Exhibit 10.13
OFFICE LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT, made and entered into as of the 4th day of April,
1997, by and between the Landlord and Tenant herein after named.
W I T N E S S E T H:
1. Definitions and Basic Provisions. The following definitions and
basic provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this lease:
(a) "Landlord": Xxxxxxx Xxxxxxxx Joint Venture
(b) "Tenant": Telecom Technologies, Inc.
(c) "Premises": The Atrium on Xxxxxxx Phase II
0000 X. Xxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
as generally outlined on the plan attached hereto as Exhibit "A." The term
"rentable area" as used herein, shall refer to all floor areas within the
outside surface of the outer walls and the common area side of walls separating
lease space from common areas and measured to the midpoint of walls separating
areas leased by or held for lease to other tenants, enclosing the
tenant-occupied portion of the Building. Common areas are areas devoted to
corridors, elevators, foyers, rest rooms (but only on multi-tenant floors),
mechanical rooms, janitor closets, vending areas, atrium planting areas, and
other similar facilities for the use of all tenants. No deductions from
rentable area are made for columns or projections necessary to the Building.
The rentable area in the leased Premises has been calculated on the basis of
the foregoing definition and is hereby stipulated for all purposes hereof to be
20,153 square feet of rentable area, whether the same should be more or less as
a result of a minor variation resulting from actual construction and completion
of the leased Premises for occupancy so long as such work is done in accordance
with the terms and provisions hereof. The Premises are divided into two
portions, approximately 11,000 square feet of rentable area (the "First
Portion") outlined on the plan attached hereto as Exhibit "A", and
approximately 9,153 square feet of rentable area (the "Second Portion") also
outlined on the plan attached hereto as Exhibit "A". Landlord and Tenant both
agree to the following occupancy and takedown schedule: On October 1, 1997,
Tenant will occupy the First Portion; on April 1, 1998, Tenant will occupy the
Second Portion. The total rentable area of the Building is stipulated for all
purposes herein to be 57,575 square feet. Landlord and Tenant will have the
option to increase the size of the First Portion, thereby decreasing the size
of the Second Portion, during the space planning process. Such a change in the
sizes of the First and Second Portions will result in proportionate increases
and decreases in the monthly rental installments described below.
(d) "Lease term": A period of 60 months, commencing on October 1,
1997 (the "Commencement Date") and ending on
September 30, 2002.
(e) "Basic rental": $ 1,827,581.68
(f) "Monthly rental installment": Monthly from October 1, 1997
through March 31, 1998 $17,416.67
Monthly from April 1, 1998 through
September 30, 2002 $31,908.92
(g) "Security Deposit": $ 17,416.67.
(h) "Permitted use": Office
(i) "Land": The real property upon which the Project is located,
described more particularly on Exhibit "E" attached
hereto and made a part hereof.
(j) "Building": The Atrium on Xxxxxxx Phase II located at 0000
X. Xxxxxxx, Xxxxxxxxxx, Xxxxx 00000.
(k) "Project": The Atrium on Xxxxxxx Phase I and Phase II located at
0000 X. Xxxxxxx, Xxxxxxxxxx, Xxxxx 00000.
2. Lease Grant. Before the Commencement Date. Landlord shall construct the
Building and install in the First Portion of the Premises the items to be
constructed or installed by Landlord pursuant to the provisions of the Work
Letter Agreement attached as Exhibit "C" hereto. On or before April 1, 1998,
Landlord shall construct and install in the Second Portion of the Premises the
items to be constructed or installed by Landlord pursuant to the provisions of
the Work Letter Agreement. If for any reason Landlord cannot deliver the First
Portion of the Premises to Tenant by the Commencement Date, this lease shall
not be void or voidable, and Landlord shall not be liable for any loss or
damage resulting therefrom, except that the rent payable under Paragraph 1(f)
hereof shall be waived for the period between the Commencement Date and the
date on which Landlord can deliver possession. If for any reason Landlord
cannot deliver the Second Portion of the Premises to Tenant on or before April
1, 1998, this lease shall not be void or voidable, and Landlord shall not be
liable for any loss or damage resulting therefrom, except that the rent payable
under Paragraph 1(f) hereof shall be reduced to $17,416.67 for the period
between April 1, 1998, and the date on which Landlord can deliver the Second
Portion of the Premises. No delay in the delivery of possession shall extend
the lease term. If for any reason the First Portion of the Premises are not
ready for occupancy on or before October 1, 1998, Tenant may at its option
cancel and terminate this Lease by written notice to Landlord delivered on or
before November 1, 1998, in which event neither party shall have any further
liabilities or obligations hereunder, except that Landlord will repay to Tenant
any prepaid rent or security deposit. Tenant may not enter or occupy the
pertinent portion of the Premises until such portion is tendered by Landlord,
unless Tenant's entry relates to construction or other pre-occupancy work
therein. Any entry of a pertinent portion of the Premises before the date
specified in this Paragraph 2 may be made only with Landlord's written consent.
The pertinent portion of the Premises shall be deemed completed and possession
delivered upon completion of the items to be constructed and installed by
Landlord pursuant to the provisions of the Work Letter Agreement attached as
Exhibit "C", other than completion of minor finish items, if any, which do
not materially interfere with Tenant's occupancy. Upon taking of possession of
a pertinent portion of the Premises, Tenant shall be deemed to have accepted
such portion as suitable for its purposes and shall be deemed to have waived
any defects in the such portion of the Premises and in the Building, except for
latent defects or the completion of any minor finish items which do not
materially interfere with Tenant's occupancy.
3. Rent. In consideration of this lease, Tenant promises and agrees to
pay Landlord the basic rental (as defined in Paragraph 1(e) hereof) in two lump
sum payments and thereafter in monthly installments as set forth in Paragraph
1(f) hereof, and the additional rent as determined in accordance with Exhibit
"B", without deduction, set off, notice or demand.
Sixteen and 79/100 months of basic rental, to be applied to the first
seventeen monthly basic rental installments accruing hereunder, totaling $
448,927.50 ("Prepaid Rent"), together with the security deposit (as defined
in Paragraph 1(g) hereof), shall be payable by Tenant to Landlord in two lump
sum payments. $241,880.42 will be due contemporaneously with the execution
hereof. $224,463.75 will be due upon the later of June 1, 1997, or
commencement of construction by Landlord of the work described in the Work
Letter Agreement. Landlord will deposit the Prepaid Rent in an escrow account
with Plano Bank & Trust to be held until occupancy of the First Portion of the
Premises by Tenant, at which time the Prepaid Rent will become the property of
Landlord remaining in the escrow account, which escrow account shall be debited
monthly as basic rental accrues. On the first day of the seventeenth month
following the date on which basic rent begins to accrue under this lease,
Tenant shall pay $6,570.64. On the first day of the eighteenth month following
the date on which basic rental begins to accrue under this lease. Tenant shall
begin paying the scheduled monthly rental installment without demand and shall
continue paying such monthly rental installments on or before the first day of
each succeeding calendar month during the term hereof. The monthly rental
installment for any fractional month at the beginning of the lease term shall
be prorated at the nineteenth month when the payment of regularly scheduled
installments commences, and for any fractional month at the end of the lease
term shall be prorated at the end of the lease term.
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If the monthly rental installment is not received by the Landlord on or
before the 5th day of the month for which such monthly rental installment is
due, a service charge of 2% of the monthly rental installment owed shall become
due and payable in addition to the monthly rental installment owed. Such
service charge is for the purpose of reimbursing Landlord for the extra costs
and expenses incurred in connection with the handling and processing of late
monthly rental installment payments.
The security deposit shall be held by Landlord without liability for
interest and as security for the performance by Tenant of Tenant's covenants
and obligations under this lease, it being expressly understood that such
deposit shall not be considered an advance payment of rental or a measure of
Landlord's damages in case of default by Tenant. Upon the occurrence of any
event of default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy, use such deposit to the extent necessary to make good any
arrearages of rent and other damage, injury expense of liability caused to
Landlord by such event of default. Following any such application of the
security deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the security deposit to this original amount. If Tenant is
not then in default hereunder, any remaining balance of such deposit shall be
returned by Landlord to Tenant upon termination of this lease. If Landlord
transfers its interest in the Premises during the lease term, Landlord will
assign the security deposit to the transferee and thereafter shall have no
further liability for the return of such security deposit. The obligation of
Tenant to pay rent is an independent covenant, and no act or circumstance
whatsoever, whether such act or circumstance constitutes a breach of covenant
by Landlord or not shall release Tenant of the obligation to pay rent.
4. Rental Escalation. See Exhibit "B" attached hereto and incorporated
as a part hereof.
5. Services.
(a) Landlord agrees to furnish Tenant while occupying the Premises,
at Landlord's sole cost and expense: (i) hot and cold water at those
points of supply provided for general use of tenantry; (ii) electrical
current for Tenant's use and occupancy of the Premises to the extent
reasonably deemed to be standard in comparable suburban "Class A" low
rise office buildings in Richardson, Texas, provided however, that all
costs for extraordinary or unusual demand for electrical service shall be
borne by Tenant; (iii) heating and air conditioning at such times as
Landlord normally furnishes such services to all tenants of the Project
and at such temperatures and in such amounts as are reasonably provided
in comparable suburban "Class A" low rise office buildings in
Richardson, Texas; (iv) janitor service on a daily basis excluding
holidays and weekends and elevator service; (v) replacement of Building
standard light bulbs and tubes.
(b) Landlord does not warrant that any of such specified services
will be free from interruption or stoppage, but nevertheless Landlord
shall use reasonable diligence to resume any such interrupted or stopped
service. Anything to the contrary notwithstanding, no failure, to any
extent, to furnish such services or any stoppage or interruption of these
defined services shall render Landlord liable in any respect for damages
to either person, property or business, nor shall any such failure,
interruption or stoppage of such services be deemed or construed as an
eviction, actual or constructive, of Tenant nor work an abatement of rent
nor relieve Tenant from the obligation to fulfill any covenant or
agreement contained in this lease.
6. Leasehold Improvements. Landlord agrees to install at Landlord's cost
and expense, except as otherwise stated therein, the improvements described in
Exhibit "C" attached hereto. Landlord has made no representations as to the
condition of the Premises or the Building, or Landlord's undertaking to
remodel, repair or decorate, except as expressly set forth herein and in
Exhibit "C".
7. Use. Tenant shall use the Premises only for the permitted use (as
defined in Paragraph 1(h) hereof). Tenant will not occupy or use the Premises,
or permit any portion of the Premises to be occupied or used for any business
or purpose other than the permitted use or for any use or purpose which is
unlawful in part or in whole or deemed to be disreputable in any manner or
extrahazardous on account of fire, nor permit anything to be done which will in
any way increase the rate of fire insurance on the Building or contents; and in
the event that, by reason of acts of Tenant, there shall be any increase in the
rate of Insurance on the Building or contents created by Tenant's acts or
conduct of business than Tenant hereby agrees to pay to Landlord the amount of
such increase promptly. Tenant will conduct its business and control its
agents, employees and invitees in such a manner as not to create any nuisance,
nor interfere with, annoy or disturb other tenants or Landlord in management of
the Building. Tenant will maintain the Premises in a clean, healthful and safe
condition and will comply with all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) with reference to use, condition or occupancy of
Premises. Tenant's obligation to comply with all laws specifically includes any
and all laws applicable to Tenant and relating to environmental hazards and to
accessibility by persons with disabilities. Tenant will not, without the prior
written consent of Landlord, such consent not to be unreasonably withheld,
paint, install lighting, window coverings or decoration, or install any signs,
window or door lettering or advertising media of any type on or about the
Premises or any part thereof. Should Landlord agree in writing to any of the
foregoing items in the preceding sentence, Tenant will maintain such permitted
items in good condition and repair at all times.
8. Repairs and Maintenance And Compliance with Accessibility Laws
(a) By Landlord: Landlord shall maintain only the roof, foundation,
heating and air conditioning systems, common areas, plumbing, elevators,
fire protection sprinkler system, the structural soundness and appearance
of the exterior walls, the paving outside the Building, and the
landscaping in good repair and condition, except for reasonable wear and
tear. Landlord shall be responsible for pest eradication. If such pests
result from Tenant's use and occupancy of the Premises, Tenant shall pay
to Landlord on demand the cost for such eradication. Tenant shall give
written notice to Landlord of the need for repairs or corrections and
Landlord shall proceed promptly to make such repairs or corrections.
Landlord's liability hereunder shall be limited to the cost of such
repairs or corrections.
(b) By Tenant: Tenant shall at its expense and risk maintain the
Premises and related facilities in good repair and condition. Tenant
will not in any manner deface or injure the Building, the Premises or
related facilities and will pay the cost of repairing any damage or
injury done by Tenant or Tenant's agents, employees or invitees. Tenant
shall throughout the term of this lease take good care of the Building,
the Premises and related facilities and keep them free from waste and
nuisance of any kind. If Tenant shall fall to make any repair required
hereunder (including all necessary replacements) within fifteen (15) days
after written notification to do so, Landlord may at its option make such
repair and Tenant shall, upon demand therefor, pay Landlord for the cost
thereof together with interest on any such cost which remains unpaid
following such demand at the rate of 10% per annum until paid.
(c) By Landlord and Tenant: Tenant shall at its expense and risk
cause the Premises and related facilities to be in compliance with the
requirements of the Americans With Disabilities Act and all other
pertinent laws relating to public access ("Accessibility Laws").
Landlord shall at its expense and risk cause the common areas of the
Building to comply with Accessibility Laws. Any extraordinary or atypical
requirements imposed by Accessibility Laws relating to the nature of
Tenant's business shall be Tenant's responsibility and Tenant shall bear
the risk and expense of compliance with such extraordinary or atypical
requirements. Tenant acknowledges that Landlord's responsibility is to
insure that common areas of the Building comply with Accessibility Laws
assuming the imposition of requirements typical for a suburban office
building.
9. Alterations and improvements. Tenant will not make or allow to be made
any alterations or physical additions in or to the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld
as to nonstructural alterations. Landlord may require, as a condition to
granting its consent to any such alterations or physical additions, that Tenant
agree to remove such alterations or physical additions at the end of the lease
term and restore the Premises to the condition in which the same existed before
such alterations or physical additions were made. At the end or other
termination of this lease, Tenant shall deliver up the Premises with all
improvements located thereon (except as otherwise herein provided) in good
repair and condition, reasonable wear and tear excepted, and shall deliver to
Landlord all keys to the Premises. The cost and expense of any repairs
necessary to restore the condition of the Premises to such condition in which
they are to be delivered to Landlord shall be borne by Tenant. All permanent
alterations, additions or Improvements made in or upon the Premises, either by
Landlord or Tenant, shall be Landlord's property on termination of this lease
and shall remain on the Premises without compensation to Tenant. All temporary
alterations, furniture, movable trade fixtures and equipment installed and paid
for by Tenant may be removed by Tenant at the termination of this lease if
Tenant so elects, and shall be so removed if required by Landlord, or if not so
removed shall at the option of Landlord, become the property of Landlord. All
such installations, removals and restoration shall be accomplished in good
workmanlike manner so as not to damage the Premises or the primary structure or
structural qualities of the Building or the plumbing, electrical lines or other
utilities.
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10. Common Areas. The use and occupation by Tenant of the Premises shall
include the use in common with others entitled thereto of the common areas,
parking areas, service roads, loading facilities, sidewalks, and other
facilities as may be designated from time to time by Landlord, subject,
however, to the terms and conditions of this agreement and to reasonable rules
and regulations for the use thereof as prescribed from time to time by Landlord.
All common areas described above shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in this Article.
Landlord shall have the right to construct, maintain, and operate lighting
facilities on all such areas and improvements; to police same; from time to
time to change the area, level, location and arrangement of parking areas and
other facilities hereinabove referred to; and to restrict parking by tenants,
their officers, agents, and employees to employee parking areas. If Landlord
ever assigns non-covered parking spaces to other tenants, Tenant will be
assigned a fair number of parking spaces at no charge. The number of parking
spaces assigned to Tenant will be determined by looking at the rentable area of
the Premises versus the rentable area let by the other tenants.
All common areas and facilities not within the Premises, which Tenant may
be permitted to use and occupy, are to be used and occupied under a revocable
license, and if the amount of such areas be diminished, Landlord shall not be
subject to liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
11. Assignment and Subletting. If Tenant desires to assign this lease or
sublet the Premises or any part thereof, Tenant shall give Landlord written
notice of such desire together with the name of the proposed assignee or
sublessee, a detailed description of its business, and current financial
information about it in sufficient detail to allow Landlord to assess the
financial condition of such proposed assignee or sublessee. Tenant shall give
such notice and information to Landlord at least 60 days prior to the date on
which Tenant desires to make such assignment or sublease. For the purposes
hereof, transfer of more than half of the stock or other voting control of
Tenant shall be deemed to constitute an assignment of this Lease. Landlord
shall, within 30 days following receipt of such notice, notify Tenant in
writing that Landlord elects either (i) to terminate this lease as to the space
so affected as of the date so specified by Tenant, in which event Tenant will
be relieved of all further obligation hereunder as to such space, (ii) to
permit Tenant to assign this lease or sublet such space, or (iii) refuse to
permit Tenant to assign this lease or sublet such space. If Landlord should
fail to notify Tenant in writing of such election within such thirty-day
period, Landlord shall be deemed to have elected (iii) above. Consent by
Landlord to one or more assignments or sublettings shall not operate as a
waiver of Landlord's rights as to any subsequent assignments and sublettings.
Tenant shall pay all costs incurred by Landlord in connection with the
foregoing provisions including without limitation legal fees, construction
costs to reconfigure the Premises, and credit checks. Notwithstanding any
assignment or subletting, Tenant and any guarantor of Tenant's obligations
under this lease shall at all times remain fully responsible and liable for the
payment of the rent herein specified and for compliance with all of Tenant's
other obligations under this lease. Moreover, if the rental or other
consideration (or a combination of the rental and any bonus or other
consideration therefor or incident thereto) due and payable to Tenant by an
assignee or sublessee exceeds the rental payable under this lease
(appropriately prorated in the case of a sublease of less than all of the
Premises), then Tenant shall be bound and obligated to pay Landlord fifty
percent (50%) of all such excess rental and other excess consideration within
ten (10) days after receipt thereof by Tenant. Notwithstanding the f
immediately preceeding sentence, in the event that Tenant fails to occupy or
vacates the Premises prior to consummating an approved sublease or assignment,
Tenant shall be bound and obligated to pay to Landlord one hundred percent
(100%) of all excess rental and other excess consideration. Finally, upon any
assignment or subletting all rentals paid to Tenant by an assignee or sublessee
shall be received by Tenant in trust for Landlord, to be forwarded immediately
to Landlord. If Landlord transfers and assigns its interest in this lease and
the Building containing the Premises, Landlord shall thereby be released from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such obligations.
Tenant shall not mortgage, pledge or otherwise encumber its interest in this
lease or in the Premises.
Landlord's permission to assign this lease or sublet Tenant's space will
not be denied in the event the proposed assignee or sublesse is at the time of
the proposed assignment or subletting a "Fortune 1000" company and the
proposed assignee or sublesse will use the Premises for purely office purposes.
12. Indemnity. Landlord shall not be liable for and Tenant will indemnify
and save harmless Landlord of and from all fines, suits, claims, demands,
losses and actions (including attorney's fees) for any injury to person or
damage to or loss of property on or about the Premises caused by the negligence
or misconduct or breach of this lease by Tenant, its agents, employees,
sublessees, invitees or by any other person entering the Building, the
Premises, or related facilities under express or implied invitation of Tenant,
or arising out of Tenant's use of the Building, the Premises, or related
facilities. Landlord shall not be liable or responsible for any loss or damage
to any property or death or injury to any person occasioned by theft, fire, Act
of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition of any governmental body or authority, by other tenants of the
Building or related facilities or any other matter beyond control of Landlord,
or for any injury or damage or inconvenience which may arise through repair or
alteration of any part of the Building, the Premises or related facilities, or
failure to make repairs or from any cause whatsoever except Landlord's gross
negligence. Tenant shall, at all times during the term of this lease, maintain
a policy or policies of insurance with the premiums thereon fully paid in
advance, in amounts and with insurance companies approved by Landlord Insuring
Tenant's obligations to Landlord under Paragraph 12 of this lease.
Tenant shall not be liable for and Landlord will indemnify and save
harmless Tenant of and from all fines, suits, claims, demands, losses and
actions (including attorney's fees) for any injury to person or damage to or
loss of property on or about the common areas of the Building caused by the
gross negligence or willfull misconduct or breach of this lease by Landlord,
its agents or employees.
13. Mortgages. Tenant accepts this lease subject to any deeds of trust,
security interests or mortgages which might now or hereafter constitute a lien
upon the Building or improvements therein, the Premises, or related facilities,
and to zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of the property Tenant shall at
any time hereafter, on demand, execute any instruments, releases or other
documents that may be required by any mortgagee for the purpose of subjecting
and subordinating this lease to the lien of any such deed of trust, security
interest or mortgage. With respect to any deed of trust, security interest or
mortgage hereafter constituting a lien on the Building or improvements therein,
the Premises, or related facilities. Landlord, at its sole options, shall have
the right to waive the applicability of this Paragraph 13 so that this lease
will not be subject and subordinate to any such deed of trust, security
interest or mortgage.
14. Insurance. Landlord shall, at all times during the term of this lease
maintain a policy or policies of insurance with the premiums thereon fully paid
in advance, issued by and binding upon some solvent insurance company, insuring
the Building against loss or damage by fire, explosion, or other hazards and
contingencies for the full insurable value thereof; provided that Landlord
shall not be obligated to insure any furniture, equipment, machinery, goods or
supplies not covered by this lease which Tenant may bring or obtain upon the
Premises, or any additional improvements which Tenant may construct thereon.
Tenant shall, at all times during the term of this lease, maintain a
policy or policies of insurance, with the premiums thereon fully paid in
advance, issued by and binding upon insurance companies approved by Landlord,
such approval not to be unreasonably withheld, insuring any furniture,
equipment, machinery, goods or supplies which Tenant may bring or obtain upon
the Premises, and any additional improvements which Tenant may construct on the
Premises against loss or damage by fire, explosion or other hazards and
contingencies for the full insurable value thereof. Tenant shall also, at all
times during the term of this lease, maintain a policy or policies of
insurance, with the premiums thereon fully paid in advance, for comprehensive
general and contractual liability insurance against claims for personal injury,
death and property damage occurring in or about the Premises, such insurance to
afford protection to the limits of (i) not less than $1,000,000.00 in respect
of injury to or death of any number of persons arising out of any one
occurrence and (ii) $1,000,000.00 in respect of any instance of property
damage. Such policy or policies shall be issued by and binding upon insurance
companies approved by Landlord, such approval not to be unreasonably withheld.
Tenant shall deliver to Landlord, prior to the Commencement Date,
certificates of such insurance and shall, at all times during the term of this
lease, deliver to Landlord upon request true and correct copies of such
insurance policies. The comprehensive general and contractual liability policy
described above shall (i) name Landlord as an additional Insured, (ii) insure
performance of the indemnities of Tenant contained in this lease, and (iii) be
primary coverage, so that any insurance coverage obtained by Landlord shall be
in excess thereof. Each insurance policy obtained by Tenant shall provide that
it will not be canceled or reduced in coverage without 30 days' prior written
notice to Landlord. Tenant shall deliver to Landlord certificates of renewal at
least 30 days prior to the expiration date of each such policy and copies of
new policies at least 5 days prior to terminating any such policies.
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15. Inspection. Landlord or representatives shall have the right to enter
into and upon any and all parts of the Premises at any time I and without
notice in the event of an emergency and with prior notice at reasonable hours to
(i) inspect same or clean or make repairs or alterations or additions as
Landlord may deem necessary (but without any obligation to do so, except as
expressly provided for herein), or (ii) show the Premises to prospective
tenants, purchasers or lenders; and Tenant shall not be entitled to any
abatement or reduction of rent by reason thereof, nor shall such be deemed to
be an actual or constructive eviction.
16. Condemnation. If, during the term of this lease, or any extension or
renewal thereof, all of the Premises should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain or by private purchase in lieu thereof, this lease
shall terminate and the rent shall be abated during the unexpired portion of
this lease, effective on the date physical possession is taken by the
condemning authority, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this lease.
In the event a portion but not all of the Premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by private sale in lieu thereof and the
partial taking or condemnation shall render the Premises unsuitable for
Tenant's business, then Landlord shall have the option, in its sole discretion,
of terminating this lease, or, at Landlord's sole risk and expense, restoring
and reconstructing the Premises to the extent necessary to make same reasonably
tenantable. Should Landlord elect to restore, the lease shall continue in full
force and effect with the rent payable during the unexpired portion of this
lease adjusted to such an extent as may be fair and reasonable under the
circumstances, and Tenant shall have no claim against Landlord for the value of
any interrupted portion of this lease.
In the event of any condemnation or taking, total or partial, Tenant
shall not be entitled to any part of the award or price paid in lieu thereof,
and Landlord shall receive the full amount of such award or price, Tenant
hereby expressly waiving any right or claim to any part thereof.
17. Fire or Other Casualty. In the event that the Premises should be
totally destroyed by fire, tornado or other casualty or in the event the
Premises or the Building should be so damaged that rebuilding or repairs cannot
be completed within 180 days after the date of such damage, either Landlord or
Tenant may at its option terminate this lease by delivering written notice
thereof to the other party within twenty (20) days following such damage, in
which event the rent shall be abated during the unexpired portion of this lease
effective with the date of such damage. In the event the Premises should be
damaged by fire, tornado or other casualty covered by Landlord's insurance, but
only to such extent that rebuilding or repairs can be completed within 180 days
after the date of such damage, or if the damage should be more serious but
neither Landlord nor Tenant elects to terminate this lease, in either such
event Landlord shall within thirty (30) days after the date of such damage
commence to rebuild or repair the Premises and shall proceed with reasonable
diligence to restore the Premises to substantially the same condition in which
they were immediately prior to the happening of the casualty, except that
Landlord shall not be required to rebuild, repair or replace any part of the
furniture, equipment, fixtures and other improvements which may have been
placed by Tenant or other tenants within the Building or the Premises, or
related facilities. In the event that the Premises are totally untenantable,
Landlord shall xxxxx the rent during the time Premises are unfit for occupancy.
If the Premises are not totally untenantable, Landlord shall allow Tenant a
fair diminution of rent during the time the Premises are partially unfit for
occupancy. In the event any mortgagee under a deed of trust, security agreement
or insurance proceeds be used to retire the mortgage debt, Landlord shall have
no obligation to rebuild and this lease shall terminate upon notice to Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Project or to the Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
Notwithstanding anything to the contrary contained herein in the event
that either Landlord or Tenant terminates this lease, pursuant to a right
granted in this Paragraph 17, any unapplied Prepaid Rent shall be refunded to
Tenant.
18. Holding Over. Should Tenant, or any of its successors in interest,
hold over the Premises, or any part thereof, after the expiration of the term
of this lease, unless otherwise agreed in writing, such holding over shall
constitute and be construed as tenancy at sufferance only. Such tenancy shall
be at a daily rental equal to 1/30th of the higher of (i) 150% of the sum of
the monthly rental installment plus the most current rental adjustment which
may have been made thereto pursuant to Paragraph 4 hereof, or (ii) 150% of the
current rate for the Premises being quoted by Landlord to prospective tenants.
The inclusion of the preceding sentence shall not be construed as Landlord's
consent for the Tenant to hold over. In the event of any unauthorized holding
over, Tenant shall also indemnify Landlord against all claims for damages by
any other tenant to whom Landlord may have leased all or any part of the Leased
Premises effective upon the termination of this lease Notwithstanding the
foregoing during the first month of any holdover, and only during that first
month, the daily rental rate shall be equal to 1/30 th of 110% of the sum of
the monthly rental installment plus the most current rental adjustment which
may have been made thereto pursuant to Paragraph 4 hereof.
19. Taxes on Tenant's Property. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture or fixtures placed by
Tenant in the Premises. If any such taxes for which Tenant is liable are levied
or assessed against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
Premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord promptly that part of such taxes for which Tenant is
primarily liable hereunder.
20. Events of Default. The following events shall be deemed to be events
of default by Tenant under this lease:
(a) Tenant shall fail to pay any monthly rental installment or any
portion of the basic rental hereby reserved when due and such failure
shall continue for more than 10 days after I Landlord notifiles Tenant in
writing of such failure to pay;
(b) Tenant shall fail to comply with any term, provision or covenant
of this lease, other than the payment of rent or shall fail to comply with
any term, provision or covenant in any other agreement with Landlord
affecting the Premises, and shall not cure such failure within t thirty
(30) days after written notice there of to tenant;
(c) Tenant shall make an assignment for the benefit of creditors;
(d) Tenant shall file a petition under any section or chapter of the
Federal Bankruptcy Code, as amended, or under any similar law or statute
of the United States or any State thereof, or Tenant shall be adjudged
bankrupt or insolvent in any proceeding filed against Tenant thereunder
and such adjudication shall not be vacated or set aside within thirty (30)
days;
(e) A receiver or Trustee shall be appointed for all or substantially
all of the assets of Tenant and such receivership shall not be terminated
or stayed within thirty (30) days;
(f) Intentionally deleted;
(g) Intentionally deleted.; or
(h) Tenant shall assign this lease or sublet the Premises without
Landlord's consent, where Landlord's consent is required under Section 11.
21. Remedies. Upon the occurrence of any event of default specified in
Paragraph 20 hereof, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever;
(a) Terminate this lease in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession and expel
or remove Tenant and any other person who may be occupying such Premises
or any part thereof, without being liable for prosecution or any claim of
damages therefor. Tenant agrees to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such
termination, including (i) the cost of recovering the Premises (including
attorneys' fees and costs of suit), (ii) the cost of removing and storing
any personal property, (iii) the unpaid rent earned at the time of
termination, plus interest thereon at the rate described in Paragraph 35,
(iv) the present value (discounted at the rate of six percent (6%) per
annum) of the balance of the basic rental and additional rental
4
for the remainder of the lease term less the present value (discounted at
the same rate) of the fair market rental value of the Premises for such
period, taking into account the period of time the Premises will remain
vacant until a new tenant is obtained, and the cost to prepare the
Premises for occupancy and the other costs (such as costs of repairs or
remodeling, leasing commissions and attorneys' fees) to be incurred by
Landlord in connection therewith, and (v) any other sum of money and
damages owed by Tenant to Landlord under this lease;
(b) Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or
any part thereof, without being liable for prosecution or any claim for
damages therefor, and if Landlord so elects, relet the Premises on such
terms as Landlord shall deem advisable and receive the rent thereof.
Tenant agrees to pay to Landlord on demand any deficiency in basic rental
that may arise by reason of such reletting;
(c) Enter upon the Premises, without being liable for prosecution or
any claim for damages therefor, and do whatever Tenant is obligated to do
under the terms of this lease, and tenant agrees to reimburse Landlord on
demand for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this lease, and Tenant further
agrees that Landlord shall not be liable for any damages resulting to the
Tenant from such action; and
(d) Landlord may, and is hereby entitled and authorized, without any
notice to Tenant whatsoever, to enter upon the Premises by use of a master
key, a duplicate key, or other peaceable means, and to change, alter,
and/or modify the door locks on all entry doors of the Premises, thereby
permanently excluding Tenant, and its officers, principals, agents,
employees, and representatives therefrom. If Landlord has either
permanently repossessed the Premises pursuant to the foregoing provisions
of this Lease, or has terminated this lease by reason of Tenant's default,
Landlord shall not thereafter be obligated to provide Tenant with a key to
the Premises at any time; provided, however, that in any such instance,
during Landlord's regular business hours and at the convenience of
Landlord, and upon the written request of Tenant accompanied by such
written waivers and releases as Landlord may require, Landlord will escort
Tenant or its authorized personnel to the Premises to retrieve any
personal belongings or other property of Tenant not subject to the lien or
security interest described herein. If Landlord elects to exclude Tenant
from the Premises without permanently repossessing or terminating pursuant
to the foregoing provisions of this lease, then Landlord (at any time
prior to actual repossession or termination) shall not be obligated to
provide Tenant a key to re-enter the Premises until such time as all
delinquent rental and other amounts due under this lease have been paid in
full (and all other defaults, if any, have been completely cured to
Landlord's satisfaction), and Landlord has been given assurance reasonably
satisfactory to Landlord evidencing Tenant's ability to satisfy its
remaining obligations under this lease. During any such temporary period
of exclusion, Landlord will, during Landlord's regular business hours and
at Landlord's convenience, upon written request by Tenant, escort Tenant
or its authorized personnel to the Premises to retrieve personal
belongings of Tenant or its employees, and such other property of Tenant
as is not subject to the Landlord's lien and security interest described
herein. This remedy of Landlord shall override and control any conflicting
provisions of the Texas Property Code.
No re-entry or taxing possession of the Premises by Landlord shall be
construed as an election on its part to terminate this lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such reletting
or re-entry or taking possession, Landlord may at any time thereafter elect to
terminate this lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies herein
provided or any other remedies provided by law, nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. Landlord's
acceptance of rent following an event of default hereunder shall not be
construed as Landlord's waiver of such event of default. No waiver by Landlord
of any violation or breach of any of the terms, provisions, and covenants
herein contained shall be deemed or construed to constitute a waiver of any
other violation or breach of any of the terms, provisions, and covenants herein
contained. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a wavier of any other violation or default.
22. Surrender of Premises. No act or thing done by the Landlord or its
agents during the term hereby granted shall be deemed as acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and subscribed by
the Landlord.
23. Attorneys' Fees. In case it should be necessary or proper for
Landlord or Tenant to bring any action under this lease or to consult or place
such lease, or any amount payable by Landlord or Tenant thereunder, with an
attorney concerning or for the enforcement of any of Landlord's or Tenant's
rights hereunder, then the non-prevailing party agrees in each and any such
case to pay the prevailing party on demand a reasonable attorney's fee.
24. Landlord's Lien. In addition to the statutory Landlord's lien,
Landlord shall have, at all times, a valid security interest to secure payment
of all rentals and other sums of money becoming due hereunder from Tenant, and
to secure payment of any damages or loss which Landlord may suffer by reason of
the breach by Tenant of any covenant, agreement or condition contained herein,
upon all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant presently or which may hereafter be situated on the
Premises and all proceeds therefrom, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged and all the covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant, upon the
occurrence of an event of default by Tenant, Landlord may, in addition to any
other remedies provided herein, enter upon the Premises and take possession of
any and all goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Tenant situated on the Premises without liability
for trespass or conversion, and sell the same at public or private sale, with
or without having such property at the sale, after giving Tenant reasonable
notice of the time and place of any public sale or of the time after which any
private sale is to be made, at which sales the Landlord or its assigns may
purchase unless otherwise prohibited by law. Unless otherwise provided by law,
and without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in Paragraph 27 of this lease at least five (5)
days before the time of sale. The proceeds from any such disposition, less any
and all expenses connected with the taking of possession, holding and selling
of the property (including reasonable attorneys' fees and other expenses),
shall be applied as a credit against the indebtedness secured by the security
interest granted in this Paragraph 24. Any surplus shall be paid to Tenant or
as otherwise required by law; and the Tenant shall pay any deficiencies
forthwith. The statutory lien for rent is not hereby waived.
25. Mechanic's Lien. Tenant will not permit any mechanic's lien or liens
to be placed upon the Premises or the Project or improvements thereon during
the term hereof caused by or resulting from any work performed, materials
furnished or obligation incurred by or at the request of Tenant, and in the
case of the filing of any such lien Tenant will promptly pay same. If default
in payment thereof shall continue for twenty (20) days after written notice
thereof from Landlord to the Tenant, the Landlord shall have the right and
privilege at Landlord's option of paying the same or any portion thereof
without inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be so much additional rent hereunder due from
Tenant to Landlord and shall be repaid to Landlord immediately on rendition of
xxxx therefor, together with interest until repaid as provided in Paragraph 35.
Tenant will have the option to "bond around" any mechanics's lien or liens,
provided such bonding around is in accordance with, and permitted by, deeds of
trust or mortgages affecting the Building.
26. Waiver of Subrogation. Anything in this lease to the contrary
notwithstanding, the parties hereto hereby waive any and all rights of
recovery, claim action or cause of action, against each other, their agents,
officers, and employees, for any loss or damage that may occur to the Premises
hereby demised, or any improvements thereof, or such Project of which the
Premises are a part, any improvements thereto, or related facilities, by reason
of fire, the elements, or any other cause which could be insured against under
the terms of standard fire and extended coverage insurance policies, regardless
of cause or origin, including negligence of the parties hereto, their agents,
officers and employees.
No insurer of one party hereunder shall hold any right of subrogation
against the other party. If the respective insurer of Landlord and Tenant does
not permit the foregoing waiver without an appropriate endorsement to such
party's insurance policy, then Landlord and Tenant each covenant and agree to
notify its insurer of the waiver set forth herein and to secure from such
insurer an appropriate endorsement to its respective insurance policy with
respect to such waiver.
27. Notices. Each provision of the Agreement, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
5
(a) All rent and other payment required to be made by Tenant to Landlord
hereunder shall be payable to Landlord in Dallas County, Texas, at the address
herein below set forth, or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith:
(b) Any notice or document required to be delivered hereunder shall be
deemed to be delivered if actually received and whether or not received when
deposited in the United States mail, postage prepaid, certified or registered
mail (with or without return receipt requested) addressed to the parties hereto
at the respective addresses set out opposite their names below, or at such
other address as they have heretofore specified by written notice delivered in
accordance herewith:
LANDLORD: Xxxxxxx Xxxxxxxx Joint Venture
c/o Thompson Realty Corporation
0000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
TENANT: Telecom Technologies, Inc.
0000 X. Xxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
28. Force Majeure. Whenever a period of time is herein prescribed for
action to be taken by either party, specifically excluding Tenant's obligation
to pay rental and other monetary obligations of Tenant hereunder, such party
shall not be liable or responsible for, and there shall be excluded from the
computation of any 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 causes of any kind whatsoever which are beyond the
control of such party.
29. Separability. If any clause or provision of this lease is illegal,
invalid or unenforceable under present or future laws effective during the term
of this lease, then and in that event, it is the intention of the parties
hereto that the remainder of this lease shall not be affected thereby, and it
is also the intention of the parties to this that in lieu of each clause or
provision of this lease that is illegal, invalid, or unenforceable, there be
added as part of this lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
30. Entire Agreement: Amendments: Binding Effect. This lease contains the
entire agreement between the parties and 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 grow up between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms, provisions, covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided.
31. Quiet Enjoyment. Provided Tenant has performed all of the terms,
covenants, agreements and conditions of this lease, including the payment of
rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the term hereof, without hindrance from landlord,
subject to the terms and conditions of this lease.
32. Rules and Regulations. Tenant and Tenant's agents, employees, and
invitees will comply fully with all requirements of the rules and regulations
of the Project and related facilities which are attached hereto as Exhibit
"D", and made a part hereof as though fully set out herein. Landlord shall at
all times have the right to change such rules and regulations or to promulgate
other rules and regulations in such reasonable manner as may be deemed
advisable for safety, care, or cleanliness of the Project, the Premises, or
related facilities, and for preservation of good order therein, all of which
rules and regulations, changes and amendments will be forwarded to Tenant in
writing and shall be carried out and observed by Tenant. Tenant shall further
be responsible for the compliance with such rules and regulations by the
employees, servants, agents, visitors and invitees of Tenant.
33. Broker's or Agent's Commission. Tenant represents and warrants that
there are no claims for brokerage commissions or finder's fees in connection
with the execution of this lease, except as listed below, and Tenant agrees to
indemnify and hold harmless Landlord against all liabilities and costs arising
from such claims, including without limitation attorneys' fees in connection
therewith. Broker for Tenant is Partners National Real Estate Group, Inc.
Broker for Landlord is Xxxxxxxx Realty Corporation.
34. Guaranty, Joint and Several Liability. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. If there be a guarantor of Tenant's obligations hereunder, the
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor and Landlord need not first proceed
against the Tenant hereunder before proceeding against such guarantor, nor
shall any such guarantor be released from its guaranty for any reason
whatsoever, including without limitation, in case of any amendments hereto,
waivers hereof or failure to give such guarantor any notices hereunder.
35. Interest. Any rent or other amount which becomes owing by Tenant to
Landlord under this lease (including unpaid service charges) shall bear
interest from the date of demand at the lesser of the highest lawful rate or
ten percent (10%) per annum.
36. Estoppel Certificate. Tenant will, at any time and from time to time,
upon not less than ten (10) days' prior request by Landlord, execute,
acknowledge and deliver to Landlord a statement in writing executed by Tenant
certifying that this lease is unmodified and in full effect (or, if there have
been modifications, that this lease is in full effect as modified, and selling
forth such modifications) and the dates to which the rent has been paid, and
either stating that to the knowledge of the signer of such certificate no
default exists hereunder or specifying each such default of which the signer
may have knowledge; it being intended that any such statement by Tenant may be
relied upon by any prospective purchaser or mortgagee of the Project. I.
37. Landlord's Liability. The liability of Landlord to Tenant for any
default by Landlord under the terms of this lease shall be limited to the
proceeds of sale on execution of the interest of Landlord in the Building and
Landlord shall not be personally liable for any deficiency. This clause shall
not be deemed to limit or deny any remedies which Tenant may have in the event
of default by Landlord hereunder, which do not involve the personal liability
of Landlord.
38. Captions. The captions contained in this lease are for convenience of
reference only, and in no way limit or enlarge the terms and conditions of this
lease.
39. Gender. Words of any gender used in this lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires.
40. Place of Performance. Tenant shall perform all covenants, conditions
and agreements contained herein, including but not limited to payment of rent,
in Dallas County, Texas. Any suit arising from or relating to this agreement
shall be brought in Dallas County, Texas.
41. I Relocation. Upon request by Landlord during the term of this lease,
but only at a point in time that Tenant falls to occupy seventy-five percent
(75%) of an entire floor in the Building, Tenant agrees to relocate to other
space in the Building designated by Landlord, provided such other space is as
large or larger than the Premises (the "Substitution Space"). If Landlord
desires to exercise such right to relocate Tenant, it shall give Tenant at
least sixty (60) days prior written notice thereof specifying the effective
date of such substitution and the location of the Substitution Space (including
any new expansion areas or right of first refusal areas if this lease contains
any options for same). As of such effective date; (i) the description of the
Premises set forth in this lease shall, without further act on the part of
Landlord or Tenant, be deemed amended so that the Substitution Space shall, for
all intents and purposes, be deemed to be the Premises hereunder and all of the
terms, covenants, conditions, provisions and agreements of this lease shall
continue in full force and effect and shall apply to the Substitution Space;
and (ii) Tenant shall move from the existing Premises into the Substitution
Space and shall vacate and surrender possession to Landlord of the existing
Premises. Tenant shall have the option either to accept possession of the
Substitution Space in its "as is" condition as of such effective date or to
require Landlord to after the Substitution Space in the same manner as the
existing Premises were altered pursuant to the Work Letter Agreement attached
hereto as Exhibit "C". Such
6
option shall be exercised by notice from Tenant to Landlord within ten (10)
days after the aforesaid notice from Landlord to Tenant of such proposed
relocation. If Tenant fails to deliver to Landlord within such ten (10) day
period notice of its election, or if Tenant is in default under any of the
terms, covenants, conditions, provisions or agreements of this lease as of the
date of such notice by Landlord, Tenant shall be deemed to have elected to
accept possession of the Substitution Space in its "as is" condition. If
Landlord exercises this relocation right, Landlord shall, after receipt of paid
invoices, promptly reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for (i) printing a reasonable supply of new business stationery, and
(ii) moving Tenant's furniture, equipment, supplies and telephones from the
existing Premises to the Substitution Space.
42. Moving Allowance. Upon Tenant's occupancy of the First Portion of the
Premises and if no uncured event of default exists under this lease, Landlord
agrees to pay Tenant a moving allowance equal to $8,250.00. Upon Tenant's
occupancy of the Second Portion of the Premises and if no uncured event of
default exists under this lease, Landlord agrees to pay Tenant a moving
allowance equal to $6,864.75.
43. Building Signage. After Tenant occupies the First Portion of the
Premises, Tenant may, after having obtained any necessary governmental
approvals and the written approval of Landlord, at Tenant's sole cost and
expense, install a sign on the Building. Landlord will have the right to
approve all aspects of such sign, in its reasonable discretion, including
location, manner of installation, size, color, lettering, lighting, and
content. Tenant agrees to remove such sign immediately at its sole cost and
expense if Tenant is no longer occupying an entire floor in the Building, or if
for any reason the lease is terminated or expires. In connection with the
installation or removal of such sign, Tenant will repair any and all damage to
the Building at Tenant's sole cost and expense.
44. Intentionally deleted.
45. Intentionally deleted.
46. Lender Approval. This lease is subject to the approval of existing
lienholders on the Building. If Landlord is unable to obtain any and all
necessary lender approvals on or before April 15, 1997, this lease shall
thereafter be null and void, any prepaid rent shall be returned to Tenant, and
neither party shall have any liability to the other by reason of such
cancellation.
47. Special Provisions. Exhibits A, B, C, D, E, Rider No. 101 and Rider
No. 201.
LANDLORD: Xxxxxxx Xxxxxxxx Joint Venture,
a Texas general partnership
By: Jaytex Properties, Ltd.,
a Texas limited partnership
By: JRS Management, Inc.,
a Texas corporation
By: /s/ W. T. Field
---------------------------
W. T. Field, President
TENANT: Telecom Technologies, Inc.
By: /s/ XXXXXXXX XXXXXX
---------------------------------
Printed Name: XXXXXXXX XXXXXX
----------------------
Title: PRESIDENT
-----------------------------
7
EXHIBIT "A"
SITE PLAN
TELECOM TECHNOLOGIES, INC.
PREMISES: 20,153 SQUARE FEET OF RENTABLE AREA
[Diagram of 3rd Level Floorplan]
EXHIBIT "A"
SITE PLAN
TELECOM TECHNOLOGIES, INC.
RIGHT OF FIRST REFUSAL SPACE
GROWTH AREA: 18,880 SQUARE FEET OF RENTABLE AREA
[Diagram of 2nd Level Floorplan]
EXHIBIT "B"
RENTAL ESCALATION - OPERATING EXPENSES
In addition to the basic rental payable by Tenant in accordance with
Paragraph 1(e) of this lease, Tenant shall pay additional rent determined as
follows:
(a) For the purposes of this provision, the term "Basic Cost" shall
mean any and all costs, expenses and disbursements of every kind and character
(subject to the limitations set forth below) (specifically excluding leasing
commissions, attorney's fees, costs and disbursements and other expenses
incurred in connection with leasing, renovating or improving space for tenants,
and costs incurred in lease disputes) which Landlord shall incur, pay or become
obligated to pay in connection with the ownership of any estate or interest in,
operation, maintenance, repair, replacement, and security of the Building,
determined in accordance with generally accepted accounting principles
consistently applied, including but not limited to the following:
(i) Wages and salaries (including management fees) of all employees
engaged in the operation, repair, replacement, maintenance, and security of the
Building, including taxes, insurance, and benefits relating thereto.
(ii) All supplies and materials used in the operation, maintenance,
repair, replacement, and security of the Building.
(iii) Annual cost of all capital improvements made to the Building
which although capital in nature can reasonably be expected to reduce the
normal operating costs of the Building, as well as all capital improvements
made in order to comply with any statutes, rules, regulations or directives
hereafter promulgated by a governmental authority relating to energy,
conservation, public safety or security, as amortized over the useful life of
such improvements by Landlord for federal income tax purposes.
(iv) Cost of all utilities.
(v) Cost of all maintenance and service agreements on equipment,
including alarm service, window cleaning and elevator maintenance.
(vi) Cost of casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection therewith.
(vii) All taxes, assessments and governmental charges, whether
federal, state, county or municipal, and whether they be by taxing districts or
authorities presently taxing or by other, subsequently created or otherwise,
and any other taxes, assessments or other governmental charges attributable to
the Building or its operation, excluding, however, federal and state taxes on
income.
(viii) Cost of repairs, replacements, and general maintenance of the
Building.
(ix) Cost of service or maintenance contract with independent
contractors for the operation, maintenance, repair, replacement, or security of
the Building.
If Landlord incurs any such costs and expenses that are applicable to both The
Atrium on Xxxxxxx Phase I and Phase II, Landlord will apportion such costs and
expenses between Phase I and Phase II as the Landlord, in the exercise of its
reasonable judgment, deems appropriate.
There are specifically excluded from the definition of the term "Basic Cost"
expenses for capital improvements made to the Building, other than capital
improvements described in subparagraph (iii) above and except for items which,
though capital for accounting purposes, are properly considered maintenance and
repair items, such as painting of common areas, replacement of carpet in
elevator lobbies, and the like; expenses for repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties,
and alterations attributable solely to tenants of the Building other than
Tenant; interest, amortization or other payments on loans to Landlord, whether
secured or unsecured; depreciation of the Building; legal expenses; and income,
excess profits or franchise taxes or other such taxes imposed on or measured by
the income of the Landlord from the operation of the Building.
(b) Tenant shall during the term of this lease pay as additional rent an
amount (the "Excess") equal to (i) the total amount of Basic Costs for a
calendar year, divided by the rentable area of the Building, and multiplied by
the rentable area of the Premises minus (ii) the product of the "Basic Costs
Stop" (herein after defined) multiplied by the rentable area of the Premises.
Basic Cost Stop is herein defined to be the quotient of the Basic Cost
applicable to the Premises per calendar year 1998 divided by the number of
square feet of rentable area in the Premises. Landlord may collect such
additional rent in arrears on a calendar year basis. Beginning with January 1,
1999, and on each January 1 thereafter, Landlord shall also have the option to
make a good faith estimate of the Excess for each upcoming calendar year and
upon thirty (30) days' written notice to Tenant may require the monthly payment
of such additional rent equal to 1/12 of such estimate. Any amounts paid based
on such an estimate shall be subject to adjustment pursuant to subparagraph (c)
when actual Basic Cost is available for each calendar year. For the purposes of
calculating the additional rental payable hereunder with respect to any
fractional calendar year during the term of this lease, Landlord may either (i)
estimate Basic Cost for the portion of the lease term during such partial year,
or (ii) estimate Basic Cost for the entire calendar year and reduce the same to
an amount bearing the same proportion to the full amount of estimated Basic
Cost for such year as the number of days in such fractional calendar year bears
to the total number of days in such full calendar year.
(c) By April 1 of each calendar year during Tenant's occupancy, or as
soon thereafter as practical, Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Cost for the previous year adjusted as provided in
subparagraph (d). If for any calendar year additional rent collected for the
prior year as a result of Landlord's estimate of Basic Cost is in excess of the
additional rent actually due during such prior year, then Landlord shall refund
to Tenant any overpayment. Likewise, Tenant shall pay to Landlord, on demand,
any underpayment with respect to the prior year.
(d) With respect to any calendar year or partial calendar year during the
term of this lease in which the Building is not occupied to the extent of
ninety-five percent (95%) of the rentable area thereof, the Basic Cost for such
period shall, for the purposes hereof, be increased to the amount which would
have been incurred had the Building been occupied to the extent of ninety-five
percent (95%) of the rentable area thereof.
(e) If any amounts which become due by reason hereof are not paid by the
5th day following the day on which they are due, a service charge of 2% of such
rental escalation amount shall become due and payable in addition to such
rental escalation. Such service charge is for the purpose of reimbursing
Landlord for the extra costs and expenses incurred in connection with the
handling and processing of late rental escalation payments.
EXHIBIT "C"
WORK LETTER AGREEMENT
Telecom Technologies, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Re: Suite 3000, 1701 X. Xxxxxxx, The Atrium on Xxxxxxx Phase II, Richardson,
Texas, Specifically divided into two portions, the First Portion and the
Second Portion
Ladies and Gentlemen:
You (herein after referred to as "Tenant") and we (herein after referred
to as "Landlord") are executing, simultaneously with this "Work Letter
Agreement" (herein so called), a written lease (the "Lease") covering the
space referred to above (hereinafter called the "Premises").
To induce Tenant to enter into such Lease (which is hereby incorporated by
reference) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant mutually agree as follows:
1. Final Plans. Landlord agrees to provide, by Landlord's designated
space planner, architect and/or engineer, the following Building Standard
(hereinafter defined) space plans and architectural and mechanical drawings and
specifications (hereinafter collectively referred to as the "Final Plans"),
to be drawn for the First Portion and the Second Portion of the Premises on
Tenant's behalf:
(a) Complete Building Standard "Space Plans" (herein so called)
for the layout of the Premises;
(b) Complete, finished and detailed 1/8 inch scale architectural
drawings and specifications for Tenant's partition layout, reflected ceiling,
telephone and electrical outlets, and finish schedule for the work to be done
by Landlord under Paragraph 3 hereof (the "Construction Plans"); and
(c) Complete Building Standard mechanical plans and specifications
where necessary for installation of normal air conditioning system and duct
work and heating and electrical facilities for the work to be done by Landlord
under Paragraph 3 hereof (the "MP & E Plans").
Tenant shall pay all costs of preparing the Final Plans, subject, however,
to the reimbursement provisions of Paragraph 7 below.
2. Preparation of Final Plans: Changes to Final Plans. Tenant covenants
and agrees to furnish to Landlord all information necessary for the preparation
of each of the Space Plans, the Construction Plans and the M P & E Plans on or
before January 31, 1997. Landlord will cause the Space Plans, the Construction
Plans, and the M P & E Plans to be prepared from such information and will
submit such plans to Tenant. Within ten (10) days after receipt thereof, Tenant
shall approve the Space Plans, Construction Plans and M P & E Plans or indicate
what changes, if any, that it desires to make. Such proposed changes, if any,
shall be submitted to Landlord in writing for Landlord's written approval. If
within ten (10) days after receipt thereof, Tenant fails to approve any of the
Space Plans, Construction Plans and M P & E Plans or if Tenant fails to propose
in writing any changes to be made to such Space Plans, Construction Plans and M
P & E Plans, then Tenant shall be deemed to have approved each of same. Any
redrawing of all or any of the Final Plans occasioned by Tenant after Tenant's
approval (or deemed approval) thereof as well as any changes requested by
Tenant in connection with its initial review of the Final Plans which are
agreed to by Landlord shall be at Tenant's sole cost and expense and no portion
of the Credit (as defined in Paragraph 7 below) shall be applicable to such
costs.
3. Construction of Improvements. Subject to each of Paragraph 2 and
Paragraph 28 of the Lease, provided that Tenant has not committed an event of
default pursuant to Paragraph 20 of the Lease, Landlord agrees to cause the
improvements to the Premises to be constructed pursuant to and in substantial
accordance with the Final Plans. The construction of such improvements in the
Premises shall be at Tenant's sole cost and expense, subject, however, to the
reimbursement provisions of Paragraph 7 below. Tenant acknowledges that
commencement of construction of the work in the First Portion of the Premises
will take place before commencement of construction of the work in the Second
Portion of the Premises and the timing of such construction will be structured
to achieve delivery of space in accordance with Paragraph 2 of the Lease.
Tenant acknowledges that all work done in the Premises pursuant to this Work
Letter Agreement shall be performed by a contractor (and such subcontractors,
suppliers and laborers) designated by Landlord and approved by Tenant.
4. Condition of Premises. Landlord will, at Landlord's sole cost and
expense, construct all improvements to the Premises necessary to characterize
the Premises as being in Shell Condition (hereinafter defined). As used herein
the term "Shell Condition" means:
(a) The sprinkler system and sprinkler heads have been installed.
(b) The main ducting for the HVAC system has been installed.
(c) Electric lines have been run to junction boxes in the Premises.
(d) Semi-finished ceiling.
(e) Smooth concrete floor slab.
5. Modifications to Shell Condition. To the extent that the Final Plans
call for any modifications (herein "Shell Modifications") to the Shell
Condition, the costs of such Shell Modifications shall be borne solely by
Tenant, subject, however, to the reimbursement provisions of Paragraph 7 below.
By way of example, and not by way of limitation, the following shall each be
examples of Shell Modifications:
(a) Any modifications to the existing sprinkler system, or the
moving of existing sprinkler heads, or the installation of additional sprinkler
heads.
(b) Any modifications to the existing HVAC system, the moving of the
existing duct work and/or diffusers, or the installation of additional duct
work and/or diffusers.
(c) Any rewiring of existing junction boxes, relocation of existing
junction boxes, or installation of additional junction boxes.
6. Building Standard. Tenant shall be required to use, and the Final
Plans shall specify Building Standard (a) light fixtures, (b) doors, (c)
ceiling tiles, and (d) hardware throughout the Premises and the costs of
purchasing, transporting and installing each of the foregoing Building Standard
items shall be borne solely by Tenant, subject, however, to the reimbursement
provisions of Paragraph 7 below. Whenever the term "Building Standard" is
used in this Work Letter Agreement, it shall mean the exclusive type, brand,
quality, and/or quantity of materials Landlord designates from time to time to
be the quality or quantity to be used in the Building.
7. Payment of Costs: Credit. Tenant agrees to pay Landlord, promptly
upon being billed therefor, the actual cost (labor, materials, architectural,
space planning, engineering and other costs) of all work performed pursuant to
this Work Letter Agreement plus a fee of four percent (4%) of such cost for
Landlord's review, supervision and management of such work; Landlord shall have
the right to submit interim statements of cost incurred which shall be promptly
paid by Tenant to Landlord. Tenant agrees that all payments due to Landlord
pursuant hereto shall constitute payments of additional rent and that in the
event of default of payment thereof, Landlord shall (in addition to all other
remedies) have the same rights as in the event of default of payment of rent
under the Lease. Notwithstanding the above, so long as no event of default, as
defined in Paragraph 20 of the Lease, shall have occurred, Landlord shall
credit Tenant in an amount not to exceed $18.50 per square foot of Rentable
Area in the Premises (the "Credit"), such Credit to be applied only against
sums due from Tenant to Landlord pursuant to this Work Letter Agreement
(exclusive of those sums which, pursuant to Paragraph 2 above are not eligible
to be offset by the Credit).
8. Delays. It is agreed that, notwithstanding the provisions of
Paragraph 2 of the Lease, waiving Tenant's obligation for the payment of rental
under Paragraph 1(f) of the Lease until the date on which Landlord can deliver
possession of the Premises, if Landlord shall be delayed in substantially
completing the work to be performed by Landlord pursuant to this Work Letter
Agreement as a result of:
(a) Tenant's failure to timely furnish information or specifications
in accordance with Paragraph 2 above; or
(b) Tenant's request for materials, finishes or installations other
than Landlord's Building Standard; or
(c) Tenant's changes in or modifications to any plans and
specifications or any of the Final Plans; or
(d) The performance of any work in the Premises by a person, firm or
corporation employed by Tenant; (all such persons, firms or corporations being
subject to the approval of Landlord);
Tenant's obligation for payment of rental under the Lease (as affected by such
waiver) shall be accelerated by the number of days of such delay.
9. Entry by Tenant's Agents. Landlord will permit Tenant and its agents
to enter the Premises prior to the date specified for the commencement of
Tenant's occupancy under the Lease, in order that Tenant may perform through
its own contractors (to be first approved by Landlord) such other work and
decorations as Landlord may approve at the same time that Landlord's
contractors are working in the Premises. The foregoing license to enter prior
to the commencement of the lease term, however, is conditioned upon Tenant's
workmen and mechanics working in harmony and not interfering with the labor
employed by Landlord, Landlord's mechanics or contractors or by any other
tenant or their contractors. Such license is further conditioned upon workers'
compensation and public liability insurance for bodily injury and property
damage, all in amounts and with companies and on forms satisfactory to
Landlord, being provided and at all times maintained by Tenant's contractors
engaged in the performance of the work, and certificates of such insurance
being furnished to Landlord prior to proceeding with the work. If at any time
such entry shall cause disharmony or interference therewith, this license may
be withdrawn by Landlord upon forty-eight (48) hours written notice to Tenant.
Such entry conditions shall be deemed to be under all of the terms, covenants,
provisions and conditions of the Lease except as to the covenant to pay rent.
Landlord shall not be liable in any way for any injury, loss or damage which
may occur to any of Tenant's decorations or installations so made prior to
commencement of the lease term, the same being solely at Tenant's risk, and
Tenant shall hold Landlord harmless from any claim, demand or action arising
from activities of Tenant's contractors, workmen or mechanics.
If the foregoing correctly sets forth our understanding, kindly
acknowledge your approval in the space provided below whereupon this work
letter shall become a binding agreement between us.
Yours very truly,
XXXXXXX XXXXXXXX JOINT VENTURE
a Texas general partnership
By: Jaytex Properties, Ltd.,
a Texas limited partnership
By: JRS Management, Inc.,
a Texas corporation
By: /s/ W. T. Field
------------------------------
W. T. Field, President
AGREED TO AND ACCEPTED
as of the 4th day of April, 1997.
TELECOM TECHNOLOGIES, INC.,
a Texas corporation
By: /s/ XXXXXXXX XXXXXX
-----------------------
Name: XXXXXXXX XXXXXX
--------------------
Title: PRESIDENT
-------------------
EXHIBIT "D"
BUILDING RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant two keys to Tenant door at no charge and
two keys to entry doors requiring a $10.00 refundable deposit. Additional keys
will be furnished at a nominal charge.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the Premises for
Tenant, to Landlord for Landlord's approval and supervision before performance
of any contractual service. This provision shall apply to all work performed in
the Building including installation of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, celling, equipment or any other
physical portion of the Building.
3. No Tenant shall at any time occupy any part of the Project as sleeping or
lodging quarters.
4. Tenant shall not place, install or operate on Premises or in any part of
the Project, any engine, stove or machinery or conduct mechanical operations or
xxxx thereon or therein, or place or use in or about Premises any explosives,
gasoline, kerosene, oil, acids, caustics, or any other inflammable, explosive,
or hazardous material without prior written consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Tenant's area or public rooms regardless of
whether such loss occurs when area is locked against entry or not.
6. No birds, fowl, dogs, animals or pets of any kind shall be brought into or
kept in or about the Project.
7. Landlord will not permit entrance to Tenant's offices by use of pass key
controlled by Landlord, to any person at any time without permission by Tenant,
except employees, contractors, or service directly supervised or employed by
Landlord.
8. None of the entries, passages, doors, elevators, hallways or stairways
shall be blocked or obstructed, or any rubbish, litter, trash, or material of
any nature placed, emptied or thrown into these areas, or shall such areas be
used at any time except for ingress or egress by Tenant, Tenant's agents,
employees or invitees.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall waste
water by interfering with the faucets or otherwise.
10. No person shall disturb the occupants of the Building by the use of any
musical instruments, the making of raucous noises, or other unreasonable use.
11. Nothing shall be thrown out of the windows of the Building, or down the
stairways or other passages.
12. Tenant shall not store any materials, equipment, products, etc., outside
the Premises as shown on the plats attached hereto.
13. Tenant shall not erect any sign or other insignia upon or in any part of
the Project or other portion of the Premises without the prior written consent
of the Landlord.
14. Tenant shall comply with all local and federal codes and ordinances. In
the event of fire or code problems, Tenant shall comply with such requirements.
15. Tenant and its agents, employees and invitees shall observe and comply
with the driving and parking signs and markers on the Project grounds and
surrounding areas.
16. Corridor and passage doors when not in use shall be kept closed.
17. Movement in or out of the Building of furniture, office equipment, or any
other bulky or heavy materials shall be controlled by the Landlord. Landlord
will determine the method of routing of such items so as to ensure the safety
of all concerned.
18. Directories will be placed by the Landlord, at Landlord's expense, in the
building and no other directories shall be permitted.
19. No signs, draperies, shutters, window coverings, decorations, hangings or
obstructions of any type shall be placed on any skylights or on any doors or
windows which are visible from outside the leased premises without the prior
written consent of the Landlord.
20. All locks for doors in each tenant's leased area shall be building
standard and no tenant shall place any additional lock or locks on any door in
its leased area without Building Management's written consent.
21. Building Management shall have the authority to prescribe the weight and
manner that safes and other heavy equipment are positioned.
22. Tenant space that is visible from public areas must be kept neat and clean.
23. Standard climate control hours are 7 a.m. to 6 p.m., Monday through
Friday, and 8 a.m. to 12 noon on Saturday. Landlord shall adjust thermostats to
maintain building standard temperature. Tenant shall not attempt to adjust
temperature control thermostats. Window blinds should remain down and lifted at
a 00-xxxxxx xxxxx xxxxxx xxx xxxxxx to maintain temperatures and conserve
energy.
24. Tenant will comply with all requirements necessary for the security of the
Premises both during business hours and after hours and on weekends.
25. Tenants are to lock all office doors leading to corridors and to turn out
all lights at the close of their working day.
26. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 6:30 p.m. The windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles, cabinets,
bookcases, map cases, etc., necessary to prevent unreasonable hardship to
Landlord in discharging its obligation regarding cleaning service.
27. Employees of Landlord shall not receive or carry messages for or to any
tenant or other person nor contact with or render free or paid services to any
tenant or tenant's agent, employees or invitees.
28. Landlord desires to maintain standards of environment, comfort and
convenience for its tenants. It will be appreciated if any undesirable
conditions or lack of courtesy or attention by its employees are reported
directly to Landlord.
29. All tenant modifications resulting from remodeling in or to the leased
Premises must conform to the City of Xxxxxxxxxx Building and Fire Codes and
approved by Property Management in writing prior to performance of the work.
30. The Landlord reserves the right to rescind any of these rules and make
such other and further rules and regulations as in the judgment of Landlord
shall from time to time be needed for the safety, protection, care and
cleanliness of the Project, the operation thereof, the preservation of good
order therein, and the protection and comfort of its tenants, their agents,
employees and invitees, including but not limited to rules and regulations
regarding hours of access to the Project, which rules when made and notice
thereof given to a tenant shall be binding upon him in like manner as if
originally prescribed. In the event of any conflict, inconsistency, or other
difference between the terms and provisions of these rules and regulations and
any lease now or hereafter in effect between Landlord and any tenant in the
Building, Landlord shall have the right to rely on the term or provision in
either such lease or such Rules and Regulations which is most restrictive on
such tenant and most favorable to Landlord.
EXHIBIT "E"
DESCRIPTION OF LAND
STATE OF TEXAS
COUNTY OF DALLAS
CITY OF XXXXXXXXXX
WHEREAS, Xxxxxxx Xxxxxxxx Joint Venture, a Texas Joint Venture, is the owner of
a tract of land situated in the XXXXXXX XXXXXX SURVEY, Abstract No. 573 in
Dallas County, Texas and all of XXXXXXX ATRIUM ADDITION, on addition to the
City of Xxxxxxxxxx as recorded in Volume 85032, Page 3368 of the Deed Records
of Dallas County, Texas (DRDCT) and being more particularly described as
follows:
COMMENCING at the Intersection of the southerly right-of-way MUNICIPAL DRIVE
(80 foot right-of-way) and the westerly right-of-way of NORTH XXXXXXX BOULEVARD
(100 foot right-of-way);
THENCE departing the southerly right-of-way of said MUNICIPAL DRIVE and along
the westerly right-of-way of XXXXX XXXXXXX XXXXXXXXX Xxxxx 00'00'00'' Xxxx, a
distance of 450.00 feet to a 1/2 inch iron rod found for the POINT OF
BEGINNING, said point being the most southeasterly corner of Xxx 0, Xxxxx 0,
XXXXXXX XXXXX recorded in Volume 83215, Page 2473 (DRDCT);
THENCE continuing along the westerly right-of-way of said XXXXX XXXXXXX
XXXXXXXXX Xxxxx 00'00'00'' Xxxx, a distance of 387.48 feet to a 1/2 Inch Iron
rod set for corner, said point being the most northeasterly corner of the
UNIVERSITY PLACE TWO recorded in Volume 84114, Page 2132 (DRDCT);
THENCE departing the westerly right-of-way of said NORTH XXXXXXX BOULEVARD and
along the northerly line of said UNIVERSITY PLACE TWO as follows:
North 89'53'53'' West, a distance of 503.31 feet to a 1/2 inch iron rod
found for corner;
South 51'59'00'' West, a distance of 17.53 feet to a 1/2 inch Iron rod set
for corner. in the northeasterly right-of-way of the G.C. & S.F. RAILROAD
(150 foot right-of-way);
THENCE departing the northerly line of said UNIVERSITY PLACE TWO and along the
northeasterly right-of-way of said RAILROAD North 38'01'00'' West, a distance
of 221.82 feet to a 1/2 inch Iron rod. set for corner, said point being the
most southwesterly corner of the RICHARDSON MEDICAL PARK recorded in Volume
79020, Page 5 (DRDCT);
THENCE departing the northeasterly right-of-way of said RAILROAD and along the
southerly line of said XXXXXXXXXX MEDICAL PARK North 51'54'32'' East, a
distance of 408.39 feet to a 1/2 inch Iron rod found for corner, said point
being found in the westerly line of said Xxx 0, Xxxxx 0, XXXXXXX XXXXX;
THENCE departing the southerly line of said XXXXXXXXXX MEDICAL PARK and along
the westerly line of said Xxx 0, Xxxxx 0 Xxxxx 00'00'00'' Xxxx, a distance of
32.70 feet to a 1/2 inch Iron rod set for corner, said point being the most
southwesterly corner of said Xxx 0, Xxxxx 0;
THENCE departing the westerly line of said Xxx 0, Xxxxx 0 and along the
southerly line of said Xxx 0, Xxxxx 0 Xxxxx 00'00'00'' Xxxx, a distance of
317.43 feet to the POINT OF BEGINNING;
CONTAINING within these mates and bounds 4.866 acres or 211,952 square feet of
land, more or less.
RIDER NO. 101
-------------
OPTION TO EXTEND
----------------
Tenant at its option may extend the term of this lease for up to one (1)
extension term(s) of five (5) years (each) by serving written notice thereof
upon Landlord at least six (6) months before the expiration of the initial
lease term (or the prior extension term), provided that at the time of such
notice and at the commencement of such extended term, no event of default, as
defined in Paragraph 20 of this lease, shall have occurred. Upon the service of
such notice and subject to the conditions set forth in the preceding sentence,
this lease shall be extended without the necessity of the execution of any
further Instrument or document. Such extended term shall commence upon the
expiration date of the initial lease term (or the prior extension term), expire
upon the annual anniversary of such date five (5) years thereafter, and be upon
the same terms, covenants, and conditions as provided in this lease for the
initial term, except that the basic rental payable during each extended term
shall be at the prevailing rate (the "Market Rate") for comparable space in the
Building and office/buildings comparable to the Building located in Xxxxxxxxxx,
Xxxxxx County, Texas, taking into consideration factors including, but not
limited to, the quality of construction and finish of the Building, the ease of
accessibility to the Building and the visibility of the Building from major
thoroughfares, and the availability of free parking associated with the
Building, at the commencement of each such extended term, which new basic
rental shall be adjusted as provided in and under this lease. Payment of all
additional rent and other charges required to be made by Tenant as provided in
this lease for the initial term shall continue to be made during each such
extended term. Any termination of this lease during the initial term (or the
prior extension term) shall terminate all rights of extension hereunder. Any
assignment or subletting by Tenant pursuant to Paragraph 11 of this lease,
except an assignment or subletting to a Fortune 1000 company specifically
described under Paragraph 11, shall terminate the option(s) of Tenant contained
herein, except for a permitted transfer described in Paragraph 11.
Notwithstanding the foregoing, in no event shall the monthly rental installment
for any extension term be less than the monthly rental installment during the
last year of the initial term (or the prior extension term).
RIDER NO. 201
RIGHT OF FIRST REFUSAL
Provided this lease is then in full force and effect and no event of default,
as defined in Paragraph 20 of this lease, shall have occurred, Tenant shall
have the right of first refusal as hereinafter described to lease all (or any
applicable part) of the space (the "Right of First Refusal Space") containing
approximately 18,880 square feet of rentable area which is labelled on Exhibit
"A" to this lease as the "Growth Area"; subject to the rights of the
existing tenant, Xxxxxxxx Realty Investment Corporation, on 9,847 square feet
of rentable area comprising the northern portion of the Growth Area, at such
time as Landlord engages in negotiations with a prospective tenant, exercisable
at the following times and upon the following conditions:
1. If Landlord enters into negotiations with a prospective tenant to
lease all or any part of the Right of First Refusal Space, Landlord
shall notify Tenant of such fact and shall include in such notice the
rent, term, and other terms (including finish out) at which Landlord
is prepared to offer such Right of First Refusal Space to such
prospective tenant. Tenant shall have a period of five (5) days from
the date of delivery of the notice to notify Landlord whether Tenant
elects to exercise the right granted hereby to lease the entire
Right of First Refusal Space. If Tenant fails to give any notice to
Landlord within the required five (5) day period, Tenant shall be
deemed to have waived its right to lease the Right of First Refusal
Space.
2. If Tenant so waives its right to lease the Right of First Refusal
Space (either by giving written notice thereof or by failing to give
any notice), Landlord shall have the right thereafter to lease all or
the applicable portion of the Right of First Refusal Space to the
prospective tenant and upon the execution of such lease between
Landlord and the prospective Tenant this Right of First Refusal shall
thereafter be null, void and of no further force or effect.
3. If Landlord does not enter into a lease with such prospective tenant
covering all or the applicable portion of the Right of First Refusal
Space, Landlord shall not thereafter engage in other lease
negotiations with respect to the Right of First Refusal Space without
first complying with the provisions of this Rider No. 201.
4. Upon the exercise by Tenant of its right of first refusal as provided
in this Rider No. 201, Landlord and Tenant shall, within ten (10)
days after Tenant delivers to Landlord notice of its election, enter
into a lease covering the Right of First Refusal Space for the rent,
for the term, and containing such other terms and conditions as
Landlord notified Tenant pursuant to paragraph 1 above.
5. Any assignment or subletting by Tenant pursuant to Paragraph 11 of
this lease, except for an assignment of subletting specifically
permitted under Paragraph 11 without Landlord's consent, shall
terminate the right of first refusal of Tenant contained herein.
Notwithstanding anything to the contrary contained in this Rider No.
201, upon the second anniversary of the Commencement Date of this
lease, the right of first refusal of Tenant contained herein shall
terminate and be of no further force or effect.
[Diagram of Preliminary Signage]
[Diagram of Sign]
[Blueprint of East Elevation with signage detail]
