Exhibit 10.14
LEASE AGREEMENT
between
INFOMART-Dallas, L.P.
and
FOCAL COMMUNICATIONS CORPORATION OF TEXAS
INFOMART(R)
The Technology Community
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
000-000-0000
LEASE AGREEMENT
INFOMART
THE TECHNOLOGY COMMUNITY
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THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the 15th day
of December, 1998, by and between INFOMART-Dallas, L.P., a Texas limited
partnership ("Landlord"), whose address is 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx
00000 and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, a Delaware corporation
("Tenant"), whose address is 000 XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000. If there shall be more than one party executing this Lease as Tenant,
their obligations shall be joint and several. As used in this Lease, the terms
set forth in Article I of this Lease shall have the respective meanings
indicated in such Article.
Subject to all of the terms and conditions of this Lease, and in consideration
of the mutual covenants and obligations contained in this Lease, Landlord and
Tenant agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
SECTION 1.1. BASE RENTAL shall mean Thirty-eight Thousand One Hundred Fifty-nine
and 11/100ths Dollars ($38,159.11) per month from the Commencement Date hereof
until June 30, 2009.
SECTION 1.2. BASE YEAR shall mean 1999.
SECTION 1.3. THE "BUILDING" shall mean the information processing market center
located upon the real property (the "Property") described in Exhibit "A"
attached hereto and incorporated herein.
SECTION 1.4. BUILDING RULES shall mean rules and regulations adopted and altered
by Landlord from time to time for the safety, care and cleanliness of the Leased
Premises and the Building and for the preservation of good order therein, all of
which will be sent by Landlord to Tenant in writing and shall thereafter be
carried out and observed by Tenant. The initial Building Rules "Rules and
Regulations" are attached hereto as Exhibit "B". In the event of a conflict
between this Lease and such Rules and Regulations or the "INFOMART Policy
Statement" (as defined below), this Lease shall control for all purposes.
Landlord shall provide Tenant with a copy of all changes to the Rules and
Regulations and INFOMART Policy Statement which are approved, adopted, amended
or modified after the date this Lease is entered into. Landlord shall not
discriminate among the tenants of the Buildings regarding the enforcement of
Rules and Regulations and INFOMART Policy Statement.
SECTION 1.5. COMMENCEMENT DATE shall mean the date on which Tenant commences
occupancy of the Leased Premises which shall be the date Tenant takes possession
of the Leased Premises for the purpose of equipping, furnishing, and improving
the Leased Premises. The term "Rental Commencement Date" (as defined below)
shall mean as defined in Section 1.21 hereof.
SECTION 1.6. COMMON AREAS shall mean those areas devoted to corridors, elevator
foyers, restrooms, mechanical rooms, janitorial closets, electrical and
telephone closets, vending areas, lobby areas, meeting rooms, auditoriums,
exhibit halls and other similar facilities provided for the common use or
benefit of tenants generally.
SECTION 1.7. INFOMART shall mean "INFOMART - The Technology Community" and shall
include that certain Building and Property as the same currently exists or as it
may from time to time hereafter be expanded or modified.
SECTION 1.8. INSURANCE COSTS shall mean all costs incurred by Landlord in
providing insurance, including but not limited to, property, liability and
casualty insurance, on the Building and Property, but excluding all insurance
costs which Tenant is required to provide under Section 5.3 hereof.
SECTION 1.9. LEASE TERM shall mean a term commencing on the Rental Commencement
Date and continuing for one hundred twenty (120) months.
SECTION 1.10. LEASED PREMISES shall mean Suite No. 6060 in the Building, as
outlined or marked in red on the floor plan of the Building attached to this
Lease as Exhibit "C".
SECTION 1.11. PERMITTED USE shall mean use for professional offices, and for the
installations, operation and maintenance of equipment and facilities in
connection with Tenant's telecommunications business and use for the display and
marketing of information processing and communications products and services and
for offices, storage and service areas incidental and related to such use.
SECTION 1.12. RELOCATION SPACE Intentionally omitted.
SECTION 1.13. RENTABLE SQUARE FEET shall mean the Usable Square Feet of the
Leased Premises, together with an additional amount representing a portion of
the Common Areas, Service Areas and other non-tenant space on floors two (2)
through six (6) in the Building. For purposes of this Lease, the parties have
agreed that the Leased Premises shall be deemed to consist of 19,249 Rentable
Square Feet on floors two (2) through six (6) of the Building which shall be
deemed to consist of 1,056,200 Rentable Square Feet. However, both Landlord and
Tenant acknowledge that neither of these figures was calculated by measuring the
areas of actual Common Areas, Service Areas and other non-tenant spaces in the
Building and neither Landlord nor Tenant shall have a right to demand
remeasurement or recalculation of the Rentable Square Feet amounts for Floors
two (2) through six (6) or the Leased Premises, and regardless of the actual
size of the Building of Leased Premises, such areas shall be deemed to be the
measurements set forth in this Section 1.13.
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SECTION 1.14. SECURITY DEPOSIT as used in Section 6.9 hereof shall mean
Thirty-six Thousand One Hundred Fifty-nine and 11/100ths Dollars ($38,159.11).
SECTION 1.15. SERVICE AREAS shall mean those areas within the outside walls used
for elevator mechanical rooms, building stairs, elevator shafts, flues, vents,
stacks, pipe shafts and vertical penetrations (but shall not include any such
areas for the exclusive use of a particular tenant).
SECTION 1.16. TAXES shall mean all taxes and assessments and governmental
charges, whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing the Leased Premises or the
Property or any part thereof, or by others, subsequently created or otherwise,
and any other taxes and assessments attributable to the Property or its
operation but shall not include penalties for late or non-payment thereof.
Should taxes become payable over a number of years, only the portion of taxes
attributable to the Lease Term shall be included herein..
SECTION 1.17. TENANT'S PROPORTIONATE SHARE shall mean a fraction, the numerator
of which is the number of Rentable Square Feet comprising the Leased Premises,
and the denominator of which is the number of Rentable Square Feet comprising
floors two (2) through six (6) of the Building. Accordingly, the parties
acknowledge and agree that Tenant's Proportionate Share under this Lease is 1.18
percent.
SECTION 1.18. TRADE FIXTURES shall mean any and all signs placed by Tenant
within the Leased Premises pursuant to provisions hereof and any and all items
of property used by Tenant in the Leased Premises, including but not limited to
furniture and equipment; provided, however, that the term Trade Fixtures shall
not include any permanent leasehold improvements, including but not limited to
any floor, wall or ceiling coverings, any interior walls or partitions, any
lighting fixtures, track lights or any property which is a part of or associated
with any electrical, plumbing, or mechanical system, notwithstanding that the
same may have been installed within the Leased Premises. Not withstanding the
foregoing, Tenant's generator and telecommunications equipment, including, but
not limited to, Tenant's telephone switches, shall be deemed Trade Fixtures.
SECTION 1.19. USABLE SQUARE FEET shall mean the gross number of square feet
enclosed by the surface of the exterior glass walls, the midpoint of any walls
separating portions of the Leased Premises from those of adjacent tenants, the
slab penetration line of all walls separating the Leased Premises from Service
Areas and the corridor side of walls separating the Leased Premises from Common
Areas.
SECTION 1.20. UTILITY COSTS shall mean all costs incurred by Landlord in
providing electricity, gas, water and sewage disposal facilities to the
Building, including, without limitation, electricity used for heating, air
conditioning, operation of office machines and other equipment used on or about
the Building, and elevator and escalator service and lighting, but excluding all
such costs which Tenant may, from time to time, be obligated under the
provisions of Section 2.5 hereof to pay on a separately metered basis and
excluding such costs which other tenants of the Building may, from time to time,
be obligated to pay under the provisions of their leases.
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SECTION 1.21. RENTAL COMMENCEMENT DATE shall mean the earlier of the date Tenant
receives a Certificate of Occupancy for the Leased Premises or September 1, 1999
provided that if the Commencement Date does not occur on or before February 1,
1999, the Rental Commencement Date shall be delayed one day for each day after
February 1, 1999 on which the Commencement Date occurs.
ARTICLE 2
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SECTION 2.1. LEASED PREMISES AND TERM. Landlord does hereby lease, demise and
let to Tenant and Tenant does hereby lease and take from Landlord the Leased
Premises for a term beginning on the Commencement Date and continuing in full
force and effect for the Lease Term, unless this Lease is terminated earlier
pursuant to the provisions hereof. The Leased Premises are demised hereby
subject to all easements, restrictions, agreements of record, mortgages and
deeds of trust, and zoning and building laws. If Landlord is unable to deliver
possession of the Leased Premises to Tenant as of the Commencement Date
specified in Article 1 for any reason, including, without limitation, the
holding over of any tenant or occupant of the Leased Premises, then the term
"Commencement Date" shall mean such subsequent date upon which the Landlord is
able to deliver possession of the Leased Premises to Tenant, and such failure to
deliver possession of the Leased Premises on the Commencement Date specified in
Article 1 hereof shall not constitute a default by Landlord hereunder or render
Landlord liable for any loss or damage that may be incurred as a result of such
failure. If the Leased Premises are delivered to Tenant for occupancy on a date
prior to the Commencement Date specified in Article 1 hereof, Tenant agrees to
accept and occupy the Leased Premises on such date and the term "Commencement
Date" shall mean such date. Tenant shall commence to furnish, equip, and improve
the Leased Premises, in accordance with Section 4.2(a) hereof, on the
Commencement Date. Landlord shall have no obligation to furnish, equip or
improve the Leased Premises and Tenant has been afforded the right to inspect
the Leased Premises prior to the Commencement Date. By occupying the Leased
Premises, Tenant shall be deemed to have accepted the same and to have
acknowledged that the same comply fully with Landlord's covenants and
obligations hereunder. Notwithstanding the foregoing, to the extent that the
Leased Premises are not delivered to Tenant on or before April 1, 1999, Tenant
shall have the right to terminate this Lease by providing notice to Landlord
after such date.
Landlord acknowledges that Tenant's business to be conducted in the Lease
Premises requires the installation in the Leased Premises of certain
communications equipment by telecommunications customers of Tenant ("Customers")
in order for such Customers to interconnect with Tenant's terminal facilities.
Not withstanding anything contained in Section 4.7 of the Lease, Landlord agrees
that no consent shall be required for a co-location agreement between Tenant and
any such Customer for the purposes of permitting such a telecommunications
connection, so long as (i) such Customer agrees in writing to comply with all
obligations of Tenant under this Lease to the extent relating to the portion of
the Leased Premises in question, and (ii) each co-location agreement is in
writing and is consistent with the provisions of this Lease. Co-location shall
not be deemed under any circumstances to be a sublet or assignment of the Leased
Premises.
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SECTION 2.2. USE. The Leased Premises may be used and occupied by Tenant solely
for the Permitted Use and for no other purpose. Warehousing and on-site delivery
to customers is prohibited in the Building or any part thereof. Payment for
products or services that are of a retail sales nature are prohibited (provided,
however, that payment or partial payment for orders taken at the Leased Premises
for future delivery to a buyer will be allowed if it is within the Tenant's
normal business practice and is not of a retail sales nature, it being the
intention hereof to permit payments or partial payments intended to bind an
order for future delivery without in any way qualifying or circumventing the
prohibition within the Building against retail sales). Tenant warrants and
represents to Landlord that it is a producer of hardware, software or services
utilizing information processing equipment (and, if the Tenant's business
includes the resale of products or services, Tenant warrants and represents that
it adds to or enhances the value of such products or services). Tenant shall not
use or allow the Leased Premises to be used in any manner which obstructs or
interferes with the rights of other tenants of the Building or injures or annoys
such tenants, and Tenant shall not cause, maintain or permit any nuisance in, on
or about the Leased Premises or the Building, or permit or suffer to be
committed any defacement, injury or waste to, in, on, or about the Leased
Premises or the Building.
SECTION 2.3. BASE RENTAL. Tenant agrees to pay the Base Rental to
Landlord for each month during the Lease Term as herein provided. Base Rental
for the first month of the Lease Term shall be due and payable in advance on the
Rental Commencement Date, and Base Rental for each and every month thereafter
during the Lease Term shall be due and payable in advance on the first day of
the month. If the Rental Commencement Date is a day other than the first day of
a calendar month or in the event this Lease terminates on other than the last
day of a calendar month, then Base Rental for such month or months shall be
prorated and the installment or installments so prorated shall be paid in
advance. In the event that Tenant fails to make any payment of Base Rental or
any other sums due hereunder on or before the date any such payment becomes due
and payable, the Tenant shall also be obligated to pay interest on such past due
amounts at a rate equal to the lesser of the prime rate plus four percent (4%)
per annum or the highest rate permitted by law, such interest being in addition
to and cumulative of any other rights and remedies which Landlord may have
hereunder with regard to the failure of Tenant to make any payment of Base
Rental or any other sum due hereunder. As used herein, the phrase "prime rate"
means, on any day, the rate of interest per annum then most recently established
by NationsBank of Texas, N.A. as its general reference rate of interest, taking
into account such factors as such bank may deem appropriate, it being understood
that such rate is not necessarily the lowest or best rate actually charged to
any customer of such bank or a favored rate.
SECTION 2.4. TENANT'S PROPORTIONATE SHARE OF TAXES, INSURANCE COSTS AND UTILITY
COSTS. In addition to the payment of Base Rental, Tenant shall pay to Landlord
Tenant's Proportionate Share of Utility Costs, Insurance Costs and Taxes, in
accordance with the following provisions:
(a) Tenant shall pay to Landlord, either in the form of a lump sum payment
due and payable upon demand by Landlord or on a monthly basis
contemporaneously with the payment of Base Rental, as Landlord may
elect, (i) an amount reasonably estimated by Landlord to be Tenant's
Proportionate Share of all Utility Costs for each calendar year or
portion thereof during the Lease Term, (ii) an amount reasonably
estimated by Landlord to be
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Tenant's Proportionate Share of all Insurance Costs for each calendar
year or portion thereof during the Lease Term and (iii) an amount
reasonably estimated by Landlord to be Tenant's Proportionate Share of
the amount, if any, by which Taxes for each calendar year or portion
thereof during the term of this Lease exceed Taxes for the Base Year.
(b) If at any time Landlord shall have reasonable grounds to believe that
actual Utility Costs, Insurance Costs or Taxes incurred will vary from
such estimates, then Landlord reserves the right to revise such
estimates accordingly. Upon any such revision, Landlord shall notify
Tenant and Landlord may, at Landlord's election, either (i) require
Tenant to make a lump sum payment to Landlord reflecting such revised
estimate or (ii) require that the monthly payments due and payable to
Landlord by Tenant under this Section be revised to an amount which
will amortize such revised estimate over the remainder of the calendar
year in which any such revision is made by Landlord.
(c) As soon as reasonably practical following the end of any calendar year
during which such payments were made by Tenant, Landlord shall deliver
to Tenant a statement reconciling the amounts paid by Tenant for such
year against the actual charges for such items and a lump sum payment
(or credit against the next succeeding installments of Base Rental, if
any, in case of amounts owed by Landlord to Tenant) shall be made from
Tenant to Landlord or from Landlord to Tenant, as the case may be, so
that Tenant shall have paid to Landlord only Tenant's Proportionate
Share of (i) Utility Costs for the previous calendar year, (ii),
Insurance Costs for the previous calendar year, and (iii) the amount,
if any, by which Taxes for the previous calendar year exceed Taxes for
the Base Year and no more, which obligation to make such reconciliation
payment shall survive the termination of the Lease. Tenant shall have
the right to audit copies of paid invoices for Common Area Utility
Costs, Taxes, and Insurance for the then previous calendar year within
the Lease Term; but Tenant shall not have the right to audit Landlord's
records for any previous calendar year within the Lease Term or for any
year prior to the Commencement Date of this Lease. If Tenant's audit
reveals Landlord's statement for such expenses have been overstated by
more than five percent (5%), then Tenant shall submit a copy of its
audit to Landlord. If Landlord disagrees with the results of Tenant's
audit, Landlord shall submit such audit, and Landlord's records
relative to such expenses, to Landlord's independent auditors for their
review. If Landlord or Landlord's auditors agree that such expenses
have been overstated by more than five percent (5%), then Landlord
shall pay all reasonable costs and expenses of such audit, and, in any
event, shall, within thirty (30) days after the completion of
Landlord's review of such audit, reimburse Tenant for any and all
overages. If the audit conducted by Landlord or Tenant reveals that
Landlord's statement for such expenses was correct, then Tenant shall
pay all reasonable costs and expenses incurred by Landlord relative to
such audit. Further, if either audit reveals that Landlord undercharged
Tenant relative to these expenses, then Tenant shall, within thirty
(30) days after the completion of such audit, reimburse Landlord for
any undercharges. Tenant shall not have the right to audit Landlord's
records relative to such expenses more than once in any calendar year.
(d) If the Commencement Date is a day other than the first day of a
calendar month or if this Lease terminates on other than the last day
of a calendar month, then the amounts due and owing by Tenant to
Landlord under this Section shall be prorated accordingly.
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SECTION 2.5. SEPARATELY METERED UTILITIES AND UTILITY USAGE. Tenant shall pay
upon demand or receipt of an invoice all amounts due and owing with respect to
utilities furnished to the Leased Premises which may, from time to time, be
separately measured and charged to the Tenant by Landlord or any public utility
as may furnish such utilities to the Leased Premises. In the event that any
electrical services required or used in the Leased Premises shall exceed seven
(7) xxxxx per square foot of Usable Square Feet within the Leased Premises.
Tenant shall cause the installation of all facilities necessary to separately
meter electrical usage within the Leased Premises and/or cause the installation
of such riser or risers, wiring, transformer, or electrical panels as are
required to meet Tenant's excess electrical requirements and Tenant shall pay to
Landlord or, at the election of Landlord, to the applicable public utility,
promptly upon receiving any invoice, all charges for electrical usage within the
Leased Premises in excess of seven (7) xxxxx per square foot of Usable Square
Feet within the Leased Premises; which payment, if any, shall be in addition to
sums required to be paid by Tenant pursuant to Section 2.4 above. Landlord
covenants that (a) there are currently 7 xxxxx of electricity per square foot of
Usable Square Feet serving the floor upon which the Leased Premises are located
and (b) there are currently at least 28 xxxxx of electricity per square foot of
Usable Square Feet available to Tenant's use in the Leased Premises. To the
extent that Tenant requests the ability to upgrade the electrical service to the
Leased Premises to an amount in excess of 28 xxxxx of electricity per square
foot of Usable Square Feet of the Leased Premises, Tenant shall have the right,
at its sole cost, to upgrade the Building's electrical system for the floor on
which the Leased Premises are located in order to meet such excess capacity
request. In such event, Landlord shall have the right to review Tenant's plans
and specifications for such upgrade and Landlord shall have the right to
supervise Tenant's installations necessary to upgrade the electrical service to
the Leased Premises. Tenant shall promptly reimburse Landlord for Landlord's
documented actual out-of-pocket costs for such supervision. Notwithstanding the
foregoing, Landlord may refuse to install, and may withhold consent for Tenant's
installation of, any riser, wiring, transformer, or electrical panel if, in
Landlord's sole reasonable judgment (exercised in good faith), the same would
cause permanent damage or injury to the Building or the Leased Premises or cause
or create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs, or expense or interfere with or disturb other tenants or
occupants of the Building. In no event shall Landlord incur any liability or
obligation with respect to Landlord's refusal to install, or withholding consent
for Tenant's installation of, any such additional electrical facilities or
equipment.
SECTION 2.6. ADDITIONAL RENT; PAYMENTS. All sums of money due and payable by
Tenant to Landlord under the term of this Lease in addition to the Base Rental
shall constitute additional rent hereunder. Landlord shall have the same
remedies for default in the payment of additional rent as are available to
Landlord in the case of a default in the payment of Base Rental. All rent shall
be payable at Landlord's address as provided herein (or at such other address as
may be designated by Landlord from time to time). Tenant agrees to pay all rent
under this Lease at the times and in the manner herein provided, without demand,
counterclaim or set-off, except as set forth herein.
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ARTICLE 3
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SECTION 3.1. UTILITIES. Landlord shall use reasonable efforts to cause public
utilities to furnish electricity to the Leased Premises and water to the
Building to the extent and in such manner as is reasonably deemed by Landlord to
be standard for the Building.
SECTION 3.2. SERVICES TO BE FURNISHED BY LANDLORD TO TENANT. Landlord shall
furnish or cause to be furnished during the Lease Term:
(a) Central heating and air conditioning to the Leased Premises and
enclosed public areas of the Building in season;
(b) Non-exclusive passenger escalator and elevator service and
non-exclusive freight elevator service;
(c) Electric lighting service for all public areas of the Building;
(d) Janitorial service for the corridors and other public areas of the
Building; and
(e) Public toilets and restrooms and public drinking fountains;
Such services shall be provided during normal business hours, reasonably
established by Landlord, at such locations, in such manner and to the extent
deemed reasonable by Landlord, to be adequate for the use and occupancy of the
Building, with due regard for the prudent control of energy.
SECTION 3.3. LANDLORD'S FAILURE TO PROVIDE UTILITIES OR SERVICES. Failure by
Landlord to any extent to furnish or cause to be furnished the utilities or
services described in Section 3.1 and 3.2, or any cessation or interruption
thereof, resulting from any cause, including without limitation, mechanical
breakdown, overhaul or repair of equipment, strikes, riots, acts of God,
shortages of labor or material, compliance by Landlord with any voluntary or
similar governmental or business guidelines, governmental laws, regulations or
restrictions, or any other similar causes shall not render the Landlord liable
in any respect for damages to either person or property, for any economic loss
or other consequential damages incurred by Tenant as a result thereof, be
construed as an eviction of Tenant, result in an abatement of rent, or relieve
Tenant from its obligation to perform or observe any covenant or agreement
contained in this Lease. Notwithstanding the foregoing, in the event that the
Leased Premises are rendered untenantable due to the failure or interruption of
the utilities or services described in Sections 3.1 and 3.2 hereof (for any
reason other than Tenant's fault or neglect) for ten (10) consecutive days and
Tenant does not, in fact, use the applicable portion of the Leased Premises
during such period of such untenantability, Base Rental hereunder shall xxxxx
with respect to that portion of the Leased Premises so rendered untenantable
from the business day Tenant first ceases to use that portion of the Leased
Premises to the earlier to occur of (i) the date Tenant again commences to use
that portion of the Leased Premises or (ii) the date on which that portion of
the Leased Premises is again rendered tenantable.
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SECTION 3.4. PEACEFUL ENJOYMENT. Subject to the other terms of this Lease,
Landlord covenants that Tenant shall, and may peacefully have, hold and enjoy
the Leased Premises for the Lease Term free of any claims by any party claiming
by, through or under Landlord, provided that Tenant pays the rent to be paid by
Tenant under this Lease and performs all of Tenant's covenants and agreements
herein provided after notice and cure periods, if any.
ARTICLE 4
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SECTION 4.1. OPERATION. If the Leased Premises front on the atrium within the
Building, at all other times during all normal business hours of the Building,
Tenant shall not abandon the Lease Premises and shall ensure that the lights
remain on in the Leased Premises during normal business hours. If the Leased
Premises front on the atrium of the Building, the failure of Tenant to
substantially complete its improvements at the Leased Premises by December 31,
1999, with adequate staff, shall, at the option of Landlord, be an event of
default hereunder.
SECTION 4.2. ALTERATIONS, IMPROVEMENTS AND ADDITIONS.
(a) Tenant shall furnish, equip and improve the Leased Premises with
partitions, lighting fixtures, wall and floor coverings, paintings and
other interior decoration suitable for a trade mart and of a quality
and design consistent with the standards generally observed by
Landlord. Prior to the commencement of any such work, Tenant shall
submit to Landlord for its written approval, detailed plans and
specifications providing for the initial furnishing, equipping and
improving of the Leased Premises. Two (2) complete sets of final
working drawings and specifications of materials relating to all
improvements ("Improvements") that Tenant desires to be installed in
the Leased Premises shall be submitted to Landlord no later than thirty
(30) days prior to the date specified in Section 1.5 hereof. Such
drawings and the specifications of materials shall be subject to
approval by Landlord which approval shall not be unreasonably withheld.
Any delay occasioned as a result of Landlord's disapproval of Tenant's
plans and specifications shall not delay the Commencement Date under
this Lease except as set forth herein. Upon the approval of the plans
and specifications by Landlord, Tenant shall commence to equip,
furnish, and improve the Leased Premises, and shall diligently and
continuously prosecute such work to substantial completion on or before
December 31, 1999. The failure of Tenant to substantially complete such
work on or before the date specified in the preceding sentence shall,
at the option of Landlord, be an event of default hereunder. Any
further alterations, improvements or additions to the Leased Premises
(including constructing partitions, installing light fixtures or
painting or changing the color of any painted surface or the color type
of any wall, floor or ceiling covering) shall likewise require
Landlord's prior written approval. In the event that Landlord and
Tenant cannot agree on Tenant's plans and specifications within sixty
(60) days after submission thereof to Landlord, Tenant shall have the
right to terminate this Lease by providing written notice to Landlord
within sixty-five (65) days after submission of plans to Landlord.
In addition, but provided no event of default has occurred and is
continuing under the Lease, Tenant shall have the right at any time
during the Lease Term to upgrade the Building's and/or Tenant's
HVAC/chilled water capacity, or install its own HVAC system
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at its sole expense with Landlord's prior written approval.
(b) Any and all furnishing, equipping and improving of or other alteration
or addition to the Leased Premises shall be:
(i) made at Tenant's sole cost, risk and expense;
(ii) performed in a prompt, good and workmanlike manner with labor
and materials of such quality as Landlord may reasonably
require;
(iii) constructed in accordance with all plans and specifications
approved in writing by Landlord prior to the commencement of
any such work, provided, however, that Landlord shall have no
responsibility with respect to, nor any liability as a result
of, defects or deficiencies therein;
(iv) prosecuted diligently and continuously to completion and in
such manner so as to minimize interference with the normal
business operations of other tenants in the Building, the
performance of Landlord's obligations under this Lease or any
mortgage or ground lease covering or affecting all or any part
of the Building or the Property, and any work being done by
contractors engaged by Landlord with respect to or in
connection with the Building; and
(v) performed by contractors approved in writing by Landlord, and
if requested by Landlord any such contractor and all work to
be performed by such contractor shall be fully bonded with
companies and in amounts acceptable to Landlord in its sole
discretion.
(c) Any and all alterations, improvements and additions to the Leased
Premises (except for Trade Fixtures as specified in Section 4.4 hereof)
shall constitute a part of the Leased Premises, and shall be owned by
and become the property of Landlord effective as of the termination of
this Lease. Tenant shall have no (and hereby waives all) rights to
payment or compensation for any such alteration, improvement or
addition to the Leased Premises.
SECTION 4.3. MAINTENANCE AND REPAIRS. Tenant shall maintain the Leased Premises,
all plate glass and all Trade Fixtures and other improvements situated therein
in first class, clean, and safe condition. Tenant shall repair or replace any
damage to the Building, or any part thereof, caused by Tenant or Tenant's
agents, employees, customers or invitees. All such repair or replacement shall
be performed in accordance with the conditions set forth in Section 4.2.(b) (i),
(ii), (iii), (iv) and (v).
SECTION 4.4. TRADE FIXTURES. Landlord and Tenant agree that all Trade Fixtures
installed in the Leased Premises shall be and remain the property of Tenant and,
so long as Tenant is not in default hereunder, may be removed by Tenant prior to
or upon the expiration of the Lease Term. Tenant shall repair any damage caused
by such removal and restore the Leased Premises to such condition as existed
prior to the installation of such Trade Fixtures. Any such repair and
restoration shall be performed in accordance with the conditions set forth in
Xxxxxxx
00
0.0(x) (x), (xx), (xxx), (xx) or (v). Any Trade Fixtures which are not removed
from the Leased Premises upon cessation of occupancy by Tenant and upon prior
written notice to Tenant's last known address shall become the property of
Landlord. Tenant shall have no (and hereby waives all) rights to payment or
compensation for any such item.
SECTION 4.5. LAWS AND REGULATIONS; BUILDING RULES; INFOMART POLICY STATEMENT.
(a) Tenant shall comply with all laws, ordinances, rules and regulations of
any governmental authority relating to the use, condition or occupancy
of the Leased Premises or the Building, including the furnishing,
equipping and improving thereof.
(b) Tenant shall, and shall cause its employees, agents, customers and
invitees to comply with the Building Rules adopted and altered by
Landlord from time to time. All changes in such rules will be sent by
Landlord to Tenant in writing.
(c) Landlord has prepared a policy statement with respect to the
operation of the Building attached hereto as Exhibit "D" which may
from time to time be amended, revised or supplemental at
Landlord's sole discretion (the "INFOMART Policy Statement"). Tenant
shall be responsible for conducting its operations within the Leased
Premises and the Building in compliance with the INFOMART Policy
Statement. The failure of the Landlord to successfully enforce any
provisions of the INFOMART Policy Statement against Tenant, or
against any other tenant or occupant of the Building, shall not be
deemed to be a waiver of the requirements of the INFOMART Policy
Statement. Landlord shall not be responsible to Tenant for
nonperformance by any other tenant or occupant of the Building
of any of the requirements of the Building Rules or the INFOMART
Policy Statement; and Tenant shall be liable for all injuries or
damages sustained by Landlord or Landlord's agents or by other
tenants, occupants, or invitees of the Building arising by reason
of any breach of the requirements of the Building Rules or the
INFOMART Policy Statement by Tenant or Tenant's agents, employees or
invitees.
SECTION 4.6. LANDLORD'S ACCESS. Landlord and its representatives, agents,
officers and contractors shall have the right to enter upon the Leased Premises
at any reasonable time for any reasonable purpose, at any time for any
emergency, and if a default by Tenant exists hereunder, at any time to show the
Leased Premises to prospective tenants. Landlord agrees that to the extent
possible it will not unreasonably interfere with the conduct of Tenant's
business in the exercise of its rights hereunder.
SECTION 4.7. ASSIGNMENT AND SUBLETTING BY TENANT.
(a) Tenant shall not, by operation of law or otherwise, (i) assign,
transfer, mortgage, pledge, hypothecate or otherwise encumber this
Lease, the Leased Premises or any interest therein, (ii) grant any
concession or license within the Leased Premises, (iii) grant or
transfer any management privileges or rights with respect to the Leased
Premises, (iv) sublet all or any part of the Leased Premises or any
right or privilege appurtenant to the
13
Leased Premises, or (v) permit any other party to occupy or use all or
any part of the Leased Premises except for as provided in Section 2.2.
If Tenant is other than an individual person, any conveyance,
assignment or transfer of any interest in Tenant shall be deemed to
constitute a transfer or assignment prohibited by the immediately
preceding sentence. No consent granted by Landlord to any transfer,
assignment or other transaction prohibited by this Section shall
release Tenant from any of Tenant's obligations under this Lease or be
deemed to constitute a consent to any subsequent assignment,
subletting, occupancy or use of the Leased Premises by another person.
Subject to the foregoing, the rights and obligations of the parties to
this Lease shall inure to the benefit of and be binding upon their
respective successors, assigns, heirs and legal representatives. Any
attempted assignment or sublease by Tenant in violation of the terms
and covenants of this paragraph shall be void and constitute a default
by Tenant.
(b) One half of all net cash or other net proceeds of any assignment, sale
or sublease of Tenant's interest in this Lease and/or the Leased
Premises (not including Trade Fixtures), whether consented to by
Landlord or not, shall be paid to Landlord notwithstanding the fact
that such proceeds exceed the rents called for hereunder, unless
Landlord agrees to the contrary in writing, and Tenant hereby assigns
all rights it might have or ever acquire in any such proceeds to
Landlord. This covenant and assignment shall benefit Landlord and its
successors in ownership of the Building and shall bind Tenant, Tenant's
heirs, executors, administrators, personal representatives, successors
and assigns. Any assignee, sublessee, or purchaser of Tenant's
interest in this Lease (all such assignees, sublessees or purchasers
being hereinafter referred to as "Successors"), by occupying the Leased
Premises and/or assuming Tenant's obligations hereunder, shall be
deemed to have assumed liability to Landlord for all amounts paid to
persons other than Landlord by such Successor in consideration of any
such sale, assignment or subletting, in violation of the provision
hereof. The acceptance by Landlord of any rent from any sublessee or
assignee of Tenant shall not constitute Landlord's consent to such
assignment or sublease. Notwithstanding the foregoing, Tenant may, upon
written notice to Landlord of the identity of the Affiliate, assign or
sublet its interest under this Lease in the Leased Premises to an
"Affiliate" of Tenant, provided (i) that such assignee or subtenant
assumes in full, the obligations of Tenant under this Lease, (ii) such
Affiliate's business operations are consistent with the Permitted Use,
and (iii) such sublease or assignment shall not operate to release
Tenant from its obligations under this Lease. As used herein, the term
"Affiliate" shall be a corporation which controls, is controlled by, or
is under common control with Tenant, control to be determined, for
purposes hereof, by the ownership of in excess of fifty percent (50%)
of the issued and outstanding voting stock of such entity. In
addition, the term "Affiliate" shall include any entity (a) resulting
from a merger or consolidation with Tenant, (b) any entity succeeding
to substantially all the business and assets of Tenant at the Leased
Premises, (c) any subsidiary, spin-off, affiliate or parent of Tenant,
or (d) any entity resulting from the reorganization of Tenant outside
of a bankruptcy organization. In the case of sublease or assignment to
an Affiliate, Landlord shall not have any right to share in any excess
rents.
14
SECTION 4.8. LIGHT, AIR AND VIEW. Neither the diminution nor the shutting off of
any natural light, air, or view nor any other effect on the Leased Premises by
any structure or condition now or hereafter existing on property adjacent to the
Building shall affect this Lease, xxxxx rent, or otherwise impose any liability
on Landlord.
SECTION 4.9. TAXES. Tenant shall pay all ad valorem and similar taxes or
assessments levied upon or applicable to any of Tenant's Trade Fixtures or any
other improvements, equipment, fixtures, furniture or other property situated in
the Leased Premises and all license and other fees or charge imposed on the
business conducted by Tenant on the Leased Premises. Upon request by Landlord,
Tenant will furnish Landlord annually with official tax receipts and other
official receipts showing payment of such taxes, assessments, fees and charges.
If Landlord shall be required to pay a higher ad valorem tax as a result of
Tenant's leasehold improvements, then Tenant shall pay to Landlord, upon demand,
the amount of such increase in ad valorem taxes.
SECTION 4.10. LIENS. Tenant shall not place or permit to be placed any lien,
affidavit, charge or order upon INFOMART, the Building or the Leased Premises or
any part thereof or any interest therein. In the event that any such lien,
affidavit, charge or order attaches, regardless of the validity or
enforceability thereof, Tenant shall promptly cause the same to be discharged of
record by payment or by the filing of a statutory bond in lieu of payment within
ten (10) days of Tenant's receipt of notice of such lien. In the event any such
lien is attached to the INFOMART, the Leased Premises or the Building, then in
addition to any other right or remedy of Landlord, Landlord may but shall not be
obligated to discharge the same. Any amount paid by Landlord for any of the
aforesaid purposes shall be paid by the Tenant to Landlord on demand as
additional rent.
SECTION 4.11. SUBORDINATION TO MORTGAGES AND LEASES. This Lease shall be subject
and subordinate at all times to (a) all ground or underlying leases now existing
or which may hereinafter be executed affecting the Building, the Leased Premises
and/or the Property (b) the lien or liens of all mortgages and deeds of trust in
any amount or amounts whatsoever now or hereafter placed on the Building, the
Leased Premises and/or the Property or Landlord's interest or estate therein or
on or against such ground or underlying leases and (c) all renewals,
modifications, consolidations, replacements and extensions thereof. The
subordinations set forth herein shall be self-operative and effective without
the necessity of execution of any further instruments by any party; provided,
however, Tenant shall execute and deliver upon demand by Landlord any
instruments, releases or other documents requested by any lessor or mortgager
for the purpose of confirming the provisions hereof or further subjecting and
subordinating this Lease to any such ground lease, mortgage or deed of trust. In
the event of the enforcement by the trustee or the beneficiary under any such
mortgage or deed of trust, of the remedies provided for by law or by such
mortgage or deed of trust, upon request of any person or party succeeding to the
interest of Landlord as a result of such enforcement, Tenant will automatically
become the Tenant of such successor in interest without change in the terms or
provisions of this Lease; provided, however, that such successor in interest
shall not be bound by (i) any payment of rent or additional rent for more than
one month in advance except prepayments actually delivered to such successor in
the nature of security for the performance by Tenant of its obligations under
this Lease, (ii) any payment of the security deposit or any other
15
deposit unless such security deposit or other deposit has actually been
delivered to such successor or (iii) any amendment or modification of this Lease
made without the written consent of such trustee or such beneficiary or such
successor in interest, and Tenant shall execute and deliver an instrument or
instruments confirming the attornment and other agreements provided for herein.
Further, notwithstanding anything contained in this Lease to the contrary, in
the event of any default by Landlord in the performance of its covenants or
obligations hereunder which would give Tenant the right to terminate this Lease,
Tenant shall not exercise such right unless and until (i) Tenant gives written
notice of such default (which notice shall specify the exact nature of said
default and the steps necessary to cure same) to the holder of any mortgage or
deed of trust encumbering the Building, the Leased Premises and/or the Property
who has theretofore notified Tenant in writing of its interest and the address
to which notices are to be sent, and (ii) such holder, upon becoming entitled to
do so, through foreclosure of its lien, or accepting a deed in lieu of
foreclosure, or otherwise, fails to cure or cause to be cured such default
within thirty (30) days from the later of the receipt of such notice from Tenant
or its becoming entitled to do so, or, if such default relates to a condition
which cannot reasonably be cured within such period, such holder commences to
cure within such period and thereafter diligently prosecutes the completion of
such cure. Landlord shall, in the event that a mortgage or deed of trust lien is
placed upon the Property and/or the Building, utilize reasonable efforts to
obtain a non-disturbance agreement from the holder thereof with respect to
Tenant's leasehold interests under the Lease, which non-disturbance agreement
shall be deemed to be sufficient if in form and content identical to the form of
Subordination, Non-Disturbance and Attornment Agreement attached hereto as
Exhibit "L" and incorporated herein by reference for all purposes.
SECTION 4.12. CERTIFICATES. At any time and from time to time during the Lease
Term, within ten (10) days after written request by Landlord, Tenant will
execute, acknowledge and deliver to Landlord and any other persons specified by
Landlord a certificate certifying (to the extent of being true and accurate) (i)
that this Lease is in full force and effect, (ii) the date and nature of each
modification to this Lease , (iii) the date to which rental and other sums
payable to this Lease have been paid, (iv) that Tenant is not aware of any
default under this Lease which has not been cured, except such defaults as may
be specified in said certificate, and (v) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied upon by
Landlord and by any other person to whom it is delivered for such purpose.
SECTION 4.13. LIMITATION ON WEIGHT. Tenant shall not permit upon the floor of
the Leased Premises any weight exceeding seventy-five (75) pounds per square
foot of floor area.
ARTICLE 5
---------
SECTION 5.1. CONDEMNATION. If all of the Building, or the whole or substantially
the whole of the Property (including surface and covered parking associated with
the Building) or the Leased Premises should be taken for any public or
quasi-public use, by right of eminent domain or otherwise or should be sold in
lieu of condemnation, then this Lease shall terminate as of the date when
physical possession of the Building, or the Leased Premises, or the Property is
taken by the condemning authority. If less than the whole of the Building or
less than the whole
16
or substantially the whole of the Property (including surface and covered
parking associated therewith) or the Leased Premises is thus taken or sold,
Landlord (whether or not the Leased Premises are affected thereby) may terminate
this Lease by giving written notice thereof to Tenant; in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building, Property, or Leased Premises is taken by the condemning authority. If
this Lease is not so terminated upon any such taking or sale, the Base Rental
payable hereunder shall be diminished by a prorata amount representing that
portion of the Base Rental allocable to the portion, if any, of the Leased
Premises subject to such taking, and Landlord shall, to the extent Landlord
deems feasible, restore the Building shell to substantially their former
condition, but such work shall not exceed the scope of the work done by landlord
in originally constructing the Building, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all of the Property, the Building or the Leased Premises shall
belong to Landlord, and Tenant shall not be entitled to and expressly waives all
claim to any such compensation.
SECTION 5.2. CASUALTY DAMAGE. If the Leased Premises or any part thereof shall
be damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that substantial
alteration or reconstruction of the Building shall, in Landlord's sole
discretion, be required (whether or not the Leased Premises shall have been
damaged by such casualty) or in the event any mortgagee of Landlord's should
require that the insurance proceeds payable as a result of a casualty be applied
to the payment of the mortgage debt or in the event of any material uninsured
loss to the Building, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety (90) days after
the date of such casualty. If Landlord does not thus elect to terminate this
Lease, Landlord shall commence and proceed with reasonable diligence to restore
the Building shell; except that Landlord's obligation to restore shall not
require Landlord to spend for such work an amount in excess of the insurance
proceeds actually received by Landlord as a result of the casualty. When the
repairs described in the preceding sentence have been completed by Landlord,
Tenant shall restore all improvement necessary to permit Tenant's re-occupancy
of the Leased Premises, and the restoration of Tenant furniture and equipment.
All cost and expense of reconstructing the Leased Premises shall be borne by
Tenant. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof, except that, subject to the provisions of the next
sentence, Landlord shall allow Tenant a fair diminution of rent during the time
and to the extent the Leased Premises are unfit for occupancy and are
unoccupied. If the Leased Premises or any other portion of the Building be
damaged by fire or other casualty resulting from the fault or negligence of
Tenant or any Tenant's agents, employees, or invitees, the rent hereunder shall
not be diminished during the repair and restoration of the Building and Tenant
shall be liable to Landlord for rent and for the cost of repair and restoration
of the Building caused thereby to the extent such cost and expense is not
covered by insurance proceeds actually received by Landlord. Notwithstanding the
foregoing, in the event that it is estimated that Landlord will need more than
one hundred eighty (180) days to repair the damage caused by such casualty,
Tenant shall have the right to terminate this Leased by providing written notice
to Landlord within five (5) days of Landlord's notice to Tenant.
17
SECTION 5.3. INSURANCE.
(a) Landlord shall not be obligated to insure any of Tenant's goods, Trade
Fixtures, furniture or any other property placed in or incorporated in
the Leased Premises or the Building. Landlord shall maintain insurance
during the Lease Term as required by then current lender.
(b) Tenant shall, at its sole cost and expense, procure and maintain during
the Lease Term, commercial general liability insurance (such insurance
to afford minimum protection of not less than $5,000,000.00 combined
single limit coverage of bodily injury, property damage or combination
thereof), property insurance with respect to Tenant's personal
property, inventory and leasehold improvements written on an all "All
Risk" basis for full replacement cost, worker's compensation and
employer's liability insurance, comprehensive catastrophe liability
insurance and such other insurance as Landlord may, from time to time,
reasonably require. In addition, Tenant agrees to obtain a fire legal
liability endorsement or other coverage satisfactory to Landlord which
removes the "owned, rented or occupied" property exclusion from
Tenant's liability policy. All such insurance shall be maintained by
companies on forms and in amounts approved by Landlord.
(c) In the event that Tenant fails to take out or maintain any policy
required by this Article to be maintained by Tenant, such failure shall
be a defense to any claim asserted by Tenant against Landlord by reason
of any loss sustained by Tenant that would have been covered by such
policy.
(d) All policies of insurance required to be maintained by Tenant shall
provide that the Landlord shall be given at least thirty (30) days
prior written notice of any cancellation or non-renewal of any such
policy. A duplicate original of each such policy or a duly executed
certificate of insurance with respect to each such policy shall be
deposited with Landlord by Tenant on or before the Commencement Date,
and a duplicate original of each subsequent policy or a duly executed
certificate of insurance with respect to each subsequent policy shall
be deposited with Landlord at least fifteen (15) days prior to the
expiration of the policy then in force.
(e) Tenant shall not do or permit anything to be done in the Building or
about the Leased Premises nor bring nor keep nor permit anything to be
brought to or kept therein, which will in any way increase the existing
rate of or affect any fire or other insurance which Landlord carries
upon any part of the Building or any of its contents, or cause a
cancellation or invalidation of any such insurance. If the annual
premiums to be paid by Landlord with respect to any insurance obtained
by Landlord covering any part of the Building or any of its contents
shall exceed the standard rates because of Tenant's operations, or
contents of the Leased Premises or because improvements with respect to
the Leased Premises result in extra-hazardous exposure, Landlord shall
have the further right, exercisable in Landlord's sole discretion, to
terminate this Lease by giving written notice of such election to
Tenant.
18
(f) Subject to the conditions hereinafter specified in this Subsection (f)
and only to the extent that and so long as the same is permitted under
the laws and regulations governing the writing of insurance within the
State of Texas with respect to the respective insurance that is to be
carried by either Landlord or Tenant covering losses arising out of the
destruction or damage to the Leased Premises or its contents or to
other portions of the Building or to Tenant's occupancy and operation
of the Leased Premises without invalidating or nullifying any such
policy, or providing a defense to the applicable insurance carrier with
respect to the coverage of any such policy, all such insurance carried
by either Landlord or Tenant shall provide for a waiver of rights of
subrogation against Landlord and Tenant on the part of the insurance
carrier. Notwithstanding the foregoing, nothing contained herein shall
require either party to obtain the inclusion of such a waiver of rights
of subrogation in the event that, because of the cost or premium
attributable to such waiver, the obtaining of such waiver is not
feasible and reasonable. Except as otherwise provided in Section 5.2
hereof or in the event that such waivers contemplated by this sentence
will invalidate, nullify, or provide a defense to coverage under any
such insurance policy or are not obtainable for the reasons described
in this Subsection (f), Landlord and Tenant each hereby waive any and
all rights of recovery, claims, actions or causes of action against the
other, its agents, officers, or employees, or any loss or damage that
may occur to the Leased Premises or the Building, or any improvements
thereto, which loss or damage is covered by valid and collectible
insurance policies, to the extent that such loss and damage is
recoverable under such insurance policy. The waivers set forth in the
immediately preceding sentence shall be in addition, and not
substitution for, any other waivers, indemnities, or exclusions of
liabilities as set forth in this Lease, including, without limitation,
Sections 5.5 and 5.6 of the Lease.
SECTION 5.4. SURRENDER OF LEASED PREMISES. Upon termination of this Lease or
Tenant's right to possession of the Leased Premises, Tenant shall peaceably and
quietly surrender the Leased Premises to Landlord, broom-clean and in a good
state of repair and condition, excepting only ordinary wear and tear. Upon
request of Landlord, Tenant shall demolish or remove all or any portion of any
Trade Fixtures and other property or the making of any such alteration,
improvement, addition or change. Notwithstanding the foregoing, Tenant shall be
required to remove only those items which Landlord specified are to be removed
at the time that Landlord consents to the installation thereof. All such
demolition, removal and restoration shall be performed in accordance with the
conditions set forth in Section 4.2(b). Upon termination of this Lease, Tenant
will also surrender to Landlord all keys to the Leased Premises and inform
Landlord of all combinations on locks, safe, and vaults, if any, at the Leased
Premises.
SECTION 5.5. DAMAGES FROM CERTAIN CAUSES. Landlord and Landlord's agents and
employees shall not be liable or responsible to Tenant or any person claiming
through Tenant for any loss or damage or injury to business or to any property
or person in, upon or about the Leased Premises or any other portion of the
Building arising at any time from any cause, negligent or otherwise, other than
solely by reason of the gross negligence or willful misconduct of Landlord or of
Landlord's employees or agents acting within the scope of their employment or
authority.
19
SECTION 5.6. HOLD HARMLESS. Landlord shall not be liable to Tenant, or to
Tenant's agents, employees, contractors, customers or invitees or to any other
person whomsoever for any injury or damage to person or property caused by or
arising out of an act, omission or neglect of Tenant, its agents, contractors,
subtenants, employees, customers, licensees, concessionaires or invitees or any
other person entering the Building under express or implied invitation of Tenant
or other tenants of the Building, and Tenant agrees to indemnify and hold
Landlord harmless from all liability and claims for any such damage and from all
claims, costs, damages or liabilities arising out of the foregoing, including
without limitation attorneys' fees and all other out-of-pocket expenses incurred
in connection therewith. Likewise, Landlord shall indemnify and hold Tenant
harmless from all liability and claims for any damage incurred by Tenant as a
result of and from all claims for any damage incurred by Tenant as a result of
and from all claims, costs, damages, or liabilities arising out of the gross
negligence or willful misconduct of Landlord, its agents or employees,
including, without limitation, attorneys' fees and all other out-of-pocket
expenses incurred in connection therewith. In any case in which Landlord or
Tenant has agreed to indemnify the other, such indemnity shall be deemed to
include an obligation on the part of the indemnifying party to appear on behalf
of the indemnified party in any and all proceedings involving a claim or cause
of action covered by such indemnity and to defend the indemnified party against
such claim or cause of action, all at the indemnifying party's cost; provided,
however, at the option of any party indemnified hereunder, such party shall have
the right to appear on its own behalf, employ its own legal counsel and defend
any claim or cause of action indemnified in this Section, all at the cost of the
indemnifying party's.
ARTICLE 6
---------
SECTION 6.1. DEFAULT BY TENANT. The occurrence of any one or more of the
following events shall constitute a default by Tenant under this Lease:
(a) Failure of the Tenant to pay rent or any other amount due under this
Lease within ten (10) days after Tenant's receipt of Landlord's written
notice of such failure to pay provided Landlord shall be required to
give such notice only once in any twelve (12) month period and
thereafter Tenant shall be in default if any such payment is not
received when due and without notice;
(b) Failure of the Tenant to perform, observe, or comply with or default
under any of the terms, covenants, conditions or provisions contained
in Section 4.1 of this Lease within twenty-four (24) hours after
written notice to Tenant with respect thereto, if such condition cannot
reasonably be cured within such twenty-four (24) period, Tenant shall
thereafter diligently and continuously prosecute such cure to
completion within five (5) days from the date of Landlord's notice of
such default provided that Landlord shall be required to give such
notice only once in any twelve (12) month period and the second
violation of the provisions contained in Section 4.1 hereof by Tenant
shall constitute a default by Tenant hereunder whether or not Landlord
shall provide Tenant with notice thereof and;
20
(c) Failure of the Tenant to perform, observe, or comply with or default
under the negative covenant or agreement set forth in Sections 4.7 and
4.10 of the Lease and all other covenants and agreements set forth in
this Lease which prohibit or restrict Tenant from taking or omitting to
take any action without the consent of the Landlord or which requires
the Tenant to take action upon the request of the Landlord;
(d) Failure of the Tenant to perform, observe, or comply with or default
under any of the terms, covenants, conditions or provisions contained
in this Lease (other than covenants to pay rent, the covenants set
forth in Sections 4.1 and 8.3 of this Lease, negative covenants and
agreements set forth in this Lease and all other covenants and
agreements set forth in this Lease which prohibit or restrict the
Tenant from taking or omitting to take any action upon request of the
Landlord) and such failure or default is not cured to Landlord's
satisfaction within thirty (30) calendar days after the Landlord has
given Tenant written notice thereof or, if such condition cannot
reasonably be cured within such thirty (30) day period, Tenant shall
thereafter diligently and continuously prosecute such cure to
completion within eighty (80) days from the date of Landlord's notice
of such default, except as such eighty (80) day period otherwise be
delayed by the provisions of Section 8.1 hereunder;
(e) The interest of Tenant under this Lease shall be levied on under
execution or other legal process;
(f) Any petition in bankruptcy or other insolvency proceedings shall be
filed by or against Tenant, or any petition shall be filed or other
action taken to declare Tenant a bankrupt or to delay, reduce or modify
Tenant's debts or obligations or to reorganize or modify Tenant's
capital structure or indebtedness or to appoint a trustee, receiver or
liquidator of Tenant or of any property of Tenant, or any proceeding or
other action shall be commenced or taken by any governmental authority
for the dissolution or liquidation of Tenant to the extent not cured or
removed within sixty (60) days notice from Landlord;
(g) Tenant shall become insolvent, or Tenant shall make an assignment for
the benefit of creditors, or Tenant shall make a transfer in fraud of
creditors, or a receiver or trustee shall be appointed for Tenant or
any of its properties;
(h) Tenant shall abandon the Leased Premises or any substantial portion
thereof;
(i) Tenant shall do or permit to be done anything which creates or causes
to be filed a lien, security interest or other encumbrance (whether
consensual or created by operation of law or otherwise) against all or
any part of the Leased Premises, the Building or any property situated
therein or Tenant's interest in this Lease; or
(j) The death or legal incapacity of Tenant if Tenant is an individual
person or the termination, dissolution or liquidation of Tenant, if
Tenant is a corporation, partnership, or other entity.
21
(k) Failure of the Tenant to perform, observe, or comply with or default
under any of the terms, covenants, conditions or provisions contained
in Section 8.3 hereof and default is not cured within fifteen (15) days
of Landlord's notice to Tenant of such default.
SECTION 6.2. LANDLORD'S REMEDIES. Upon the occurrence of any default by Tenant
under this Lease, Landlord may, at its sole option, do any one or more of the
following, without any notice or demand for possession whatsoever, and Tenant
hereby waives any and all notice and demand requirements imposed by applicable
law:
(a) Terminate this Lease, whereupon Landlord shall have the remedies set
forth in Section 6.3 below;
(b) Without having terminated this Lease, enter upon and take possession of
the Leased Premises, whereupon Landlord shall have the remedies set
forth in Section 6.4 below; or
(c) Upon Tenant's failure to perform, observe or comply with the covenants
set forth in Sections 2.2, 4.1, or 4.7 of this Lease, Landlord may,
without terminating this Lease and without taking possession of the
Leased Premises, collect from Tenant, in addition to any rent payable
by Tenant to Landlord under this Lease, as liquidated damages, a sum
equal to twice the Base Rental (computed on a daily basis) for each day
or any portion thereof that such default by Tenant continues, Landlord
and Tenant agreeing that actual damages which might be sustained by
Landlord by reason of such failure are uncertain and difficult to
ascertain and that said sum would be reasonable and just compensation
for such failure.
SECTION 6.3. TERMINATION OF LEASE. Upon termination of this Lease by Landlord,
pursuant to Section 6.2(a), Landlord may forthwith repossess the Leased Premises
and be entitled to recover as damages a sum of money equal to the total of (i)
the cost of recovering the Leased Premises, (ii) the cost of removing and
storing Tenant's or any other occupant's property, (iii) the unpaid rent accrued
at the date of termination, and (iv) any other sum of money or damages that may
be owed to Landlord as the result of the exercise of Landlord's rights at law or
in equity.
SECTION 6.4. TERMINATION OF POSSESSION. Upon termination of Tenant's right of
possession to the Leased Premises pursuant to Section 6.2(b), Landlord may
repossess the Leased Premises by forcible entry or detainer suit or otherwise,
without demand or notice of any kind to Tenant and without terminating this
Lease, in which event Landlord may (but shall not be obligated to) relet the
same for the account of Tenant for such rent and upon such terms as shall be
satisfactory to Landlord. In such event, Tenant shall be liable for and shall
pay to Landlord all rent payable by Tenant under this Lease plus an amount equal
to (i) the cost of recovering possession, (ii) the cost of decorations, repairs,
changes, alterations and additions to the Leased Premises, (iii) the cost of
collection of the rent accruing from such reletting, and (iv) any other costs
incurred by Landlord in connection with such reletting, reduced by any sums
received by Landlord through reletting the Leased Premises; provided, however,
that in no event shall Tenant be entitled to any excess of any sums obtained by
reletting over and above rent provided in this Lease to be paid by Tenant to
Landlord. For the purpose of such reletting, Landlord is
22
authorized to decorate or to make any repairs, changes, alterations or additions
in or to the Leased Premises that Landlord may deem necessary or advisable.
Landlord may file suit to recover any sums falling due under the terms of this
Section from time to time, and no delivery to or recovery by Landlord of any
portion due Landlord hereunder shall be any defense in any action to recover any
amount not theretofore reduced to judgment in favor of Landlord. No reletting
shall be construed as an election on the part of Landlord to terminate this
Lease unless a written notice of such intention is given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous default.
SECTION 6.5. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS., Should Tenant
fail to perform any of its obligations hereunder, Landlord may (but shall not be
obligated to), after written notice to Tenant, (except in an emergency, when no
notice shall be required) enter upon the Leased Premises and perform all or any
part of such obligations. Upon demand, Tenant shall reimburse Landlord for the
cost to Landlord of performing such obligations plus profit and overhead in an
amount equal to fifteen percent (15%) of such cost. No action taken by Landlord
under this Section shall relieve Tenant from any of its obligations under this
Lease or from any consequences or liabilities arising from the failure to
perform such obligations.
SECTION 6.6. CUMULATIVE REMEDIES. The rights and remedies of Landlord under this
Article shall be non-exclusive and shall be in addition to and cumulative of all
other remedies available to Landlord under this Lease or at law or in equity.
SECTION 6.7. LANDLORD'S LIEN. Intentionally omitted.
SECTION 6.8. HOLDING OVER. In the event Tenant remains in possession of the
Leased Premises after the expiration or termination of this Lease without the
execution of a new lease, then Tenant shall be deemed to be occupying the Leased
Premises as a tenant from month to month at a rental equal to 150% of the Base
Rental for the first forty-five (45) days and 200% of the Base Rental thereafter
and shall otherwise remain subject to all the conditions, provisions and
obligations of this Lease insofar as the same are applicable to a month to month
tenancy. No holding over by Tenant after the expiration or termination of this
Lease shall be construed to extend the Lease Term or in any other manner be
construed as permission by Landlord to hold over.
SECTION 6.9. SECURITY DEPOSIT. Tenant shall pay the Security Deposit to Landlord
on the date this Lease is executed by Tenant. Landlord may commingle the
Security Deposit with its other funds and shall receive and hold the Security
Deposit without liability for interest. Upon default by Tenant, Landlord may,
from time to time, without prejudice to any other remedy, apply such Security
Deposit to the extent necessary to make good any arrears of rental or any other
damage, injury, expense or liability caused by Landlord by reason of default by
the Tenant. After any such application of Security Deposit, Tenant shall, upon
request of Landlord, pay to Landlord the amount so applied so as to restore the
Security Deposit to its original amount. Any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant within a reasonable period of
time after the termination of this Lease. If Landlord transfers its
23
interest in the Leased Premises during the term of this Lease, Landlord may
assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of such Security Deposit.
ARTICLE 7
---------
SECTION 7.1. ATTORNEY'S FEES AND OTHER EXPENSES. In the event of the default by
either party hereto in the performance or observance of any of the terms,
agreements or conditions contained in this Lease, the defaulting party shall be
liable for and shall pay the prevailing party all expenses incurred by the
prevailing party in enforcing any of the prevailing party's remedies for any
such default, including, without limitation, the prevailing party's reasonable
attorney's fees.
SECTION 7.2. AMENDMENTS, BINDING EFFECT. This Lease may not be altered, changed
or amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waiver or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms 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 successors in interest and legal representatives, except as otherwise
herein expressly provided.
SECTION 7.3. NON-WAIVER. No course of dealing between Landlord and Tenant or any
other person, nor any delay on the part of Landlord in exercising any rights
under this Lease, nor any failure to enforce any provision of this Lease, nor
the acceptance of rental by Landlord shall operate as a waiver of any rights of
Landlord, except to the extent, if any, expressly waived in writing by Landlord.
The waiver by Landlord of any agreement, condition or provision herein contained
shall not be deemed a waiver of any subsequent breach of the same or any other
agreement, condition or provision herein contained.
SECTION 7.4. NOTICES. Any notice or other communications to Landlord or Tenant
required or permitted to be given under this Lease must be in writing and shall
be effectively given if hand delivered or transmitted by facsimile to the
addresses for Landlord and Tenant stated above or if sent by United States Mail,
certified or registered, return receipt requested, to said addresses. Any notice
mailed shall be deemed to have been given three (3) calendar days following the
date of deposit of such item in a depository of the United States Postal
Service. Any notice by facsimile shall be deemed delivered upon confirmation of
receipt on the day of receipt or, if after 5:00 p. m. the next business day. Any
other form of notice effected other than by mail shall be deemed to have been
given at the time of actual delivery. Either party shall have the right to
change its address to which notices shall thereafter be sent by giving the other
written notice thereof.
SECTION 7.5. INTEREST. All amounts of money payable by Tenant to Landlord under
this Lease shall bear interest from the date due until paid at the rate of
interest set forth in Section 2.3.
24
SECTION 7.6. MERGER OF ESTATES. The voluntary or other surrender of this Lease
by Tenant or a mutual cancellation thereof, shall not constitute a merger; and
upon such surrender or cancellation of this Lease, Landlord shall have the
option, in Landlord's sole discretion, to (i) either terminate all or any
existing subleases or subtenancies, or (ii) assume Tenant's interest in any or
all subleases or subtenancies.
SECTION 7.7. OTHER TENANTS OF BUILDING. Neither this Lease nor Tenant's
continued occupancy of the Leased Premises is conditioned upon the opening of
any store or business in the Building, nor upon the continued operation of any
such store or business.
SECTION 7.8. CONSENT BY LANDLORD. In all circumstances under this Lease where
the prior consent or permission of Landlord is required before Tenant is
authorized to take any particular type of action, such consent must be in
writing and the matter of whether to grant such consent or permission shall be
within the sole and exclusive judgment and discretion of Landlord, except as set
forth herein, and it shall not constitute any nature of breach by Landlord under
this Lease or any defense to the performance of any covenant, duty or obligation
of Tenant under this Lease that Landlord delayed or withheld the granting of
such consent or permission.
SECTION 7.9. LEGAL INTERPRETATION. This lease and the rights and obligations of
the parties hereto shall be interpreted construed and enforced in accordance
with the laws of the State of Texas and the United States. All obligations of
the parties hereto shall be performable in, and all legal actions to enforce or
construe this Lease shall be instituted in the courts of Dallas County, Texas.
The determination that one or more provisions of this Lease is invalid, void,
illegal or unenforceable shall not affect or invalidate the remainder. All
obligations of either party requiring any performance after the expiration of
the Lease Term shall survive the expiration of the Lease Term and shall be fully
enforceable in accordance with those provisions pertaining thereto. Section
titles appearing in this Lease are for convenient reference only and shall not
be used to interpret or limit the meaning of any provision of this Lease.
SECTION 7.10. ENTIRE AGREEMENT. Tenant agrees that this Lease supersedes and
cancels any and all previous statements, negotiations, arrangements, brochures,
agreements and understandings, if any, between Landlord and Tenant or displayed
by Landlord to Tenant with respect to the subject matter of this Lease, the
Leased Premises or the Building, and that there are no representations,
agreements or warranties (express or implied, oral or written) between Landlord
and Tenant with respect to the subject matter of this Lease, the Leased Premises
or the Building other than contained in this Lease.
SECTION 7.11. ASSIGNMENT BY LANDLORD. Landlord shall have the right at any time
to transfer and assign in whole or in part, by operation of law or otherwise,
its rights, benefits, privileges, duties and obligations hereunder or in the
Property.
SECTION 7.12. TENANT'S AUTHORITY. Tenant represents and warrants that it has the
full right, power and authority to enter into this Lease and to perform its
obligations hereunder, and that upon execution of this Lease by Tenant, this
Lease shall constitute a valid and legally binding obligation of Tenant. If
Tenant signs as a corporation, each of the persons executing this
25
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
and validly existing corporation, that the execution of this Lease by such
persons on behalf of Tenant has been duly authorized by all necessary corporate
action and that Tenant is qualified to do business in the State of Texas.
SECTION 7.13. LANDLORD'S LIABILITY. Any provisions of this Lease to the contrary
notwithstanding, Tenant hereby agrees that no personal, partnership or corporate
liability of any kind or character whatsoever now attaches or at any time
hereafter under any condition shall attach to Landlord or its partners or
venturers for payment of any amounts payable under this Lease or for the
performance of any obligation under this Lease. The exclusive remedy of Tenant
for the failure of Landlord to perform any of its obligations under this Lease
shall be to proceed against the interest of Landlord in and to the Building. In
no event shall Landlord incur any liability or obligation to Tenant or other
person or entity with respect to any action, omission, or inaction, negligent or
otherwise, of Landlord, except as such may be due to the gross negligence or
willful misconduct of Landlord.
SECTION 7.14. TIME OF ESSENCE. In all instances where Tenant is required under
this Lease to pay any sum or do any act at a particular time or within a
particular period, it is understood that time is of the essence.
SECTION 7.15. INSTRUMENTS AND EVIDENCE REQUIRED TO BE SUBMITTED TO LANDLORD.
Each written instrument and all evidence of the existence or non-existence of
any circumstances or condition which is required by this Lease to be furnished
to Landlord shall in all respects be in form and substance satisfactory to
Landlord, and the duty to furnish such written instrument or evidence shall not
be considered satisfied until Landlord shall have acknowledged that it is
satisfied therewith.
SECTION 7.16. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
SECTION 7.17. GENDER AND NUMBER. The pronouns of any gender shall include the
other gender and either the singular or the plural shall include the other.
SECTION 7.18. RECORDATION. Tenant agrees not to record this Lease or any
instrument to which this Lease may now or hereafter be attached.
ARTICLE 8
---------
SECTION 8.1. FORCE MAJEURE. Except for the payment of Base Rental or any
additional sums payable by Tenant hereunder, whenever a period of time is herein
prescribed for the taking of any action by Landlord or Tenant, Landlord or
Tenant shall not be liable or responsible for, and there shall be excluded from
the computation of such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of such party.
26
SECTION 8.2. COMMISSIONS. Landlord has agreed to pay commission to Xxxxx & Xxxxx
with respect to the negotiation and execution of this Lease. Tenant hereby
indemnifies and holds Landlord harmless against any loss, claim, expense or
liability with respect to any other commissions or brokerage fees claimed on
account of the execution and/or renewal of this Lease or the expansion of the
Leased Premises hereunder, if applicable, due to any action by Tenant. The
provisions of this paragraph shall survive the termination of this Lease.
SECTION 8.3. USE OF THE TERM "INFOMART". Tenant may use the term "INFOMART" in
any of its activities, provided that (a) such usage by Tenant is in compliance
with such agreement relative to Landlord's use of the term "INFOMART" ("License
Agreement") and (b) copies of all proposed written materials and advertising
containing reference to the term "INFOMART" shall be furnished to Landlord in
advance for its review and written approval. Any permitted use of the term
"INFOMART" by Tenant shall additionally include the phrase "The Technology
Community" immediately after the first (1st) usage of such term in any material.
Landlord shall notify Tenant in writing after such proposed usage has been
verified, and Tenant may thereafter commence such requested usage. Tenant shall
not permit any third party to use the term "INFOMART" in any of its activities
and shall report to Landlord any unauthorized uses of such term which comes to
its attention. The breach by Tenant of any provisions of this Section 8.3 shall
constitute an event of default under this Lease and Tenant shall cease and
desist immediately from any unauthorized use within fifteen (15) days of
Landlord's notice of such breach. Tenant shall indemnify and hold Landlord
harmless from against any loss, cost, claim, liability, cause of action, or
expense whatsoever (including, without limitation, attorney's fees and other
costs and expenses of defending against any such claim) arising or alleged to
arise from any unauthorized use by Tenant, or its agents or employees of the
term "INFOMART".
SECTION 8.4. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer or option to Tenant. This Lease shall not be effective until
a copy executed by both Landlord and Tenant is delivered to and accepted by
Landlord, and this Lease has been approved by Landlords' mortgagee.
SECTION 8.5. EXHIBITS, SCHEDULES AND RIDERS. The Exhibits and Riders attached to
this Lease are hereby incorporated herein and hereby made a part of this Lease.
27
IN TESTIMONY HEREOF, the parties have executed this Lease as of the day and year
first above written.
L A N D L O R D
---------------
INFOMART-Dallas, L.P., a Texas limited partnership
By:INFOMART USA, L.P., a Texas limited partnership
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Agent
T E N A N T
-----------
FOCAL COMMUNICATIONS CORPORATION OF
TEXAS, a Delaware corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
------------------------------
Title: Executive Vice President
-----------------------------
Exhibit "A" - Property Description
Exhibit "B" - Building Rules
Exhibit "C" - Designation of Leased Premises
Exhibit "D" - INFOMART Policy Statement
Exhibit "E" - Parking
Exhibit "F" - Telecommunications Equipment License
Exhibit "G" - Satellite/Antenna License
Exhibit "H" - Generator
Exhibit "I" - Renewal Option
Exhibit "J" - Work Letter (Allowance)
Exhibit "K" - Rooftop Cooling Provisions
Exhibit "L" - Subordination, Non-Disturbance and Attornment Agreement
28
EXHIBIT "A"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P., as Landlord
and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
PROPERTY DESCRIPTION
--------------------
BEING a 25.454 acre tract of land situated in the City of Dallas, Dallas County,
Texas and out of the Xxxxx X. Xxxxxxxxx Survey, Abstract No. 1383 and being a
part of City of Dallas Block No. 6053, also being the same tract of land
conveyed to Dallas Market Center Company by a Special Warranty Deed recorded in
Volume 82113, Page 3240 of the Deed Records of Dallas County, Texas, said 25.454
acre tract of land being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod found for the point of intersection of the
southwesterly right-of-way line of the Chicago Rock Island and Pacific Railroad
with the northwesterly right-of-way line of Oak Lawn Avenue;
THENCE with the northwesterly right-of-way line of Oak Lawn Avenue the
following:
South 31 31'40" West a distance of 366.74 feet to an "X" chiseled in
concrete found for corner in a curve to the right, the radius point of
said curve bearing North 50 08'58" West a distance of 241.00 feet from
said "X";
Southwesterly with said curve to the right through a central angle of
03 09'20" an arc distance of 13.27 feet to an "X" chiseled in concrete
set for the point of reverse curvature of a curve to the left having a
radius of 259.00 feet;
Southwesterly with said curve to the left through a central angle of 11
28'43" an arc distance of 51.89 feet to a 1/2 inch iron rod found for
the point of reverse curvature of a curve to the right having radius of
129.00 feet;
Southwesterly with said curve to the right through a central angle of
24 06'22" an arc distance of 138.22 feet to a 1/2 inch iron rod set for
the point of compound curvature of a curve to the right having a radius
of 50.00 feet;
Northwesterly with said curve to the right through a central angle of
24 06'22" an arc distance of 21.04 feet to a 1/2 inch iron rod found in
the northeasterly right-of-way line of Stemmons Freeway for the point
of compound curvature of a curve to the right having a radius of
1130.92 feet;
THENCE with the northeasterly right-of-way line of Stemmons Freeway the
following:
Northwesterly with said curve to the right through a central angle of
07 24'40" an arc distance of 146.28 feet to a 1/2 inch iron rod found
for the point of tangency of said curve;
00
Xxxxx 00 00'00" Xxxx a distance of 816.18 feet to a 1/2 inch iron rod
found for point of curvature of a curve to the left having a radius of
3289.04 feet;
Northwesterly with said curve to the left through a central angle of 01
23'21" an arc distance of 79.74 feet to a bolt in concrete found for
the most southerly corner of a tract of land leased to Southwestern
Furniture Mart Co. from Industrial Properties Corporation as recorded
in Volume 67076, Page 0690 of the Deed Records of Dallas County, Texas;
THENCE departing the northerly right-of-way line of Stemmons Freeway with the
easterly line of the Southwestern Furniture Mart Company tract, North 09 21'30"
East a distance of 1064.46 feet to a 1/2 inch iron rod found for corner in the
curving southwesterly right-of-way line of the Chicago, Rock Island and Pacific
Railroad, the radius point of said curve being situated South 33 11'48" West a
distance of 1599.88 feet;
THENCE with the southerly right-of-way lien of the Chicago, Rock Island and
Pacific Railroad the following:
Southeasterly with said curve to the right through a central angle of
02 41'48" an arc distance of 75.30 feet to a 1/2 inch iron rod found
for corner;
North 52 07'00" East a distance of 30.11 feet to a 1/2 inch iron rod
found for corner in a curve to the right, the radius point of said
curve being situated South 32 19'18" West a distance of 1553.95 feet;
Northwesterly with said curve to the right through a central angle of
21 26'39" an arc distance of 581.59 feet to a 1/2 inch iron rod set for
corner;
North 45 16'10" East a distance of 53.07 feet to 1/2 inch iron rod set
for corner;
South 31 48'40" East a distance of 976.20 feet to the POINT OF
BEGINNING;
CONTAINING an area of 25.454 acres of land.
INITIALS
Landlord Tenant
----------- -----------
30
EXHIBIT "B"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P., as Landlord
and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
RULES AND REGULATIONS
---------------------
1. No additional locks shall be placed on the doors of the Leased Premises
by Tenant, nor shall any existing locks be changed unless Landlord is
immediately furnished with two keys thereto. Landlord will without
charge furnish Tenant with two keys for each lock existing upon the
entrance doors when Tenant assumes possession with the understanding
that at the termination of the lease these keys shall be returned or
paid for at five dollars ($5.00) each. A deposit of one dollar ($1.00)
each shall be required for additional keys.
2. Tenant shall not at any time display a "For Rent" sign upon the
Building or the Leased Premises, or advertise the Leased Premises for
rent.
3. Safes and other unusually heavy objects shall be placed by Tenant only
in such places as may be approved by Landlord. Any damage caused by
overloading the floor or by taking in or removing any object from the
Leased Premises or the Building shall be paid by Tenant.
4. Windows facing on corridors shall at all times be wholly clear and
uncovered (except for such signs as Landlord may approve) so that a
full unobstructed view of the interior of the Leased Premises may be
had from the corridors, unless otherwise approved in writing by
Landlord.
5. No vehicles or animals shall be brought into the Building, other than
as required by handicapped persons.
6. Tenant shall not make any changes in the pipes, ducts, or wiring
serving the Leased Premises or add any additional pipes, ducts, or
wiring without the prior written consent of Landlord, and any such
changes or additions shall be made in such manner as Landlord may
direct.
7. No sign, tag, label, picture, advertisement, or notice (other than
price tags of customary size used in marking samples) shall be
displayed, distributed, inscribed, painted or affixed by Tenant on any
part of the outside of the Building or of the Leased Premises without
the prior written consent of the Landlord.
8. In the event Landlord should advance upon the request, or for the
account of the Tenant, any amount for labor, material, packing,
shipping, postage, freight or express upon articles delivered to the
Leased Premises or for the safety, care, and cleanliness of the Leased
Premises, the amount so paid shall be regarded as additional rent and
shall be due and payable forthwith to the Landlord from the Tenant.
31
9. The corridors and hallways of the Building shall not be used by Tenant
for any purpose other than ingress to or egress from the Leased
Premises.
10. Tenant shall not do or permit to be done within the Leased Premises
anything which would unreasonably annoy or interfere with the rights of
other tenants in the Building, or which might constitute a potential
hazard to other tenants or visitors.
11. During the thirty (30) days prior to the expiration of this Lease,
Landlord may show the Leased Premises to prospective tenants.
12. Tenant shall not put or operate any steam engine, boiler, industrial
machinery or stove in the Building or upon the Leased Premises or do
any cooking thereon or use or allow to be kept in the Building or upon
the Leased Premises any explosives or any kerosene, camphene, bottled
gas, oil or other highly flammable materials, except gas supplied
through metal pipes for heating purposes and normal and customary
cleaning and janitorial supplies to the extent permitted under
applicable laws.
13. Landlord reserves the right to prescribe reasonable qualifications for
admission into the Building.
14. Models, salespersons or other employees or representatives of Tenant,
shall not model, demonstrate display, or show in any manner any
merchandise outside of the Leased Premises in the Building or on the
Property without Landlord's prior written consent.
15. As a courtesy, but not as an obligation, Landlord may, at Landlord's
option, upon request by Tenant, receive and store articles or
merchandise delivered to Tenant at the Building; provided, however that
such articles of merchandise are properly addressed and identified and
all postage, handling and delivery charges are prepaid by Tenant.
Landlord assumes no responsibility whatsoever for the loss, damage or
destruction of such articles of merchandise received at the Building by
Landlord on behalf of Tenant, and Tenant hereby waives all claims
against Landlord for any damage or loss arising at any time from the
loss, damage or destruction of such articles of merchandise. Tenant
agrees to pay to Landlord as additional rent the amount of all storage,
delivery, handling and other expenses incurred by Landlord as a result
of the receipt and storage of such articles of merchandise.
16. Canvassing, peddling, soliciting and distribution of handbills or any
other written material in the Building or in the Building's parking
areas are prohibited, and each tenant shall cooperate to prevent the
same.
17. If the Leased Premises front on the atrium within the Building, Tenant
shall cause the Leased Premises to be kept open for business and
occupied by Tenant's personnel during all normal business hours of the
Building.
18. These Rules and Regulations are in addition to, and shall not be
construed to in any way
32
modify or amend, in whole or in part, the terms, covenants, agreements
and conditions of any lease of space in the Building.
19. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation
of good order therein.
20. Smoking is not permitted within the Building. Smoking within the Leased
Premises is at the discretion of Tenant, provided, however, that such
smoke does not migrate into the Building's common areas, hallways, etc.
or into another tenant's premises. Tenant hereby indemnifies Landlord
from any and all claims resulting from Tenant's permitting of smoking
within the Leased Premises.
21. Tenant shall comply with the INFOMART Policy Statement. Tenant shall be
liable for all injuries and damages sustained by Landlord or Landlord's
agents or by other tenants, occupants, or invitees of the Building by
reason of any breach of the requirements of the INFOMART Policy
Statement by Tenant or Tenant's agents, employees or invitees.
22. Landlord may amend these Rules and Regulations from time to time and
such changes shall be binding upon Tenant.
INITIALS
Landlord Tenant
----------- -----------
33
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34
EXHIBIT "C"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
DESIGNATION OF LEASED PREMISES
------------------------------
(For illustrative purposes only)
[Floorplan Appears here]
INITIALS
Landlord Tenant
----------- -----------
35
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36
EXHIBIT "D"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P., as Landlord and
FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
INFOMART POLICY STATEMENT
-------------------------
GENERAL POLICIES AND PROCEDURES REGARDING INFOMART, DALLAS
----------------------------------------------------------
1. PERMANENT TENANT QUALIFICATIONS. Permanent tenants must be producers of
hardware, software or services utilizing information processing
equipment unless otherwise specifically approved by Landlord. If the
tenant's business includes the resale of products or services, the
tenant must add to or enhance the value of such products or services.
2. TEMPORARY EXHIBITOR REGULATIONS.
(a) During designated temporary trade events sponsored by Landlord
which are conducted in conjunction with the use of permanent
showrooms and which include the rental of temporary exhibit
space, permanent tenants will be offered a priority selection
of such temporary exhibit space based in the initial year upon
the dates on which such permanent tenants entered into leases
for space within the Building and in subsequent years on a
priority basis reasonably determined by Landlord.
(b) When temporary exhibit space is used in conjunction with
permanent showrooms, non-information processing industry
representatives may display wares for specific trade markets.
(c) Temporary space areas may be rented independent of permanent
showrooms, in which event Landlord will have sole discretion
as to exhibition policies.
3. BUSINESS HOURS. Permanent showrooms bounded by an atrium wholly or
partially will be open and staffed during all normal business hours of
the Building. Showrooms must be open during all Landlord sponsored
trade events with exceptions approved in writing by Landlord. The hours
of these events will be established by Landlord.
4. SALES POLICY. Warehousing and on-site delivery to customers is
prohibited in permanent showrooms and in exhibit space when used in
conjunction with showrooms. Payment for products or services that are
of a retail sales nature are prohibited (provided, however, that
payment or partial payment for orders taken at the Building for future
delivery to a buyer will be allowed if it is within the applicable
tenant's normal business practice and is not of a retail sales nature,
it being the intention hereof to permit payments or partial payments
intended to bind an order for future delivery without in any way
qualifying or circumventing the prohibition within the Building against
retail sales).
37
5. ACCESS AND ADMISSION OF VISITORS. Landlord reserves the right to
implement and/or use any or all of the following policies with regard
to access and admission of visitors into the Building. Tenant will
receive prior notice of any change in the policy.
(a) All entrants to the Building will be registered and issued an
identification badge with the exception of visitors with a
pre-arranged appointment with a specific tenant.
Appointment-only visitors will be issued a badge which
requires such visitors to be accompanied by the applicable
inviter. Appointment-only visitors will not be required to
register on the Building's visitor database.
(b) Terms of issuance of badges will be annual with the exception
of specific trade events, including without limitation
conferences and symposia, in which event badges will be valid
only during the scheduled event. Temporary user badges will be
issued to non-scheduled daily visitors.
(c) A registration fee will be established by Landlord which will
defray the cost of registration and better ensure the quality
of visitors.
(d) Permanent tenants' badges will be issued based on one badge
per 000 Xxxxxx Xxxxxx Feet of space, with additional badges
available upon payment of a registration fee cost or annual
renewal cost.
(e) Members of the press and educational institutions will be
issued a maximum of five annual complimentary badges with
additional badges available upon payment of the standard
registration fee.
(f) Employees and agents of Landlord will be issued badges at the
discretion of Landlord.
(g) Visitor registration information deemed appropriate by
Landlord will be made available to permanent tenants.
Information regarding tenant invitees will be proprietary and
not available to tenants. Attendee registration lists of
externally sponsored events will be the property of the
sponsoring group.
6. PUBLIC FUNCTION/ON-SITE ACCOMMODATIONS.
(a) A visitor information directory system will be provided by
Landlord to assist visitors in locating vendors. Tenant and
exhibitor listings will be categorized by company name and
product offerings. Each tenant is eligible to multiple product
listings applicable, up to a maximum of one product category
listing per 000 Xxxxxx Xxxxxx Feet of permanent lease space.
Additional listings may be issued at a nominal fee subject to
product eligibility.
(b) Tenant's meeting room use will be coordinated on a reservation
basis and all
38
tenants will be eligible. Standard fees will be applied and
Landlord will control the rental of these areas and the use of
the areas will be coordinated by the buyer/tenant services
department of Landlord. Reservations for meeting room space
within the Building will be on a first-come first-served
basis.
7. MERCHANDISING OF INFOMART. INFOMART reserves the right to list tenants,
partially or in entirety, of INFOMART in merchandising programs and
agrees that such use shall not contain editorial references regarding
specific tenants.
8. AMENDMENTS TO GENERAL POLICIES AND PROCEDURES. Landlord may amend its
policies from time to time and such changes shall be binding upon
Tenant.
INITIALS
Landlord Tenant
----------- -----------
39
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40
EXHIBIT "E"
-----------
To Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
PARKING
-------
This Exhibit "E" ("Exhibit") describes and specifies Tenant's non-exclusive
right to use non-reserved parking spaces ("Garage Spaces") located inside the
Building's exterior card access parking garage ("Parking Garage"), and reserved
parking spaces ("Lower Level Spaces") on the lower level of the Building's
interior card access parking garage ("Lower Level Garage"). Additionally, spaces
in the surface parking lots associated with the Building and located on the
Property ("Surface Parking") are provided for the non-exclusive and common use
of Landlord, all tenants of the Building, and their respective guests and
invitees. Utilization of the Surface Parking is subject to availability (and
Landlord shall have no obligation to provide available Surface Parking) and to
such rules and regulations as may be promulgated by Landlord from time to time.
Use of the Parking Garage, Lower Level Garage and the Surface Parking is subject
to the terms and conditions set forth below.
1. DEFINITIONS. The terms which are defined in the Lease shall have the
same meaning in this Exhibit.
2. GRANT AND RENTAL FEE. Provided no event of default has occurred and is
continuing under the Lease, Tenant shall be permitted non-exclusive use
of nineteen (19) Garage Spaces in the Parking Garage during the Lease
Term at such monthly rates and subject to such terms, conditions, and
regulations as are, from time to time, promulgated by Landlord and
charged or applicable to patrons of said parking Garage for spaces
similarly situated within said Parking Garage. The parking rate for
each of the Garage Spaces as of the date hereof is $45.00. Provided no
event of default has occurred and is continuing under the Lease, Tenant
shall be permitted use of six (6) reserved Lower Level Spaces in the
Lower Level Garage during the Lease Term at such monthly rates and
subject to such terms, conditions, and regulations as are, from time to
time, promulgated by Landlord and charged or applicable to patrons of
said Lower Level Garage. The parking rate for each of the Lower Level
Spaces as of the date hereof is $60.00 for spaces designated on the
attached Schedule 1 "Lower Level Garage Pricing Schedule" as "circle"
parking and $90.00 for spaces designated as "diamond" parking. Tenant
shall also have the right to use the Surface Parking, free of charge,
during the Lease Term.
3. RISK. All motor vehicles (including all contents thereof) shall be
parked in the Garage Spaces, Lower Level Spaces or in the Surface
Parking, as applicable, at the sole risk of Tenant, its employees,
agents, invitees and licensees, it being expressly agreed and
understood that Landlord has no duty to insure any of said motor
vehicles (including the contents thereof), and that Landlord is not
responsible for the protection and security of such vehicles. Landlord
shall have no liability whatsoever for any property damage and/or
personal injury which might occur as a result of or in connection with
the parking
41
of said motor vehicles in any of the Garage Spaces, Lower Level Spaces
or in the Surface Parking, as applicable, and Tenant hereby agrees to
indemnify and hold Landlord harmless from and against any and all
costs, claims, expenses, and/or causes of action which Landlord may
incur in connection with or arising out of Tenant's use of the Garage
Spaces, Lower Level Spaces or the Surface Parking pursuant to this
Agreement.
4. RULES AND REGULATIONS. In its use of the Garage Spaces, Lower Level
Spaces and the Surface Parking, Tenant shall follow all of the Rules
and Regulations of the Building (attached to the Lease as Exhibit "B")
applicable thereto, as the same may be amended from time to time. Upon
the occurrence of any breach of such rules or default by Tenant under
the Lease, Landlord shall be entitled to terminate this Exhibit, in
which event Tenant's right to utilize the Garage Spaces, Lower Level
Spaces and/or the Surface Parking shall thereupon automatically cease.
5. SECURITY. Landlord shall be entitled to utilize whatever access device
Landlord deems necessary (including but not limited to the issuance of
parking stickers or access cards), to insure that only tenants
authorized to use spaces in the Parking Garage and Lower Level Garage
are using such spaces. In the event Tenant, its agents or employees
wrongfully park in any of the Parking Garage's or Lower Level Parking
Garage's spaces, Landlord shall be entitled and is hereby authorized to
have any such vehicle towed away, at Tenant's sole risk and expense,
and Landlord is further authorized to impose upon Tenant a penalty of
$25.00 for each such occurrence. Tenant hereby agrees to pay all
amounts falling due hereunder upon demand therefor, and the failure to
pay any such amount shall additionally be deemed an event of default
under the Lease, entitling Landlord to all of its rights and remedies
thereunder.
6. ADDITIONAL SPACES. In the event that Tenant expands the Leased
Premises, Tenant shall be entitled to additional Garage Spaces within
the Parking Garage based upon a ratio of one (1) additional Space per
additional 1,000 Usable Square Feet incorporated into the Leased
Premises and additional Lower Level Spaces within the Lower Level
Garage based upon a ratio of one reserved parking space per 3,000
Rentable Square Feet incorporated into the Lease Premises. Such
additional Garage Spaces and Lower Level Spaces shall be subject to
such monthly rates, terms, conditions, and regulations as are, from
time to time, promulgated by Landlord and charged or applicable to
patrons of said Parking Garage or Lower Level Garage for spaces
similarly situated within said Parking Garage or Lower Level Garage.
Schedule 1- Lower Level Garage Price Schedule
INITIALS
Landlord Tenant
----------- -----------
42
SCHEDULE "1"
------------
To Exhibit E to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
Lower Level Garage Price Schedule
(For illustrative purposes only)
[Floorplan appears here]
43
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44
EXHIBIT "F"
-----------
To Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
TELECOMMUNICATIONS EQUIPMENT LICENSE
------------------------------------
This Exhibit "F" describes the license to install and operate certain specified
"Telecommunications Equipment" in the Building which is being granted by
Landlord to Tenant upon the following terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit, all terms defined in this
Lease (including other exhibits in this Lease) will be used in this
Exhibit without further definition. In addition, when delineated with
initial capital letters, the following terms will have the following
respective meanings:
(a) "Building Grade" shall mean the type, brand and/or quality of
materials Landlord designates from time to time to be the
minimum quality to be used in the Building or the exclusive
type, grade, or quality of material to be used in the
Building.
(b) "Cable" shall mean only (i) optical fibers encased in an
aluminum sleeve, (ii) EMT conduit, (iii) copper cable, or (iv)
other materials approved by Landlord. The Cable (or conduit)
shall not exceed four inches in diameter.
(c) "License Fees" shall mean, collectively, the Service Fee, the
Raceway Fee, and the Antenna License Fee as defined in
Paragraph 3 of Exhibit "G" attached hereto, and other sums of
money becoming due and payable to Landlord hereunder.
(d) "License Term" shall mean a term commencing on the
Commencement Date and shall expire upon the expiration or
earlier termination of the Lease Term, unless sooner
terminated pursuant to the provisions of this Exhibit.
(e) "Normal Business Hours" for the Building shall mean 8:30 a.m.
to 5:00 p.m. Mondays through Fridays, exclusive of normal
business holidays.
(f) "Raceway" shall mean a vertical and/or horizontal space and
pathway within the Project of no more than four inches in
diameter (unless a greater size is approved in writing by
Landlord) used for routing telecommunications cables and
ancillary equipment from Tenant's point of presence in the
Building. The precise location of the Raceway applicable to
this Telecommunications License will be designated by Landlord
and the Telecommunications Equipment (as defined herein) will
be installed only as designated by Landlord.
(g) "Raceway Fee" shall mean the sum calculated for all installed
Cable or conduits from Tenant's point of presence to other
locations or customers in the Building at the rates identified
in Schedule A per month.
45
(h) "Service Fee" shall mean the sum calculated for all installed
services from Tenant's point of presence to other locations or
customers in the Building at the rates identified in Schedule
B.
(i) "Telecommunications Equipment" shall mean the Cable, junction
boxes, hangers, pull boxes, grounding wiring and related
equipment used in the normal course of Tenant's business,
which will be installed by Tenant, after approval by Landlord,
into the equipment room and Raceway to be used by Tenant,
pursuant to the terms of this License.
2. GRANT OF LICENSE. Subject to and upon the terms set forth in this
Exhibit, Landlord grants Tenant a license to use the Raceway and to
install Cable in the Raceway which connects to various tenants of the
Building on a non-exclusive basis, all as is more particularly
described in this Exhibit for the purpose of providing access for
Tenant's Telecommunications Equipment from the Leased Premises to the
points of entry for the Building ("Telecommunications License"). Tenant
acknowledges that this Telecommunications License gives Tenant the
right to provide services to any tenant in the Building listed on
Schedule C. Landlord specifically reserves the right to contract with
competitors of Tenant for the same or similar services in the Building
and acknowledges that it has entered into any such contracts prior to
the date of this Telecommunications License. Landlord shall have no
obligation to assist Tenant in marketing its equipment and/or services
to the Building or to any other property owned by Landlord.
3. LICENSE TERM. This License shall be in effect during the Lease Term. If
the Raceway is not available for the commencement of Tenant's
installation operations by the Commencement Date, due to the omission,
delay or default of Tenant or of anyone acting under or for Tenant,
Landlord shall have no liability; and the obligations of Tenant under
this License (including, without limitation, the obligation to pay
License Fees shall nonetheless commence as of the Commencement Date.
Prior to the expiration or earlier termination of this
Telecommunications License, Tenant shall remove all its
Telecommunications Equipment that can be removed without causing any
material damage to the Building and shall surrender and deliver the
Raceway to Landlord in the same condition in which it existed at the
Commencement Date, excepting only ordinary wear and tear and damage
arising from any cause not required to be repaired by Tenant. In the
event that Tenant fails to comply with the terms of this Paragraph 3,
(i) all such Telecommunications Equipment remaining within the Raceway
or Building may, at Landlord's option, become the sole property of
Landlord or (ii) Landlord may, if it so elects, perform any act which
Tenant is required to perform and/or remove the Telecommunications
Equipment and other property at Tenant's cost, and Tenant shall pay
Landlord promptly all costs incurred in removing said property upon
demand.
4. USE. The Raceway and mechanical room shall be used solely for the
installation, operation and maintenance of the Telecommunications
Equipment and for no other purpose whatsoever. Any use of the Raceway
for any other purpose or any attempt by Tenant to allow the use or
occupation of the Raceway by anyone other than Tenant shall,
46
unless otherwise agreed to by Landlord in writing shall be a default;
and Landlord shall have the right to immediately terminate this License
pursuant to the provision of Section 6.1 of the Lease. Tenant shall not
use or permit the use of the Raceway for any purpose which is illegal,
dangerous to life, limb or property, or which, in Landlord's reasonable
opinion, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. In particular, no
semiconductors or other electronic equipment containing polychlorinated
biphenyls (PCB's) or other environmentally hazardous materials will
either be used or stored in or around the Raceway; and no such
materials will be used in any of the Telecommunications Equipment
installed by Tenant in the Raceway. Tenant will not permit unauthorized
persons or persons with insufficient expertise or experience to enter
any mechanical room in which the Raceway is located to maintain or
operate its Telecommunications Equipment. Tenant understands that the
mechanical rooms must be kept locked and secure at all times must not
be available or open to the public. Landlord may, at Landlord's
discretion, authorize other licensees and tenants of the Building to
use portions of the Raceway, or to use portions of other raceways in
the Building, whether for the installation of telecommunications
equipment or otherwise, so long as such uses would not require Tenant
to remove its previously installed Cable from the Raceway. Tenant
acknowledges that interruptions in utility services are not uncommon in
facilities such as the Building and that any sensitive electronic
equipment which may be used in the Raceway should be protected by
Tenant from utility service interruptions through the use of backup
power supplies, surge protectors and other appropriate safety systems.
5. INSTALLATION. The point of presence and network interface will be in
accordance with the rules and regulations established by (a) Landlord
and (b) the Public Utility Commission or other governmental authority
with jurisdiction over such matters in the State of Texas. Each
horizontal Raceway (including the installation of Cable therein) shall
be constructed and/or installed at the sole cost and expense of Tenant.
Tenant shall provide Landlord with a site diagram depicting the
distribution system to all end users no less frequently than once every
year and in conjunction with each new service installation. Failure to
provide such a diagram on a timely basis shall be an event of default.
Schedule D depicts the Cable locations in the Raceway and terminal
points on all floors. All specifications, Telecommunications
Equipment, and Cable will be installed in a good and workmanlike
manner, and the installation must be approved by Landlord's technical
representative prior to the commencement of use of the
Telecommunications Equipment by Tenant. No activities of Tenant
associated with the construction of the Raceway and the installation of
the Telecommunications Equipment shall be conducted during Normal
Business Hours.
6. LICENSE FEE PAYMENT.
(a) The License Fees applicable to Tenant's initial installation
of four (4), four inch (4") cables shall be paid to Landlord
during the License Term, without any setoff or deduction
whatsoever. Except as otherwise provided in this Exhibit, the
License Fees for each calendar month or portion thereof during
the License Term shall be due and payable in advance on the
first day of each month during the
47
License Term; and Tenant shall pay such Service Fee and
Raceway Fee as provided in Schedule F monthly, in advance, on
or before the first day of each calendar month, and without
demand. All installments of the License Fees which are not
paid when due will bear interest and be subject to a late
charge as provided in Section 3.2 of the Lease, and Landlord
may exercise the remedies provided in Section 3.3 of the Lease
in the event of consecutive late payments of any of the
License Fees.
(b) Tenant shall keep an accurate set of books and records of all
installed service from business conducted in the Building or
Raceway, and all supporting records such as, work orders and
other records which are necessary to verify and substantiate
the amount of Tenant's License Fees at Tenant's business
office located in the Premises. All such books and records
shall be retained and preserved for at least twenty-four (24)
months after the end of the calendar year to which they
relate, and shall be subject to inspection and audit by
Landlord and its agents at all reasonable times. The
acceptance by Landlord of payments of any License Fees shall
be without prejudice to Landlord's right to an examination of
Tenant's books and records in order to verify the computation
of the Raceway Fee and Service Fee provided by Tenant. In the
event Landlord is not satisfied with any monthly statement or
annual statement submitted by Tenant, Landlord shall have the
right to have its auditors make a special audit of all books
and records, wherever located, pertaining to sales made in or
from the Building or Raceway during the period in question. If
such statements are found to be incorrect to an extent of more
than two percent (2%) over the figures submitted by Tenant,
Tenant shall pay for such audit. Tenant shall promptly pay to
Landlord any deficiency or Landlord shall promptly credit to
Tenant any overpayment, as the case may be, which is
established by such audit.
(c) In addition to the License Fees, Tenant shall pay Landlord if,
and when due, any sales, use or other taxes or assessments
which are assessed or due by reason of this License or
Tenant's use of the Building hereunder.
(d) Upon each anniversary date of this License, including any
renewal term, the License Fees payable by Tenant shall
increase as follows and using the following definitions:
"Consumer Price Index" - The monthly indexes of the National
Consumer Price Index for All Urban Consumers (CPI-U) - All
Items, issued by the Bureau of Labor Statistics.
"Base Price Index Number" - The Consumer Price Index as of
December of the year in which the Commencement Date occurs.
"Current Index Number" - The Consumer Price Index as of
December of the year in which the calculations are being done.
48
If the Current Index Number is greater than the Base Price
Index Number, then the "Percentage of Increase" shall be
calculated as follows:
(Current Index Number - Base Price Index Number) , Base Price
Index ' 100 = Percentage of Increase
This Percentage of Increase shall be multiplied by the License
Fee defined above to obtain the new rate to go into effect on
each anniversary of the Commencement Date of this License. The
fee increase shall in no case be less than 3.5% annually of
the most recent past License Fees amount, as increased. This
Percentage of Increase applies to License Fee only and does
not apply to any charges in the Base Rent.
7. CONDITION OF THE RACEWAY. Tenant accepts the Raceway "as is" without
benefit of any improvements to be constructed or made by Landlord.
8. MAINTENANCE AND REPAIR BY LANDLORD. Except as otherwise expressly
provided herein, Landlord shall not be required to make any repairs to
the Raceway other than repairs to exterior and load-bearing walls of
the Building, floors of the mechanical rooms (but not to floor
coverings), and the roof of the Building, which may be required from
time to time, but only after such required repairs have been requested
by Tenant in writing. In no event shall Landlord be responsible for the
maintenance or repair of improvements which are not composed of
Building Grade materials.
9. SERVICE AREA ACCESS. Except in the case of an emergency, Tenant shall
not enter or attempt access to any of the Service Areas (including air,
electrical, mechanical or telecommunications risers, ducts, closets,
conduits, duct work, rooms or other horizontal or vertical spaces in
the Building) without notifying Landlord in writing at least two (2)
days in advance. In the case of an emergency, Tenant may enter or seek
access to the Raceway through the Service Areas provided it gives
Landlord at least two (2) hours prior notice and provided that a
Building security guard must unlock such Service Area. If Landlord is
also experiencing an emergency situation in the Building at the same
time that Tenant has notified Landlord of an emergency, Landlord shall
have no obligation to first address or respond to Tenant's emergency
and shall only be obligated to accommodate Tenant's concerns as time
permits thereafter. Tenant also agrees to furnish Landlord, within two
(2) business days thereafter, a written report explaining all repairs
and procedures which were conducted during any such emergency
operations, in sufficient detail to permit Landlord's engineers to
evaluate same. Any access to the Service Areas shall require Tenant to
sign in at the security department console, and Tenant shall permit the
Landlord's security guard or a representative of Landlord to accompany
Tenant during any such work within a Service Area, if Landlord so
desires. No installation, alterations or repairs shall be initiated
without first delivering to Landlord's engineers plans and
specifications of the proposed changes, in substance and form
acceptable to Landlord. No oral approval of these plans and
specifications shall be effective. No electrical grounding shall be
permitted to other equipment in the mechanical rooms without Landlord's
specific written approval of the method and location of such grounding.
No monitoring or inspection of Tenant's work by Landlord's
49
representatives shall be deemed supervision of Tenant's employees or
shall be deemed to be a representation or warranty of any particular
level of telecommunications expertise attained by Landlord's
representative. Tenant shall monitor and supervise its own employees
and shall assume responsibility for the expertise and quality of its
work and shall not rely upon Landlord for same.
10. NO ACCESS TO OTHER TENANTS' PREMISES. Tenant acknowledges that nothing
in this License entitles it to enter and connect its Telecommunications
Equipment to any tenant's premises in the Building without the prior
written consent of Landlord. Tenant also acknowledges that it has been
informed that telecommunications connections to individual tenant's
premises in the Building will normally require removal of ceiling
panels, at each tenant's expense, with such removal operations only
being performable by Landlord's agents or employees.
11. LICENSES AND PERMITS. Prior to commencing any work on the Raceway,
Tenant shall obtain all necessary licenses, permits and consents and
provide copies of same to Landlord. Landlord shall have the right to
monitor all such work, at its own expense.
12. COSTS. Tenant shall be responsible for any and all cost, damage or
expense arising from the installation, maintenance, or repair to the
Raceway or the Telecommunications Equipment, including, without
limitation, any and all cost, damage or expense to the Building or the
property of Landlord or other licensees or tenants of the Building
arising from such installation, maintenance or repair operations.
Tenant will make any and all repairs necessary in a timely manner. If
Tenant does not make required repairs to Landlord's satisfaction within
twenty-four (24) hours of notification from Landlord that said repairs
are necessary within a tenant's space or within ten (10) days of
notification from Landlord that said repairs are necessary pursuant to
Paragraph 13 of this Exhibit, then Landlord will have the right but not
the obligation to perform any such repairs at Tenant's sole cost and
expense. Tenant shall on demand pay to Landlord as additional License
Fees (i) the cost of such work plus fifteen percent (15%) thereof as
administrative costs; plus (ii) interest thereon at the rate of 12% per
annum from the date of demand.
13. MAINTENANCE, REPAIRS, AND ALTERATIONS BY TENANT. Tenant shall not
commit any waste or allow any waste to be committed within or on any
portion of the Raceway or in any Service Area and will maintain the
Raceway in a clean, attractive condition and in good repair. At the
termination of this License, Tenant agrees to deliver up the Raceway to
Landlord in as good condition as at the Commencement Date, ordinary
wear and tear and damage by casualty excepted (unless caused by
Tenant). Tenant will remove all excess cable, tools, and equipment and
will keep all areas neat and clean at all times. Landlord shall have
the right, at its option, at Tenant's own cost and expense, to repair
or replace any damage done to the Building, or any part thereof, caused
by Tenant (or by any Affiliate, contractor, agent, or employee of
Tenant), and Tenant shall pay the reasonable cost thereof to Landlord
on demand as additional License Fees. Tenant shall not make or allow
any alterations to the Raceway without the prior written consent of
Landlord. Tenant shall not place signs on any of the doors or corridors
50
leading to the Raceway, without first obtaining the prior written
consent of Landlord in each such instance, which consent may be given
or arbitrarily withheld on such conditions as Landlord may elect.
Landlord shall have the right, at its option, at Tenant's own cost and
expense, to remove any signs placed by Tenant without Landlord's prior
written consent, and to repair any damage caused by the such signs. Any
and all alterations to the Raceway shall become the property of
Landlord upon termination of this License.
14. USE OF ELECTRICAL SERVICES BY TENANT. All electrical usage associated
with the Telecommunications Equipment will be governed by the
provisions of Section 4.3 of the Lease.
15. LAWS AND REGULATIONS. Tenant shall comply with all Legal Requirements
and Insurance Requirements and shall, at Tenant's sole cost, take all
measures necessary to assure that the Telecommunications Equipment
strictly complies with all Legal Requirements and Insurance
Requirements. Tenant shall also pay promptly when due all royalties or
other fees due in connection with the operation of the
Telecommunications Equipment. In the event compliance with this
paragraph shall require modifications or alterations of the
Telecommunications Equipment or the Raceway, no modification or
alteration shall be made without Landlord's prior written consent,
which consent may be withheld in Landlord's sole judgment or granted on
such terms and conditions as Landlord may determine in its sole
judgment. Tenant shall take all measures necessary to assure that the
Telecommunications Equipment does not interfere with or disturb the
operation of any other equipment or business of Landlord or of any
other licensee, tenant, or occupant of the Building.
16. SITE TECHNICAL STANDARDS. Tenant will strictly comply with the Site
Technical Standards (Schedule E) as adopted and altered by Landlord
from time to time and will cause all of the Tenant Related Parties to
do so. All changes to such standards will be sent by Landlord to Tenant
in writing.
17. ENTRY BY LANDLORD. Tenant shall permit Landlord or its employees,
agents, contractors, or representatives to have access to any portion
of the Raceway at all times to inspect the same, to clean or make
repairs, alterations or additions thereto, and Tenant shall not be
entitled to any abatement or reduction of License Fees by reason of any
such entry.
18. INDEMNIFICATION. In addition to the indemnification obligations of
Tenant under the Lease, Tenant shall protect, defend, indemnify, and
hold Landlord harmless from all liability and claims for any injury to
person or damage to property caused by any act, omission, or neglect of
Tenant, its agents, servants, employees, or contractors, relative to
the Telecommunications License, including, without limitation, the
installation, operation, repair, and maintenance of the
Telecommunications Equipment.
19. DAMAGE. Landlord shall not be liable to Tenant for any loss or damage
to all or any part of the Telecommunications Equipment occasioned by
theft, fire, act of God, public
51
enemy, injunction, riot, vandalism, malicious mischief, earthquake,
flood, strike, insurrection, war, court order, requisition, or order of
governmental body or authority, or by any other cause whatsoever. Nor
shall Landlord be liable for any damage or inconvenience which may
arise through the repair or alteration of any part of the Building or
through termination of the Telecommunications License. Further,
Landlord shall not be liable for any damage which may arise through the
repair or alteration of any part of the Building or through termination
of this Telecommunications License other than damage caused by the
gross negligence or willful misconduct of Landlord, its agents or
employees.
20. INSURANCE. In addition to the insurance obligations of Tenant under the
Lease, Tenant shall maintain a policy or policies of fire and extended
coverage insurance on the Telecommunications Equipment, in such amounts
as Tenant may deem appropriate; provided, however, that Tenant shall
never have any claim against Landlord for any loss or damage that may
occur to the "Antenna Equipment" (as defined in Exhibit "G") which
could be covered by insurance.
21. TRANSFERS BY TENANT. Tenant shall not assign, convey, mortgage, pledge,
hypothecate, encumber, or otherwise transfer the Telecommunications
License or grant any license, concession, or other right with respect
to the Telecommunications License without the prior written consent of
Landlord, which consent may be granted or withheld in Landlord's sole
discretion. In addition, the Telecommunications License shall
terminate, in Landlord's sole discretion, upon the assignment of the
Lease or a subletting of the Premises, unless such transfer is to an
Affiliate of Tenant in connection with an assignment or sublease to an
Affiliate as provided in Section 4.7 of the Lease.
22. DEFAULT BY TENANT. In addition to provisions of Articles 8 and 6 of the
Lease, Tenant shall be deemed to be in default with respect to the
Antenna License in the event that (a) Tenant shall fail to pay the
Telecommunications License Fees when due; or (b) Tenant shall fail to
maintain the Telecommunications Equipment in good order and repair and
in a safe condition as provided in this Exhibit; or (c) Tenant shall
fail to maintain all necessary licenses and permits with respect to the
operation of the Telecommunications Equipment. Upon a default by Tenant
with respect to the Telecommunications License, Landlord may, at
Landlord's sole election, pursue the remedies granted to Landlord for
default under the Lease or, in the alternative, terminate the
Telecommunications License granted hereunder without terminating the
Lease or terminating Tenant's right to possession of the Premises under
the Lease.
23. SURVIVAL. Certain provisions of this Exhibit relate to the rights and
obligations of Landlord and Tenant subsequent to the termination or
expiration of the Lease Term. Such provisions include, without
limitation, the restoration obligations of Tenant under Paragraph 13
hereof and the indemnification obligations of Tenant under Paragraph 19
hereof. Such provisions shall survive the expiration or other
termination of the Lease Term and the Telecommunications License
granted to Tenant hereunder.
INITIALS
Landlord Tenant
----------- -----------
52
SCHEDULE A
----------
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
--------------------------------------------------------------------------------
RACEWAY FEE
Monthly charges for the initially installed three (3) for fee and one (1) for
free 4" conduits are included in the Base Rental.
Any additional Raceway Fees for conduits shall mean the total installed conduits
of conductors at the following rates:
SIZE up to .5" .5 to 1" 1 to 1.5" 1.5 to 2" 2 to 2.5" 2.5 to 4" Over 4"
$/linear foot horizontal $0.10 $0.20 $0.30 $0.40 $0.75 $1.00 Quote
$/linear foot horizontal $0.15 $0.30 $0.45 $0.60 $1.13 $1.50 Quote
(out of Building)
$/linear foot vertical (12'min) $1.00 $2.00 $3.00 $4.00 $7.50 $10.00 Quote
per month.
Discount based on Rentable Square Feet:
0-10,000 0%
10,001-20,000 5%
20,001-30,000 10%
30,001-40,000 15%
40,001-50,000 20%
53
SCHEDULE B
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
SERVICE FEE
The Service Fee shall mean the total installed services at the following rates:
a. DS-O = Zero Dollars per month,
b. DS-1 = Zero Dollars per month, and
c. DS-3 = Zero Dollars per month
54
SCHEDULE C
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
List of Tenants to Whom Licensee May Provide Services
55
SCHEDULE D
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
Telecommunications Equipment Systems Diagram
This schematic describes the telecommunications equipment systems to be
installed for the limited purpose of the license described herein.
56
SCHEDULE E
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
Site Technical Standards
1. The fiber transmission cables and all copper telephone
cables must be Teflon (or of City approved fire retardant
material) jacketed type cable, and secured by either stainless
steel clamps or approved equal when not run in EMT type
conduit. Excess transmission line must be removed.
2. Each fiber or copper telephone line or conduit shall be
identified with stainless steel tags that identifies the
user/Licensee: (1) at the equipment cabinet; (2) at each side
of horizontal/vertical penetration (3) as the line traverses
the Building at a minimum of 72' intervals, coincident with
column lines, and (4) at the termination point(s).
3. The location and installation of all equipment and conduit
will be designated by the site coordinator. These locations
will be shown on the License. Changes must be approved in
writing by the site coordinator. Any conduit or cable failing
to meet the above standards will be immediately removed from
the Building at Licensee's expense. In the event Licensee
fails to promptly remove any such conduit or cable, Licensor
may do so at Licensee's expense.
4. On a 24-hour notice, the Site Equipment will be made
available for inspection by the site coordinator to assure
compliance with the above standards.
5. The following information is essential for site
coordination and must be provided. Any and all changes must
have prior approval and be reported to the site coordinator.
A. Manufacturer and model number of all end
equipment.
B. Type and length of all cable and lines.
C. The name, address and telephone number of
the person or group directly responsible for
the day-to-day maintenance.
D. The name, address and telephone number of
the person or group directly responsible for
the License Agreement.
SCHEDULE F
To Exhibit F to Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
Calculation of License Fee
57
The License Fee shall be paid in monthly installments pursuant to
Paragraph 6 of the License. The License Fee shall be equal to:
1. The Service Fee, plus
2. The Raceway Fee, plus
3. The Satellite/Antenna Fee.
This License Fee does not include construction costs, installation
costs, utilities or any other costs associated with occupancy and
operation in the Building.
58
EXHIBIT "G"
To Lease Agreement By and Between INFOMART-Dallas L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
SATELLITE/ANTENNA LICENSE
-------------------------
This Exhibit "G" describes the license to install certain specified
satellite/antenna communications equipment upon the roof of the Building which
is being granted by Landlord to Tenant upon the following terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit, all terms defined in this
Lease (including other exhibits in this Lease) will be used in this
Exhibit without further definition. In addition, other terms which are
defined in this Exhibit will, when delineated with initial capital
letters, have the respective meanings specified in this Exhibit.
2. GRANT OF LICENSE. Subject to the terms and provisions of this Exhibit,
Landlord grants to Tenant a license ("Antenna License") to maintain a
satellite antenna dish together with related wiring and equipment
(collectively, the "Antenna Equipment") on the roof of the Building.
The term of the Antenna License shall commence on the Commencement Date
and shall terminate upon the expiration or the earlier termination of
the Lease Term, unless sooner terminated pursuant to the provisions of
this Exhibit. The size, location, and manner of installation of the
Antenna Equipment shall be determined at Landlord's sole discretion,
which discretion will take into consideration (a) the functional
requirements of the Antenna Equipment and of any other satellite
antenna dishes located on the roof of the Building and (b) standards of
architectural integrity with respect to the Building (and, in that
regard, the Antenna Equipment shall be located so as not to be visible
except from above the Building, shall match the Building color, and
shall have no visible marking or logo). The Antenna License shall
commence on the Commencement Date and shall expire upon the expiration
or earlier termination of the Lease Term.
3. ANTENNA LICENSE FEE. The Antenna License Fee allowed by this Exhibit is
One Hundred Ten and 59/100ths Dollars ($110.59) . License Fees will not
go into effect until the later of the Rental Commencement Date or the
commencement of construction for such antenna. Additional satellite
dishes shall be at a fee of one hundred fifty (150) percent of the
established initial Satellite/Antenna Fee. The Antenna License Fee
includes the connection of the Antenna Equipment to Tenant's
Telecommunications Equipment in the Leased Premises, and no additional
fees will be charged for the use of a raceway to make such connection.
4. INSTALLATION, MAINTENANCE, AND REPAIR. Tenant shall, at Tenant's sole
cost and expense, provide for the installation of the Antenna Equipment
and for all service, repairs, and maintenance to the Antenna Equipment.
With respect to the installation of the Antenna Equipment, the Antenna
Equipment shall not be affixed to the
59
roof of the Building by nail, bolt, screw, or other device which
penetrates the roof; and all wiring penetrations shall be made by
Landlord's roofing contractor at Tenant's sole cost and expense. The
Antenna Equipment shall be maintained by Tenant in good order and
repair and in a safe condition. In the event that Tenant fails to
maintain the Antenna Equipment and Landlord, in Landlord's sole
judgment, determines that such failure presents a danger of injury to
persons or damage to property in or about the Building. Landlord may,
after prior written notice to Tenant (except in the event of
emergencies) (but without being under any obligation to do so) arrange
for such repairs or maintenance to be done and recover the cost
incurred from Tenant. Any such sums shall be due and payable by Tenant
on demand. Tenant shall provide Landlord with prior written notice of
Tenant's need to service, maintain, or repair the Antenna Equipment.
Landlord shall then provide Tenant with access to the roof of the
Building and other non-tenant areas of the Building at such times and
under such conditions as may be reasonably determined by Landlord.
Landlord may charge Tenant for any of Landlord's equipment and material
used by Tenant and any time spent by Landlord, Landlord's management
staff, or Landlord's consultants arising out of Tenant's failure to
properly maintain or repair the Antenna equipment. In that regard, the
Antenna Equipment shall be of a type so as to constitute a permanent,
as opposed to a temporary, installation.
5. INTERFERENCE. Tenant shall modify the Antenna Equipment or relocate the
Antenna Equipment to another area approved by Landlord in the event
that the Antenna Equipment, in Landlord's sole judgment, causes any
interference with or disturbs the operation of any other antenna
equipment or business of Landlord or of any other occupants of the
Building or creates or results in any noise, odor, or nuisance to any
other occupant of the Building, or areas adjacent to the Building.
Tenant must immediately shut off the Antenna Equipment upon
notification of interference and may restart, modify, or relocate the
Antenna Equipment to test for interference only with Landlord's
permission.
6. USE. The Antenna Equipment shall be designed, installed, and operated
solely for the purpose of passive receptions of transmissions and is
solely for use in Tenant's internal business. The benefits of the
Antenna Equipment may not be provided by Tenant to third parties. The
Antenna Equipment may not be sold or rented by Tenant to third parties,
nor may Tenant sublet or assign this License. Tenant shall operate the
Antenna Equipment in compliance with all Legal Requirements and
Insurance Requirements and shall maintain all necessary licenses and
permits with respect to its operation of the Antenna Equipment. Any
electrical usage associated with the Antenna Equipment shall be
governed by the provisions of Section 4.3 of the Lease.
7. INTERRUPTION. Landlord may, at Landlord's sole discretion but without
cost to Landlord, after prior written notice to Tenant (except in the
event of emergencies), require interruption of service or relocation or
removal of the Antenna Equipment for repairs, maintenance, or
modifications to the Building, including, but not limited to, roofing,
structural, electrical, or mechanical repairs. Landlord shall use
reasonable efforts not to interfere with Tenant's business.
60
8. MODIFICATION AND SUBSTITUTION. Tenant may not substitute or modify the
Antenna Equipment or any part thereof, without the prior written
approval of Landlord. Any substitution or modification approved by
Landlord shall automatically become a part of the Antenna Equipment,
and all terms of this Exhibit shall apply to such substitution and/or
modification.
9. RESTORATION. Tenant shall, at Tenant's sole cost and expense, remove
the Antenna Equipment and restore the Building to its currently
existing condition upon the termination or expiration of the Lease
Term, and/or this Antenna License. Such removal and restoration work
shall be completed by Tenant within thirty (30) days of the date on
which the condition requiring such removal and restoration work occurs.
In the event that Tenant fails to complete the removal of the Antenna
Equipment and the restoration of the Building within such thirty (30)
day period, Landlord shall have the right (but without any obligation
to do so) to remove the Antenna Equipment and restore the Building, in
which event, Tenant shall reimburse Landlord for all costs incurred by
Landlord in performing such removal and restoration work on demand. In
addition, any Antenna Equipment remaining at the Building subsequent to
the expiration of such thirty (30) day period and upon prior written
notice to Tenant's last known address, shall be deemed to have been
abandoned by Tenant, so that in no event shall Landlord have any duty
to preserve or restore the Antenna Equipment on Tenant's behalf. If
Landlord does choose to store the Antenna Equipment on Tenant's behalf,
the cost of storage incurred by Landlord shall be reimbursed by Tenant
on demand. In such event, Landlord shall also have the right to sell
such Antenna Equipment for salvage value and to apply the proceeds
derived from such sale to sums owing by Tenant to Landlord under this
Lease (including this Exhibit). The provisions of this Paragraph 9
shall survive the expiration of this Antenna License and of the Lease
Term.
10. REPRESENTATIONS OF TENANT. As a material inducement to Landlord to
grant the Antenna License to Tenant, Tenant hereby represents and
warrants to Landlord that (a) the Antenna Equipment has received
approval from the Underwriters Laboratory and from the Federal
Communications Commission; (b) the Antenna Equipment will be installed
in accordance with the plans and specifications approved by Landlord,
in Landlord's sole discretion; (c) the Antenna Equipment is designed to
require minimum maintenance; (d) the Antenna Equipment will not
interfere with other like antenna equipment located on the rooftop of
the Building or in the Building; and (e) Tenant will have received all
necessary licenses and permits from all applicable governmental
authorities regarding the installation and operation of the Antenna
Equipment, prior to such installation and operation.
11. INDEMNIFICATION. In addition to the indemnification obligations of
Tenant under the Lease, Tenant shall protect, defend, indemnify, and
hold Landlord harmless from all liability and claims for any injury to
person or damage to property caused by any act, omission, or neglect of
Tenant, its agents, servants, employees, or contractors, relative to,
or arising in connection with, the Antenna License, including, without
limitation, the installation, operation, repair, and maintenance of the
Antenna Equipment.
61
12. DAMAGE. Landlord shall not be liable to Tenant for any loss or damage
to all or any part of the Antenna Equipment occasioned by theft, fire,
act of God, public enemy, injunction, riot, vandalism, malicious
mischief, earthquake, flood, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other
cause whatsoever. Further, Landlord shall not be liable for any damage
or inconvenience which may arise as a result of the repair or
alteration of any part of the Building or through termination of the
Antenna License, other than damage caused by the gross negligence or
willful misconduct of Landlord, its agents or employees.
13. INSURANCE. In addition to the insurance obligations of Tenant under the
Lease, Tenant shall maintain a policy or policies of fire and extended
coverage insurance on the Antenna Equipment, in such amounts as Tenant
may deem appropriate; provided, however, that Tenant shall never have
any claim against Landlord for any loss or damage that may occur to the
Antenna Equipment which could be covered by insurance.
14. TRANSFERS BY TENANT. Tenant shall not assign, convey, mortgage, pledge,
hypothecate, encumber, or otherwise transfer the Antenna License or
grant any license, concession, or other right with respect to the
Antenna License without the prior written consent of Landlord, which
consent may be granted or withheld in Landlord's sole discretion,
unless such transfer or assignment is to an Affiliate in connection
with Tenant's transfer of the Lease to an Affiliate pursuant to Section
4.7 of the Lease. In addition, the Antenna License shall terminate, in
Landlord's sole discretion, upon the assignment of the Lease or a
subletting of the Premises, except as provided in Section 4.7.
15. DEFAULT BY TENANT. In addition to provisions of Article 8 of the Lease,
Tenant shall be deemed to be in default with respect to the Antenna
License in the event that (a) Tenant shall fail to maintain the Antenna
Equipment in good order and repair and in a safe condition as provided
in this Exhibit; or (b) Tenant shall fail to maintain all necessary
licenses and permits with respect to the operation of the Antenna
Equipment. Upon a default by Tenant with respect to the Antenna
License, Landlord may, at Landlord's sole election, pursue the remedies
granted to Landlord for default under the Lease or, in the alternative,
terminate the Antenna License granted hereunder without terminating
the Lease or terminating Tenant's right to possession of the Premises
under the Lease.
16. SURVIVAL. Certain provisions of this Exhibit relate to the rights and
obligations of Landlord and Tenant subsequent to the termination or
expiration of the Lease Term. Such provisions include, without
limitation, the restoration obligations of Tenant under Paragraph 9
hereof and the indemnification obligations of Tenant under Paragraph 11
hereof. Such provisions shall survive the expiration or other
termination of the Lease Term and the Antenna License granted to Tenant
hereunder.
INITIALS
Landlord Tenant
----------- -----------
62
EXHIBIT "H"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
GENERATOR
---------
This Exhibit "H" describes and specifies Tenant's use of additional areas in the
Building and on the Property for purposes of the installation and operation of
Tenant's Generator, upon the following terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit "H", all terms defined in
the Lease (including other Exhibits to the Lease) will be utilized
herein without further definition. In addition, when delineated with
initial capital letters, the following terms shall have the following
respective definitions and meanings:
a. "Cable" shall mean only optical fibers, copper wires (also
known as "copper pairs"), coaxial cable, and other similar
transmission wiring customarily used in the industry, unless
other materials are expressly approved in writing by Landlord.
b. "Conduit" shall mean a plastic or metal sleeve, no more than
4" in aggregate diameter, unless a larger size is expressly
approved by Landlord in writing, in which Cable is encased
and/or through which Cable passes.
c. "Generator" shall mean the 750KW generator with automatic
transfer switch and load bank equipment to be installed by
Tenant on the 8 foot by 16 foot pad at the location designated
on Schedule "1" attached to this Exhibit.
d. "Tank" shall mean the 2,000 gallon fossil fuel tank and
associated transfer pumps to be installed by Tenant at the
location designated on Schedule "1" attached to this Exhibit.
The term "Tank" shall also be deemed to include the fuel oil
pipes to be installed by Tenant from the Tank to the
Generator. The Tank must have self-contained spill and leak
control features, it must be installed in a secure and safe
location above-ground, and it must conform to all legal
requirements concerning tank tightness, spill control and
monitoring features required by state and federal laws.
e. "Equipment" shall mean the Cable, Conduit, junction boxes,
hangers, pull boxes, grounding wiring and related equipment
used in the normal course of Tenant's business, which will be
installed by Tenant into the Leased Premises and into the
Raceway to be utilized by Tenant, pursuant to the terms
hereof.
63
2. GRANT OF LICENSE. Landlord grants Tenant a license, subject to the
terms and conditions herein, to (i) use such locations on the Property
as are approved in writing by Landlord in order for Tenant to install
Tenant's generator cabling to, and core drilling of, the Building core
structural wall (it being acknowledged that Landlord has made no
representation that Tenant will be able to utilize any Southwestern
Xxxx or other utility easements in this regard) and use such Raceways
as are approved in writing by Landlord in order for Tenant to install
its Generator cabling from the Generator to the points of entry at the
Building core structural wall to the Leased Premises, (ii) use such
Raceways as are approved in writing by Landlord for the purpose of
Tenant's installing, maintaining, repairing, replacing and operating
the Equipment, (ii) use the designated location of the Generator for
the purpose of installing, maintaining, repairing and operating the
Generator, and (iii) use the designated location of the Tank for the
purpose of installing, maintaining, repairing and operating the Tank.
3. LICENSE TERM. The term of this license shall be coterminous with the
Lease Term and shall continue in force during a period beginning on the
Commencement Date and continuing until the expiration or earlier
termination of the Lease Term.
4. USE. Any Raceway to be utilized by Tenant pursuant to the terms hereof
shall be used for the installation, maintenance, repair, replacement
and operation of the Equipment as provided herein and for no other
purpose. Tenant agrees not to use or permit the use of any such Raceway
for any purpose which is illegal, dangerous to life, limb or property
or which, in Landlord's reasonable opinion, creates a nuisance or which
would increase the cost of insurance coverage with respect to the
Building. In particular, no semiconductors or other electronic
equipment containing polychlorinated biphenyls (PCB's) or other
environmentally hazardous materials will either be used or stored in or
around the Leased Premises or any such Raceway and no such materials
will be used in any of the Equipment installed by Tenant in the Leased
Premises or any such Raceway. Tenant will not permit any unauthorized
person or persons with insufficient expertise or experience to enter
the Raceways or maintain or operate the Equipment. Nothing herein
should be construed as permitting Tenant to use any Raceway for a
purpose not specifically described herein, or to install new or
substitute Cable or Conduit into a Raceway which consists of materials
other than those defined in Paragraph 1 hereof. It is also acknowledged
that Landlord may, at Landlord's discretion, authorize other tenants
and licensees of the Building to use portions of any Raceways or risers
in the Building, whether for the installation of telecommunications
equipment or otherwise, so long as such uses would not require Tenant
to remove its Cable or Conduit, which has already been installed by
Tenant, from such Raceway. Tenant acknowledges that interruptions in
utility services are not uncommon in facilities such as the Building
and Tenant acknowledges that any sensitive electronic equipment which
may be used in the Leased Premises or a Raceway will be protected by
Tenant from utility service interruptions through the use of the
Generator and other backup power supplies, surge protectors and other
safety systems. Tenant acknowledges that it has taken all precautionary
steps it deems necessary to protect such equipment in the Leased
Premises and in any Raceway, including the acquisition of insurance if
applicable. Tenant agrees to release Landlord from any damages or
losses (including attorney's fees and expenses) sustained to any of
64
Tenant's Equipment as a result of utility service interruptions, unless
solely caused by the gross negligence or willful misconduct of
Landlord, its employees and agents, and agrees to indemnify, defend and
hold Landlord harmless from any damages or losses (including attorneys'
fees and expenses) caused by Tenant's Equipment as a result of utility
service interruptions, unless such interruptions arise primarily by
reason of the negligence or willful misconduct of Landlord, its agents
or employees. This release and indemnity is in addition to and not in
substitution of any other release and indemnity in the Lease.
5. ADDITIONAL TERMS OF LICENSE. The license granted herein to Tenant shall
additionally be subject to and expressly conditioned upon the
following:
a. Construction of Raceways. Tenant shall install its generator
cabling and the other Equipment, including the Conduit and all
necessary Raceways, to the extent not already in place, in the
Building at Tenant's sole cost and expense and shall provide
Landlord with "as-built" drawings and specifications of same.
b. HVAC and Mechanical Room Access. Except in the case of an
emergency, Tenant shall not enter or attempt access to any of
the Building's air, electrical, mechanical or
telecommunications risers, ducts, closets, Conduits, duct
work, rooms, Raceways, or other horizontal or vertical spaces
in the Building, including the Service Areas, without
notifying Landlord in writing at least two (2) days in
advance. In the case of an emergency, Tenant may enter or seek
access to a Raceway utilized by Tenant pursuant to the terms
hereof through mechanical rooms or Service Areas provided
Tenant gives Landlord at least two (2) hours prior written
notice and provided further that a Building security guard or
engineer must unlock and accompany Tenant's employees into
such Service Areas and mechanical rooms; if Landlord is also
experiencing an emergency situation in the Building at the
same time that Tenant has notified Landlord of an emergency,
Landlord shall have no obligation to first address or respond
to Tenant's emergency and shall only be obligated to
accommodate Tenant's concerns as time permits thereafter.
Tenant also agrees to furnish Landlord, within two (2)
business days thereafter, a written report explaining all
repairs and procedures which were conducted during any such
emergency operations, in sufficient detail to permit
Landlord's engineers to evaluate the same. Any access to the
Building mechanical rooms, whether during an emergency or
otherwise, shall require Tenant to sign in at the Building
manager's office or the security desk, and Tenant shall permit
the Building manager's security guard or representative of
Landlord of the Building manager to accompany Tenant during
any such mechanical room, if Landlord so desires. No
installation, alterations or repairs shall be initiated
without first delivering to Landlord's engineers, plans and
specifications of the proposed changes, in substance and form
acceptable to Landlord. No oral approval of these plans and
specifications shall be deemed effective; only evidence of
written approval which has been received by Landlord's
Building manager will be binding against Landlord. No
electrical grounding shall be permitted to other equipment in
the mechanical rooms without Landlord's specific written
approval of the method and locations of such grounding.
63
c. Insurance; Mechanic's Liens. No construction, alteration or
removal operations shall be initiated by Tenant hereunder
unless Tenant has first obtained workers compensation and
builders risk insurance in limits acceptable to Landlord. Any
construction or mechanic's liens filed or claimed against the
Leased Premises, any Raceway or the Building as a result of
Tenant's operations shall be immediately paid, released or
bonded over in a manner acceptable to Landlord.
d. Hours of Operations. No activities of Tenant associated with
the construction and the installation of the Equipment shall
be conducted during the normal business hours of the Building.
e. Licenses and Permits. Prior to commencing any work on and/or
installations hereunder in the Leased Premises, at the
locations of the Generator and Tank, or of any Raceway, Tenant
shall obtain all necessary licenses, permits and consents and
provide copies of the same to Landlord. Landlord shall have
the right to supervise all such work, at its own expense.
f. Generator License Fee. The license fee for the one (1)
Generator allowed by this Exhibit is included in the Base
Rental. Additional pads may be added with the approval of
Landlord (the size and location of which will be at Landlord's
sole option) and the Generator License Fee will be at the then
current Landlord's charge for each such additional pad.
g. Costs. Licensee shall be responsible for any and all costs,
damages or expenses arising from the installation,
maintenance, or repair to any Raceway utilized by Tenant
pursuant to the terms hereof, the Leased Premises or the
Equipment, the Generator or the Tank and any and all costs,
damages or expenses to the Building or the property of
Landlord or other licensees or tenants of the Building arising
from such installation, maintenance or repair operations.
Tenant agrees to indemnify and hold Landlord harmless from and
against any loss, cost, damage or expense arising out of or in
connection with Tenant's installation, maintenance, repair or
operation of the Equipment, the Generator or the Tank, unless
such loss, cost, damage or expense arises primarily from the
negligence or willful misconduct of Landlord, its agents or
employees. This indemnity is in addition to and not in
substitution of any other indemnity in the Lease. Tenant shall
also pay all ad valorem taxes attributable to the Equipment,
the Generator and the Tank.
6. CARE OF GENERATOR, TANK AND RACEWAYS BY TENANT. Tenant agrees not to
commit any waste or allow any waste to be committed on the areas where
the Generator and the Tank are located or in any of the mechanical or
equipment rooms in which any Raceway utilized by Tenant pursuant to the
terms hereof is located. At the termination of this license, Tenant
agrees to deliver the areas on which the Generator and Tank are located
and each Raceway to Landlord in as good condition as at the date of
this Lease, subject to ordinary wear and tear and damages, fire, and
other casualties caused by any third parties not affiliated with
Tenant, its agents, employees or contractors.
66
7. REPAIRS AND ALTERATIONS BY TENANT. Landlord shall have the right, at
its option, and at Tenant's cost and expense, to repair or replace any
damage done to the Building or the Property, or any part hereof, caused
by Tenant or Tenant's agents, employees, invitees, or visitors, and
Tenant shall pay the reasonable cost thereof to Landlord on demand as
additional rent. Tenant agrees with Landlord not to make or allow to be
made any alterations to any Raceway without the prior written consent
of Landlord, other than routine Cable installation operations in a
Raceway utilized by Tenant pursuant to the terms hereof, but even
routine Cable installations shall not be permitted without prior
written notice of at least two (2) days to Landlord. Any and all
alterations to any Raceway shall become the property of Landlord upon
termination of this license, except for the Equipment installed by
Tenant. All of the Equipment, the Generator and the Tank (but not the
Conduit) shall be removed by Tenant from the Leased Premises, the
Building and the Property immediately upon termination of the license
in compliance with the provisions of Section 4.4 of the Lease. Tenant
shall be responsible for repairing any damage to the Leased Premises,
any Raceway, the Building and/or the Property resulting from the
removal of any Equipment, the Generator, the Tank or other personal
property, and Tenant shall be responsible for restoring the Leased
Premises, any Raceway, the Building and/or the Property, as applicable,
to good condition. If Tenant fails to remove the Equipment, the
Generator, the Tank or any other property required to be removed
herein, Landlord may, if Landlord so elects, remove the Equipment, the
Generator, the Tank and any other property at Tenant's cost and Tenant
shall pay Landlord promptly upon demand all costs in removing said
property.
8. LAWS AND REGULATIONS. Tenant agrees to comply with all applicable laws,
ordinances, rules and regulations of any governmental entity or agency
having jurisdiction with respect to the Equipment, the Generator and
the Tank, specifically including, without limitation, all applicable
environmental laws. In particular, prior to installation of the
Equipment, Tenant shall provide Landlord written evidence, satisfactory
to Landlord in its sole discretion, of the representations and
warranties set forth in this Paragraph 8. The parties acknowledge that
the Equipment should emit no amounts of radiation whatsoever. Tenant
shall, at Tenant's sole cost, take all measures necessary to insure
that no radiation is emitted from the Equipment and that the Equipment,
the Generator and the Tank strictly complies with all laws, rules,
regulations, ordinances and codes, whether now or hereafter existing,
of all federal, state and local governmental authorities and that the
Equipment strictly complies with all contractual obligations to which
Tenant is bound in connection with such Equipment, specifically
including, without limitation, regulations of the Federal
Communications Commission, the Environmental Protection Agency, and the
Occupational Safety and Health Administration, applicable to the
emission of radiation from active transmission equipment or similar
facilities. Tenant shall also pay promptly when due all royalties or
other fees due in connection with the operation of the Equipment. In
the event compliance with this paragraph shall require modifications or
alteration of the Equipment, any Raceway utilized by Tenant pursuant to
the terms hereof, the Leased Premises, the Generator or the Tank, no
modification or alteration thereof shall be made without Landlord's
prior written consent, which consent may be withheld in Landlord's
67
sole discretion or granted on such terms and conditions as Landlord may
determine in its sole discretion. Tenant shall take all measures
necessary to insure that the Equipment, the Generator and the Tank do
not interfere with or disturb the operation of any other equipment or
business of Landlord or of any other tenant or occupant of the
Building.
9. RELEASE OF LIABILITY AND INDEMNITY. Landlord shall not be liable to
Tenant, or to Tenant's agents, servants, employees, customers or
invitees for any injury to person or damage to property caused by any
act, omission, or neglect of Tenant, its agents, servants, employees,
invitees or any other person entering the Building under the invitation
of Tenant or arising out of the use of the Raceways, the Generator or
the Tank by Tenant and the conduct of its business or out of a default
by Tenant in the performance of its obligations hereunder, other than
injury or damage which is solely attributable to Landlord's gross
negligence or willful misconduct. Tenant hereby indemnifies and holds
Landlord harmless from all liability and claims for any such damage or
injury. In addition, Tenant shall protect, defend and indemnify
Landlord, and its mortgagees and Building manager, and each of their
respective directors, officers, joint venturers, employees and agents,
and hold them harmless from and against all liability and claims for
any injury to person or damage to property or business caused by any
act, omission, or neglect of Tenant, its agents, servants, employees,
or contractors, or any condition or circumstance relative to the
license granted hereunder, specifically including, without limitation,
(i) the installation, maintenance, operation, repair, modification or
removal of the Equipment, the Generator or the Tank, or (ii) any tort,
including, without limitation, slander and tortious interference with
business arising out of the use and operation of the Equipment, or, as
a result of the content of the transmissions and receptions sent or
received over or through the Equipment, unless such liability and
claims arise primarily by reason of the negligence or willful
misconduct of Landlord, its agents or employees. Landlord and its
mortgagees, the Building manager and each of their respective
directors, officers, joint venturers, employees and agents shall also
not be liable for any consequential or special damages arising out of
any such injury to person or damage to property or business. This
release and indemnity is in addition to and not in substitution of any
other release and indemnity in the Lease.
10. TRANSFERS BY TENANT. Tenant shall not transfer, convey, mortgage,
pledge, hypothecate, or encumber Tenant's license interest hereunder or
grant any license, concession or any other right to use a portion of
the Raceways without the prior written consent of Landlord, which may
be granted or withheld in Landlord's sole discretion. Notwithstanding
the foregoing, Tenant may assign the license granted hereby in
connection with any assignment of Tenant's entire interest in the Lease
or a subletting of the entire Leased Premises which is permitted under
Section 4.7 of the Lease without the necessity of obtaining any further
approval from Landlord.
11. COMMENCEMENT OF OPERATIONS. The commencement of operations in the
Leased Premises by Tenant shall constitute the acknowledgment and
agreement of Tenant that Tenant is fully familiar with the physical
condition of the Building (including the mechanical rooms and Raceway
space of the Building), that Tenant has accepted the same in good order
and condition, and that the Raceway space complies in all respects
68
with the requirements hereof and is suitable for the purposes for which
the same is hereby licensed. In that regard, Landlord hereby disclaims,
and Tenant hereby waives, any warranty of suitability with respect to
the Raceway space, and any warranty of fitness for a particular
purpose.
INITIALS
Landlord Tenant
----------- -----------
69
SCHEDULE "1"
------------
To Exhibit "H" to Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
LOCATION OF GENERATOR
---------------------
(For illustrative purposes only)
[Floorplan appears here]
70
EXHIBIT "I"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
RENEWAL OPTION
--------------
1. DEFINED TERMS. For purposes of this Exhibit "I", all terms defined in
the Lease (including other exhibits to the Lease) will be utilized
herein without further definition. In addition, when delineated with
initial capital letters, the following term shall have the following
definition and meaning:
(a) "Renewal Date" shall mean the first day next following the
expiration date of the Lease Term.
2. GRANT OF OPTION. Tenant shall have the following option ("Option") to
renew this Lease:
Tenant may, by notifying Landlord of its election in writing at least
six (6) full calendar months prior to the end of the Lease Term, renew
this Lease for an additional lease term (the "Second Lease Term")
beginning on the first (1st) Renewal Date and continuing for five (5)
years thereafter. Such renewal shall be on all of the terms and
conditions of this Lease which are not inconsistent herewith.
The Base Rental payable beginning on the first (1st) Renewal Date and
continuing thereafter shall be at then current market rate.
If Tenant exercises its option to renew the Lease for a Second Lease
Term, Tenant may, by notifying Landlord of its election in writing at
least six (6) full calendar months prior to the end of the Second Lease
Term, renew this Lease for an additional lease term (the "Third Lease
Term") beginning on the second (2nd) Renewal Date and continuing for
five (5) years thereafter. Such renewal shall be on all of the terms
and conditions of this Lease which are not inconsistent herewith,
except that no renewal option shall exist during the Third Lease Term.
The Base Rental payable beginning on the second (2nd) Renewal Date and
continuing thereafter shall be at then current market rate.
Failure by Tenant to notify Landlord of Tenant's election to exercise
the renewal option herein granted within the time limits set forth for
such exercise shall constitute a waiver of such Option. Notwithstanding
the foregoing, the Option shall not be applicable at any time when
there is a default under the Lease which has not been cured after
applicable
71
notice and cure periods. In addition, the Option shall automatically
terminate upon the termination of the Lease Term, whether by Landlord
upon the occurrence of an event of default or otherwise or, at the
option of Landlord, in its sole discretion, upon the assignment,
subletting, or other transfer by Tenant, whether or not with the
approval of Landlord to any person or entity other than an Affiliate.
INITIALS
Landlord Tenant
----------- -----------
72
EXHIBIT "J"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS, as Tenant
-------------------------------------------------------------------------------
WORK LETTER (ALLOWANCE)
-----------------------
This Work Letter ("Work Letter") describes and specifies the right and
obligations of Landlord and Tenant with respect to certain allowances granted to
Tenant hereunder and rights and responsibilities of Landlord and Tenant with
respect to the design, construction and payment for the completion of Tenant's
initial leasehold improvements ("Initial Improvements") within the Leased
Premises.
1. DEFINITIONS. Terms which are defined in the Lease shall have the same
meaning in this Work Letter. Additionally, as used in this Work Letter,
the following terms (when delineated with initial capital letters)
shall have the respective meaning indicated for each as follows:
(a) "Allowance" shall mean an amount not to exceed Two Hundred
Seventy-two Thousand Nine Hundred Forty and 00/100ths Dollars
($272,940.00)
(b) "Basic Construction of the Building" shall mean the structure
of the Building as built on the date of this Work Letter.
(c) "Landlord's Architect" shall mean the architect designated by
Landlord as its architect, from time to time, to perform the
functions of Landlord's Architect hereunder.
(d) "Plans and Specifications" shall mean collectively, the plans,
specifications and other information prepared or to be
prepared by Tenant's Architect and, where necessary, by
Landlord's electrical, mechanical and structural engineers,
all at Tenant's expense, which shall detail the Work required
by Tenant in the Premises and which shall be approved in
writing by both Tenant and Landlord prior to the commencement
of such Work.
(e) "Tenant's Architect" shall mean EPB Design Center LTD, who is
an architect licensed to practice in the State of Texas.
(f) "Work" shall mean all materials and labor to be added to the
Basic Construction of the Building in order to complete the
installation of the Initial Improvements within the Leased
Premises for Tenant in accordance with the Plans and
Specifications, including, without limitation any
modifications to the Building,
73
any electrical or plumbing work required to meet Tenant's
electrical and plumbing requirements, and any special air
conditioning work required to be performed in the Leased
Premises.
(g) "Cost of the Work" shall mean the cost of all materials and
labor to be added to the Basic Construction of the Building in
order to complete the installation of the Initial Improvements
within the Leased Premises in accordance with the Plans and
Specifications.
(h) "Tenant's Costs" shall mean that portion of the Cost of the
Work in excess of Allowance.
(i) "Change Costs" shall mean all costs or expenses attributable
to any change in the Plans and Specifications which, when
added to other costs and expenses incurred in completing the
Work, exceed Allowance, including, without limitation, (i) any
cost caused by direction of Tenant to omit any item of Work
contained in the Plans and Specifications, (ii) any additional
architectural or engineering services, (iii) any changes to
materials in the process of fabrication, (iv) the cancellation
or modification of supply or fabricating contracts, (v) the
removal or alteration of any Work or any plans completed or in
process, or (vi) delays affecting the schedule of the Work.
(j) "Working Days" shall mean all days of the week other than
Saturday, Sunday, and legal holidays.
(k) "Contractor" shall mean the contractor or contractors engaged
by Tenant to perform the Work in accordance with the
provisions of Section 4.2(b) of the Lease.
2. PROCEDURE AND SCHEDULES FOR THE COMPLETION OF PLANS AND SPECIFICATIONS.
The Plans and Specifications shall be completed in accordance with the
following procedure and time schedules:
(a) Design Drawings. Within sixty (60) Working Days from execution
of the Lease, Tenant shall submit to Landlord four (4) sets of
prints of design drawings, specifying the intended design,
character and finishing of the Initial Improvements within the
Leased Premises. Such package shall include separate drawings
for signs in accordance with Landlord's sign criteria. The
design drawings shall set forth the requirements of Tenant
with respect to the installation of the Initial Improvements
within the Leased Premises, and such drawings shall include,
without limiting their scope, a Tenant approved space plan,
architectural design of the space, including office front,
plans, elevations, sections, and renderings indicating
materials, color selections and finishes.
(i) After receipt of design drawings, Landlord shall
return to Tenant one set of Prints of design drawings
with Landlord's suggested modifications
74
and/or approval within ten (10) Working Days of
receipt thereof from Tenant. If, upon receipt of
approved design drawings bearing Landlord's comments,
Tenant wishes to take exception thereto, Tenant may
do so in writing, by certified mail addressed to
Landlord, within five (5) Working Days from the date
of receipt of Landlord's comments on the design
drawings. Unless such action is taken, Tenant will be
deemed to have accepted and approved all of
Landlord's comments on the design drawings.
(ii) If design drawings are returned to Tenant with
comments, but not bearing approval of Landlord, the
design drawings shall be immediately revised by
Tenant and resubmitted to Landlord for approval
within ten (10) Working Days of their receipt by
Tenant.
(b) Completion of Plans and Specifications. All Plans and
Specifications shall be prepared in strict compliance with
applicable Building standards and requirements, this Work
Letter and otherwise, and shall also adhere to the design
drawings approved by Landlord. In order to assure the
compatibility of Tenant's electrical and mechanical systems
and the compatibility of Tenant's structural requirements with
the existing Building and in order to expedite the preparation
of Tenant's electrical, mechanical and structural drawings,
Tenant or Tenant's Architect shall deliver to Landlord's
Architect, not later than thirty (30) Working Days from the
date of Landlord's approval of design drawings, a detailed
plan setting forth any and all electrical, mechanical and
structural requirements, and Landlord's Architect shall
retain, at Tenant's expense, Landlord's electrical, mechanical
and structural engineers to prepare all necessary electrical,
mechanical and structural construction drawings which shall be
included as a part of the Plans and Specifications. All
construction documents and calculations prepared by Tenant's
Architect shall be submitted by Tenant, in the form of four
(4) sets of blueline prints, to Landlord for approval within
ten (10) Working Days after the date of receipt by Tenant of
Landlord's approval of design drawings, electrical, mechanical
and structural drawings. If the Plans and Specifications are
returned to Tenant with comments, but not bearing approval of
Landlord, the Plans and Specifications shall be immediately
revised by Tenant and resubmitted to Landlord for approval
within fifteen (15) Working Days of their receipt by Tenant.
(i) The fees for Tenant's Architect and any consultants
or engineers retained by or on behalf of Tenant or
Tenant's Architect (including, but not limited to,
the electrical, mechanical and structural engineers
required to be retained under this paragraph) shall
be paid by Tenant. Tenant shall also pay for any
preliminary drawings by Landlord's Architect for
review of the design drawings, the Plans and
Specifications, and any revisions to such documents,
and the fees and expenses of Landlord's Architect for
inspection of the Work, as required by Landlord.
Tenant may use funds from the Allowance to make such
payments.
75
(ii) Tenant shall have the sole responsibility for
compliance of the Plans and Specifications with all
applicable statutes, codes, ordinances and other
regulations, and the approval of the Plans and
Specifications or calculations included therein by
Landlord shall not constitute an indication,
representation or certification by Landlord that such
Plans and Specifications or calculations are in
compliance with said statutes, codes, ordinances and
other regulations. In instances where several sets of
requirements must be met, the requirements of
Landlord's insurance underwriter or the strictest
applicable requirements shall apply where not
prohibited by applicable codes.
3. TERMINATION RIGHT. If for any reason Landlord and Tenant have not
agreed in writing upon final Plans and Specifications on or before the
date which is ninety (90) days from the date of submission to Landlord,
then Landlord or Tenant shall have the right to terminate the Lease by
providing the other party with written notice of the electing parties'
decision to terminate this Lease within thirty (30) days from the
expiration of such ninety (90) day period. The failure of either party
to exercise such termination right in the manner and within the time
period specified above shall be deemed to be an irrevocable waiver of
such right.
4. PAYMENT. In the event Landlord acts as the general contractor for the
Initial Improvements in the Leased Premises, the Allowance will be
applied to offset the amounts due Landlord as reflected in the monthly
invoices therefor submitted by Landlord to Tenant. In the event
Landlord does not act as the general contractor for the Initial
Improvements in the Leased Premises, Landlord shall pay the Allowance
to Tenant within thirty (30) days of Landlord's receipt of invoices
submitted by Tenant to Landlord.
5. PERFORMANCE OF WORK AND DELAYS. Tenant shall cause the Contractor to
perform the Work in strict accordance with the Plans and
Specifications. If a delay shall occur in the completion of the Work by
Tenant as the probable result of (i) any failure to furnish when due
Tenant's design drawings, Tenant's electrical, mechanical and/or
structural requirements, Tenant's Plans and Specifications or any
revision to any such documents, (ii) any change by Tenant in any of the
Plans and Specifications, (iii) any state of facts which gives rise to
a change referred to in the definition of Change Costs or any changes
resulting in a Change Cost, (iv) any other act or omission of Tenant,
its agents or employees, including any violation of the provisions of
the Lease or any delay in giving authorizations or approvals pursuant
to this Work Letter, or (v) any other cause except (a) as specified in
Section 8.1 of the Lease or (b) arising from a default by Landlord,
then any such delay shall not justify any extension of the Commencement
Date of the Lease.
6. CHANGE ORDERS. All changes and modifications in the Work from that
contemplated in the Plans and Specifications, whether or not such
change or modification gives rise to a Change Cost, must be evidenced
by a written Change Order executed by both Landlord and Tenant. In that
regard, Tenant shall submit to Landlord such
76
information as Landlord shall require with respect to any Change Order
requested by Tenant. After receipt of requested Change Order, together
with such information as Landlord shall require with respect thereto,
Landlord shall return to Tenant either the executed Change Order, which
will evidence Landlord's approval thereof, or the Plans and
Specifications with respect thereto with Landlord's suggested
modification.
7. WHOLE AGREEMENT; NO ORAL MODIFICATION. This Work Letter embodies all
representations, warranties and agreements of Landlord and Tenant with
respect to the matter described herein, and this Work Letter may not be
altered or modified except by an agreement in writing signed by the
parties.
8. PARAGRAPH HEADINGS. The paragraph headings contained in this Work
Letter are for convenient reference only and shall not in any way
affect the meaning or interpretation of such paragraphs.
9. NOTICES. All notices required or contemplated hereunder shall be given
to the parties in the manner specified for giving notices under the
Lease.
10. BINDING EFFECT. This Work Letter shall be construed under the laws of
the State of Texas and shall be binding upon and shall inure to the
benefit of the parties hereto and their respective permitted successors
and assigns.
11. CONFLICT. In the event of conflict between this Work Letter and any
other exhibits or addenda to this Lease, this Work Letter shall
prevail.
INITIALS
Landlord Tenant
----------- -----------
77
THIS PAGE INTENTIONALLY LEFT BLANK
78
EXHIBIT "K"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS as Tenant
-------------------------------------------------------------------------------
ROOFTOP COOLING PROVISIONS
--------------------------
This Exhibit "K" describes and specifies the right to install dry cooling
equipment upon the roof of the Building hereby granted by Landlord to Tenant,
which is being granted upon the following terms and conditions:
1. DEFINED TERMS. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto
in the Lease, except to the extent that the meaning of such term is
specifically modified by the provisions hereof. In addition, other
terms not defined in the Lease but defined herein will, when
delineated with initial capital letters, have the meanings ascribed
thereto in this Exhibit. Terms and phrases which are not delineated by
initial capital letters shall have the meanings commonly ascribed
thereto.
2. GRANT OF LICENSE. Subject to the terms and provisions of this Exhibit,
Landlord hereby grants to Tenant the right and license to install,
operate, maintain, repair and replace a maximum of [NUMBER (##)] dry
cooling units (the dimension of each of which shall not exceed a
maximum surface area of 1,500 square feet), together with related
wiring, piping, vents and equipment, including [# OF PIPES] [#INCHES]"
pipes to and from the Leased Premises and such equipment
(collectively, the "Cooling Equipment") on the roof of the Building.
The size, location, and manner of installation of the Cooling
Equipment shall be approved by Landlord as part of the approval of the
Plans and Specifications pursuant to Exhibit "J" hereto, which
approval shall take into consideration the functional requirements of
the Cooling Equipment and of any other equipment located on the roof
of the Building and shall be subject to standards of structural and
architectural integrity with respect to the Building (and, in that
regard, the Cooling Equipment shall be located so as not to be visible
except from above the Building, shall complement the Building color,
and shall have no visible marking or logo). It is understood and
acknowledged that the area to be covered by the Cooling Equipment,
including necessary walkways and required airspace, shall not exceed
[###] square feet. The license granted to Tenant shall commence on the
Commencement Date and shall expire upon the expiration or earlier
termination of the Lease Term.
3. LICENSE FEE. Four Thousand Two Hundred eighteen and 75/100th Dollars
($4,218.75) per month, commencing on the Rental Commencement Date.
Additional dry cooling units may be added with the approval of
Landlord (the size and location of which will be at Landlord's
reasonable option) and the License Fee for each such additional
cooling equipment will be at the then current Landlord charge for such
additional cooling equipment.
79
4. INSTALLATION, MAINTENANCE, AND REPAIR. Tenant shall, at Tenant's sole
cost and expense, provide for the installation of the Cooling
Equipment and for all service, repairs, and maintenance to the Cooling
Equipment. With respect to the installation of the Cooling Equipment,
the Cooling Equipment shall not be affixed to the roof of the Building
by nail, bolt, screw, or other device which penetrates the roof
(except as approved in writing by Landlord), and all wiring
penetrations , venting penetrations and piping penetrations shall be
made by Landlord's roofing contractor at Tenant's sole cost and
expense, which shall be limited to the actual and reasonable cost
thereof. The Cooling Equipment shall be maintained by Tenant in good
order and repair and in a safe condition. In the event that Tenant
fails to so maintain the Cooling Equipment and Landlord, in Landlord's
sole discretion, deems such failure to present a danger of injury to
persons or damage to property in or about the Building, Landlord may
affect such repairs or maintenance and recover the cost thereof from
Tenant, which sum shall be due and payable within ten (10) days after
Landlord's written notice to Tenant with respect thereto. Tenant shall
provide Landlord with prior written notice of Tenant's need to effect
service, maintenance, or repairs hereunder and shall thereupon have
access to the roof of the Building and other non-tenant areas of the
Building at such times and under such conditions as may be prescribed
by Landlord. Landlord may charge Tenant for any equipment and material
of Landlord used by Tenant with respect thereto, at Landlord's
standard rates. The Cooling Equipment shall be a Trade Fixture as
defined in Section 1.18 of the Lease.
5. INTERFERENCE. Landlord assumes no responsibility for any interference
in the use or installation of the Cooling Equipment. Tenant shall, at
Tenant's option, either modify the Cooling Equipment or relocate the
Cooling Equipment to another area approved by Landlord in the event
that the Cooling Equipment, in Landlord's reasonable judgment causes
any interference with or disturbs the operation of any other equipment
or business of Landlord or any other occupant of the Building or
creates or results in any noise, odor, or nuisance to any other
occupant of the Building, or the areas adjacent thereto. However, if
the need to modify or relocate the Cooling Equipment is caused by the
exercise of any right granted by Landlord to other occupants of the
Building after the Commencement Date or changes to any other equipment
of Landlord of any other occupant of the Building after the
Commencement Date, then Landlord shall bear the cost of modifying or
relocating the Cooling Equipment. In the event that Landlord determines
that the Cooling Equipment causes any interference with or disturbs the
operation of any other Cooling Equipment or business of Landlord or any
other occupant of the Building, and Tenant fails to modify or is unable
to modify the Cooling Equipment so as to eliminate such interference,
Landlord shall, prior to making a decision that the Cooling Equipment
needs to be shut off, take into account the nature of the interference
and the reasonable business needs of both Tenant and the other occupant
of the Building (including Landlord) being affected and shall consult
with Tenant regarding this matter. Tenant must shut off the Cooling
Equipment within a reasonable period of time after notification of the
interference or disturbance from Landlord, taking into account the
nature of the interference and Tenant's reasonable business needs; and
Tenant may restore, modify, or relocate the Cooling Equipment to test
for interference only with
80
Landlord's permissions, which shall not be unreasonably withheld,
delayed or conditioned.
6. USE. The Cooling Equipment is solely for use for Tenant's internal
business and the benefits of the Cooling Equipment may not be provided
by Tenant to third parties except Tenant's Customers. The Cooling
Equipment may not be sold or rented by Tenant to third parties, nor
may Tenant sublet or assign the license granted to Tenant hereunder,
except in connection with any assignment or sublease which is
permitted under Section 4.7 of the Lease. Tenant shall operate the
Cooling Equipment in compliance with all applicable laws, regulations,
and rules of the governmental authorities having jurisdiction thereof
and shall maintain all necessary licenses and permits with respect
thereto. Any electrical usage associated with the Cooling Equipment
shall be governed by the provisions of Section 2.5 of the Lease.
7. INTERRUPTION. Landlord may, at Landlord's sole discretion but without
cost to Landlord, upon such advance notice to Tenant as is reasonable
under the circumstances, taking into account the nature of the
repairs, maintenance or modification needing to be made by Landlord
and (after consultation with Tenant) Tenant's reasonable business
needs, require interruption of service or relocation or removal of the
Cooling Equipment for repairs, maintenance, or modification of the
Building, including, but not limited to, roofing, structural,
electrical, or mechanical repairs.
8. MODIFICATION AND SUBSTITUTION. Tenant may not substitute or modify the
Cooling Equipment or any part thereof, without the prior written
approval of Landlord, which consent shall not be unreasonably withheld
or delayed. It is understood and agreed that it shall not be
unreasonable if Landlord disapproves any such substitution or
modification because of a material increase in the size or area
covered by the Cooling Equipment. Any substitution or modification
approved by Landlord shall automatically become a part of the Cooling
Equipment, and all terms of this Exhibit shall apply to such
substitution and/or modification.
9. RESTORATION. Tenant shall, at Tenant's sole cost and expense, remove
the Cooling Equipment and repair any damage to the Building caused by
such removal if the Lease Term, and the license herein granted,
terminates, whether by expiration of the Lease Term or otherwise.
Such removal and restoration work shall be completed by Tenant within
sixty (60) days of the date on which the condition requiring such
removal and restoration work occurs. In the event that Tenant shall
fail to complete the removal of the Cooling Equipment and the
restoration of the Building within such sixty (60) day period,
Landlord shall have the right to effect such removal and restoration,
but shall not be obligated to do so, in which event, Tenant shall
reimburse Landlord for all costs incurred by Landlord in performing
such removal and restoration work. In addition, any Cooling Equipment
remaining at the Building subsequent to the expiration of such sixty
(60) day period and upon prior written notice to Tenant shall be
deemed to have been abandoned by Tenant, so that in no event shall
Landlord have any duty to preserve or restore the Cooling Equipment on
Tenant's behalf. If Landlord does choose to store the Cooling
Equipment on Tenant's behalf, the cost of storage incurred by Landlord
shall be
81
reimbursed by Tenant on demand. In such event, Landlord shall also
have the right to sell such Cooling Equipment for salvage value and to
apply the proceeds derived from such sale to sums owing by Tenant to
Landlord hereunder. The provisions of this Paragraph 9 shall survive
the expiration of the license granted hereunder and of the lease Term.
10. REPRESENTATIONS OF TENANT. As a material inducement to Landlord to
enter into this Exhibit and to grant the license to Tenant described
in Paragraph 2 hereof, Tenant hereby represents and warrants to
Landlord that (a) the Cooling Equipment has received all necessary
approvals; (b) the Cooling Equipment will be installed in accordance
with the plans and specifications therefore as approved by Landlord in
accordance with the provisions of Exhibit "J"; (c) the Cooling
Equipment is designed to require minimum maintenance; (d) the Cooling
Equipment will not emit any fluids or gases which constitute hazardous
materials or substances under applicable environmental laws or
regulations, or which could otherwise cause damage to persons or
property; (e) the Cooling Equipment will not interfere with other
equipment presently located on the rooftop of the Building or in the
Building; and (f) Tenant will have received all necessary licenses and
permits from all applicable governmental authorities regarding the
installation and operation of the Cooling Equipment, prior to such
installation and operation, and (g) the Cooling Equipment will
strictly comply with all laws, rules, ordinances and codes whether now
or existing of all Federal, State, and all local government
authorities.
11. INDEMNIFICATION. In addition to the indemnification and obligations of
Tenant under the Lease, Tenant shall protect, defend, indemnify, and
hold Landlord harmless from (i) all liability and claims for any
injury to person or damage to property caused by any act, omission, or
neglect of Tenant, its agents, servants, employees, or contractors,
relative to the license, including, without limitation, the
installation, operation, repair, and maintenance of the Cooling
Equipment, unless such liability and claims arise primarily by reason
of the negligence or willful misconduct of Landlord, its agents,
contractors or employees, and (ii) all losses, damages or liabilities
that may be suffered or incurred by Landlord in connection with
Landlord's inability to complete any necessary repairs, maintenance,
or modification of the Building, including, but not limited to,
roofing, structural, electrical or mechanical repairs, as a result of
Tenant's failure to allow interruption of service or relocation or
removal of the Cooling Equipment pursuant to Section 7 of this
Exhibit.
12. CASUALTY DAMAGE. Landlord shall not be liable to Tenant for any loss
or damage to all or any part of the Cooling Equipment occasioned by
theft, fire, act of God, public enemy, injunction, riot, vandalism,
malicious mischief, earthquake, flood, strike, insurrection, war,
court order, requisition, or order of governmental body or authority
or by any other cause whatsoever, other than that solely caused by the
gross negligence or willful misconduct of Landlord, its agents,
contractors or employees. Nor shall Landlord be liable for any damage
or inconvenience which may arise through the repair or alteration of
any part of the Building or through termination of the license granted
pursuant to this Exhibit "L" following a default under Section 15
hereof, other than
82
EXHIBIT "L"
-----------
To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS as Tenant
-------------------------------------------------------------------------------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN
YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS AGREEMENT is entered into by and among Tenant, Landlord, and Beneficiary
and effects the Property described in Schedule "A" attached hereto. The terms
"Tenant", "Landlord", "Beneficiary", "Premises", "Lease", "Property", "Loan",
"Note", and "Mortgage" are defined in the schedule of Definitions attached
hereto as Schedule "B". This Agreement is entered into with reference to the
following facts:
(a) Landlord and Tenant have entered into the Lease covering the Premises
in the Property.
(b) Beneficiary has agreed to make the Loan to Landlord to be evidenced by
the Note, which Note is to be secured by the Mortgage covering the
Property, provided that the Lease is subordinate to the lien of the
Mortgage.
(c) For the purposes of completing the Loan, the parties hereto desire
expressly to acknowledge the subordination of the Lease to the lien of
the Mortgage, it being a condition precedent to Beneficiary's
obligation to consummate the Loan that the lien of the Mortgage be
unconditionally and at all times prior and superior to the leasehold
interests and estates created by the Lease.
(d) Tenant has requested that Beneficiary agree not to disturb Tenant's
possessory rights in the Premises in the event Beneficiary should
foreclose the Mortgage; provided that Tenant is not then in default
under the Lease and provided further that Tenant attorns to Beneficiary
or the purchaser at any foreclosure or trustee's sale of the Property.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. SUBORDINATION. Notwithstanding anything to the contrary set forth in
the Lease, Tenant hereby acknowledges that the Lease and the leasehold
estate created thereby and all of Tenant's rights thereunder shall be
and shall at all times remain subject, subordinate and inferior to the
Mortgage and the lien thereof, and all rights of Beneficiary thereunder
and to any and all renewals, modifications, consolidations,
replacements and extensions thereof.
83
2. ACKNOWLEDGEMENT AND AGREEMENT BY TENANT. Tenant acknowledges that:
(a) Beneficiary would not make the Loan without this
Agreement;
(b) It acknowledges the Mortgage and the agreements evidencing
and securing the Loan; and
(c) Beneficiary, in making any disbursements to Landlord, is
under no obligation or duty to oversee or direct the
application of the proceeds of such disbursements, and such
proceeds may be used by Landlord for purposes other than
improvement of the Property.
(d) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either
immediately or after the lapse of time, to terminate the Lease
or to claim a partial or total eviction, Tenant will not
exercise any such right:
(i) until it has given written notice of such act or
omission to Beneficiary, which notice shall be given
not later than the number of days required by the
Lease for such notice to the Landlord; and
(ii) until the same period of time as is given to
Landlord under the Lease to cure such act or omission
shall have elapsed following such giving of notice to
Beneficiary and following the time when Beneficiary
shall have become entitled under the Mortgage to
remedy the same.
(e) It has notice that the Lease and the rent and all other
sums due thereunder have been assigned or are to be assigned
to Beneficiary as security for the Loan secured by the
Mortgage. In the event that Beneficiary notifies Tenant of a
default under the Mortgage and demands that Tenant pay its
rent and all other sums due under the Lease to Beneficiary,
Tenant shall honor such demand and pay its rent and all other
sums due under the Lease directly to Beneficiary or as
otherwise required pursuant to such notice.
(f) It shall send a copy of any notice or statement under the
Lease to Beneficiary at the same time such notice or statement
is sent to Landlord.
(g) It has no right or option of any nature whatsoever,
whether pursuant to the Lease or otherwise, to purchase the
Premises or the Property, or any portion thereof or any
interest therein, and to the extent that Tenant has had, or
hereafter acquires, any such right or option, the same is
hereby acknowledged to be subject and subordinate to the
Mortgage and is hereby waived and released as against
Beneficiary.
84
(h) This Agreement satisfies any condition or requirement in
the Lease relating to the granting of a non-disturbance
agreement.
3. FORECLOSURE AND SALE. In the event of foreclosure of the Mortgage, or
upon a sale of the Property pursuant to the trustee's power of sale
contained therein, or upon a transfer of the Property by conveyance in
lieu of foreclosure, then:
(a) Non-Disturbance. So long as Tenant complies with this
Agreement and is not in default under any of the terms,
covenants, or conditions of the Lease after applicable notice
and cure periods (if any), the Lease shall continue in full
force and effect as a direct lease between the succeeding
owner of the Property and Tenant, upon and subject to all of
the terms, covenants and conditions of the Lease, for the
balance of the term of the Lease including renewal terms.
Tenant hereby agrees to adhere to and accept any such
successor owner as landlord under the Lease, and to be bound
by and perform all of the obligations imposed by the Lease and
Beneficiary, or any such successor owner of the Property, will
not disturb the possession of Tenant, and will be bound by all
of the obligations imposed on the Landlord by the Lease,
provided, however, that Beneficiary, or any purchaser at a
trustee's or sheriff's sale or any successor owner of the
Property shall not be:
(i) liable for any act or omission of a prior
landlord (including Landlord); or
(ii) subject to any offsets or defenses which Tenant
might have against any prior landlord (including
Landlord); or
(iii) bound by any rent or additional rent which
Tenant might have paid in advance to any prior
landlord (including Landlord) for a period in excess
of one (1) month, except for scheduled payments of
additional rent, or by any security deposit, cleaning
deposit, or other prepaid charge which Tenant might
have paid in advance to any prior landlord (including
Landlord); or
(iv) bound by any agreement or modification of the
Lease made without the written consent of
Beneficiary.
(b) New Lease. Upon the written request of either Beneficiary
or Tenant to the other given at the time of any foreclosure,
trustee's sale or conveyance in lieu thereof, the parties
agree to execute a lease of the Premises upon the same terms
and conditions as the Lease between Landlord and Tenant, which
lease shall cover any unexpired term of the Lease existing
prior to such foreclosure, trustee's sale or conveyance in
lieu of foreclosure.
(c) Beneficiary shall have no responsibility to provide (or
liability for not providing) any additional space for which
Tenant has any option or right under
85
the Lease if, as a result of any lease or leases entered into
with other tenants prior to Beneficiary acquiring title to the
Property, a conflict exists between such other lease or leases
and the right or option of Tenant with respect to additional
space, unless Beneficiary at its option elects to provide the
same and Tenant hereby releases Beneficiary from any
obligation it may otherwise have to provide the same, and
agrees that Tenant shall have no right to cancel the Lease,
xxxxx rent or assert any claim against Beneficiary as a result
of the failure to provide any option space.
(d) Beneficiary shall have no liability to Tenant or any other
party for any conflict between the provisions of the Lease and
the provisions of any other lease affecting the Property,
including, but not limited to, any provisions relating to
renewal options and options to expand, and in the event of
such a conflict, Tenant shall have no right to cancel the
Lease or take any other remedial action against Beneficiary or
action against any other party for which Beneficiary would be
liable.
4. ACKNOWLEDGEMENT AND AGREEMENT BY LANDLORD. Landlord, as landlord under
the Lease and mortgagor or trustor under the Mortgage, acknowledges and
agrees for itself and its heirs, successors and assigns, that:
(a) This Agreement does not:
(i) constitute a waiver by Beneficiary of any of its
rights under the Mortgage; and/or
(ii) in any way release Landlord from its obligations
to comply with the terms, provisions, conditions,
covenants, agreements and clauses of the Mortgage;
(b) The provisions of the Mortgage remain in full force and
effect and must be complied with by Landlord; and
(c) In the event of a default under the Mortgage, Tenant may
pay all rent and all other sums due under the Lease to
Beneficiary as provided in this Agreement.
5. NO OBLIGATION OF BENEFICIARY. Beneficiary shall have no obligation or
incur any liability with respect to the erection or completion of the
improvements in which the Premises are located or for completion of the
Premises or any improvements for Tenant's use and occupancy, either at
the commencement of the term of the Lease or upon any renewal or
extension thereof or upon the addition of additional space, pursuant to
any expansion rights contained in the Lease.
6. NOTICE. All notices, consents, waivers or other communications which
this Lease requires or permits any party to give to another shall be in
writing and shall be given only by registered, certified or "Express"
mail, or by Federal Express or other similar courier
86
service, return receipt requested, postage prepaid, to the recipient
party at the addresses set forth in Schedule "B" to this Agreement. Any
party may change its notice address at any time by giving written
notice of such change to the other party in the manner provided herein
at least ten (10) days prior to the date such change is effected. All
notices under this Lease shall be deemed given, received, made or
communicated on the delivery date or attempted delivery date shown on
the return receipt or similar document utilized by the courier service
for the purpose of indicating delivery.
7. MISCELLANEOUS.
(a) This Agreement supersedes any inconsistent provision of the
Lease.
(b) Nothing contained in this Agreement shall be construed to
derogate from or in any way impair or affect the lien and
charge or provisions of the Mortgage.
(c) Beneficiary shall have no obligations nor incur any liability
with respect to any warranties of any nature whatsoever,
whether pursuant to the Lease or otherwise, including, without
limitation, any warranties respecting use, compliance with
zoning, Landlord's title, Landlord's authority, habitability,
fitness for purpose or possession.
(d) In the event that Beneficiary shall acquire title to the
Premises or the Property, Beneficiary shall have no
obligation, nor incur liability, beyond Beneficiary's then
equity interest, if any, in the Premises, and Tenant shall
look exclusively to such equity interest of Beneficiary, if
any, in the Premises for the payment and discharge of any
obligations imposed upon Beneficiary hereunder or under the
Lease, and Beneficiary is hereby released and relieved of any
other obligations hereunder and under the Lease.
(e) This Agreement shall inure to the benefit of the parties
hereto, their respective successors and permitted assigns;
provided, however, that in the event of the assignment or
transfer of the interest of Beneficiary, all obligations and
liabilities of Beneficiary under this Agreement shall
terminate, and thereupon all such obligations and liabilities
shall be the responsibility of the party to whom Beneficiary's
interest is assigned or transferred; and provided further that
the interest of Tenant under this Agreement may not be
assigned or transferred without the prior written consent of
Beneficiary.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the state in which the Property is
located.
87
IN WITNESS WHEREOF, the parties have executed this Subordination,
Non-Disturbance, and Attornment Agreement as of the ________ day of
____________________, 19____.
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT, THE PARTIES CONSULT WITH THEIR
ATTORNEYS WITH RESPECT THERETO.
B E N E F I C A R Y
-------------------
____________________, a _______________________
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
L A N D L O R D
---------------
INFOMART-Dallas, L.P., a Texas limited partnership
By: INFOMART USA, L.P., a Texas limited partnership
By: /s/ ????????????????????
-----------------------------------
Name:
---------------------------------
Title: Authorized Agent
--------------------------------
T E N A N T
-----------
FOCAL COMMUNICATIONS CORPORATION OF
TEXAS, a Delaware corporation
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
---------------------------------
Title: Executive Vice President
--------------------------------
Schedule "A" - Property Description
Schedule "B" - Schedule of Definitions
INITIALS
Landlord Tenant
----------- -----------
83
SCHEDULE "A"
------------
To Exhibit "L" To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS as Tenant
-------------------------------------------------------------------------------
LEGAL DESCRIPTION
-----------------
BEING a 25.454 acre tract of land situated in the City of Dallas, Dallas County,
Texas and out of the Xxxxx X. Xxxxxxxxx Survey, Abstract No. 1383 and being a
part of City of Dallas Block No. 6053, also being the same tract of land
conveyed to Dallas Market Center Company by a Special Warranty Deed recorded in
Volume 82113, Page 3240 of the Deed Records of Dallas County, Texas, said 25.454
acre tract of land being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod found for the point of intersection of the
southwesterly right-of-way line of the Chicago Rock Island and Pacific Railroad
with the northwesterly right-of-way line of Oak Lawn Avenue;
THENCE with the northwesterly right-of-way line of Oak Lawn Avenue the
following:
South 3131'40" West a distance of 366.74 feet to an "X" chiseled in
concrete found for corner in a curve to the right, the radius point of
said curve bearing North 5008'58" West a distance of 241.00 feet from
said "X";
Southwesterly with said curve to the right through a central angle of
0309'20" an arc distance of 13.27 feet to an "X" chiseled in concrete
set for the point of reverse curvature of a curve to the left having a
radius of 259.00 feet;
Southwesterly with said curve to the left through a central angle of
1128'43" an arc distance of 51.89 feet to a 1/2 inch iron rod found for
the point of reverse curvature of a curve to the right having radius of
129.00 feet;
Southwesterly with said curve to the right through a central angle of
2406'22" an arc distance of 138.22 feet to a 1/2 inch iron rod set for
the point of compound curvature of a curve to the right having a radius
of 50.00 feet;
Northwesterly with said curve to the right through a central angle of
2406'22" an arc distance of 21.04 feet to a 1/2 inch iron rod found in
the northeasterly right-of-way line of Stemmons Freeway for the point
of compound curvature of a curve to the right having a radius of
1130.92 feet;
THENCE with the northeasterly right-of-way line of Stemmons Freeway the
following:
Northwesterly with said curve to the right through a central angle of
0724'40" an arc distance of 146.28 feet to a 1/2 inch iron rod found
for the point of tangency of said curve;
89
North 5533'45" West a distance of 816.18 feet to a 1/2 inch iron rod
found for point of curvature of a curve to the left having a radius of
3289.04 feet;
Northwesterly with said curve to the left through a central angle of
0123'21" an arc distance of 79.74 feet to a bolt in concrete found for
the most southerly corner of a tract of land leased to Southwestern
Furniture Mart Co. from Industrial Properties Corporation as recorded
in Volume 67076, Page 0690 of the Deed Records of Dallas County, Texas;
THENCE departing the northerly right-of-way line of Stemmons Freeway with the
easterly line of the Southwestern Furniture Mart Company tract, North 0921'30"
East a distance of 1064.46 feet to a 1/2 inch iron rod found for corner in the
curving southwesterly right-of-way line of the Chicago, Rock Island and Pacific
Railroad, the radius point of said curve being situated South 3311'48" West a
distance of 1599.88 feet;
THENCE with the southerly right-of-way lien of the Chicago, Rock Island and
Pacific Railroad the following:
Southeasterly with said curve to the right through a central angle of
0241'48" an arc distance of 75.30 feet to a 1/2 inch iron rod found for
corner;
North 5207'00" East a distance of 30.11 feet to a 1/2 inch iron rod
found for corner in a curve to the right, the radius point of said
curve being situated South 3219'18" West a distance of 1553.95 feet;
Northwesterly with said curve to the right through a central angle of
2126'39" an arc distance of 581.59 feet to a 1/2 inch iron rod set for
corner;
North 4516'10" East a distance of 53.07 feet to 1/2 inch iron rod set
for corner; South 3148'40" East a distance of 976.20 feet to the POINT
OF BEGINNING;
CONTAINING an area of 25.454 acres of land.
90
SCHEDULE "B"
------------
To Exhibit "L" To Lease Agreement By and Between INFOMART-Dallas, L.P.,
as Landlord and FOCAL COMMUNICATIONS CORPORATION OF TEXAS as Tenant
--------------------------------------------------------------------------------
SCHEDULE OF DEFINITIONS
-----------------------
Beneficiary shall mean ___________________________________, a
___________________________________ . All notices to Beneficiary shall be mailed
to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
with copy to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
and a copy to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Mortgage shall mean a first lien Mortgage or Deed of Trust and Security
Agreement with Assignment of Rents dated as , encumbering the Property, executed
by Landlord, as Mortgagor or Trustor, to , as Trustee, in favor of Beneficiary,
securing repayment of the Loan evidenced by the Note, to be recorded in the
records of the county in which the Property is located.
91
Landlord shall mean _______________________, a _____________, having an office
at ___________________.
Lease shall mean a certain lease entered into by and among Landlord and Tenant
dated as of ________________, 19__, covering the premises.
Loan shall mean a first mortgage loan in an amount up to _____________________
from Beneficiary to Landlord.
Note shall mean that certain ____________________ Note executed by Landlord in
favor of _______________, a _________________, dated as of _______________,
19__, in the amount of _____________________.
Premises shall mean certain space in the Improvements located in and upon the
Property.
Property shall mean the real property described in Schedule "A" attached hereto
together with the improvements thereon.
Tenant shall mean ___________________, a ________________ corporation, having an
office located at ________________.
92
[LETTERHEAD OF DATA CENTER DESIGN and DEVELOPMENT CORPORATION]
February 5, 1999
Xxxxx Xxxxx
FOCAL COMMUNICATIONS CORPORATION
000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
VIA: U.S.P.S. PRIORITY
Re: 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, XX
FOCAL-DALLAS DCDDC#98-149
Subject: Change Order #1
Dear Xx. Xxxxx:
Enclosed are three (3) original copies of Change Order #1 dated February 5, 1999
for credits due to Focal Communications Corporation because of the deletion of
one (1) UPS and related equipment markup, one (1) fire-rated glass window and
related installation, and DCDDC's overhead & profit. Total value of the
aforementioned is: $(126,722.30) CREDIT.
These original documents have been singed and dated by the Architect and Data
Center Design and Development Corporation. If acceptable, please execute and
date all three copies, and return the fully executed Architect and Contractor
copies to my attention for distribution.
Please contact me immediately if you have any questions. Thank you for your
assistance.
Sincerely,
Data Center Design and Development Corporation
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, CSI
Manager, Project and Business Administration
LDB/ldb
C: Administrative
Xxxx Xxxxx, VP - Focal
98-149 TRANS-XXXXX XXXXX-REV'D CO#1
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND DESIGNER-BUILDER
FOR DESIGN AND CONSTRUCTION SERVICES
THIS AGREEMENT made as of 12 January 1999 by and between Focal Communications
(thereinafter called "Owner"), and Data Center Design and Development
Corporation, 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter called
"Designer-Builder").
WITNESSETH:
That in consideration of the mutual covenants and agreements herein contained,
the parties hereto do hereby covenant and agree as follows:
ARTICLE 1: DEFINITIONS
1.1 OWNER: "Owner" shall mean the above-named organization designated as
"Owner", its successors and assigns.
1.2 OWNER'S REPRESENTATIVE: "Owner's Representative" shall mean such person
designated by the Owner on written notice to Designer-Builder, to act
as its representative.
1.3 DESIGNER-BUILDER: "Designer-Builder" shall mean the above-named
organization designated as "Designer-Builder", its successors and
assigns.
1.4 DESIGNER-BUILDER'S REPRESENTATIVE: "Designer-Builder's Representative"
shall mean or such other person as may be designated by
Designer-Builder on written notice to Owner to act as its
representative.
1.5 WORK: "Work" shall cover all labor, material and services necessary to
produce the design services and the construction required by the
contract documents.
1.6 DATE OF SUBSTANTIAL COMPLETION: "Date of "Substantial Completion" of
the work or a designated portion thereof is the date when: (i) the
construction is sufficiently completed in accordance with the contract
documents so that Owner may occupy the work or designated portion
thereof for the use for which it is intended, or (ii) Owner obtains a
temporary certificate or a permanent certificate of occupancy for the
work, and Designer-Builder has obtained a waiver of all liens,
mechanics and otherwise and has presented same to Owner.
1.7 CONSTRUCTION CHANGE DIRECTIVE: A "Construction Change Directive" is a
written order to the Designer- Builder, prepared by the
Designer-Builder signed by the Owner's Representative, issued after the
execution of this contract, authorizing the Designer-Builder to make
additions, deletions or modifications in the work to be performed by
Designer-Builder.
1.8 CHANGE ORDER: A "Change Order" is a written order to the
Designer-Builder, prepared by Designer-Builder, signed by the Owner's
Representative, countersigned by Designer-Builder's Representative,
issued after the execution of the contract, authorizing an adjustment
(if any) in the contract sum to be paid to Designer-Builder or an
adjustment in the time for the completion of the work.
ARTICLE 2: CONTRACT DOCUMENTS
2.1 The contract documents shall consist of the following:
2.1.1 This contract, together with Appendices attached hereto, and any
amendments or modifications thereto, including any signed work order or
signed exchange order.
2.1.2 All other documents described in Appendices attached hereto and made
part hereof.
2.2 In the event of conflict between this contract and the provisions of
the other contract documents, this contract shall control. In the
event of any conflict between the provisions of the contract documents,
other than this contract, the latest approved document shall control.
2.3 All contract documents hereinafter submitted by Designer-Builder for
the approval of Owner in connection with the performance of the work
shall be deemed approved unless Owner makes written objection thereto
within five (5) working days after receipt thereof.
2.4 The drawings, specifications and other documents furnished by
Designer-Builder are instruments of service and are the property of
Designer-Builder whether or not the work for which they are made is
commenced. Drawing, specifications and other documents furnished by
Designer-Builder shall not be used by Owner or other prospects, for
completion of the work by others, except by written agreement relating
to use, liability and compensation.
2.5 Submission or distribution of documents to meet official regulatory
requirements or for other purposes in connection with the work is not
to be construed as publication in derogation of the Designer-Builder's
or its architect's common law copyrights or other reserved rights.
Owner shall own neither the documents nor the copyrights.
ARTICLE 3: SCOPE OF THE WORK
3.1 The Designer-Builder shall provide all necessary design services and
furnish all necessary supplies, materials and equipment and all
necessary labor and service required for the design and construction of
the project to completion to Owner's satisfaction in accordance with
the contract documents.
3.2 The design services to be provided by Designer-Builder under this
contract shall cover all of the following to the extent required for
the performance of the work; as defined in the "Concept Design
Program".
3.2.1 Preparation of working drawings and specifications setting forth in
detail the requirements for the execution and completion of the work.
3.2.2 Review of all shop drawings, samples and other submissions for
conformance with the design concept of the work and for compliance with
the drawings and specifications.
3.3 The Designer-Builder shall not be liable to Owner or otherwise
responsible for damage or injury to the work or for additional costs or
delays in the performance of the work arising out of or caused by
concealed, latent or unforeseen surface or sub-surface conditions: (i)
differing from those indicated in the contract documents, or (ii) not
specifically disclosed to Designer-Builder in writing prior to the
commencement of the work.
3.4 The Designer-Builder shall not be liable to Owner or otherwise
responsible for damage or injury to the work or for additional costs or
delays in the performance of the work arising out of or caused by
reason of the Designer-Builder relying upon or acting upon incorrect or
inaccurate written information furnished the Designer-Builder by Owner
or its agents and representatives.
3.5 See Appendix G
ARTICLE 4: COMMENCEMENT AND COMPLETION
4.1 The work to be performed under this contract shall be commenced
following the execution of this contract and shall be substantially
completed at a date to be jointly agreed upon. Those areas as
designated in the Milestone Schedule and Appendix F, Significant
Milestones shall be completed on those dates, and in the manner
described.
ARTICLE 5: CONTRACT SUM
5.1 The owner shall pay the Designer-Builder for the performance of the
work, subject to additions and deductions by change order as provided
in Article 12, in current funds, the contract sum of Two Million Seven
Hundred Sixty One Thousand Three Hundred Thirty Eight and No/100
Dollars ($2,761,338.00). The said contract sum shall cover the entire
charge for design and construction services as set forth in the
Appendices. The said
contract sum is a GMP (Guaranteed Maximum Price) with the
Designer-Builders Fees Fixed and a Cost of Savings Split of 50-50
between the Owner and the Designer-Builders on the balance of the
contract.
5.2 The contract sum is comprised of the following:
A. Phase 1 Construction
B. Critical Support Equipment
5.3 All additions and/or deductions not covered by change orders will be
paid from the cost of savings on a line item basis.
5.4 Per agreement the Owner shall pay the Designer-Builder an amount equal
to Twenty percent (20%) ($552,268.00) of the contract sum upon
execution of the contract.
ARTICLE 6: PROGRESS PAYMENTS
6.1 On or before the 15th day of the first full month following the
commencement of the work and continuing thereafter on or before the
15th day of each succeeding month, Designer-Builder shall submit to
Owner an invoice for payment and made a part hereof, covering all work
performed during the preceding month, including all work performed
pursuant to change orders.
6.2 The invoice for payment shall show:
6.2.1 Charge for all design and construction work performed during the
preceding month, including the value of construction material and
equipment, the payment of which Designer-Builder is liable for, whether
or not such construction material is delivered to the project site.
6.3 Within twenty (20) days after submission of the invoice for payment,
Owner shall make a progress payment to Designer-Builder in an amount
equal to the aggregate sum of the following:
6.3.1 100% of the aggregate amount of the charge for design, construction and
equipment as shown on the invoice for payment.
6.3.2 Interest at the rate of one and one-half (1-1/2%) percent per month
shall be paid on the unpaid balance of any invoice for payment, not
paid by the Owner within twenty (20) days from the date of receipt
thereof. Such interest shall be in addition to the contract sum to be
paid Designer-Builder pursuant to this agreement.
6.4 Each invoice for payment shall contain Designer-Builder's
certifications that the work described in the invoice has been
completed in accordance with the contract documents, that all due items
are paid for, for which previous certificates were issued and payments
received, and that the amount of the payment shown on the invoice now
due Designer-Builder.
ARTICLE 7: PAYMENT TO DESIGNER-BUILDER FOLLOWING SUBSTANTIAL COMPLETION
7.1 When the Designer-Builder determines that the work or a designated
portion thereof is substantially complete, the Designer-Builder shall
prepare and submit to Owner a certificate of substantial completion,
which shall fix the date of substantial completion. The
Designer-Builder shall attach to the certificate a list of items to be
completed or corrected by Designer-Builder before final payment. The
Owner shall have seven (7) days after receipt of the certificate of
substantial completion to make written objection thereto. Any
objection on the part of the Owner shall be in such specific detail as
to adequately apprise Designer-Builder of the basis for the objection.
In the event Owner does not make objection within the prescribed time,
the work shall be deemed to be substantially complete as of the date
specified in the certificate of substantial completion.
ARTICLE 8: FINAL PAYMENT
8.1 The Owner shall make final payment within thirty (30) days after
completion of the work, provided the contract be then fully performed.
8.2 The making of final payment shall constitute a waiver of all claims by
Owner except those arising from: (1) unsettled claims; (2) faulty or
defective work appearing after substantial completion; and (3) failure
of the work to comply with requirements of the contract documents.
8.3 Acceptance of final payment shall constitute a waiver of all claims by
Designer-Builder except those previously made in writing and identified
by Designer-Builder as unsettled at the time of final payment.
ARTICLE 9: DESIGNER-BUILDER'S GUARANTY
9.1 Designer-Builder, subject to the provisions of 9.2 hereof, guarantees
that the work shall be performed in a skillful and workmanlike manner,
free from defects in material and workmanship and in conformance with
the contract documents. This guaranty is expressly in lieu of all
other guaranties and warranties, express or implied, including any
warranties of merchantability and fitness. Designer-Builder's
liability for its guaranty hereunder shall be limited to remedying, any
defect in material and workmanship approximately resulting from the
failure of Designer-Builder to perform the work in a skillful and
workmanlike manner, provided however: (i) that such defect shall
manifest itself on or before the expiration of the first year next
following the date of substantial completion, and (ii) that Owner shall
give notice in writing to Designer-Builder of such defect on or before
the expiration of the first year next following the date of substantial
completion. In lieu of remedying such defect in the work,
Designer-Builder, with the concurrence of Owner, may pay Owner the cost
of repair thereof.
9.2 Designer-Builder does not guarantee or warrant, either expressly or
impliedly, the materials in or workmanship of supplies, materials,
equipment or machinery manufactured by third parties and furnished and
installed by Designer-Builder in the performance of the work, but
Designer-Builder shall endeavor to obtain from all vendors and
suppliers and assign to Owner the customary warranties and guaranties
of such vendors and suppliers with respect thereto and Designer-Builder
shall, at the sole cost and expense of Owner, render reasonable
assistance to Owner when requested in order to enable Owner to enforce
such warranties and guaranties by the third party manufacturers or
suppliers.
ARTICLE 10: RESPONSIBILITIES OF OWNER
The Owner, at its sole cost and expense, shall:
10.1 Cooperate with the Designer-Builder in all respects.
10.2 Designate in writing a person to act as Owner's Representative with
respect to the work to be performed under this agreement and such
person shall have complete authority to transmit instructions to the
Designer-Builder through Designer-Builder's Representative, receive
information and interpret and define Owner's policies and decisions
with respect to all aspects of the work covered by this agreement.
10.3 Provide full information with respect to the scope of the work to be
performed by Designer-Builder.
10.4 Give prompt written notice to Designer-Builder whenever the Owner
observes or otherwise becomes aware of any defect in the work covered
by this agreement.
10.5 Guarantee access to and make all provisions for the Designer-Builder to
enter upon public and private lands as required for the
Designer-Builder to perform its work under this agreement.
10.6 Make available a convenient and adequate source of water and
electricity and furnish telephone service and all other utilities
required for the performance of the work.
10.7 Furnish all property and topographic surveys describing the physical
characteristics and legal limits of the job site and necessary utility
locations at the job site required for the performance of the work.
10.8 Furnish necessary documentation engineering structural suitability of
existing floor slabs required for the performance of the work.
10.9 Provide at the job site for the benefit and use of Designer-Builder in
the performance of the work, sufficient
office space, parking space and storage space for materials and
construction equipment.
10.10 Make application to all municipal jurisdictional agencies and obtain
all governmental approvals, permits, license and variances required for
the performance of the work.
10.11 Not cause any other construction to be undertaken in the immediate area
of the job site where the work is to be performed by Designer-Builder
under this agreement without the consent of Designer-Builder.
10.12 Owner to provide tax exempt status certification to Designer-Builder.
ARTICLE 11: RESPONSIBILITIES OF DESIGNER-BUILDER
The Designer-Builder shall:
11.1 Cause the work to be performed in accordance with the contract
documents, using its best skill and attention.
11.2 Provide and pay for all labor, materials, equipment, tools,
construction equipment and machinery, transportation and other
facilities and services necessary for the execution and completion of
the work.
11.3 At all times during the performance of the work, keep the premises free
from accumulation of waste materials or rubbish caused by its
operations. At the completion of the work, Designer-Builder shall
remove all its waste materials and rubbish from and about the job site
as well as its tools, construction equipment, machinery and surplus
materials and shall leave the job site "room clean" or its equivalent.
11.4 Assist Owner in making application to all municipal jurisdictional
agencies for the purpose of obtaining all governmental approvals,
permits, licenses and variances required for the performance of the
work, provided nevertheless, that Owner shall be responsible for the
actual obtainment of all such approvals, permits, licenses and
variances.
11.5 Obtain and furnish to the Owner all waivers of lien, including but not
limited to, waiver of mechanics liens.
ARTICLE 12: CHANGES IN THE WORK
12.1 The Owner, without invalidating the contract, may order changes in the
work consisting of additions, deletions or modifications and the
contract sum and the time for the completion of the work shall be
adjusted accordingly. All such changes in the work shall be authorized
by a construction change directive and thereafter confirmed by a change
order in the manner hereinafter provided for.
12.2 In the event that any building landlord of the owner or any
governmental official orders changes in the scope of work, the contract
sum and the time for the completion of the work shall be adjusted
accordingly. All such changes in the work shall be authorized by a
construction change directive and thereafter conformed by a change
order in the manner hereinafter provided for.
12.3 The Designer-Builder shall not be required to proceed with any
additions, deletions or modifications to the work unless pursuant to a
construction change directive. Should the work to be performed by
Designer-Builder under any construction change directive result in an
increase in the cost of the work, the Owner shall be obligated to pay
Designer-Builder the total cost of the additional work.
12.4 The cost or net credit to the Owner resulting from a change in the work
as above provided shall be confirmed by a change order. Thereupon, the
time for the completion of the work shall be adjusted accordingly. The
contract sum shall be adjusted upwards or downwards by the amount of
any additional cost to Owner or credited to Owner resulting from any
change in the work caused by change order. The refusal by Owner to
execute a change order shall not relieve Owner of its obligation to pay
Designer-Builder the full cost of any additional work performed by
Designer-Builder pursuant to a construction change directive.
ARTICLE 13: INDEMNIFICATION BY DESIGNER-BUILDER
13.1 Designer-Builder, within the limited of its insurance coverage as
provided in Article 16 hereof, shall indemnify and save Owner harmless
from and against any loss, liability or damages (including reasonable
attorney fees, court and/or arbitration expenses) which may be
sustained by Owner by reason of sickness, disease, bodily injury or
death to persons or damages to tangible property occurring during the
performance of the work and resulting from the negligence of
Designer-Builder, its subcontractors, agents or employees, including,
but not limited to, damages caused directly or indirectly by any
substances, conditions, elements, material or any combination of the
foregoing either intentionally or unintentionally emitted or released
or caused to be emitted or released by Designer-Builder, its
subcontractors, agents or employees from or at work site.
13.2 The Designer-Builder shall indemnify and save harmless Owner from all
costs, fees, damages and expenses arising out of or resulting from any
charge or encumbrance in the nature of a laborer's, mechanic's or
material man's lien asserted by a party or parties other than Designer-
Builder in connection with the performance of the work.
ARTICLE 14: INDEMNIFICATION BY OWNER
14.1 Owner shall indemnify and save Designer-Builder harmless from and
against any loss, liability or damages (including reasonable attorney
fees, court and/or arbitration expenses) which may be sustained
by Designer- Builder by reason of sickness, disease, bodily injury or
death to persons or damages to tangible property occurring during the
performance of the work and resulting from the negligence of Owner, its
subcontractors, agents or employees.
ARTICLE 15: PATENT INDEMNIFICATION
15.1 The Owner shall not cause Designer-Builder to use any design, process
or equipment which would infringe upon any patent right held by any
third party.
15.2 Owner shall indemnify and save Designer-Builder harmless from and
against all liability, damages and expenses arising out of any suit or
action brought against Designer-Builder for use of any design, process
or equipment required by the Owner, based upon a claim that any design,
process or equipment incorporated in the work infringes upon any
invention, design, process or device which is the subject of a patent.
ARTICLE 16: DESIGNER-BUILDER INSURANCE
16.1 The Designer-Builder shall purchase and maintain all of the insurance
described in 16.1.1 through 16.1.3 hereof, for not less than the limits
of liability therein specified so as to protect Designer-Builder from
claims under workmen's compensation acts and other employee benefits
acts, from claims for damage because of bodily injury, including death,
and from claims for damage to property which may arise out of or result
from the Designer-Builder's operations under this contract, whether
such operations be by Designer-Builder or by any subcontractor or
anyone directly or indirectly employed by any of them.
16.1.1 Workmen's compensation, including occupational disease in accordance
with the statutory requirements set forth by the state which the work
is to be performed and employer's liability insurance covering all
Designer-Builder's employees engaged in the performance of this
contract in the minimum sum of $500,000.00.
16.1.2 Comprehensive general liability insurance, including Designer-Builder's
protective liability contractual liability insurance covering death or
bodily injury with minimum limits of $250,000.00 per person and
$1,000,000.00 for any one accident and property damage coverage with
minimum limits of $1,000,000.00 in the aggregate. The contractual
liability insurance shall insure the hold harmless and indemnification
agreement contained in 13.1 of this contract.
16.1.3 Comprehensive automobile liability insurance covering Designer-Builder
for claims arising from owned, hired and non-owned vehicles covering
death or bodily injury with minimum limits of $1,000,000.00 for any one
accident and property damage coverage with minimum limits of
$1,000,000.00 per accident.
16.2 Certificates of insurance covering all of the insurance required to be
maintained by Designer-Builder shall be filed with the Owner.
ARTICLE 17: OWNER'S INSURANCE
17.1 Owner, at its own expense, shall obtain and maintain until completion
of the work, comprehensive general liability insurance and property
insurance which shall insure against the perils of fire, flooding,
extended coverage, theft, vandalism and malicious mischief, containing
a limit of not less than the full amount of the contract sum. This
insurance shall include the interest of the Owner, Designer-Builder and
subcontractors. The loss, if any, under such insurance is to be made
adjustable with and payable to Owner, Designer-Builder and
subcontractors, as their interest may appear. The policy for such
insurance shall be issued by an insurance carrier authorized to do
business in the state in which the work is to be performed and shall
not be canceled or substantially modified without at least thirty (30)
days advance written notice to the Designer-Builder.
17.2 Certificates of insurance, naming Designer-Builder as an additional
insured under the above described policies, shall be filed with
Designer-Builder.
ARTICLE 18: TERMINATION OF THE AGREEMENT BY OWNER
18.1 The Owner, may, upon ten (10) days written notice and upon the
occurrence of any event of default by Designer-Builder as provided in
18.2, terminate this agreement. Upon receipt of such notice of
termination, Designer-Builder shall also take steps necessary for its
orderly and safe disengagement from and protection of the work.
18.2 The Designer-Builder shall be in default under this agreement upon the
occurrence of any of the following mentioned events:
18.2.1 Insolvency or bankruptcy of Designer-Builder or the making of any
assignment for the benefit of creditors, or the filing of any petition
for bankruptcy or reorganization by Designer-Builder.
18.2.2 The willful breach of any material provisions of this agreement by
Designer-Builder and the failure by Designer-Builder to take prompt
action to remedy same with ten (10) days of the receipt of written
notice from Owner.
18.3 In the event of Designer-Builder's default, Owner shall have the right
to terminate the employment of Designer-Builder to take possession of
the work and of all materials, tools and appliances thereon with the
right to their continued use, without obligation, until such time as
the work is completed, and to finish the work by any reasonable method
Owner may deem expedient.
18.4 Should Owner terminate the contract, Owner shall pay Designer-Builder a
sum equal to the value of the total work completed to date of
termination, including: (i) all design services, and (ii) all
construction work.
ARTICLE 19: TERMINATION OF THE AGREEMENT BY DESIGNER-BUILDER
19.1 The Designer-Builder may, upon the occurrence of any event of default
by Owner as provided in 19.3 and upon ten (10) days written notice to
Owner, terminate this agreement without prejudice to any legal remedies
or rights it may possess, and recover from Owner payment for the entire
unpaid balance of the aggregate sum due Designer-Builder for the
performance of the work completed as of the date of termination,
including the cost of all supplies, materials, equipment and design
services, the cost of which Designer-Builder shall be legally obligated
to satisfy.
19.2 In addition to such sums as due Designer-Builder under the provisions
of Article 5, Owner shall also pay Designer-Builder:
19.2.1 All charges for actual costs incurred by Designer-Builder to date of
termination, including all costs and expenses incurred for the orderly
and safe disengagement from and protection of the work.
19.2.2 All cancellation charges which Designer-Builder shall become obligated
to pay any subcontractor or material man of Designer-Builder.
19.2.3 The amount of such damages as Designer-Builder shall become obligated
to pay any subcontractor or material man of Designer-Builder.
19.3 The Owner shall be in default of this agreement upon the occurrence of
any of the following mentioned events:
19.3.1 Insolvency or bankruptcy of Owner or the making of any assignment for
the benefit of creditors or the filing of any petition for bankruptcy
or reorganization by Owner.
19.3.2 The willful breach of any provision of this agreement by Owner and the
failure by Owner to remedy same within ten (10) days of the receipt of
written notice thereof from Designer-Builder.
19.3.3 The willful failure without cause to make payment on any application
for payment within thirty (30) days from submission thereof. Should
Owner in good faith dispute a portion of any application for payment,
it shall still be required to make timely payment of the undisputed
portion of such application for payment and its failure to do so shall
constitute an act of default.
19.4 In lieu of terminating the contract as above provided, upon the
happening of any of the events above mentioned, Designer-Builder may
stop the performance of the work or the progress of the work until such
time as the default is remedied without prejudice to any other legal
remedy or right it may possess. The election by Designer-Builder to
stop the work as herein provided shall not be deemed a waiver of
Designer-Builder's right to terminate the agreement.
19.5 All monies due Designer-Builder upon termination of this agreement
shall bear interest at the rate of 1-1/2 percent per month, calculated
from the date of termination and all such interest shall belong
exclusively to Designer-Builder.
ARTICLE 20: DISPUTES
20.1 All claims, disputes or other matters in controversy arising out of or
relating to this agreement shall be determined in the manner provided
for in Appendix E attached hereto and made a part hereof.
ARTICLE 21: DELAYS
21.1 Designer-Builder shall not be responsible for any delay in the
performance or progress of the work or liable for any costs or damages
sustained by Owner resulting from such delay caused by any act or
neglect of the Owner or Owner's Representative, or by any employee of
Owner, or by any third party acting as the agent, servant or employee
of the Owner, or by changes ordered in the work, or by labor disputes,
including but not limited to strikes, slowdowns, job actions, picketing
and secondary boycotts, or by fire or other casualty loss, or by
unusual delay in transportation, or by acts of God, or as a result of
compliance with any order or request of any federal, state or municipal
governmental authority or any person purporting to act therefore, or by
acts of declared or undeclared war, or by public disorder, riot or
civil commotion, or by any other cause beyond the control and without
the fault or negligence of Designer-Builder. In the event of any such
delay, Designer-Builder shall proceed with due diligence to alleviate
such delay and continue the performance of all obligations hereunder.
The time during which Designer-Builder is delayed in the performance of
the work, as herein provided, shall be added to the time for completion
of the work as set forth in Article 4. All additional costs or damages
resulting from any delay in the performance or progress of the work
caused by any act or neglect of the Owner, its agents or
representatives, shall be borne entirely by the Owner.
ARTICLE 22: MISCELLANEOUS PROVISIONS
22.1 Any notices required or permitted under this contract shall be deemed
to be fully given if sent by telecopy, messenger service or certified
mail.
If to the Owner, addressed: If to the Designer-Builder addressed:
Brain Addy Xxxxxxx Xxxxxxx
Focal Communications Data Center Design and Development
000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
22.2 It is agreed between the parties hereto that the interpretation and
enforcement of this agreement shall be in conformity with the laws of
the State of Illinois.
22.3 In the event one or more, but not all of the provisions of this
agreement are declared unlawful and/or unenforceable by a court of
competent jurisdiction, such determination shall not affect the
legality or enforce ability of the remainder of the terms hereof.
22.4 This agreement may be executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts
shall, together, constitute and be one and the same agreement.
22.5 This agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns.
22.6 The Owner and Designer-Builder, by and through their respective
signatories to this agreement, each represent to the other that they
are authorized to enter into this agreement.
ARTICLE 23: OFFER OF EMPLOYMENT
23.1 Owner and Designer-Builder mutually agree that each will not offer
employment to, nor accept for employment, the employees of the other
party for a period of six (6) months after final payment and after the
completion of such other assignments as may follow arising out of this
contract.
IN WITNESS WHEREOF, the parties hereto have caused these present to be signed by
their proper corporate officers and have affixed their corporate seals hereto
the day and year first above written.
ATTEST:
Focal Communications
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
By Xxxxx X. Xxxx 1/29/99
----------------------- -----------
Duly Authorized Officer Date
Data Center Design and
Development Corporation
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
By Xxxxxxx Xxxxxxx 1/29/99
----------------------- -----------
Duly Authorized Officer Date
Appendix A
FOCAL COMMUNICATIONS
Info Mart
Dallas, Tx.
Project No:98-149
General Conditions 131,886
Includes; field supervision, project management, accounting
& clerical support, project clean up, dumpsters, insurance,
permit allowance, site materials and services.
Demolition 14,240
Includes; selective demolition of walls, doors, hardware,
acoustical ceiling, glazing, mechanical and electrical.
Premium Time (Allowance) 40,000
Cutting and Patching (Allowance) 5,000
Site Work 7,708
Includes; generator pad, excavation, fill and landscape
restoration.
Structural Steel 50,200
Includes; installation structural steel condenser rack on
roof, structural steel battery support in power room,
rigging and crane time.
Millwork 14,300
Includes; break room cabinets and counters, copy room
cabinets and counters.
Door, Frames and Hardware 33,880
Includes all hollow metal and wood doors, frames, hardware,
Herculite double entry door and rated conference room
window 4'0"X 6'0".
Access Floor 274,637
Includes; 2-tiered access floor in Co-Lo area, single
tiered access floor in switch/transport area. Both areas
complete with ramps, stairs, railings, plenum barriers,
perforated air flow panels and accessories.
GWB 51,644
Includes; all new walls, all in fill of existing openings
as required, extension of rated wall assemblies in various
areas, all office and demising partitions.
Acoustical Ceilings 47,471
Includes; clean room acoustical grid ceiling system in
Co-Lo And Switch/Transport, and 2X2 lay in acoustical
ceiling system in all finished support area including break
room and corridor.
Floor Finishes 26,064
Includes; 18"X18" carpet tile in general office, private
office, conference and copy rooms. VCT at landings,
corridors and break room. Vinyl wall base as indicated in
all finished areas. Painting of exposed concrete floor
slabs.
Wall Finishes 14,756
Includes; interior painting of walls, doors and frames.
Wall coverings as indicated.
Appliances 800
Includes; microwave and under counter refrigerator.
Window Treatment (allowance) 8,430
Includes; mini-blinds or coverings as indicated on room
finish schedule.
Corner Guards 2,400
Includes; installation of protective guards on all exposed
corners in the finished areas.
Signage (Allowance) 3,000
Includes; door, electrical and mechanical equipment signage
within the finished areas. Interior/Exterior LOGO or
directional signage is not included.
HVAC-Mechanical 206,850
Includes; installation of five (5) 20 ton process air
conditioners with roof top condensing units, one (1) 15
ton process air conditioner with roof top condensing unit
sheet metal duct work for process air conditioners. Roof
portals for refrigerant lines and future refrigerant lines
to finished equipment rooms. There are no provisions for
additional refrigerant lines to unfinished areas.
Fire Protection-Detection 257,230
Includes; new water line for pre-action and modifications
to existing wet pipe sprinkler systems. Values and
manifolds for pre-action systems. Pre-action piping systems
and zones as indicated. Wet pipe system in common area and
office areas. Smoke/heat detection with addressable panel
with tie in to building fire alarm panel.
Plumbing 13,600
Includes; New/reworked waste and water lines. Condensate
and humidification lines for processed air conditioners.
Break room waste and water, fixtures and lines.
Security-Card Access-Monitoring (allowance) 18,143
Includes; furnish and install back boxes and conduit;
installation only of cable, devices and systems furnished
by other. All terminations are by others.
Voice and Data Cabling (allowance) 14,200
Includes; installation of cabling furnished and terminated
by others.
Electrical 507,657
Includes; installation of all electrical equipment,
grounding, TVSS, service feeder from building 4000A
vertical bus duct, feeder from new generator system, under
floor spot leak detection, EPO system, step down
transformers, all lighting and receptacles, panel boards for
distribution, all AC power distribution, feeders,
breakers. Installation of UPS and generator systems. Four
(4) 4" and Two (2) 2" conduits for fiber and GPS. There is
no DC conduit, cabling, racking or installation included.
Appendix B
RECAP PROPOSAL
FOCAL COMMUNICATIONS
Dallas, Tx
January 11, 1999
DESCRIPTION
GENERAL CONDITIONS $131,886.00
DEMOLITION 14,240.00
PREMIUM TIME (ALLOWANCE) 40,000.00
CUTTING AND PATCHING (ALLOWANCE) 5,000.00
SITE WORK 7,708.00
STRUCTURAL STEEL 50,200.00
MILLWORK 14,300.00
DOORS, FRAMES AND HARDWARE 33,880.00
ACCESS FLOOR 274,637.00
GWB 51,644.00
ACOUSTICAL CEILINGS 47,471.00
FLOOR FINISHES 26,064.00
WALL FINISHES 14,756.00
APPLIANCES 800.00
WINDOW TREATMENT (ALLOWANCE) 8,430.00
CORNER GUARDS 2,400.00
SIGNAGE (ALLOWANCE) 3,000.00
HVAC/MECHANICAL 206,850.00
FIRE PROTECTION-DETECTION 257,230.00
PLUMBING 13,600.00
SECURITY-CARD ACCESS-MONITORING (ALLOWANCE) 18,143.00
VOICE AND DATA CABLING (ALLOWANCE) 14,200.00
ELECTRICAL 507,657.00
CRITICAL SUPPORT EQUIPMENT 474,202.00
-------------
SUB-TOTAL $2,218,298.00
CONTINGENCY 221,830.00
FEE (OVERHEAD AND PROFIT) 6% 133,098.00
DESIGN FEE 8% 188,112.00
---------------
TOTAL $2,761,338.00
Appendix C
GENERAL CONDITIONS COST SUMMARY
FOCAL COMMUNICATIONS
Dallas, Tx.
January 11, 1999
DESCRIPTION QUANTITY UNIT UNIT PRICE COST
----------------------------------------------------------------------------------------
Superintendent 60 MD 515.00 30,900.00
Second Shift Supervisor 12 MD 592.00 7,104.00
Project Coordinator 45 MH 58.00 2,610.00
Project Manager 23 MD 634.00 14,582.00
Clean up 42 MD 290.00 12,180.00
Dumpsters 5 EA. 450.00 2,250.00
Vendor Dumpsters 3 EA. 450.00 1,350.00
Second Shift Clean up 10 MD 290.00 2,900.00
Vendor Clean up 10 MD 335.00 3,350.00
Lay out 8 MD 340.00 2,720.00
Misc. materials & supplies 1 LS 2,500.00 2,500.00
Temporary Protection 1 LS 1,200.00 1,200.00
Job Site Telephone 1 LS 1,500.00 1,500.00
Trucking & Deliveries 1 LS 1,140.00 1,140.00
Final Clean up (Above/below floor) LS 2,500.00 2,500.00
Permit (Allowance) LS 20,000.00 20,000.00
Travel 15 ea 500.00 7,500.00
Auto 12 ea 300.00 3,600.00
Per Diem 60 ea 200.00 12,000.00
----------------------------------------------------------------------------------------
TOTAL $131,886.00
LEGEND
MD = Man Days
MH = Man Hours
LS = Lump Sum
Appendix D
FOCAL COMMUNICATIONS
DALLAS, TX.
CRITICAL SUPPORT EQUIPMENT
PROJECT NO: 98-149
PROCESS ENVIRONMENTAL CONTROL SYSTEMS $ 143,844.00
- One (1) UH199AUAAM
- Two (2) UH245AUAAM
- Three(3) FH245AUAAM
- Six (6) condensing units
- Level Three processors
- Floor stands
- Spot leak detection
- Freight, Tax and Start-up
UNINTERRUPTABLE POWER SUPPLY (ups) 105,941.00
- One (1) 225k VA (180kW) 600T UPS Module
- Two (2) battery cabinets with C&D sealed
batteries rated for 15 minutes at 180kW load
- One Maintenance Bypass (4 breaker) in
matching cabinet
- Freight, Tax and Start-up
EMERGENCY POWER SYSTEM 196,719.00
- One (1) 750 kW Model 3412 diesel engine
driven package generator
- One 1200A Automatic Transfer Switch with by pass isolation
2700 gallon (under belly) fuel tank
- Sound attenuating housing
- Freight, Tax and Start-up
Sub-total $ 446,504.00
DCDDC xxxx-up 27,698.00
-------------
Total $ 474,202.00
APPENDIX E
RESOLUTION OF DISPUTES BY ARBITRATION
1. All claims, disputes or other matters in controversy arising out of or
relating to this agreement shall be determined by three (3)
arbitrators, one appointed by the Owner, one appointed by the
Designer-Builder and the third by the arbitrators so appointed.
2. Notice of demand for arbitration by either party to this agreement
shall be served in writing upon the other party to this agreement and
shall be made within sixty (60) days after the dispute has arisen.
3. Within thirty (30) days after either party shall have given notice of
demand for arbitration, Owner and Designer-Builder shall each appoint
his respective arbitrator and give actual notice thereof to the other
party. If either party shall fail to appoint an arbitrator within the
aforesaid initial thirty (30)-day period and give actual notice thereof
to the other party, then said defaulting party shall be deemed to have
irrevocably waived its right to appoint an arbitrator and the
arbitrator appointed by the party not in default shall, within thirty
(30) days next following the expiration of the initial thirty (30) day
period, appoint the second arbitrator and such appointment shall be
binding upon the party in default. Within twenty (20) days after the
appointment if the two (2) arbitrators cannot select a third arbitrator
within the prescribed twenty (20)-day period, then either party may
petition the American Arbitration Association to appoint the third
arbitrator, subject to his acceptance of the procedure for arbitration
as herein set forth. Neither party shall have the right to appoint an
arbitrator unless the person to be appointed shall agree to serve as an
arbitrator subject to the terms and conditions of this article.
4. The arbitrators, upon their appointment, and after having been duly
sworn to do their duties with impartiality and fidelity shall proceed
with all reasonable dispatch to hear and determine the matter in
dispute and they shall conduct all arbitration proceedings in the state
in which the work is to be performed. In the event the taking of
testimony in the arbitration hearing shall not be concluded within
sixty (60) days after the third arbitrator shall have been selected,
the arbitrators shall then expedite the hearing of the matter in
dispute and take testimony on a continuous weekly basis for at least
thirty-two (32) hours a week until such time as the taking of all
testimony is completed and both sides have rested.
5. The owner and Designer-Builder shall each pay the cost and fees of the
arbitrator they select or who is selected on their behalf and one-half
of the costs and fees of the third arbitrator.
6. Whenever possible and to the extent not inconsistent with the
provisions of this article, the arbitration proceedings shall be
conducted in accordance with the Construction Industry Arbitration
Rules promulgated by the American Arbitration Association. However, the
failure to comply strictly with such Rules shall not be deemed a breach
of this agreement.
7. Any decision or award rendered by at least a majority of the
arbitrators shall be final and judgment may be entered upon it in
accordance with the laws of the State of Illinois.
8. It shall be a condition precedent to the institution of any legal
proceedings by either party against the other that a decision or award
shall first have been rendered by the arbitrators.
Appendix F
MILESTONE SCHEDULE
PROJECT 98-149
Tuesday 5 January 99 Apply for building/demo permit DCDDC
Tuesday 5 January 99 Submit drawings for Info Mart review DCDDC
Tuesday 5 January 99 Receive Permits DCDDC
Wed/Thurs 6-7 Jan 99 Interview Sub Contractors DCDDC
Friday 8 January 99 Order Critical Equipment DCDDC
Tuesday 19 January 99 Info Mart comments due Info Mart
Thursday 21 January 99 Bids Due from Sub Contractors All
Monday 1 February 99 Begin construction/demo Project Team
Monday 1 February 99 Submit Drawings for City review DCDDC
Monday 1 March 99 UPS/Process air conditioners delivered Vendors
Monday 15 March 99 Complete Switch Room general Project Team
construction, ready for Nortel switch
installation
Monday 12 April 99 Provide power for Nortel equipment Project Team
Monday 12 April 99 Provide process cooling to switch room Project Team
Monday 3 May 99 Generator delivered Vendor
Monday 3 May 99 Co-Lo ready to accept cabinets Project team
Monday 7 June 99 Office area ready for occupancy Project team
Monday 14 June 99 Construction substantially complete Project team
Monday 21 June 99 Project closeout DCDDC/
project team
Appendix G
ARTICLE 3: SCOPE OF THE WORK
3.5 The Designer-Builder shall be responsible for obtaining all necessary
documentation required by the Owner evidencing lien free completion of
the work. Failure to secure such documentation will result in
non-payment of the contract sum due to the Designer-Builder.
