Business Park at Coppell, Xxxxxxxx
0, Xxxxx 000.
2. RECITALS
Landlord and Tenant entered into that certain Lease dated as of
November 5, 2002 (the "Lease") for those certain premises (the
"Premises") located in the building commonly known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000 (xx xxx Xxxx xx
Xxxxxxx, Xxxxx). The Term of the Lease commences on the earlier to
occur of (i) the date Tenant occupies the Premises for the commencement
of business operations and (ii) Substantial Completion of the Tenant
Improvements (as defined in the Lease) in the Premises (the
"Commencement Date").
The Commencement Date has now been determined by Landlord and Tenant as
well as the date of the expiration of the term. The purpose is to set
forth such dates and to provide for Tenant's acceptance of the
Premises.
3. DATES
In accordance with Article 1 of the Lease, Landlord and Tenant agree
that the Term of the Lease has commenced and shall expire on the
following dates:
Lease Commencement Date: _______________________
Expiration Date: March 31, 2010
4. ACCEPTANCE OF PREMISES
Tenant accepts the Premises in the condition existing as of the
Commencement Date (subject to latent defects for which Landlord is
responsible under the terms of the Lease and punch list items) and
acknowledges and agrees that, except for any punch list items, all work
required to be performed by Landlord pursuant to the "Work Letter"
attached to the Lease as Exhibit D has been completed by Landlord in
full compliance with Exhibit D and to the satisfaction of Tenant.
5. MISCELLANEOUS
A. Effect:
Except to the extent this Lease has been modified by this
Exhibit E to the Lease, the remaining terms and conditions of
the Lease shall remain unmodified and in full force and
effect.
B. Defined Terms:
The defined terms used in this Exhibit E to the Lease, as
indicated by the first letter of a word being capitalized,
shall have the same meaning in this Exhibit E as such terms
and provisions have in the Lease.
1
6. EXECUTION
This Exhibit has been executed and shall be deemed effective as of the
date first written above.
LANDLORD: TENANT:
AmberPoint at Coppell, L.L.C., a Delaware Xxxxxx Communications, Inc.,
limited liability company a Delaware corporation
By: Transwestern Property Company
Southwest, L.P., d/b/a Transwestern
Commercial Services, as authorized By:_________________________
Property Manager for AmberPoint at Name:_______________________
Coppell, L.L.C. Title:______________________
Date:_______________________
By:________________________
Name:______________________
Title:_____________________
Date:______________________
By:________________________
Name:______________________
Title:_____________________
Date:______________________
2
EXHIBIT F
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of hazardous
substances on the Premises. Prospective tenants should answer the questions in
light of their proposed operation on the Premises. Existing tenants should
answer the questions as they relate to on-going operations on the Premises and
should update any information previously submitted. If additional space is
needed to answer the questions, you may attach separate sheets of paper to this
form.
1. GENERAL INFORMATION
Name of Responding Company: ___________________________________________
Check the Applicable Status: Prospective Tenant Existing Tenant
Mailing Address: ______________________________________________________
______________________________________________________
Contact Person: ______________________________________________________
Title: ______________________________________________________
Telephone Number: (____) ____________________
Address of Leased Premises:____________________________________________
Length of Lease Term: _________ (___) Years and _________ (____) Months
Describe the proposed operation to take place on the property,
including principal products manufactured or services to be conducted.
Existing Tenants should describe any proposed changes to on-going
operations.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes: Yes No
Chemical Products: Yes No
2.2 Attach the list of any hazardous materials to be used or
stored, the quantities that will be on-site at any given time,
and the location and method of storage (e.g. 55 gallon drums
on concrete pad).
1
3. STORAGE TANKS & SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, or
other hazardous substances in tanks or sumps proposed or
currently conducted on the premises?
Yes No
If yes, describe the materials to be stored, and the type,
size and construction of the sump or tank. Attach copies of
any Permits obtained for the storage of such substances.
______________________________________________________________
______________________________________________________________
3.2 Have any of the tanks or sumps been inspected or tested for
leakage?
Yes No
If so, attach the results.
3.3 Have any spills or leaks occurred from such tanks or sumps?
Yes No
If so, describe: _____________________________________________
3.4 Were any regulatory agencies notified of the spill or leak?
Yes No
If so, attach copies of any spill reports filed, any clearance
letters or other correspondence from regulatory agencies
relating to the spill or leak.
3.5 Have any underground storage tanks or sumps been taken out of
service or removed?
Yes No
If yes, attach copies of any closure permits and clearance
obtained from regulatory agencies relating to closure and
removal of such tanks.
4. SPILLS
4.1 During the past year, have any spills occurred on the
premises?
Yes No
If so, please describe the spill and attach the results of any
testing conducted to determine the extent of such spills?
______________________________________________________________
______________________________________________________________
2
4.2 Were any agencies notified in connection with such spills?
Yes No
If so, attach copies of any spill reports or other
correspondence with regulatory agencies.
4.3 Were any clean-up actions undertaken in connection the spills?
Yes No
If so, briefly describe the actions taken. Attach copies of
any clearance letters obtained from any regulatory agencies
involved and the results of any final soil or groundwater
sampling done upon completion of the clean-up work.
______________________________________________________________
______________________________________________________________
5. WASTE MANAGEMENT
5.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number?
Yes No
5.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes No
5.3 Attach the list of the hazardous waste, if any, generated or
to be generated at the premises, its hazard class and the
quantity generated on a monthly basis.
5.4 Describe the method(s) of disposal for each waste. Indicate
where and how often disposal will take place.
______________________________________________________________
______________________________________________________________
5.5 Indicate the name of the person(s) responsible for maintaining
copies of hazardous waste manifests completed for off-site
shipments of hazardous waste.
______________________________________________________________
5.6 Is any treatment or processing of hazardous wastes
currently conducted or proposed to be conducted at the
premises:
Yes No
If yes, please describe any existing or proposed treatment
methods.
______________________________________________________________
______________________________________________________________
5.7 Attach copies of any hazardous waste permits or licenses
issued to your company with respect to its operations on the
premises.
3
6. WASTEWATER TREATMENT/DISCHARGE
6.1 Do you discharge wastewater to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no industrial discharge
6.2 Is your wastewater treated before discharge?
Yes No
If yes, describe the type of treatment conducted.
______________________________________________________________
6.3 Attach copies of any wastewater discharge permits issued to
your company with respect to its operations on the premises.
7. AIR DISCHARGES
7.1 Do you have any air filtration systems or stacks that
discharge into the air?
Yes No
7.2 Do you operate any of the following types of equipment, or
any other equipment requiring an air emissions permit?
_____ Spray booth
_____ Dip tank
_____ Drying oven
_____ Incinerator
_____ Other (Please Describe)
_____ No Equipment Requiring Air Permits
7.3 Are air emissions from your operations monitored?
Yes No
If so, indicate the frequency of monitoring and a description
of the monitoring results.
______________________________________________________________
7.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
8. HAZARDOUS MATERIALS DISCLOSURES
8.1 Does your company handle hazardous materials in a quantity
equal to or exceeding an aggregate of 500 pounds, 55 gallon,
or 200 cubic feet?
Yes No
4
8.2 Has your company prepared a hazardous materials management
plan ("business plan") pursuant to local County/City Fire
Department requirements?
Yes No
If so, attach a copy of the business plan.
8.3 Describe the procedures followed to comply with OSHA Hazard
Communication Standard requirements.
______________________________________________________________
______________________________________________________________
9. ENFORCEMENT ACTIONS, COMPLAINTS
9.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees?
Yes No
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions?
9.2 Has your company ever received requests for information,
notice or demand letters, or any other inquiries regarding its
operations?
Yes No
9.3 Have there ever been, or are there now pending, any lawsuits
against the company regarding any environmental or health and
safety concerns?
Yes No
9.4 Has an environmental audit ever been conducted at your
company's current facility?
Yes No
If so, discuss the results of the audit.
______________________________________________________________
______________________________________________________________
9.5 Have there been any problems or complaints from neighbors at
the company's current facility?
Yes No
5
TENANT:
Xxxxxx Communications, Inc., a Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
6
EXHIBIT G
SIGN CRITERIA
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
All signs must be ordered by Tenant in compliance with the following criteria
and must be approved by Landlord in writing prior to installation: See attached
2 pages.
1
EXHIBIT H
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
1. CANCELLATION OPTION
A. Tenant shall have a one-time right to accelerate the
Termination Date ("Termination Option") of the Lease to March 31, 2008
(the "Accelerated Termination Date"), if:
1. Tenant is not in default under the Lease beyond any applicable
notice and cure periods at the date Tenant provides Landlord
with a Termination Notice (hereinafter defined), and
2. no part of the Premises is sublet by Tenant for a term
extending past the Accelerated Termination Date, unless Tenant
shall have the right to accelerate the termination date of
such sublease to the Accelerated Termination Date; and
3. the Lease has not been assigned by Tenant; and
4. Landlord receives notice of termination ("Termination Notice")
no later than July 1, 2007.
B. If Tenant exercises its Termination Option, Tenant, shall
within thirty (30) days after delivery of the Termination Notice pay to
an amount equal to the unamortized portion of (i) the cost of the
Tenant Improvements paid by Landlord, (ii) the cost of the Working
Drawings paid by Landlord, (iii) all allowances paid to Tenant (or
Tenant's designee) by Landlord (including without limitation, the Plan
Allowance and the CM Allowance), and (iv) all commissions paid by
Landlord in connection with this Lease, with such amortization
calculated at an interest rate of eight percent (8%) per annum over an
84 month period commencing on the Commencement Date (the "Termination
Fee"). The parties acknowledge and agree that the Termination Fee is
being paid in consideration for Tenant's right to accelerate the
acceleration of the Termination Date and not as a penalty. Tenant shall
remain liable for all Base Rent and other sums due under the Lease up
to and including the Accelerated Termination Date even though xxxxxxxx
for such may occur subsequent to the Accelerated Termination Date. In
the event Tenant leases additional space in the Building, the
Termination Payment shall be adjusted to include the unamortized costs
and expenses incurred by Landlord in connection with such additional
space, amortized over the Term of this Lease applicable to such space
on the date Tenant commences payment of Base Rent for such space, at an
interest rate of eight percent (8%) per annum.
C. If Tenant fails to timely pay the Termination Fee as provided
above, the Termination Option shall terminate and shall be of no
further force or effect and this Lease shall continue in full force and
effect.
2. RENEWAL OPTIONS.
A. Provided that no event of default then exists and no condition
exists which with the passage of time or the giving of notice or both
would constitute an event of default pursuant to this Lease and
1
provided that Tenant has continuously occupied the Premises for the
permitted uses during the Term, Tenant (but not any assignee or
sublessee) shall have the right and option (the "Renewal Option") to
renew this Lease, by written notice delivered to Landlord no later than
nine (9) months and no earlier than fifteen (15) months prior to the
expiration of the initial Term or the expiration of the applicable
Renewal Term, as the case may be, for three (3) additional terms (each,
a "Renewal Term") of sixty (60) months each under the same terms,
conditions and covenants contained in the Lease, except that (a) no
abatements or other concessions, if any, applicable to the initial Term
shall apply to the Renewal Terms; (b) the Base Rental shall be equal to
the market rate for comparable space located in the Building and in
comparable buildings in the DFW Airport submarket (being the cities of
Coppell, Irving, Grapevine and Carrollton and Lewisville), including
the size, quality, utility, and location of such space as of the end of
the initial Term or the applicable Renewal Term, as applicable, as
determined by Landlord; provided that in the event there are not
sufficient comparable spaces in buildings located in the DFW Airport
submarket due to the extent of the testing area and office finish-out
in the Premises, such market rate shall be determined with respect to
comparable space located in comparable buildings in the Dallas-Fort
Worth metroplex area, (c) Tenant shall have no option to renew this
Lease beyond the expiration of the third Renewal Term; and (d) all
leasehold improvements within the Premises shall be provided in their
then existing condition (on an "As Is" basis) at the time the
applicable Renewal Term commences. The market rate shall mean the arms
length fair market annual rental rate per rentable square foot under
renewal leases and amendments entered into on or about the date on
which the market rate is being determined for tenants of comparable
size and shall take into account any material economic differences
between the terms of this Lease and any comparison lease, such as rent
abatements, construction costs and other concessions and the manner, if
any, in which the Landlord under any such lease is reimbursed for
operating expenses and taxes.
B. Failure by Tenant to notify Landlord in writing of Tenant's
election to exercise the applicable Renewal Option herein granted
within the time limits set forth for such exercise shall constitute a
waiver of such Renewal Option. In the event Tenant elects to exercise a
Renewal Option as set forth above, Landlord shall, within thirty (30)
days thereafter, notify Tenant in writing of the proposed rental for
the applicable Renewal Term (the "Proposed Renewal Rental"). Tenant
shall within forty-five (45) days following delivery of the Proposed
Renewal Rental by Landlord notify Landlord in writing of the acceptance
or rejection of the Proposed Renewal Rental. If Tenant accepts
Landlord's proposal, then the Proposed Renewal Rental shall be the
rental rate in effect during the Renewal Term.
C. Failure of Tenant to respond in writing during the
aforementioned forty-five (45) day period shall be deemed a rejection
by Tenant of the Proposed Renewal Rental. Should Tenant reject
Landlord's Proposed Renewal Rental during or at the expiration of such
thirty (30) day period, then Landlord and Tenant shall negotiate during
the thirty (30) day period commencing upon Tenant's rejection of
Landlord's Proposed Renewal Rental to determine the rental for the
applicable Renewal Term. In the event Landlord and Tenant are unable to
agree to a rental for the Renewal Term during said thirty (30) day
period, then the Renewal Option shall terminate and be null and void
and the Lease shall, pursuant to its terms and provisions, terminate at
the end of the original Term or the end of the applicable Renewal Term,
as the case may be.
D. Upon exercise of the Renewal Option by Tenant and subject to
the conditions set forth hereinabove, the Lease shall be extended for
the period of such Renewal Term without the necessity of the execution
of any further instrument or document, although if requested by either
party, Landlord and Tenant shall enter into a written agreement
modifying and supplementing the Lease in accordance with the provisions
hereof. Any termination of the Lease during the initial Term or any
Renewal Term shall terminate all remaining renewal rights hereunder.
The renewal rights of Tenant
2
hereunder shall not be severable from the Lease, nor may such rights be
assigned or otherwise conveyed in connection with any permitted
assignment of the Lease. Landlord's consent to any assignment of the
Lease shall not be construed as allowing an assignment of such rights
to any assignee.
3. RIGHT OF FIRST REFUSAL.
A. Tenant shall have a right of first refusal with respect to all
or any portion of the remaining space in the Building not included in
the Premises (the "Refusal Space"), which right of first refusal shall
be exercised as follows: when Landlord has a prospective tenant
("Prospect") interested in leasing all or any portion of the Refusal
Space, Landlord shall advise Tenant in writing (the "Advice") of the
terms under which Landlord is prepared to lease the Refusal Space to
such Prospect and Tenant may lease all but not less than all of the
Refusal Space identified in the Advice, under such terms, by providing
Landlord with written notice of exercise ("Notice of Exercise") within
seven (7) business days after the date of the Advice, except that
Tenant shall have no such Right of First Refusal and Landlord need not
provide Tenant with an Advice if:
1. Tenant is in default under the Lease beyond the
expiration of any applicable notice and cure periods at the time
Landlord would otherwise deliver the Advice; or
2. the Lease has been assigned prior to the date Landlord
would otherwise deliver the Advice; or
3. the Premises, or any portion thereof is sublet at the
time Landlord would otherwise deliver the Advice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the Advice.
As a courtesy to Tenant so that Tenant will have time prior to
receipt of an Advice to evaluate whether Tenant desires to lease the
Refusal Space, Landlord shall use reasonable efforts to notify Tenant
when Landlord has a prospect Landlord believes is interested in leasing
the Refusal Space, whether or not Landlord and such prospective tenant
have agreed to any specific business terms; provided that Landlord's
failure to notify Tenant of a prospect interested in leasing the
Refusal Space shall not extend Tenant's time to respond to an Advice,
if an Advice is subsequently provided to Tenant and shall not
constitute a default by Landlord under this Section 3.
B. Except as provided below, the term for the Refusal Space shall
commence upon the commencement date stated in the Advice and thereupon
such Refusal Space shall be considered a part of the Premises, provided
that all of the business terms stated in the Advice (except for the
termination date set forth in the Advice) shall govern Tenant's leasing
of the Refusal Space and only to the extent that they do not conflict
with the Advice, the terms and conditions of this Lease shall apply to
the Refusal Space. The lease of the Refusal Space shall be co-terminus
with the expiration of this Lease. If the remaining Term of this Lease
is less than the term set forth in the Advice, then the tenant finish
allowance, if any, and all other concessions set forth in the Advice,
if any, shall be prorated and Tenant shall be entitled to an amount
equal to the dollar amount of the allowances and other monetary
concessions set forth in the Advice multiplied by a fraction, with the
numerator being the number of full calendar months remaining in the
Term of this Lease as of the date Base Rent commences with respect to
the Refusal Space, and the denominator of
3
which is the number of calendar months in the term of the lease set
forth in the Advice. If the remaining term of This Lease is greater
than the term set forth in the Advice, Landlord shall include in the
Advice Landlord's designation of the market rent for the Refusal Space
during the period between the expiration date of the proposed lease and
the expiration date of this Lease. The Refusal Space shall be accepted
by Tenant in its condition and as-built configuration existing on the
earlier of the date Tenant takes possession of the Refusal Space or the
date the term for such Refusal Space commences, unless the parties
determine that work will be performed by Landlord in the Refusal Space,
in which case Landlord shall perform such work in the Refusal Space.
Notwithstanding the foregoing, in the event Landlord receives a Notice
of Exercise during the first twelve (12) calendar months during the
Term, the Refusal Space covered by such Notice of Exercised shall be
leased by Tenant on the same terms and conditions of this Lease
applicable to the original Premises provided that, (i) except as set
forth in this paragraph, Tenant shall not be entitled to any monetary
concessions with respect to the Original Premises (such as rent
abatement, finish allowance, or other concessions), (ii) the Base Rent
for the Refusal Space shall be equal to $3.00 per square foot of the
Refusal Space per year, and (iii) Tenant shall receive a tenant finish
allowance equal to $3.00 per square foot of the Refusal Space.
C. The rights of Tenant hereunder with respect to the Refusal
Space identified in the Advice shall terminate on the earlier to occur
of (i) Tenant's failure to exercise its Right of First Refusal within
the seven (7) business day period provided in paragraph A above, and
(ii) the date Landlord would have provided Tenant an Advice if Tenant
had not been in violation of one or more of the conditions set forth in
paragraph A above. Notwithstanding the foregoing, if (i) Tenant was
entitled to exercise its Right of First Refusal, but failed to provide
Landlord with a Notice of Exercise within the seven (7) business day
period provided in paragraph A above, and (ii) Landlord does not enter
into a lease for the Refusal Space with the Prospect or any other
prospect within a period of six (6) months following the date of the
Advice, Tenant shall once again have a Right of First Refusal with
respect to such Refusal Space. In addition, provided that the initial
Advice was not delivered to Tenant during the first (1st) twelve (12)
months of the Term, Tenant shall once again have the Right of First
Refusal with respect to the Refusal Space identified in the Advice if,
within such six (6) months period, Landlord proposes to lease the
Refusal Space to the Prospect on terms that are substantially different
than those set forth in the Advice, or any other Prospect. For purposes
hereof, the terms offered to a prospect shall be deemed to be
substantially the same as those set forth in the Advice as long as
there is no more than a ten percent (10%) increase or decrease in size
of the Refusal Space identified in the Advice or no more than a ten
percent (10%) reduction in the "bottom line" cost per rentable square
foot of the Refusal Space to the Prospect when compared with the
"bottom line" cost per rentable square foot under the Advice,
considering all of the economic terms of the both deals, respectively,
including, without limitation, the net rent and any financial
concessions. The "bottom line" cost shall determined by subtracting all
cash allowances, excluding any allowances to be repaid as an increase
in rent, annualized on a per square foot basis from the net effective
rent payable per square foot.
D. If Tenant exercises its Right of First Refusal with respect to
any portion of the Refusal Space, Landlord shall prepare an amendment
adding the Refusal Space to the Premises on the terms set forth in the
Advice and reflecting the changes in the Base Rent, square footage of
the Premises and other appropriate terms and Tenant shall execute such
amendment within twenty (20) days after receipt of such amendment.
However, Tenant's failure to execute the amendment shall not effect an
otherwise valid exercise of the Right of First Refusal and Tenant's
exercise of the Right of First Refusal shall be fully effective whether
or not the amendment is executed.
4
EXHIBIT I
RULES AND REGULATIONS
(Industrial)
This Exhibit is attached to and made a part of that certain Lease Agreement
dated as of November 5, 2002, by and between AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, as "Landlord", and Xxxxxx Communications,
Inc., a Delaware corporation, as "Tenant", for the Premises known as AmberPoint
Business Park at Coppell, Xxxxxxxx 0, Xxxxx 000.
Unless otherwise defined, capitalized terms used herein shall have the same
meanings as set forth in the lease. In the event of any conflict or
inconsistency between this Exhibit and the Lease, the Lease shall control.
1. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall that may appear unsightly from
outside the Premises.
2. The walls, walkways, sidewalks, entrance passages, courts and vestibules
shall not be obstructed or used for any purpose other than ingress and
egress of pedestrian travel to and from the Premises, and shall not be used
for loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. The walkways, entrance
passageways, courts, vestibules and roof are not for the use of the general
public and Landlord shall in all cases retain the REASONABLE right to
control and prevent access thereto by all persons whose presence in the
judgment of the Landlord shall be prejudicial to the safety, character,
reputation and interests of the Building and its tenants. No tenant or
employee or invitee of any tenant shall be permitted upon the roof of the
Building.
3. No awnings or other projection shall be attached to the outside walls of
the Building. No security bars or gates, curtains, blinds, shades or
screens shall be attached to or hung in, or used in connection with, any
window or door of the Premises without the prior written consent of
Landlord. Neither the interior nor exterior of any windows shall be coated
or otherwise sunscreened without the express written consent of Landlord.
4. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord in writing. The
expense of repairing any damage resulting from a violation of this rule or
removal of any floor covering shall be borne by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant.
6. Landlord shall direct electricians as to the manner and location of any
future telephone wiring. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The locations of the telephone, call
boxes and other office equipment affixed to the Premises shall be subject
to the prior written approval of Landlord.
7. The Premises shall not be used for manufacturing, offices or the storage of
merchandise except as the same may be incidental to the permitted use of
the Premises. No exterior storage shall be allowed at any time without the
prior written approval of Landlord. The Premises shall not be used for
cooking or washing clothes without the prior written consent of Landlord,
or for lodging or sleeping of for any immoral or illegal purposes.
1
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use
of any musical instrument, radio, phonograph, machinery, or otherwise.
Tenant shall not use, keep or permit to be used, or kept, any foul or
obnoxious gas or substance in the Premises or permit or suffer the Premises
to be used or occupied in any manner offensive or objectionable to Landlord
or other occupants of this or neighboring buildings or premises by reason
of any odors, fumes or gases.
9. Neither Tenant nor any of Tenant's agents shall at any time bring or keep
upon the Premises any toxic, hazardous, inflammable, combustible or
explosive fluid, chemical or substance without the prior written consent of
Landlord.
10. No animals, except service animals, shall be permitted at any time within
the Premises.
11. Tenant shall not use the name of the Building or the Project in connection
with or in promoting or advertising the Business of Tenant, except as
Tenant's address, without the prior written consent of Landlord. Landlord
shall have the right to prohibit any advertising by Tenant which, in
Landlord's reasonable opinion, tends to impair the reputation of the
Project or its desirability for its intended uses, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
12. Canvassing, soliciting, peddling, parading, picketing, demonstrating or
otherwise engaging in any conduct that unreasonably impairs the value or
use of the Premises or the Project are prohibited and Tenant shall
cooperate to prevent the same.
13. All equipment of any electrical or mechanical nature shall be placed by
Tenant in the Premises, in settings approved by Landlord in writing, in
such a way as to best minimize, absorb and prevent any vibration, noise or
annoyance. No equipment of any type shall be placed in the Premises which
in Landlord's opinion exceeds the load limits of the floor or otherwise
threatens the soundness of the structure or improvements of the Building.
14. All furniture, equipment and freight shall be moved in and out of the
Building in accordance with rules established by Landlord, and shall not
impair vehicular and pedestrian circulation in the Common Area. Landlord
will not be responsible for loss or damage to any furniture, equipment, or
other personal property of Tenant from any cause.
15. No air conditioning unit or other similar apparatus shall be installed or
used by Tenant without the prior written consent of Landlord
16. No aerial antenna shall be erected on the roof or exterior walls of the
premises, or on the grounds, without in each instance the prior written
consent of Landlord. Any aerial or antenna so installed by or on behalf of
Tenant without such written consent shall be subject to removal by Landlord
at any time without prior notice at the expense of Tenant, and Tenant shall
upon Landlord's demand pay all of Landlord's costs associated with such
removal.
17. The entire Premises, including vestibules, entrances, doors, fixtures,
windows and plate glass, shall at all times be maintained in a safe, neat
and clean condition by Tenant. All trash, refuse and waste materials shall
be regularly removed from the Premises by Tenant and placed in the
containers at the locations designated by Landlord for refuse collection.
All cardboard boxes must be "broken down" prior to being placed in the
trash containers. All styrofoam chips must be bagged or otherwise contained
prior to placement in the trash containers, so as not to constitute a
nuisance. Pallets may not be stacked or placed outside the Premises or
disposed of in the trash containers or enclosures. The burnings of trash,
refuse or waste material is prohibited.
18. Tenant shall use at Tenant's cost such pest extermination contractor as
Landlord may direct and at such, intervals as Landlord may require.
2
19. Tenant shall re-key the Premises immediately following the Commencement
Date and shall be responsible for the keys and security for the Premises.
Upon the termination or early expiration of this Lease, Tenant shall
immediately deliver all keys to Landlord.
20. No person shall enter or remain within the Project while intoxicated or
under the influence of liquor or drugs. Landlord shall have the right, but
not the duty, to exclude or expel from the Project any person who, in the
absolute discretion of Landlord, is under the influence of liquor or drugs.
21. Tenant agrees to comply with all such Rules and Regulations. Should Tenant
not abide by these Rules and Regulations, Landlord or any "Operator,"
"Association" or "Declarant" under any Restrictions may serve a three (3)
day notice to correct the deficiencies. If Tenant has not corrected the
deficiencies by the end of the notice period, Tenant will be in default of
the Lease, and Landlord and/or its designee shall have the right, without
further notice, to cure the violation at Tenant's expense.
22. Landlord reserves the right to amend or supplement the foregoing Rules and
Regulations and to adopt and promulgate additional rules and regulations
applicable to the Premises. Notice of such rules and regulations and
amendments and supplements thereto, if any, shall be given to the Tenant.
23. Neither Landlord nor Landlord's Agents or any other person or entity shall
be responsible to Tenant or to any other person for the ignorance or
violation of these Rules and Regulations by any other tenant or other
person. Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition precedent, waivable only by
Landlord, to Tenant's occupancy of the Premises.
3
EXHIBIT J
APPROVED EQUIPMENT
See attached page
1
EXHIBIT K
CONFIDENTIALITY AGREEMENT
VISITOR SIGN IN SHEET AND CONFIDENTIALITY AGREEMENT
Welcome to Xxxxxx Communications, Inc. Amberpoint warehouse, distribution and
testing facility. We hope you enjoy your visit. There are two conditions that
are prerequisites to your visit at Xxxxxx. First, we strive to have a safe
environment for all visitors and employees. Please observe all safety
regulations and guidelines. Second, while at Xxxxxx you may be given, or may
have access to certain confidential and proprietary information of Xxxxxx. By
signing the registry below you agree that you shall use reasonable efforts to
keep strictly confidential any and all information disclosed to you by Xxxxxx as
being confidential, and such information shall not, without the written consent
of Xxxxxx, be used for any purpose outside of your relationship with Xxxxxx or
disclosed to any third party other than such party's officers, directors,
employees, partners, professional advisors, lenders, prospective purchasers of
the facility, and business associates. In no event shall any information be
confidential if such information (i) now or hereafter through no act or failure
to act on the part of the party receiving such information becomes generally
known or available to the public, (ii) was known to the party receiving such
information at the time or receipt and was acquired by such party without
restriction as to use or disclosure, (iii) is independently developed by the
party receiving such information, or (iv) is hereafter furnished to the party
receiving such information on a non-confidential basis by a third party which
has no duty to keep such information confidential. Notwithstanding anything
herein to the contrary, the party receiving any confidential information may
disclose or produce such confidential information pursuant to valid legal
process without the consent of Xxxxxx; provided however, that in the event such
party receiving the information shall use commercially reasonable efforts to
provide Xxxxxx with prompt written notice so that Xxxxxx may seek a protective
order or other appropriate remedy.
Date Visitor Company To See Time In/Out
---- ------- ------- ------ -----------
__________ _____________ ____________ ___________ ________________
1
AmberPoint at Coppell
Building 1
000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
210,563 square feet
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
This Lease Agreement (this "Lease") is made as of the 2ND day of DECEMBER,
2002, by and between AmberPoint at Coppell, L.L.C., a Delaware limited liability
company, hereinafter referred to as "Landlord", and Xxxxxx Communications, Inc.,
a Delaware corporation, hereinafter referred to as "Tenant".
1. Premises and Term. In consideration of the obligation of Tenant to pay rent
as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord that portion of the building located at 000 X.
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx, AmberPoint, Building 1. (the "Building"),
known as Suite 100, containing approximately 210,563 square feet, and as shown
on Exhibit A attached hereto (the "Premises"), which square footage includes a
pro rata share of the Building's electrical and sprinkler room. The Building is
situated on the land described in Exhibit B attached hereto (the "Land"), and
the Land, the Building and all other structures, improvements, fixtures and
appurtenances now or hereafter placed, constructed or included on or appurtenant
to the Land is hereinafter called the "Project". The Project is currently known
as AmberPoint Business Park at Coppell, Building 1, and is more particularly
described on Exhibit C attached hereto.
To have and to hold the same for a term (the "Term") commencing on the date of
Substantial Completion of the Tenant Improvements (as defined in Exhibit D), as
such date shall be determined pursuant to Exhibit D attached hereto (the
"Commencement Date") and ending on March 31, 2010 (the "Termination Date").
Tenant acknowledges that it has inspected the Premises and the Building, and
subject to Landlord's obligations under Exhibit D attached hereto and any latent
defects reported to Landlord within 180 days after the Commencement Date,
accepts the Premises, the Building and common areas in their present condition
as suitable for the purpose for which the Premises are leased. Landlord shall
cause any latent defects in the Building shell and the Tenant Improvements to be
repaired at no cost to Tenant. Taking of possession of the Premises by Tenant
for purposes of conducting business after Substantial Competition shall be
deemed conclusively to establish that the Premises, the Building and common
areas are in good and satisfactory condition on the date possession was taken,
subject to latent defects reported to Landlord within 180 days after the
Commencement Date and punchlist items to be completed by Landlord in accordance
with Exhibit D. Tenant further acknowledges that no representations as to the
repair of the Premises, nor promises to alter, remodel or improve the Premises
have been made by Landlord, unless such are expressly set forth in this Lease.
Landlord has made no representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business and Tenant hereby waives any other
implied warranty that the Premises are suitable for Tenant's intended purposes;
provided that the foregoing shall not relieve Landlord from any obligations set
forth in this Lease. After the Commencement Date Tenant shall, upon demand,
execute and deliver to Landlord an Acceptance of Premises Memorandum in the form
of Exhibit E attached hereto.
1
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first above written.
LANDLORD: TENANT:
AmberPoint at Coppell, L.L.C., a Xxxxxx Communications, Inc., a
Delaware limited liability company Delaware corporation
By: Transwestern Property Company By: /s/ Xxxx X'Xxxxxxxx, Xx.
Southwest, L.P., d/b/a Transwestern ---------------------------
Commercial Services, as authorized Name: Xxxx X'Xxxxxxxx, Xx.
Property Manager for AmberPoint at Title: Senior Vice President
Coppell, L.L.C. Operations
Date: 12-2-02
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Date: 12-3-02
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Date: 12/03/02
