EXHIBIT 10.2
* * * * * * * * * * * * * * * * * * * *
Lease
RIATA CORPORATE PARK
* * * * * * * * * * * * * * * * * * * *
Between
NETSOLVE, INCORPORATED
(Tenant)
and
CARRAMERICA REALTY, L.P.
T/A RIATA CORPORATE PARK
(Landlord)
TABLE OF CONTENTS
Page
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1. LEASE AGREEMENT......................................................... 1
A. Lease of Premises................................................ 1
B. Determination of Building Site................................... 1
C. Determination of Rentable Square Feet............................ 1
D. Definitions...................................................... 2
(1) Usable Area............................................... 2
(2) General Common Areas...................................... 2
(3) Floor Common Areas........................................ 2
2. RENT.................................................................... 2
A. Types of Rent.................................................... 2
(1) Base Rent................................................. 3
(2) Operating Cost Share Rent................................. 3
(3) Additional Rent........................................... 3
(4) Rent...................................................... 3
B. Payment of Operating Cost Share Rent............................. 4
(1) Payment of Estimated Operating Cost Share Rent............ 4
(2) Correction of Operating Cost Share Rent................... 4
(3) Tenant's Audit Rights..................................... 4
C. Definitions...................................................... 5
(1) Included Operating Costs.................................. 5
(2) Excluded Operating Costs.................................. 6
(3) Taxes..................................................... 7
(4) Lease Year................................................ 7
(5) Fiscal Year............................................... 7
(6) Tenant's Proportionate Share.............................. 7
D. Computation of Base Rent and Rent Adjustments.................... 8
(1) Prorations................................................ 8
(2) Default Interest.......................................... 8
(3) Rent Adjustments.......................................... 8
(4) Miscellaneous............................................. 8
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND
SURRENDER OF PREMISES................................................... 8
A. Condition of Premises............................................ 8
B. Tenant's Possession.............................................. 8
C. Maintenance...................................................... 9
4. PROJECT SERVICES........................................................ 9
A. Heating and Air Conditioning...................................... 9
B. Elevators......................................................... 9
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C. Electricity....................................................... 9
D. Water.............................................................10
E. Janitorial Service................................................10
F. Parking...........................................................10
G. Building Security.................................................11
H. Interruption of Services..........................................11
5. ALTERATIONS AND REPAIRS.................................................11
A. Landlord's Consent and Conditions.................................11
B. Damage to Systems.................................................12
C. No Liens..........................................................12
D. Ownership of Improvements.........................................13
E. Removal at Termination............................................13
6. USE OF PREMISES.........................................................13
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES............................14
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE............................14
A. Waiver of Claims..................................................14
B. Indemnification...................................................14
C. Tenant's Insurance................................................15
D. Insurance Certificates............................................16
E. Landlord's Insurance..............................................16
9. FIRE AND OTHER CASUALTY.................................................16
A. Termination.......................................................16
B. Restoration.......................................................17
10. EMINENT DOMAIN..........................................................17
11. RIGHTS RESERVED TO LANDLORD.............................................17
A. Name..............................................................17
B. Signs.............................................................17
C. Window Treatments.................................................17
D. Keys..............................................................18
E. Access............................................................18
F. Preparation for Reoccupancy.......................................18
G. Heavy Articles....................................................18
H. Show Premises.....................................................18
I. Intentionally Deleted.............................................18
J. Use of Lockbox....................................................18
K. Repairs and Alterations...........................................18
L. Landlord's Agents.................................................19
M. Building Services.................................................19
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N. Other Actions.....................................................19
12. TENANT'S DEFAULT........................................................19
A. Rent Default......................................................19
B. Assignment/Sublease or Hazardous Substances Default...............19
C. Other Performance Default.........................................19
D. Credit Default....................................................19
E. Vacation or Abandonment Default...................................20
13. LANDLORD REMEDIES.......................................................20
A. Termination of Lease or Possession................................20
B. Lease Termination Damages.........................................20
C. Possession Termination Damages....................................20
D. Landlord's Remedies Cumulative....................................20
E. Waiver of Trial by Jury...........................................21
F. Litigation Costs..................................................21
14. SURRENDER...............................................................21
15. HOLDOVER................................................................21
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES............................21
A. Subordination.....................................................21
B. Termination of Ground Lease or Foreclosure of Mortgage............22
C. Security Deposit..................................................22
D. Notice and Right to Cure..........................................22
E. Definitions.......................................................22
17. ASSIGNMENT AND SUBLEASE.................................................23
A. In General........................................................23
B. Landlord's Consent................................................23
C. Procedure.........................................................23
D. Excess Payments...................................................24
E. Recapture.........................................................24
18. CONVEYANCE BY LANDLORD..................................................24
19. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS..............................24
20. SECURITY DEPOSIT........................................................25
21. FORCE MAJEURE...........................................................25
22. NOTICES.................................................................25
A. Landlord..........................................................26
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B. Tenant............................................................26
23. QUIET POSSESSION........................................................27
24. REAL ESTATE BROKER......................................................27
25. MISCELLANEOUS...........................................................27
A. Successors and Assigns............................................27
B. Date Payments Are Due.............................................27
C. Meaning of "Landlord", "Re-Entry, "including" and "Affiliate".....27
D. Time of the Essence...............................................27
E. No Option.........................................................27
F. Severability......................................................27
G. Governing Law.....................................................28
H. Lease Modification................................................28
I. No Oral Modification..............................................28
J. Landlord's Right to Cure..........................................28
K. Captions..........................................................28
L. Authority.........................................................28
M. Landlord's Enforcement of Remedies................................28
N. Entire Agreement..................................................28
O. Landlord's Title..................................................28
P. Light and Air Rights..............................................28
Q. Singular and Plural...............................................28
R. No Recording by Tenant............................................29
S. Exclusivity.......................................................29
T. No Construction Against Drafting Party............................29
U. Survival..........................................................29
V. Rent Not Based on Income..........................................29
W. Building Manager and Service Providers............................29
X. Late Charge and Interest on Late Payments.........................29
Y. Usury Savings.....................................................29
Z. Waiver of Warranties..............................................30
AA. Effective Date....................................................30
BB. Special Provisions................................................30
26. UNRELATED BUSINESS INCOME...............................................30
27. HAZARDOUS SUBSTANCES....................................................30
28. LANDLORD'S DEFAULT; EXCULPATION.........................................30
29. LANDLORD'S LIEN.........................................................31
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APPENDIX A - LEGAL DESCRIPTION OF LAND AND PLAN OF THE PREMISES
APPENDIX A-1 - INITIAL PROJECT SITE PLAN
APPENDIX B - RULES AND REGULATIONS
APPENDIX C - TENANT IMPROVEMENT AGREEMENT
APPENDIX D - MORTGAGES CURRENTLY AFFECTING THE PROJECT
APPENDIX E - COMMENCEMENT DATE CONFIRMATION
APPENDIX F - SPECIAL PROVISIONS
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LEASE
THIS LEASE (the "Lease") is made as of September 30, 1997 between
CarrAmerica Realty, L.P., a Delaware limited partnership, t/a Riata Corporate
Park (the "Landlord"), and the Tenant as named in the Schedule below. The term
"Building" means the building known as "Riata Corporate Park Building 4, 5 or 6"
(see Section 1B below) with a local address of 12,331-A (Building 4), 12,331-B
(Building 5) or 12,357-A (Building 6) Riata Trace Parkway, Austin, Texas, and
situated on the land legally described in Appendix A. "Premises" means that part
of the Building leased to Tenant described in the Schedule and outlined on
Appendix A. The Building is part of an office development (the "Project") known
as "Riata Corporate Park," the extent and configuration of which shall be
determined by Landlord from time to time. The initial configuration of the
Project is outlined on the site plan attached hereto as Appendix A-1.
The following schedule (the "Schedule") is an integral part of this Lease.
Terms defined in this Schedule shall have the same meaning throughout the Lease.
SCHEDULE
1. Tenant: NetSolve, Incorporated, a Delaware corporation
2. Premises: Suites 100, 200 and 300, Riata Corporate Park Building 4, 5 or 6
3. Rentable Square Feet: Approximately 69,877 (all of the 2nd and 3rd floors
and a portion of the 1st floor)
4. Tenant's Proportionate Share: 76.51% (based upon a total of 91,332
rentable square feet in the Building)
5. Security Deposit: $1,000,000.00 Letter of Credit
6. Tenant's Real Estate Broker for this Lease: Xxxxxx X. Xxxxxxx, Inc.
7. Landlord's Real Estate Broker for this Lease: Oxford Commercial, Inc.
8. Tenant Improvements: See the Tenant Improvement Agreement attached hereto
as Appendix C
9. Commencement Date: Later of (a) the Completion Date (as defined in
Appendix C), or (b) the date established by Landlord, provided that
Landlord provide written notice thereof to Tenant at least one hundred
fifty (150) days prior to the date established and that such date not occur
prior to March 1, 1998 or after May 1, 1998 (if Landlord fails to give such
notice timely, the "date established by Landlord" for purposes of this
clause (b) shall be May 1, 1998); Landlord and Tenant shall execute a
Commencement Date Confirmation substantially in the form of Appendix E
promptly following the Commencement Date.
10. Termination Date/Term: Sixty-eight (68) months after the Commencement
Date, or if the Commencement Date is not the first day of a month, then
after the first day of the following month.
11. Base Rent:
Estimated Monthly
Period Annual Base Rent Base Rent Payment
------ ---------------- -----------------
Months 1 - 36 $12.75 per rentable square foot $74,244.31
Months 37 - 68 $15.50 per rentable square foot $90,257.79
12. Initial estimated Operating Cost Share Rent: $7.00 per rentable square
foot per year ($489,139.00 per year/$40,761.58 per month).
1. LEASE AGREEMENT.
A. Lease of Premises. On the terms stated in this Lease, Landlord leases
the Premises to Tenant, and Tenant leases the Premises from Landlord, for the
Term beginning on the Commencement Date and ending on the Termination Date
unless extended or sooner terminated pursuant to this Lease.
B. Determination of Building Site. Tenant acknowledges that while
Landlord and Tenant have agreed on the amount of approximate rentable square
feet within the Premises to be leased by Tenant hereunder, Landlord has not yet
determined whether such Premises will be located in Building 4, 5 or 6 within
the Project, as shown on Appendix A-1. Landlord shall make such determination
and provide Tenant written notice thereof at least one hundred fifty (150) days
prior to the Commencement Date. Upon such determination, the Building reference
in the first paragraph of this Lease, in the Schedule, and in the Commencement
Date Confirmation shall be deemed to be the numeric identification of the
Building in which the Premises are located, and Tenant and Landlord shall
execute an addendum to this Lease acknowledging such determination.
C. Determination of Rentable Square Feet. Landlord and Tenant
acknowledge and agree that the Rentable Square Footage as stated in the Schedule
is an approximation and cannot be conclusively determined until after completion
of construction of the Premises and the Building. Within sixty (60) days of the
Completion Date, the Rentable Square Footage of the Premises shall be determined
and certified in writing by Landlord's architect using the modified "BOMA"
standard, as described below. For purposes of this determination, Rentable
Square Footage for the Premises shall be calculated by taking the sum of the
following:
(1) (i) Square footage of Tenant's Usable Area within the first (1st)
floor of the Building plus (ii) an "add-on factor" for Tenant's share of
General Common Area and the Floor Common Area for the 1st floor. The
current estimate for the add-on-factor for the 1st floor of the Building,
so long as Tenant shares such floor with other tenants, is 16.52% times
Tenant's Usable Area within the 1st floor. In the event only Tenant
occupies such floor, the current estimate for the add-on factor for the 1st
floor is 4.84% times Tenant's Usable Area within the 1st floor.
(2) (i) Square footage of all Usable Area within the second (2nd)
floor of the Building, including Floor Common Area plus (ii) an "add-on
factor" to account for Tenant's share of General Common Area. The current
estimate for the add-on-factor for the 2nd floor of the Building, so long
as such floor is occupied only by Tenant, is 4.44% times all Usable Area
within the 2nd floor.
(3) (i) Square footage of all Usable Area within the third (3rd) floor
of the Building, including Floor Common Area plus (ii) an "add-on factor"
to account for Tenant's share of General Common Area. The current estimate
for the add-on-factor for the 3rd floor of the Building, so long as such
floor is occupied only by Tenant, is 4.25% times all Usable Area within the
3rd floor.
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Notwithstanding anything to the contrary in the foregoing, (i) the calculation
of total Rentable Square Footage for any one floor in the Building shall not be
affected by whether such floor is single-tenant or multi-tenant, (ii) the sum of
all Usable Area within the Building plus the applicable add-on factors as set
forth above shall not exceed the total Rentable Square Footage of the Building,
and (iii) in no event shall the Rentable Square Footage of the Premises exceed
one hundred five percent (105%) of the approximate square footage figure set
forth in the Plans (as defined in the Tenant Improvement Agreement attached as
Appendix C) as finally approved by Landlord and Tenant.
D. Definitions.
(1) Usable Area. "Usable Area" is computed (i) with respect to multi-
tenant floors, by measuring to the finished surface of the Premises side of the
corridor and other permanent walls, to the center of partitions that separate
the Premises from adjoining Usable Areas, and to the inside finished surface of
the dominant portion of the permanent outer building walls, and (ii) with
respect to single tenant floors, by measuring to the inside finished surface of
the dominant portion of the permanent outer building walls, excluding major
vertical penetrations of the floor. Deductions are not made for columns and
projections necessary to the building.
(2) General Common Areas. "General Common Areas" are defined as all
areas intended for use by all building tenants (including building lobby,
mailroom, elevator equipment rooms, security office and fire sprinkler rooms).
(3) Floor Common Areas. "Floor Common Areas" are defined as all areas
for use by tenants of a single floor only, and include restrooms, janitor's
closets, mechanical, electrical, telephone rooms and building corridors,
calculated by subtracting all Usable Area on a multi-tenant floor from the
Usable Area for such floor as determined for occupancy by a single tenant.
2. RENT.
A. Types of Rent. Tenant shall pay the following Rent in the form of a
check to Landlord at the following address:
CarrAmerica Realty, L.P.
t/a Riata Corporate Park
P.O. Box ________ [to be provided by Landlord prior to Commencement
Date]
Xxxxxxx, XX 00000-0000
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or by wire transfer as follows:
NationsBank, N.A. (South)
ABA Number 000-000-000
Account Number _______ [to be provided by Landlord prior to
Commencement Date]
or at such other address or using such other wiring instructions as Landlord may
notify Tenant in writing:
(1) Base Rent in monthly installments in advance, the first monthly
installment payable within ten (10) days after Landlord gives Tenant the
notice required under Section 1.B above, the second monthly installment
payable on the first day of the second full calendar month following the
Commencement Date, and thereafter on or before the first day of each
succeeding calendar month of the Term in the amount set forth on the
Schedule. In addition, Tenant shall pay on the Commencement Date prorated
Base Rent for any partial month in which the Commencement Date occurs, if
the Commencement Date falls on a day other than the first (1st) day of such
month.
(2) Operating Cost Share Rent in an amount equal to the Tenant's
Proportionate Share of the Operating Costs for the applicable fiscal year
of the Lease, paid monthly in advance in an estimated amount. Definitions
of Operating Costs and Tenant's Proportionate Share, and the method for
billing and payment of Operating Cost Share Rent, are set forth in Sections
2B, 2C and 2D hereof.
(3) Additional Rent in the amount of all costs, expenses,
liabilities, and amounts which Tenant is required to pay under this Lease,
excluding Base Rent and Operating Cost Share Rent, but including any
interest for late payment of any item of Rent.
(4) Rent as used in this Lease means Base Rent, Operating Cost Share
Rent and Additional Rent. Except as expressly provided herein, Tenant's
agreement to pay Rent is an independent covenant, with no right of setoff,
deduction or counterclaim of any kind. Notwithstanding the foregoing,
Tenant shall be entitled to an abatement of Base Rent and Operating Cost
Share Rent allocable to 16,475 Rentable Square Feet on the 3rd floor of the
Building, such abatement period commencing on the Commencement Date and
ending on the same day of the eighth (8th) calendar month thereafter,
including any partial month in which the Commencement Date occurs and any
partial month at the end of such abatement period (i.e., a 23.5% total 8-
month abatement assuming Rentable Square Footage of 69,877 for the entire
Premises). If Tenant defaults under this Lease beyond any applicable
period of notice and cure, any remaining rent abatement shall cease from
the date of such default, and Tenant shall immediately pay to Landlord all
sums previously abated hereunder.
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B. Payment of Operating Cost Share Rent.
(1) Payment of Estimated Operating Cost Share Rent. Landlord shall
estimate the Operating Costs of the Project by April 1 of each Fiscal Year,
or as soon as reasonably possible thereafter. Landlord may revise these
estimates whenever it obtains more accurate information, such as the final
real estate tax assessment or tax rate for the Project, but Landlord shall
not revise the Operating Cost estimate more than once during each Fiscal
Year and shall provide Tenant with all calculations and documents
supporting the appropriateness of such revisions.
Within ten (10) days after receiving the original or revised estimate
from Landlord, Tenant shall pay Landlord one-twelfth (1/12th) of Tenant's
Proportionate Share of this estimate, multiplied by the number of months
that have elapsed in the applicable fiscal year to the date of such payment
including the current month, minus payments previously made by Tenant for
the months elapsed. On the first day of each month thereafter, Tenant
shall pay Landlord one-twelfth (1/12th) of Tenant's Proportionate Share of
this estimate, until a new estimate becomes applicable.
(2) Correction of Operating Cost Share Rent. Landlord shall deliver
to Tenant a report for the previous Fiscal Year (the "Operating Cost
Report") by April 1 of each year, or as soon as reasonably possible
thereafter, setting forth (a) the actual Operating Costs incurred for each
major expense category, compared to Landlord's corresponding estimates for
such expenses, (b) the amount of Operating Cost Share Rent applicable to
Tenant as calculated in accordance with this Lease, and (c) the amount of
Operating Cost Share Rent paid by Tenant. Within twenty (20) days after
such delivery, Tenant shall pay to Landlord the amount due minus the amount
paid. If the amount paid exceeds the amount due, Landlord shall apply the
excess to Tenant's payments of Operating Cost Share Rent next coming due or
shall reimburse such amount to Tenant if such amount exceeds two (2)
calendar months of Operating Cost Share Rent. Upon request by Tenant,
Landlord shall provide sufficient documentation evidencing the accuracy of
the actual Operating Costs.
(3) Tenant's Audit Rights. Landlord shall maintain books and records
reflecting the Operating Costs in accordance with sound accounting and
management practices. Tenant and, if Tenant elects, its certified public
accountant shall have the right to inspect Landlord's records at Landlord's
office upon at least seventy-two (72) hours' prior notice during normal
business hours during the ninety (90) days following the delivery of the
Operating Cost Report. The results of any such inspection shall be kept
strictly confidential by Tenant and its agents, and Tenant and, if
applicable, its certified public accountant must agree, in their contract
for such services, to such confidentiality restrictions and shall
specifically agree that the results shall not be made available to any
other tenant of the Project. Unless Tenant sends to Landlord any written
exception to such report within said ninety (90) day period, such report
shall be deemed final and accepted by Tenant. Tenant shall pay the amount
shown on the Operating Cost Report in the manner prescribed in this Lease,
whether or not Tenant takes any such written exception,
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without any prejudice to such exception. If Tenant makes a timely
exception, Landlord shall cause its independent certified public accountant
to issue a final and conclusive resolution of Tenant's exception. Tenant
shall pay the cost of such certification unless Landlord's original
determination of annual Operating Costs overstated the amounts thereof by
more than five percent (5%).
C. Definitions.
(1) Included Operating Costs. "Operating Costs" means any expenses,
costs and disbursements paid or incurred by Landlord in connection with the
management [including an annual management fee, which shall not exceed four
and one-half percent (4 1/2%) of Rent (net of the management fee) for such
year], maintenance, operation, insurance, repair, replacement and other
related activities in connection with any part of the Building (or the
Project, in accordance with Section 2D(3) below) and of the personal
property, fixtures, machinery, equipment, systems and apparatus used in
connection therewith, including the cost of providing those services
required to be furnished by Landlord under this Lease. Operating Costs
shall also include Taxes (as defined below) and the costs of any capital
improvements which are intended to reduce Operating Costs or improve
safety, and those made to keep the Project in compliance with governmental
requirements applicable from time to time (collectively, "Included Capital
Items"); provided, that the costs of any Included Capital Item shall be
amortized by Landlord (together with an amount equal to interest at ten
percent (10%) per annum on the unamortized portion of such capital costs,
computed on a monthly basis) over the estimated useful life of such item,
and such amortized costs shall be included in Operating Costs only for that
portion of the useful life of the Included Capital Item which falls within
the Term.
If the Building is not fully occupied during any portion of any Fiscal
Year, Landlord may adjust (an "Equitable Adjustment") Operating Costs to
equal what would have been incurred by Landlord had the Building been fully
occupied, provided that Landlord shall use commercially-reasonable
standards in determining the extent of each such adjustment. This
Equitable Adjustment shall apply only to Operating Costs which are variable
and therefore increase as occupancy of the Building increases. Landlord
may incorporate the Equitable Adjustment in its estimates of Operating
Costs.
If Landlord does not furnish any particular service whose cost would
have constituted an Operating Cost to a tenant other than Tenant who has
undertaken to perform such service itself, Operating Costs shall be
increased by the amount which Landlord would have incurred if it had
furnished the service to such tenant, which amount shall equal the product
of such tenant's rentable square footage times Landlord's average cost per
rentable square foot for providing such service to other Building tenants.
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(2) Excluded Operating Costs. Operating Costs shall not include:
(a) costs of alterations of tenant premises;
(b) costs of capital improvements other than Included Capital
Items;
(c) interest and principal payments on mortgages or any other
debt costs, or rental payments on any ground lease of the
Project;
(d) real estate brokers' leasing commissions;
(e) legal fees, space planner fees and advertising expenses, or
any other expenses incurred with regard to leasing the
Building or portions thereof;
(f) any cost or expenditure for which Landlord is reimbursed, by
tenants, insurance proceeds or otherwise, except by Operating
Cost Share Rent;
(g) the cost of any service furnished to any other tenant of the
Building which Landlord does not make available to Tenant;
(h) depreciation (except on any Included Capital Items);
(i) franchise or income taxes imposed upon Landlord;
(j) costs of correcting defects in construction of the Building
(as opposed to the cost of normal repair, maintenance and
replacement expected with the construction materials and
equipment installed in the Building in light of their
specifications);
(k) legal and auditing fees which are for the benefit of Landlord
such as collecting delinquent rents, preparing tax returns
and other financial statements, and audits other than those
incurred in connection with the preparation of reports
required pursuant to Section 2B above;
(l) the wages or any other costs (direct or allocated) of any
employee for services not related directly to the management,
maintenance, operation and repair of the Project;
(m) fines, penalties and interest; and
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(n) in the event Landlord contracts with a person or entity
which is affiliated with Landlord for a good or service, any
portion of the actual cost thereof which exceeds the fair
market cost thereof.
(3) Taxes. "Taxes" means any and all taxes, assessments and charges
of any kind, general or special, ordinary or extraordinary, levied against
the Building and adjacent portions of the Project, which Landlord shall pay
or become obligated to pay in connection with the ownership, leasing,
renting, management, use, occupancy, control or operation of the Project or
of Landlord's personal property, fixtures, machinery, equipment, systems
and apparatus used in connection therewith. Taxes shall include real
estate taxes, personal property taxes, sewer rents, water rents, special or
general assessments, transit taxes, ad valorem taxes, assessments by any
property owners association or under any deed or other restrictive
covenants and any tax levied on the rents hereunder or the interest of
Landlord under this Lease (the "Rent Tax"). Taxes shall also include all
fees and other costs and expenses reasonably incurred by Landlord in
reviewing any tax and in seeking a refund or reduction of any Taxes,
whether or not the Landlord is ultimately successful.
For any year, the amount to be included in Taxes (a) from taxes or
assessments payable in installments, shall be the amount of the
installments (with any interest) due and payable and actually paid during
such year, and (b) from all other Taxes, shall be the amount actually paid
in such year. Any refund or other adjustment to any Taxes by the taxing
authority, shall apply during the year in which the adjustment is made.
Taxes shall not include any net federal or state income (except Rent
Tax), capital, stock, succession, transfer, franchise, gift, estate or
inheritance taxes.
(4) Lease Year. "Lease Year" means each consecutive twelve-month
period beginning with the Commencement Date, except that if the
Commencement Date is not the first day of a calendar month, then the first
Lease Year shall be the period from the Commencement Date through the final
day of the twelve months after the first day of the following month, and
each subsequent Lease Year shall be the twelve months following the prior
Lease Year.
(5) Fiscal Year. "Fiscal Year" means the calendar year, except that
the first Fiscal Year and the last Fiscal Year of the Term may be a partial
calendar year.
(6) Tenant's Proportionate Share. "Tenant's Proportionate Share"
means a fraction, the numerator of which is the total Rentable Square
Footage of the Premises, and the denominator of which is the total Rentable
Square Footage of the Building.
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D. Computation of Base Rent and Rent Adjustments.
(1) Prorations. If this Lease begins on a day other than the first
day of a month, the Base Rent and Operating Cost Share Rent shall be
prorated for such partial month based on the actual number of days in such
month. If this Lease begins on a day other than the first day, or ends on
a day other than the last day, of the Fiscal Year, Operating Cost Share
Rent shall be prorated for the applicable Fiscal Year.
(2) Default Interest. Any sum due from Tenant to Landlord not paid
within five (5) days from the date that it is due shall bear interest from
the date due until paid at eighteen percent (18%) per annum.
(3) Rent Adjustments. If any Operating Cost paid in one Fiscal Year
relates to more than one Fiscal Year, Landlord shall proportionately
allocate such Operating Cost among the related Fiscal Years. Operating
Costs allocable to the Project as a whole (as opposed to a single building
within the Project), including all maintenance, repair, replacement,
insurance, Taxes and other Operating Costs associated with the parking and
driveway areas, landscaping, project and directional signage and other
common areas within the Project (but excluding any costs incurred by
Landlord for the purpose of holding land within the Project for future
development), shall be allocated among the completed buildings in the
Project based upon the relative Rentable Square Feet within such buildings,
and Operating Cost Share Rent shall include Tenant's Proportionate Share of
such Operating Costs allocated to the Building.
(4) Miscellaneous. So long as Tenant is in continuing default of any
obligation under this Lease, Tenant shall not be entitled to any refund of
any amount from Landlord until such default is cured. If this Lease is
terminated for any reason prior to the annual determination of Operating
Cost Share Rent, either party shall pay the full amount due to the other in
accordance with Sections 2B(2) and 2B(3) hereof. Landlord may commingle
any payments made with respect to Operating Cost Share Rent, without
payment of interest.
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF
PREMISES.
A. Condition of Premises. Except to the extent of Landlord's
construction obligations as set forth in Appendix C, Landlord is leasing the
Premises to Tenant "as is" (subject to completion of such construction), without
any obligation to alter, remodel, improve, repair or decorate any part of the
Premises. Landlord shall cause the Premises to be completed in accordance with
the Tenant Improvement Agreement attached as Appendix C.
B. Tenant's Possession. Tenant's taking possession of any portion of the
Premises shall be conclusive evidence that the Premises was in good order,
repair and condition unless Tenant notifies Landlord in writing to the contrary
within ten (10) days of such taking of
8
possession. If Landlord authorizes Tenant to take possession of any part of the
Premises prior to the Commencement Date for purposes of doing business, all
terms of this Lease shall apply to such pre-Term possession, including Base Rent
at the rate set forth in the Schedule for months 1-36 of the Term, prorated for
any partial month.
C. Maintenance. Throughout the Term, Landlord shall maintain the
structural members, roof and mechanical, electrical and other systems (including
building standard lighting) of the Premises and the Building in good condition
and repair subject to Landlord's reimbursement for the costs thereof by Tenant's
payment of Operating Cost Share Rent. Tenant shall maintain all other portions
of the Premises in their condition as of the Completion Date, loss or damage
caused by the elements, ordinary wear, and fire and other casualty excepted. To
the extent Tenant fails to perform this obligation, Landlord may, but need not,
restore the Premises to such condition and Tenant shall pay the cost thereof.
4. PROJECT SERVICES. Landlord shall furnish services as follows:
A. Heating and Air Conditioning. During the normal business hours of
7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturday, excluding New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day, Landlord shall furnish heating and air
conditioning to provide a comfortable temperature, in Landlord's reasonable
judgment, for normal business operations, except to the extent Tenant installs
equipment which adversely affects the temperature maintained by the air
conditioning system. If Tenant installs such equipment, Landlord or Tenant may
install supplementary air conditioning units in the Premises, and Tenant shall
pay to Landlord upon demand as Additional Rent the cost of installation,
operation and maintenance thereof. Tenant's installation of such supplementary
units shall be subject to Section 5 hereof.
Landlord shall furnish heating and air conditioning after business hours if
Tenant provides Landlord reasonable prior notice, and pays Landlord all then
current charges for such additional heating or air conditioning, not to exceed
one hundred fifteen percent (115%) of actual costs (including reasonable
depreciation). Landlord shall consult with Tenant as to the most efficient
method for providing after-hours service, and shall be reasonable in determining
the method to be used.
B. Elevators. Landlord shall provide passenger elevator service during
normal business hours to Tenant in common with Landlord and all other tenants,
if applicable. Landlord shall provide limited passenger service (or full
passenger service upon Tenant's request and at Tenant's expense) at other times,
except in case of an emergency. Landlord shall install and maintain an
electronic access control system in all elevators for the use of Tenant and the
other tenants of the Building, to the extent such other tenants are located
above the 1st floor of the Building.
C. Electricity. Landlord shall provide sufficient electricity to operate
normal office lighting and equipment, and such additional electricity as may be
provided in the Plans. Tenant shall not install or operate in the Premises any
electrically operated equipment or other machinery,
9
other than business machines and equipment normally employed for general office
use which do not require high electricity consumption for operation, without
obtaining the prior written consent of Landlord, except as provided in the
Plans. If any or all of Tenant's equipment requires electricity consumption in
excess of that which is necessary to operate normal office equipment, or if
Tenant's extended operating hours require electricity consumption in excess of
that which is necessary to operate a normal office, such consumption (including
consumption for computer or telephone rooms and special HVAC equipment) shall be
submetered by Landlord at Tenant's expense, and Tenant shall reimburse Landlord
as Additional Rent for the cost of its submetered consumption based upon
Landlord's average cost of electricity. Such additional rent shall be in
addition to Tenant's obligations pursuant to Section 2A(2) to pay its
Proportionate Share of Operating Costs.
D. Water. Landlord shall furnish hot and cold tap water for drinking and
toilet purposes, and for the showers, sink and dishwasher to be located in the
break room in the Premises as shown on the Plans. Tenant shall pay Landlord for
water furnished for any other purpose as Additional Rent at rates fixed by
Landlord. Tenant shall not permit water to be wasted.
E. Janitorial Service. Landlord shall furnish janitorial service as is
generally provided for similar quality office space in Austin, Texas.
F. Parking. Landlord shall provide parking areas for the Project, as
designated by Landlord from time to time, for the nonexclusive use by Tenant and
its employees and other invitees in common with Landlord and other tenants of
Project and their respective employees and other invitees, which parking areas
shall contain a total of no fewer than four (4) parking spaces (including
visitor parking spaces) for every one thousand (1,000) Rentable Square Feet
contained within the Project. Landlord shall provide ten (10) parking spaces
within such parking areas within close proximity to the Building, which shall be
reserved for Tenant's exclusive use. Subject to the foregoing, Tenant shall have
no right to exclusive parking with respect to any parking spaces within the
Project, and Tenant shall not tow cars or otherwise enforce its parking rights
against third parties. Tenant shall not allow its employees or other invitees
to park within any public streets adjacent to the Project. Landlord shall not
be responsible for enforcing Tenant's parking rights against third parties and
Landlord shall have no liability to Tenant due to Tenant's inability to utilize
parking spaces within the Project; however, Landlord shall have the right, but
not the obligation, to impose reasonable rules and regulations as Landlord may
deem necessary to regulate parking within the Project, including registration of
license plate numbers for vehicles driven by Tenant's employees, issuance and
monitoring of parking tags or permits and/or designation of exclusive parking
spaces; further and not withstanding the foregoing, upon request by Tenant,
Landlord shall consult with Tenant and shall use all reasonable efforts to
resolve parking problems within the Project identified by Tenant, which may
include imposition of reasonable rules, regulations and enforcement policies in
an effort to resolve such problems, and if not resolved Tenant may allow its
employees or invitees to park within adjacent public streets if allowed under
applicable laws and any restrictive covenants. Surface visitor parking shall be
available at no charge to Tenant or Tenant's visitors.
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G. Building Security. Landlord shall install and maintain an electronic
access control system for entry into the Building during hours other than normal
business hours as set forth above for the use of Tenant and the other tenants of
the Building. The access system for entry into the Building and the access
system for entry into Tenant's spaces within the Building shall be coordinated.
Upon the request of Tenant and at Tenant's expense, Landlord shall provide
Tenant with copies of Landlord's log books showing records of access activity.
Landlord shall also install and maintain a fire sprinkler system for the
Building in accordance with applicable governmental requirements.
H. Interruption of Services. If any of the Building equipment or
machinery ceases to function properly for any cause, Landlord shall use
reasonable diligence to repair the same promptly. In the event such repair work
would be unreasonably disruptive to Tenant's business in the Premises, Landlord
shall perform such work during non-business hours unless Landlord must perform
such work during business hours for safety or security reasons. Landlord's
inability to furnish, to any extent, the Project services set forth in this
Section 4, or any cessation thereof resulting from any causes, including any
entry for repairs pursuant to this Lease, and any renovation, redecoration or
rehabilitation of any area of the Project shall not render Landlord liable for
damages to either person or property or for interruption or loss to Tenant's
business, nor be construed as an eviction of Tenant, nor work an abatement of
any portion of Rent except as provided below, nor relieve Tenant from
fulfillment of any covenant or agreement hereof. In the event that an
interruption of the Project services set forth in this Section 4 causes the
Premises to be untenantable for a period of at least three (3) consecutive
business days, monthly Rent shall be abated proportionately.
5. ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions. Tenant shall not make any
improvements or alterations to the Premises (the "Work") without in each
instance submitting plans and specifications for the Work to Landlord and
obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed and shall be deemed given if not refused within
ten (10) business days after written request therefor. Landlord will be deemed
to be acting reasonably in withholding its consent for any Work which (a)
impacts the base structural components or systems of the Building, (b) impacts
any other tenant's premises, or (c) is visible from outside the Premises.
The following requirements shall apply to all Work:
(1) Prior to commencement, Tenant shall furnish to Landlord building
permits, certificates of insurance satisfactory to Landlord, and, at
Landlord's request, security for payment of all costs.
(2) Tenant's Work shall not unreasonably interfere with other work to
be performed or services to be rendered in the Project.
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(3) The Work shall be performed in a good and workmanlike manner,
meeting the standard for construction and quality of materials in the
Building, and shall comply with all insurance requirements and all
applicable governmental laws, ordinances and regulations ("Governmental
Requirements").
(4) Tenant shall perform all Work so as to minimize or prevent
disruption to other tenants, and Tenant shall comply with all reasonable
requests of Landlord in response to complaints from other tenants.
(5) Tenant shall perform all Work in compliance with Landlord's
"Policies, Rules and Procedures for Construction Projects" in effect at the
time the Work is performed.
(6) Tenant shall permit Landlord to supervise all Work. Landlord may
charge a supervisory fee not to exceed seven and one-half percent (7 1/2%)
of labor, material, and all other costs of the Work (excluding the Initial
Improvements), if Landlord's employees or contractors perform the Work.
(7) Upon completion, Tenant shall furnish Landlord with contractor's
affidavits and full and final statutory waivers of liens from all
contractors and subcontractors, as-built plans and specifications, and
receipted bills covering all labor and materials, and all other close-out
documentation required in Landlord's "Policies, Rules and Procedures for
Construction Projects".
(8) Tenant shall pay for the cost of all Work.
B. Damage to Systems. If any part of the mechanical, electrical or other
systems in the Premises shall be damaged as a result of the Work, Tenant shall
promptly notify Landlord, and Landlord shall repair such damage. Landlord may
also at any reasonable time make any repairs or alterations which Landlord deems
necessary for the safety or protection of the Project, or which Landlord is
required to make by any court or pursuant to any Governmental Requirement.
Other than as set forth in Section 3(C) hereof, Tenant shall at its expense make
all other repairs necessary to keep the Premises, and Tenant's fixtures and
personal property, in good order, condition and repair; to the extent Tenant
fails to do so within ten (10) days after written demand by Landlord (or with no
demand in the case of an emergency), Landlord may make such repairs itself. The
cost of any repairs made by Landlord on account of Tenant's default, or on
account of the mis-use or neglect by Tenant or its invitees, contractors or
agents anywhere in the Project, shall become Additional Rent payable by Tenant
on demand.
C. No Liens. Tenant has no authority to cause or permit any lien or
encumbrance of any kind to affect Landlord's interest in the Project; any such
lien or encumbrance shall attach to Tenant's interest only. If any mechanic's
lien shall be filed or claim of lien made for work or materials furnished to
Tenant, then Tenant shall at its expense within ten (10) days thereafter either
discharge or contest the lien or claim. If Tenant contests the lien or claim,
then Tenant shall (i) within such ten (10) day period, provide Landlord adequate
security for the lien or claim
12
by bonding in accordance with the Texas Property Code, (ii) contest the lien or
claim in good faith by appropriate proceedings that operate to stay its
enforcement, and (iii) pay promptly any final adverse judgment entered in any
such proceeding. If Tenant does not comply with these requirements, Landlord may
discharge the lien or claim, and the amount paid, as well as attorney's fees and
other expenses incurred by Landlord, shall become Additional Rent payable by
Tenant on demand.
D. Ownership of Improvements. All Initial Improvements constructed under
Appendix C shall become the property of Landlord upon installation, and shall be
surrendered to Landlord with the Premises at the termination of this Lease or of
Tenant's right to possession. All Work (not including the Initial Improvements)
as defined in this Section 5, partitions, hardware, equipment, machinery and all
other improvements and fixtures (except trade fixtures designated as such by
Tenant in any request for Landlord's approval of alterations) constructed in the
Premises by either Landlord or Tenant (i) shall become Landlord's property upon
installation without compensation to Tenant, unless Landlord consents otherwise
in writing, and (ii) shall at Landlord's option either (a) be surrendered to
Landlord with the Premises at the termination of the Lease or of Tenant's right
to possession, or (b) be removed in accordance with Section 5E below; provided
that any Work paid for by Tenant may be removed by Tenant and, in such event,
Tenant shall restore the Premises to its condition prior to the installation of
such Work.
E. Removal at Termination. Upon the termination of this Lease or
Tenant's right of possession, Tenant shall remove from the Building, at Tenant's
cost, its designated trade fixtures, furniture, moveable equipment and other
personal property, any improvements which Landlord elects shall be removed by
Tenant pursuant to Section 5D, and any improvements made by Tenant to any
portion of the Building or the Project other than the Premises. Tenant shall
repair all damage caused by the installation or removal of any of the foregoing
items. If Tenant does not timely remove such property, then Tenant shall be
conclusively presumed to have, at Landlord's election (i) conveyed such property
to Landlord without compensation or (ii) abandoned such property, and Landlord
may dispose of or store any part thereof in any manner at Tenant's sole cost,
without waiving Landlord's right to claim from Tenant all expenses arising out
of Tenant's failure to remove the property, and without liability to Tenant or
any other person. Landlord shall have no duty to be a bailee of any such
personal property. If Landlord elects abandonment, Tenant shall pay to
Landlord, upon demand, any expenses incurred for removal, repair or disposition.
6. USE OF PREMISES. Tenant shall use the Premises only for general
office purposes. Tenant shall not allow any use of the Premises which will
negatively affect the cost of coverage of Landlord's insurance on the Project.
Tenant shall not allow any inflammable or explosive liquids or materials to be
kept on the Premises. Tenant shall not allow any use of the Premises which
would cause the value or utility of any part of the Premises to diminish or
would interfere with any other tenant or with the operation of the Project by
Landlord. Tenant shall not permit any nuisance or waste upon the Premises, or
allow any offensive noise or odor in or around the Premises. In the event the
use by any other tenant within the Project would violate the terms of this
Section 6 with respect to such tenant's premises, Tenant shall have no
obligation
13
to share in any increase in costs caused by such use which would otherwise be
chargeable to Tenant.
If any governmental authority shall deem the Premises to be a "place of
public accommodation" under the Americans with Disabilities Act or any other
comparable law as a result of Tenant's use, Tenant shall either modify its use
to cause such authority to rescind its designation or be responsible for any
alterations, structural or otherwise, required to be made to the Building, the
Project or the Premises under such laws.
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES. Tenant shall comply
with all Governmental Requirements applying to its use of the Premises. Tenant
shall also comply with all reasonable rules established for the Project from
time to time by Landlord. The present rules and regulations are contained in
Appendix B. Failure by another tenant to comply with the rules or failure by
Landlord to enforce them shall not relieve Tenant of its obligation to comply
with the rules or make Landlord responsible to Tenant in any way. Landlord
shall use reasonable efforts to apply the rules and regulations uniformly with
respect to Tenant and tenants in the Project. In the event of alterations and
repairs performed by Tenant, Tenant shall comply with the provisions of Section
5 of this Lease and also Landlord's "Policies, Rules and Regulations for
Construction Projects".
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims. To the extent permitted by law, Tenant waives any
claims it may have against Landlord or its officers, directors, employees or
agents for business interruption or damage to property sustained by Tenant as
the result of any act or omission of Landlord, to the extent typically covered
under policies of "All Risks" Property Insurance.
To the extent permitted by law, Landlord waives any claims it may have
against Tenant or its officers, directors, employees or agents for loss of rents
or damage to property sustained by Landlord as the result of any act or omission
of Tenant, to the extent typically covered under policies of "All Risks"
Property Insurance.
B. Indemnification. Tenant shall indemnify, defend and hold harmless
Landlord and its officers, directors, employees and agents against any claim by
any third party for injury to any person or damage to or loss of any property
occurring in the Project and arising from Tenant's use or occupancy of the
Premises or from any other act or omission or negligence of Tenant or any of
Tenant's employees or agents. Tenant's obligations under this section shall
survive the termination of this Lease.
Landlord shall indemnify, defend and hold harmless Tenant and its
officers, directors, employees and agents against any claim by any third party
for injury to any person or damage to or loss of any property occurring in the
Project and arising from any act or omission or negligence of Landlord or any of
Landlord's employees or agents. Landlord's obligations under this section shall
survive the termination of this Lease.
14
C. Tenant's Insurance. Tenant shall maintain insurance as follows, with
such other terms, coverages and insurers, as Landlord shall reasonably require
from time to time:
(1) Commercial General Liability Insurance, with (a) Contractual
Liability including the indemnification provisions contained in this Lease,
(b) a severability of interest endorsement, (c) limits of not less than Two
Million Dollars ($2,000,000) combined single limit per occurrence and not
less than Two Million Dollars ($2,000,000) in the aggregate for bodily
injury, sickness or death, and property damage, and umbrella coverage of
not less than Five Million Dollars ($5,000,000).
(2) Property Insurance against "All Risks" of physical loss covering
the replacement cost of all improvements, fixtures and personal property in
the Premises. Tenant waives all rights of subrogation, and Tenant's
property insurance shall include a waiver of subrogation in favor of
Landlord and its employees and agents.
(3) Workers' compensation or similar insurance in form and amounts
required by law, and Employer's Liability with not less than the following
limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision in
favor of Landlord and its employees and agents.
Tenant's insurance shall be primary and not contributory to that carried by
Landlord, its agents, or mortgagee. Landlord, and if any, Landlord's building
manager or agent, mortgagee and ground lessor shall be named as additional
insureds as respects to insurance required of the Tenant in Section 8C(1) above.
The company or companies writing any insurance which Tenant is required to
maintain under this Lease, as well as the form of such insurance, shall at all
times be subject to Landlord's reasonable approval, and any such company shall
be licensed to do business in the state in which the Building is located. Such
insurance companies shall have an A.M. Best rating of A VI or better.
Tenant shall cause any contractor of Tenant performing work on the Premises
to maintain insurance as follows, with such other terms, coverages and insurers,
as Landlord shall reasonably require from time to time:
(1) Commercial General Liability Insurance, including contractor's
liability coverage, contractual liability coverage, completed operations
coverage, broad form property damage endorsement, and contractor's
protective liability coverage, to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000) with respect
to personal injury, death or property damage.
15
(2) Workers' compensation or similar insurance in form and amounts
required by law, and Employer's Liability with not less than the following
limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision in
favor of Landlord and its employees and agents.
Tenant's contractor's insurance shall be primary and not contributory to
that carried by Tenant, Landlord, their agents or mortgagees. Tenant and
Landlord, and if any, Landlord's building manager or agent, mortgagee or ground
lessor shall be named as additional insured on Tenant's contractor's insurance
policies.
D. Insurance Certificates. Tenant shall deliver to Landlord certificates
evidencing all required insurance no later than five (5) days prior to the
Commencement Date and each renewal date. Each certificate will provide for ten
(10) days prior written notice of cancellation to Landlord and Tenant.
E. Landlord's Insurance. Landlord shall maintain "All-Risk" property
insurance at replacement cost, including loss of rents, on the Building, and
Commercial General Liability insurance policies covering the common areas of the
Building and the Project, each with such terms, coverages and conditions as are
normally carried by reasonably prudent owners of properties similar to the
Project. With respect to property insurance, Landlord and Tenant mutually waive
all rights of subrogation, and the respective "All-Risk" coverage property
insurance policies carried by Landlord and Tenant shall contain enforceable
waiver of subrogation endorsements.
9. FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes substantial damage to
the Building or the Premises, Landlord shall engage a registered architect to
certify within one (1) month of the casualty to both Landlord and Tenant the
amount of time needed to restore the Building and the Premises to tenantability,
using standard working methods. If the time needed exceeds nine (9) months from
the beginning of the restoration, or two (2) months therefrom if the restoration
would begin during the last twelve (12) months of the Lease, then in the case of
the Premises, either Landlord or Tenant may terminate this lease, and in the
case of the Building, Landlord may terminate this Lease, by notice to the other
party within ten (10) days after the notifying party's receipt of the
architect's certificate. The termination shall be effective thirty (30) days
from the date of the notice and Rent shall be paid by Tenant to that date, with
an abatement for any portion of the Premises which has been untenantable after
the casualty.
16
B. Restoration. If a casualty causes damage to the Building or the
Premises but this Lease is not terminated for any reason, then subject to the
rights of any mortgagees or ground lessors, Landlord shall obtain the applicable
insurance proceeds and diligently restore the Building and the Premises subject
to current Governmental Requirements. Tenant shall replace its damaged
improvements, personal property and fixtures. Rent shall be abated on a per
diem basis during the restoration for any portion of the Premises which is
untenantable, except to the extent that Tenant's negligence caused the casualty
as established by a court having jurisdiction over the Project.
10. EMINENT DOMAIN. If a part of the Project is taken by eminent domain
or deed in lieu thereof which is so substantial that the Premises cannot
reasonably be used by Tenant for the operation of its business, then either
party may terminate this Lease effective as of the date of the taking. If any
substantial portion of the Building is taken without affecting the Premises,
then Landlord may terminate this Lease as of the date of such taking. Rent
shall xxxxx from the date of the taking in proportion to any part of the
Premises taken. The entire award for a taking of any kind shall be paid to
Landlord. Tenant may pursue a separate award for its trade fixtures and moving
expenses in connection with the taking, but only if such recovery does not
reduce the award payable to Landlord. All obligations accrued to the date of
the taking shall be performed by the party liable to perform said obligation as
set herein.
11. RIGHTS RESERVED TO LANDLORD. Landlord may exercise at any time any of
the following rights respecting the operation of the Project without liability
to the Tenant of any kind:
A. Name. To change the name or street address of the Project or the
Building or the suite number(s) of the Premises.
B. Signs. To install and maintain any signs within the Project in the
interior of the Building, to install and maintain building identification signs
on the exterior of the Building, and to approve at its sole discretion, prior to
installation, any of Tenant's signs in the Premises visible from the common
areas or the exterior of the Building. Notwithstanding the foregoing, Landlord
agrees that Tenant shall have the right to install, at Tenant's expense (but
which may be reimbursed out of Landlord's Contribution under Appendix C), its
signage on the exterior of the Building and on a monument sign located within
the Project common areas, as well as one (1) interior sign on the second floor
front entrance to the Premises visible from the first floor lobby, all subject
to (i) Landlord's signage and architectural guidelines applicable to the Project
and (ii) Landlord's approval as to the size, location and design thereof
pursuant to the Tenant Improvement Agreement. Tenant shall be solely
responsible for and shall obtain all sign permits and other governmental
approvals required for its signage.
C. Window Treatments. To approve, at its reasonable discretion, prior to
installation, any shades, blinds, ventilators or window treatments of any kind,
as well as any lighting within the Premises that may be visible from the
exterior of the Building or any interior common area.
17
D. Keys. To retain and use passkeys to enter the Premises or any door
within the Premises upon reasonable advance notice (except in case of
emergency), but only for the purpose of performing Landlord's duties or as
otherwise permitted under the Lease. Tenant shall not alter or add any lock or
bolt.
E. Access. To have access to inspect the Premises, perform its
obligations hereunder, and make repairs, alterations, additions or improvements
as permitted by this Lease, upon reasonable advance notice (except in case of
emergency).
F. Preparation for Reoccupancy. To decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant abandons
the Premises, without relieving Tenant of any obligation to pay Rent through the
date of termination of this Lease.
G. Heavy Articles. To approve the weight, size, placement and time and
manner of movement within the Building of any safe, central filing system or
other heavy article of Tenant's property. Tenant shall move its property
entirely at its own risk.
H. Show Premises. To show the Premises to prospective purchasers, non-
leasing brokers, lenders, investors, rating agencies or others at any reasonable
time after reasonable prior notice (which may be oral), and to show the Premises
to prospective tenants and leasing brokers within twelve (12) months prior to
the expiration of the Term (or such earlier period of time as may be consented
to by Tenant, in Tenant's sole discretion), provided that Landlord gives prior
notice to Tenant and does not materially interfere with Tenant's business or use
of the Premises or conduct of business therein.
I. [Intentionally Deleted]
J. Use of Lockbox. To designate a lockbox collection agent for
collections of amounts due Landlord. In that case, the date of payment of Rent
or other sums shall be the date of the agent's receipt of such payment or the
date of actual collection if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment.
K. Repairs and Alterations. To make repairs or alterations to the
Project or the Building and in doing so transport any required material through
the Premises, to close entrances, doors, corridors, elevators and other
facilities in the Project or the Building, to open any ceiling in the Premises,
or to temporarily suspend services or use of common areas in the Project or the
Building, provided that Landlord shall use all reasonable efforts to perform
such work in a manner that does not unreasonably interfere with Tenant's use of
the Premises. Landlord may perform any such repairs or alterations during
ordinary business hours, except that Tenant may require any work in the Premises
to be done after business hours if Tenant pays Landlord for overtime and any
other expenses incurred; provided, however, that Tenant shall not be obligated
to pay such expenses if Tenant is requiring that the work be done after business
hours in order to prevent an unreasonable interference with Tenant's use of the
Premises. Landlord may do or permit any work on any nearby building, land,
street, alley or way.
18
L. Landlord's Agents. If Tenant is in default under this Lease,
possession of Tenant's funds or negotiation of Tenant's negotiable instrument by
any of Landlord's agents shall not waive any breach by Tenant or any remedies of
Landlord under this Lease.
M. Building Services. To install, use and maintain through the Premises,
pipes, conduits, wires and ducts serving the Building, provided that such
installation, use and maintenance does not unreasonably interfere with Tenant's
use of the Premises. In the event such work will, in Tenant's reasonable
business judgment, unreasonably interfere with Tenant's use of the Premises,
Tenant may require that such work be done after business hours.
N. Other Actions. To take any other action which Landlord reasonably
deems necessary or desirable in connection with the operation, maintenance or
preservation of the Project or the Building.
12. TENANT'S DEFAULT. Any of the following shall constitute a default by
Tenant:
A. Rent Default. Tenant fails to pay any Rent when due, and, in the case
of the first two (2) such failures each Lease Year during the Term of this
Lease, this failure continues for ten (10) days after written notice from
Landlord;
B. Assignment/Sublease or Hazardous Substances Default. Tenant defaults
in its obligations under Section 17 Assignment and Sublease or Section 27
Hazardous Substances;
C. Other Performance Default. Tenant fails to perform any other
obligation to Landlord under this Lease, and this failure continues for fifteen
(15) days after written notice from Landlord, except that if Tenant begins to
cure its failure within the fifteen (15) day period but cannot reasonably
complete its cure within such period, then, so long as Tenant continues to
diligently attempt to cure its failure, the fifteen (15) day period shall be
extended to thirty (30) days, or such lesser period as is reasonably necessary
to complete the cure;
D. Credit Default. One of the following credit defaults occurs:
(1) Tenant commences any proceeding under any law relating to
bankruptcy, insolvency, reorganization or relief of debts, or seeks
appointment of a receiver, trustee, custodian or other similar official for
the Tenant or for any substantial part of its property, or any such
proceeding is commenced against Tenant and either remains undismissed for a
period of sixty (60) days or results in the entry of an order for relief
against Tenant which is not fully stayed within seven days after entry;
(2) Tenant becomes insolvent or bankrupt, does not generally pay its
debts as they become due, or admits in writing its inability to pay its
debts, or makes a general assignment for the benefit of creditors;
(3) Any third party obtains a levy or attachment under process of law
against Tenant's leasehold interest.
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E. Vacation or Abandonment Default. Tenant vacates or abandons the
Premises.
13. LANDLORD REMEDIES.
A. Termination of Lease or Possession. If Tenant defaults and does not
cure such default within the applicable cure period, if any, Landlord may elect
by notice to Tenant either to terminate this Lease or to terminate Tenant's
possession of the Premises without terminating this Lease. In either case,
Tenant shall immediately vacate the Premises and deliver possession to Landlord,
and Landlord may repossess the Premises and may, at Tenant's sole cost, remove
any of Tenant's signs and any of its other property, without relinquishing its
right to receive Rent or any other right against Tenant.
B. Lease Termination Damages. If Landlord terminates the Lease, Tenant
shall pay to Landlord all Rent due on or before the date of termination, plus
Landlord's reasonable estimate of the aggregate Rent that would have been
payable from the date of termination through the Termination Date, reduced by
the rental value of the Premises calculated as of the date of termination for
the same period, taking into account anticipated vacancy prior to reletting,
reletting expenses and market concessions, both discounted to present value at
the rate of seven percent (7%) per annum. If Landlord shall relet any part of
the Premises for any part of such period before such present value amount shall
have been paid by Tenant or finally determined by a court, then the amount of
Rent payable pursuant to such reletting (taking into account vacancy prior to
reletting and any reletting expenses or concessions) shall be deemed to be the
reasonable rental value for that portion of the Premises relet during the period
of the reletting. Landlord agrees to use reasonable efforts to relet the
Premises and otherwise mitigate any damages arising out of Tenant's default.
C. Possession Termination Damages. If Landlord terminates Tenant's right
to possession without terminating the Lease and Landlord takes possession of the
Premises itself, Landlord may relet any part of the Premises for such Rent, for
such time, and upon such terms as Landlord in its sole discretion shall
determine, without any obligation to do so prior to renting other vacant areas
in the Project. Any proceeds from reletting the Premises shall first be applied
to the expenses of reletting, including redecoration, repair, alteration,
advertising, brokerage, legal, and other reasonably necessary expenses. If the
reletting proceeds after payment of expenses are insufficient to pay the full
amount of Rent under this Lease, Tenant shall pay such deficiency to Landlord
monthly upon demand as it becomes due. Any excess proceeds shall be retained by
Landlord.
D. Landlord's Remedies Cumulative. All of Landlord's remedies under this
Lease shall be in addition to all other remedies Landlord may have at law or in
equity. Waiver by Landlord of any breach of any obligation by Tenant shall be
effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. Landlord's
acceptance of payment by Tenant shall not constitute a waiver of any breach by
Tenant, and if the acceptance occurs after Landlord's notice to Tenant, or
termination of the Lease or of Tenant's right to possession, the acceptance
shall not affect such notice or termination. Acceptance of payment by Landlord
after commencement of a legal proceeding or
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final judgment shall not affect such proceeding or judgment. Landlord may
advance such monies and take such other actions for Tenant's account as
reasonably may be required to cure or mitigate any default by Tenant. Tenant
shall immediately reimburse Landlord for any such advance, and such sums shall
bear interest at the default interest rate under Section 2D(2) above until paid.
E. Waiver of Trial by Jury. EACH PARTY WAIVES TRIAL BY JURY IN THE EVENT
OF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER IN CONNECTION WITH THIS LEASE.
EACH PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH THIS
LEASE IN A FEDERAL OR STATE COURT LOCATED IN XXXXXX COUNTY, TEXAS, CONSENTS TO
THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING
TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT
FORUM.
F. Litigation Costs. The prevailing party in any dispute between
Landlord and Tenant concerning this Lease shall be entitled to recover its
reasonable attorneys' fees and other costs in enforcing this Lease, whether or
not suit is filed, from the non-prevailing party.
14. SURRENDER. Upon termination of this Lease or Tenant's right to
possession, Tenant shall return the Premises to Landlord broom clean and in good
order and condition, ordinary wear and casualty damage excepted. If Landlord
requires Tenant to remove any alterations as permitted under Section 5 hereof,
then Tenant shall remove the alterations in a good and workmanlike manner and
restore the Premises to its condition prior to their installation.
15. HOLDOVER. Tenant shall have no right to holdover possession of the
Premises after the expiration or termination of this Lease without Landlord's
prior written consent, which Landlord may withhold in its sole and absolute
discretion. If, however, Tenant retains possession of any part of the Premises
after the Term, Tenant shall become a month-to-month tenant for the entire
Premises upon all of the terms of this Lease as might be applicable to such
month-to-month tenancy, except that Tenant shall pay all of Base Rent and
Operating Cost Share Rent at one hundred fifty percent (150%) of the rate in
effect immediately prior to such holdover, computed on a monthly basis for each
full or partial month Tenant remains in possession. Tenant shall also pay
Landlord all of Landlord's direct and, if Tenant fails to surrender the Premises
within thirty (30) days of written notice, Landlord's consequential damages. No
acceptance of Rent or other payments by Landlord under these holdover provisions
shall operate as a waiver of Landlord's right to regain possession upon demand,
or any other of Landlord's remedies.
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any present or
future ground lease or mortgage respecting the Building or any other portion of
the Project, and any amendments to such ground lease or mortgage, at the
election of the ground lessor or mortgagee as the case may be, effected by
notice to Tenant in the manner provided in this Lease. The subordination shall
be effective upon such notice, but at the request of Landlord or ground lessor
or mortgagee,
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Tenant shall within fifteen (15) days of the request, execute and deliver to the
requesting party any reasonable documents provided to evidence the
subordination.
B. Termination of Ground Lease or Foreclosure of Mortgage. If any ground
lease is terminated or mortgage foreclosed or deed in lieu of foreclosure given
and the ground lessor, mortgagee, or purchaser at a foreclosure sale shall
thereby become the owner of the Building, then, at the option of such ground
lessor, mortgagee or purchaser and conditioned upon its agreement not to disturb
Tenant's quiet possession of the Premises so long as Tenant is not in default
hereunder, Tenant shall attorn to such ground lessor or mortgagee or purchaser
without any deduction or setoff by Tenant, and this Lease shall continue in
effect as a direct lease between Tenant and such ground lessor, mortgagee or
purchaser. The ground lessor or mortgagee or purchaser shall be liable as
Landlord only during the time such ground lessor or mortgagee or purchaser is
the owner of the Building. At the request of Landlord, ground lessor or
mortgagee, Tenant shall execute and deliver within ten (10) days of the request
any document furnished by the requesting party to evidence Tenant's agreement to
attorn and the ground lessor or mortgagee's agreement not to disturb Tenant's
quiet possession, so long as Tenant is not in default hereunder.
C. Security Deposit. Any ground lessor or mortgagee shall be responsible
for the return of any security deposit by Tenant only to the extent the security
deposit is received by such ground lessor or mortgagee. Tenant shall not be
required to place any additional security deposit with such ground lessor or
mortgagee beyond that already then required and in place under this Lease.
D. Notice and Right to Cure. The Building is subject to any ground lease
and mortgage identified with name and address of ground lessor or mortgagee in
Appendix D to this Lease (as the same may be amended from time to time by
written notice to Tenant). Tenant agrees to send by registered or certified
mail to any ground lessor or mortgagee identified either in such Appendix or in
any later notice from Landlord to Tenant a copy of any notice of default sent by
Tenant to Landlord. If Landlord fails to cure such default within the required
time period under this Lease, but ground lessor or mortgagee begins to cure
within ten (10) days after such period and proceeds diligently to complete such
cure, then ground lessor or mortgagee shall have such additional time as is
reasonably necessary to complete such cure, including any time necessary to
obtain possession if possession is necessary to cure, and Tenant shall not begin
to enforce its remedies so long as the cure is being diligently pursued.
E. Definitions. As used in this Section 16, "mortgage" shall include
"deed of trust" and "mortgagee" shall include "beneficiary" under such deed of
trust, "mortgagee" shall include the mortgagee of any ground lessee, and "ground
lessor", "mortgagee", and "purchaser at a foreclosure sale" shall include, in
each case, all of its successors and assigns, however remote.
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17. ASSIGNMENT AND SUBLEASE.
A. In General. Tenant shall not, without the prior consent of Landlord
in each case, (i) make or allow any assignment or transfer, by operation of law
or otherwise, of any part of Tenant's interest in this Lease, (ii) grant or
allow any lien or encumbrance, by operation of law or otherwise, upon any part
of Tenant's interest in this Lease, (iii) sublet any part of the Premises, or
(iv) permit anyone other than Tenant and its employees, resellers and supplier
partners to occupy any part of the Premises, provided that such resellers and
supplier partners shall not be separately identified to the outside public.
Tenant shall remain primarily liable for all of its obligations under this
Lease, notwithstanding any assignment or transfer. No consent granted by
Landlord shall be deemed to be a consent to any subsequent assignment or
transfer, lien or encumbrance, sublease or occupancy. Tenant shall pay all of
Landlord's reasonable attorneys' fees and other expenses incurred in connection
with any consent requested by Tenant or in reviewing any proposed assignment or
subletting. Any assignment or transfer, grant of lien or encumbrance, or
sublease or occupancy without Landlord's prior written consent shall be void. If
Tenant shall assign this Lease other than as permitted herein or sublet the
Premises in its entirety, any rights of Tenant to renew this Lease, extend the
Term or to lease additional space in the Project shall be extinguished thereby
and will not be transferred to the assignee or subtenant, all such rights being
personal to the Tenant named herein. The sale, conveyance or issuance of
capital stock of Tenant shall not constitute an assignment of this Lease.
B. Landlord's Consent. Landlord will not unreasonably withhold its
consent to any proposed assignment or subletting. It shall be reasonable for
Landlord to withhold its consent to any assignment or sublease if (i) Tenant is
in default under this Lease, (ii) the proposed assignee or sublessee is a tenant
in the Project or an affiliate of such a tenant or a party that Landlord has
identified as a prospective tenant in the Project, (iii) the financial
responsibility and nature of business of the proposed assignee or subtenant are
not all reasonably satisfactory to Landlord, (iv) in the reasonable judgment of
Landlord the purpose for which the assignee or subtenant intends to use the
Premises (or a portion thereof) is not in keeping with Landlord's standards for
the Project or the Building or are in violation of the terms of this Lease or
any other leases in the Project, (v) the proposed assignee or subtenant is a
government entity, or (vi) the proposed assignment (but not a sublease) is for
less than the entire Premises or for less than the remaining Term of the Lease.
The foregoing shall not exclude any other reasonable basis for Landlord to
withhold its consent.
C. Procedure. Tenant shall notify Landlord of any proposed assignment or
sublease at least thirty (30) days prior to its proposed effective date. The
notice shall include the name and address of the proposed assignee or subtenant,
its corporate affiliates in the case of a corporation and its partners in a case
of a partnership, an execution copy of the proposed assignment or sublease, and
sufficient information to permit Landlord to determine the financial
responsibility of the proposed assignee or subtenant. As a condition to any
effective assignment of this Lease, the assignee shall execute and deliver in
form satisfactory to Landlord at least fifteen (15) days prior to the effective
date of the assignment, an assumption of all of the obligations of Tenant under
this Lease. As a condition to any effective sublease, subtenant shall execute
and deliver in form satisfactory to Landlord prior to the effective date of the
sublease, an agreement to comply
23
with all of Tenant's obligations under this Lease, and at Landlord's option, an
agreement (except for the economic obligations which subtenant will undertake
directly to Tenant) to attorn to Landlord under the terms of the sublease in the
event this Lease terminates before the sublease expires.
D. Excess Payments. If Tenant shall assign this Lease or sublet any part
of the Premises for consideration in excess of the pro-rata portion of Rent
applicable to the space subject to the assignment or sublet, then Tenant shall
pay to Landlord as Additional Rent 50% of any such excess immediately upon
receipt.
E. Recapture. Landlord may, by giving written notice to Tenant within
thirty (30) days after receipt of Tenant's notice of assignment or subletting,
terminate this Lease with respect to the space described in Tenant's notice, as
of the effective date of the proposed assignment or sublease and all obligations
under this Lease as to such space shall expire except as to any obligations that
expressly survive any termination of this Lease.
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
interest in the Building or this Lease, Landlord shall be released of any
obligations occurring after such transfer provided any transferee of Landlord
assumes in writing all of Landlord's obligations under this Lease, including the
return of any security deposit delivered to such transferee, except that
Landlord shall not be released of the obligation to return to Tenant any
security deposit not delivered to its transferee. Tenant shall look solely to
Landlord's successors for performance of such obligations. This Lease shall not
be affected by any such transfer.
19. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS. Tenant shall, within ten
(10) days of receiving a request from Landlord, execute, and deliver to
Landlord or its designee (i) financial statements, including an income statement
and balance sheet, for Tenant's most recently ended fiscal year, provided that
any recipient thereof executes a reasonable non-disclosure agreement so long as
Tenant's stock is privately held, and (ii) a certificate acknowledged in
recordable form stating, subject to a specific statement of any applicable
exceptions, that the Lease as amended to date is in full force and effect, that
the Tenant is paying Rent and other charges on a current basis, and that to the
best of the knowledge of Tenant, Landlord has committed no uncured defaults and
Tenant has no offsets or claims. Tenant may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, the current Operating Cost Share Rent estimate, the status of any
improvements required to be completed by Landlord, the amount of any security
deposit, and such other matters as may be reasonably requested. Failure to
deliver such statement after a second 5-day notice shall be conclusive evidence
against Tenant that this Lease, with any amendments identified by Landlord, is
in full force and effect, that there are no uncured defaults by Landlord, that
not more than one month's Rent has been paid in advance, that Tenant has not
paid any security deposit in excess of that set forth herein, and that Tenant
has no claims or offsets against Landlord.
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20. SECURITY DEPOSIT. Tenant shall deposit with Landlord within ten (10)
days after Landlord gives Tenant the notice required under Section 1.B. hereof
security (the "Security Deposit") for the performance of all of its obligations
in the amount set forth on the Schedule, which security shall be in the form of
an unconditional and irrevocable letter of credit (the "Letter of Credit") (i)
in form and substance reasonably satisfactory to Landlord, (ii) naming Landlord
or its assignees as beneficiary, (iii) expressly allowing Landlord to draw upon
it at any time from time to time by delivering to the issuer notice that
Landlord is entitled to draw thereunder, (iv) drawable on an FDIC-insured
financial institution reasonably satisfactory to Landlord, and (v) redeemable in
the state of Landlord's choice. If Tenant does not provide Landlord with a
substitute Letter of Credit complying with all of the requirements hereof at
least ten (10) days before the stated expiration date of the current Letter of
Credit, then Landlord shall have the right to draw upon the current Letter of
Credit and hold the funds drawn as the Security Deposit until a substitute
Letter of Credit is provided. If Tenant defaults under this Lease (after lapse
of any applicable notice and cure period), Landlord may use any part of the
Security Deposit to pay or perform any obligation of Tenant under this Lease as
permitted hereunder, or to compensate Landlord for any loss or damage resulting
from any such default as permitted hereunder. To the extent any portion of the
Security Deposit is used, Tenant shall within five (5) days after demand from
Landlord reinstate the Security Deposit to its full amount. Landlord shall
return the Letter of Credit to Tenant upon the earlier to occur of (i) thirty
(30) days after the end of the Term, provided Tenant has performed all of its
obligations under this Lease and returned the Premises to Landlord at the end of
the Term or (ii) Tenant's delivery to Landlord of audited financial statements
showing that Tenant has earned a net operating profit for four (4) consecutive
calendar quarters following the Commencement Date, provided Tenant deposits in
cash with Landlord, prior to such return, a replacement Security Deposit equal
to $115,000.00. The Security Deposit shall not serve as an advance payment of
Rent or a measure of Landlord's damages for any default under this Lease. If
Landlord transfers its interest in the Project or this Lease, Landlord may
transfer the Security Deposit to its transferee. Upon such transfer and
assumption by the transferee of the obligation to return the Security Deposit,
Landlord shall have no further obligation to return the Security Deposit to
Tenant, and Tenant's right to the return of the Security Deposit shall apply
solely against Landlord's transferee.
21. FORCE MAJEURE. Landlord shall not be in default under this Lease to
the extent Landlord is unable to perform any of its obligations on account of
any strike or labor problem, energy shortage, governmental pre-emption or
prescription, national emergency, or any other cause of any kind beyond the
reasonable control of Landlord ("Force Majeure").
22. NOTICES. All notices, consents, approvals and similar communications
to be given by one party to the other under this Lease, shall be given in
writing, mailed or personally delivered as follows:
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A. Landlord. To Landlord as follows:
CarrAmerica Realty, L.P.
t/a Riata Corporate Park
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Market Officer
with a copy to:
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Lease Administration
or to such other person at such other address as Landlord may designate by
notice to Tenant.
B. Tenant. To Tenant as follows:
(i) Prior to the Commencement Date:
NetSolve, Incorporated
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
(ii) On or after the Commencement Date:
NetSolve, Incorporated
12,331-A Riata Trace Parkway
Austin, Texas 78727
Attn: Chief Financial Officer
with a copy to:
L. Xxxxx Xxxxxx, Esq.
Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
or to such other person at such other address as Tenant may designate by notice
to Landlord.
Mailed notices shall be sent by United States certified or registered mail,
or by a reputable national overnight courier service, postage prepaid. Mailed
notices or notices sent by overnight courier shall be deemed to have been given
on the earlier of actual delivery or attempted delivery.
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23. QUIET POSSESSION. So long as Tenant shall perform all of its
obligations under this Lease, Tenant shall enjoy peaceful and quiet possession
of the Premises against any party claiming through the Landlord.
24. REAL ESTATE BROKER. Tenant represents to Landlord that Tenant has not
dealt with any real estate broker with respect to this Lease except for any
broker(s) listed in the Schedule, and no other broker is in any way entitled to
any broker's fee or other payment in connection with this Lease. Tenant shall
indemnify and defend Landlord against any claims by any other broker or third
party for any payment of any kind in connection with this Lease. Landlord shall
be responsible for all commissions owing to Landlord's Real Estate Broker and
Tenant's Real Estate Broker in connection with this Lease pursuant to separate
written agreements. Such separate agreement between Landlord and Tenant's Real
Estate Broker is dated September 4, 1997, and under certain circumstances may
obligate Landlord to pay commissions in connection with expansion or renewal
rights exercised by Tenant pursuant to this Lease. Tenant's Real Estate Broker
shall be a third-party beneficiary with respect to any obligations imposed upon
Landlord pursuant to the preceding two sentences.
25. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 17, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant under
this Lease which are due upon demand, Tenant shall pay to Landlord any amount
for which Landlord renders a statement of account for amounts validly due under
this Lease within twenty (20) days of Tenant's receipt of Landlord's statement.
C. Meaning of "Landlord", "Re-Entry, "including" and "Affiliate". The
term "Landlord" means only the owner of the Project and the lessor's interest in
this Lease from time to time. The words "re-entry" and "re-enter" are not
restricted to their technical legal meaning. The words "including" and similar
words shall mean "without limitation." The word "affiliate" shall mean a person
or entity controlling, controlled by or under common control with the applicable
entity. "Control" shall mean the power directly or indirectly, by contract or
otherwise, to direct the management and policies of the applicable entity.
D. Time of the Essence. Time is of the essence of each provision of this
Lease.
E. No Option. This document shall not be effective for any purpose until
it has been executed and delivered by both parties; execution and delivery by
one party shall not create any option or other right in the other party.
F. Severability. The unenforceability of any provision of this Lease
shall not affect any other provision.
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G. Governing Law. This Lease shall be governed in all respects by the
laws of the state in which the Project is located, without regard to the
principles of conflicts of laws.
H. Lease Modification. Tenant agrees to modify this Lease in any way
requested by a mortgagee which does not cause increased expense to Tenant or
otherwise materially adversely affect Tenant's interests under this Lease.
I. No Oral Modification. No modification of this Lease shall be
effective unless it is a written modification signed by both parties.
J. Landlord's Right to Cure. If Landlord breaches any of its obligations
under this Lease, Tenant shall notify Landlord in writing and shall take no
action respecting such breach so long as Landlord promptly begins to cure the
breach and diligently pursues such cure to its completion. Landlord may cure
any default by Tenant; any expenses incurred shall become Additional Rent due
from Tenant on demand by Landlord.
K. Captions. The captions used in this Lease shall have no effect on the
construction of this Lease.
L. Authority. Landlord and Tenant each represents to the other that it
has full power and authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its
remedies under this Lease either in its own name or through an agent.
N. Entire Agreement. This Lease, together with all Appendices,
constitutes the entire agreement between the parties. No representations or
agreements of any kind have been made by either party which are not contained in
this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the
interest of the Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord's title.
P. Light and Air Rights. Landlord does not grant in this Lease any
rights to light and air in connection with the Building or the Project.
Landlord reserves to itself all land within the Project, the Building below the
improved floor of each floor of the Premises, the Building above the ceiling of
each floor of the Premises, the exterior of the Premises and the areas on the
same floor outside the Premises, along with the areas within the Premises
required for the installation and repair of utility lines and other items
required to serve other tenants of the Building.
Q. Singular and Plural. Wherever appropriate in this Lease, a singular
term shall be construed to mean the plural where necessary, and a plural term
the singular. For example, if at any time two parties shall constitute Landlord
or Tenant, then the relevant term shall refer to both parties together.
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R. No Recording by Tenant. Tenant shall not record in any public records
any memorandum or any portion of this Lease.
S. Exclusivity. Landlord does not grant to Tenant in this Lease any
exclusive right except the right to occupy its Premises.
T. No Construction Against Drafting Party. The rule of construction that
ambiguities are resolved against the drafting party shall not apply to this
Lease.
U. Survival. All obligations of Landlord and Tenant under this Lease
which by their nature are intended to survive the termination of this Lease
shall do so.
V. Rent Not Based on Income. No rent or other payment in respect of the
Premises shall be based in any way upon net income or profits from the Premises.
Tenant may not enter into or permit any sublease or license or other agreement
in connection with the Premises which provides for a rental or other payment
based on net income or profit.
W. Building Manager and Service Providers. Landlord may perform any of
its obligations under this Lease through its employees or third parties hired by
the Landlord.
X. Late Charge and Interest on Late Payments. Without limiting the
provisions of Section 12A, if Tenant fails to pay any installment of Rent or
other charge to be paid by Tenant pursuant to this Lease within five (5)
business days after the same becomes due and payable, then Tenant shall pay a
late charge equal to the greater of five percent (5%) of the amount of such
payment or $250. In addition, interest shall be paid by Tenant to Landlord on
any late payments of Rent from the date due until paid at the rate provided in
Section 2D(2). Such late charge and interest shall constitute Additional Rent
due and payable by Tenant to Landlord upon the date of payment of the delinquent
payment referenced above.
Y. Usury Savings. All agreements between Landlord and Tenant, whether
now existing or hereafter arising and whether written or oral, are hereby
expressly limited so that in no contingency or event whatsoever shall the amount
contracted for, charged or received by Landlord for the use, forbearance or
retention of money hereunder or otherwise exceed the maximum amount which
Landlord is legally entitled to contract for, charge or collect under the
applicable state or federal law. If, from any circumstance whatsoever,
fulfillment of any provision hereof at the time performance of such provision
shall be due shall involve transcending the limit of validity prescribed by law,
then the obligation to be fulfilled shall be automatically reduced to the limit
of such validity, and if from any such circumstance Landlord shall ever receive
as interest or otherwise an amount in excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied
to the reduction of rent hereunder, and if such amount which would be excessive
interest exceeds such rent, then such additional amount shall be refunded to
Tenant.
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Z. Waiver of Warranties. TENANT HEREBY WAIVES THE BENEFIT OF ALL
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PREMISES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR ANY
COMMERCIAL OR OTHER PARTICULAR PURPOSE.
AA. Effective Date. Any reference contained in this Lease to the
"Effective Date," "date hereof" or similar terms shall mean the last date on
which any party required to execute or initial this Lease does so, and such date
shall be set forth in the first paragraph of this Lease where indicated.
BB. Special Provisions. Certain special provisions of this Lease are
attached hereto as Appendix F and incorporated herein by this reference.
26. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at
any time that any part of the payments by Tenant to Landlord under this Lease
may be characterized as unrelated business income under the United States
Internal Revenue Code and its regulations, then Tenant shall enter into any
amendment proposed by Landlord to avoid such income, so long as the amendment
does not require Tenant to make more payments or accept fewer services from
Landlord, than this Lease provides.
27. HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any Hazardous
Substances to be brought upon, produced, stored, used, discharged or disposed of
in or near the Project unless Landlord has consented to such storage or use in
its sole discretion; provided, however, outdoor fuel storage for Tenant's
generator and indoor storage of batteries for Tenant's uninterrupted power
supply systems shall be permitted so long as such materials are used, stored,
handled and disposed of in compliance with Environmental Laws (as defined
below). "Hazardous Substances" include those hazardous substances described in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any other applicable
federal, state or local law, and the regulations adopted under these laws
(collectively, "Environmental Laws"). If any lender or governmental agency
shall require testing for Hazardous Substances in the Premises, Tenant shall pay
for such testing. Tenant agrees to indemnify and hold Landlord harmless from
all claims, demands, actions, liabilities, costs, expenses, damages and
obligations of any nature arising from the contamination of the Project with
Hazardous Substances as a result of or arising out of the use or occupancy of
the Premises by Tenant. The foregoing indemnification shall survive the
termination or expiration of this Lease.
28. LANDLORD'S DEFAULT; EXCULPATION. In the event of any default by
Landlord, Tenant will give Landlord written notice specifying such default with
particularity, and Landlord shall there upon have thirty (30) days (or such
longer period as may be required in the exercise of due diligence) in which to
cure any such default. Unless and until Landlord fails to cure any default
after such notice and cure period, Tenant shall not have any remedy or cause of
action by reason thereof. In event of any default by Landlord continuing after
such notice and
30
cure period, Tenant's exclusive remedy shall be an action for
damages. Landlord shall have no personal liability under this Lease; its
liability shall be limited to its interest in the Building, and shall not extend
to any other property or assets of the Landlord. In no event shall any officer,
director, employee, agent, shareholder, partner, member or beneficiary of
Landlord be personally liable for any of Landlord's obligations hereunder, and
in no event shall any officer, director, employee, agent, shareholder, partner,
member or beneficiary of Tenant be personally liable for any of Tenant's
obligations hereunder.
29. LANDLORD'S LIEN. LANDLORD SHALL HAVE AND TENANT HEREBY GRANTS TO
LANDLORD A CONTINUING SECURITY INTEREST FOR ALL RENT AND OTHER SUMS OF MONEY
BECOMING DUE HEREUNDER FROM TENANT, UPON ALL GOODS, WARES, EQUIPMENT, FIXTURES,
FURNITURE AND INVENTORY SITUATED ON THE PREMISES, WHICH IS LOCATED AT 12,331-A,
12,331-B OR 12,357-A, RIATA TRACE PARKWAY, AUSTIN, TEXAS, AND SUCH PROPERTY
SHALL NOT BE REMOVED THEREFROM OTHER THAN IN THE ORDINARY COURSE OF BUSINESS
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. PRODUCTS OF COLLATERAL ARE ALSO COVERED. IN THE EVENT OF
A DEFAULT UNDER THIS LEASE, LANDLORD SHALL HAVE, IN ADDITION TO ANY OTHER
REMEDIES PROVIDED HEREIN OR BY LAW, ALL RIGHTS AND REMEDIES UNDER THE UNIFORM
COMMERCIAL CODE, INCLUDING WITHOUT LIMITATION THE RIGHT TO SELL THE PROPERTY
DESCRIBED IN THIS PARAGRAPH AT PUBLIC OR PRIVATE SALE UPON FIVE (5) DAYS NOTICE
TO TENANT. TENANT HEREBY AGREES TO EXECUTE SUCH OTHER INSTRUMENTS REASONABLY
REQUIRED TO PERFECT THE SECURITY INTEREST HEREBY CREATED. ANY STATUTORY LIEN
FOR RENT IS NOT HEREBY WAIVED, THE EXPRESS CONTRACTUAL LIEN HEREIN GRANTED BEING
IN ADDITION AND SUPPLEMENTARY THERETO. LANDLORD AND TENANT AGREE THAT THIS
LEASE AND SECURITY AGREEMENT SERVES AS A FINANCING STATEMENT AND THAT A COPY OR
PHOTOGRAPHIC OR OTHER REPRODUCTION OF THIS PORTION OF THIS LEASE MAY BE FILED OF
RECORD BY LANDLORD AND HAVE THE SAME FORCE AND EFFECT AS THE ORIGINAL. THIS
SECURITY AGREEMENT AND FINANCING STATEMENT ALSO COVERS FIXTURES LOCATED AT THE
PREMISES, AND MAY BE FILED FOR RECORD IN THE REAL ESTATE RECORDS. TENANT
WARRANTS THAT THE COLLATERAL SUBJECT TO THE SECURITY INTEREST GRANTED HEREIN IS
NOT PURCHASED OR USED BY TENANT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
NOTWITHSTANDING THE FOREGOING, LANDLORD SHALL, UPON REQUEST BY TENANT,
SUBORDINATE ITS SECURITY INTEREST AS AFORESAID TO ANY LINE OF CREDIT LENDER
AND/OR ANY EQUIPMENT LESSOR DESIGNATED BY TENANT, PURSUANT TO A SUBORDINATION
AGREEMENT REASONABLY ACCEPTABLE TO LANDLORD.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
31
LANDLORD:
CARRAMERICA REALTY, L.P., a Delaware limited
partnership, t/a Riata Corporate Park
Address: By: CarrAmerica Realty GP Holdings, Inc., a
Delaware corporation, General Partner
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Market Officer By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
TENANT:
Address: NETSOLVE, INCORPORATED, a Delaware corporation
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 By: /s/ Xxx Xxxxxx
Attn: Chief Financial Officer -------------------------------------------
Name: Xxx Xxxxxx
-----------------------------------------
Title: VP Finance & CFO
----------------------------------------
32
APPENDIX A
LEGAL DESCRIPTION OF LAND AND PLAN OF THE PREMISES
Xxxx 0, 0, 0, 0 xxx 0, Xxxxxxx Xxxx, Riata Section Two, Block B, recorded
in Book 98, Page 19, of the Plat Records of Xxxxxx County, Texas.
(see attached floor plan depicting the Premises)
X-0
XXXXXXXX X-0
INITIAL PROJECT SITE PLAN
A-1
APPENDIX B
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near
the glass of any window, door, partition or wall which may, in Landlord's
reasonable judgment, appear unsightly from outside of the Building.
2. The Building directory shall be available to Tenant solely to display
names and their location in the Building, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and shall move all supplies, furniture and equipment as soon
as received directly to the Premises and move all such items and waste being
taken from the Premises (other than waste customarily removed by employees of
the Building) directly to the shipping platform at or about the time arranged
for removal therefrom. The halls, passages, exits, entrances, elevators,
stairways, balconies and roof are not for the use of the general public and
Landlord shall, in all cases, retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord, reasonably
exercised, shall be prejudicial to the safety, character, reputation and
interests of the Building. Neither Tenant nor any employee or invitee of Tenant
shall go upon the roof of the Building.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall not
be used for any purposes other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein, and to the
extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
6. Tenant shall not install or operate any refrigerating, heating or air
conditioning apparatus, or carry on any mechanical business without the prior
written consent of Landlord, which shall not be unreasonably withheld; use the
Premises for housing, lodging or sleeping purposes; or permit preparation or
warming of food in the Premises (warming of coffee and individual meals with
employees and guests excepted). Tenant shall not occupy or use the Premises or
permit the Premises to be occupied or used for any purpose, act or thing which
is in violation of any Governmental Requirement or which may be dangerous to
persons or property.
7. Tenant shall not bring upon, use or keep in the Premises or the
Building any kerosene, gasoline or inflammable or combustible fluid or material,
or any other articles deemed hazardous to persons or property, or use any method
of heating or air conditioning other than that supplied by Landlord, except as
permitted under the Lease.
B-1
8. Landlord shall have sole power to direct electricians as to where and
how telephone and other wires are to be introduced. No boring or cutting for
wires is to be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises shall
be subject to the reasonable approval of Landlord.
9. Without the prior written consent of Landlord, which shall not be
unreasonably withheld, no additional locks shall be placed upon any doors,
windows or transoms in or to the Premises, and Tenant shall not change existing
locks or the mechanism thereof. Upon termination of the lease, Tenant shall
deliver to Landlord all keys (including card keys) and passes for offices,
rooms, parking lot and toilet rooms which shall have been furnished Tenant.
In the event of the loss of keys so furnished, Tenant shall pay
Landlord therefor. Tenant shall not make, or cause to be made, any such keys,
shall order all such keys solely from Landlord and shall pay Landlord $10.00
each for any keys in addition to the two sets of keys originally furnished by
Landlord for each lock, which dollar amount shall be increased only to pass
through any increases from the supplier of such additional keys.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Project or carried up or down in any elevator, except in such
elevator as shall be designated by Landlord, and with such padding or other
precautions as may be required by Landlord. Tenant shall not take or permit to
be taken in or out of other entrances of the Building any item normally taken in
or out through any trucking concourse or service doors.
12. Tenant shall cause all doors to the Premises to be closed and securely
locked and shall turn off all utilities, lights and machines before leaving the
Building at the end of the day, provided that Landlord hereby acknowledges that
Tenant may be operating its business, including the operation of computers, 24
hours a day within the Premises.
13. Without the prior written consent of Landlord, which shall not be
unreasonably withheld, Tenant shall not use the name of the Building or the
Project in connection with, or in promoting or advertising the business of,
Tenant, except Tenant may use the address of the Building as the address of its
business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Building's heating and air
conditioning, and shall refrain from attempting to adjust any controls, other
than room thermostats installed for Tenant's use. Tenant shall keep corridor
doors closed.
15. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage, which may arise from a cause other than Landlord's
negligence, which includes keeping doors locked and other means of entry to the
Premises closed and secured.
16. Peddlers, solicitors and beggars shall be reported to the office of
the Project or as Landlord otherwise requests.
17. No bicycle or other vehicle and no animals or pets shall be allowed in
the Premises, halls, freight docks, or any other parts of the Building except
that blind persons may be accompanied by "seeing eye" dogs. Tenant shall not
make or permit any noise, vibration or odor to emanate from the Premises, or do
anything therein tending to create, or maintain, a nuisance, or do any act
tending to injure the reputation of the Building or the Project.
18. Tenant acknowledges that Building or Project security problems may
occur which may require the employment of extreme security measures in the day-
to-day operation of the Building or the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and/or its agents, in
their reasonable discretion, require that persons entering or leaving the
Building or the Project identify themselves to watchmen or other employees
designated by Landlord, by registration, identification or otherwise.
(b) Tenant agrees that it and its employees will cooperate fully with
Building and Project employees in the implementation of any and all security
procedures.
(c) Such security measures shall be the sole responsibility of
Landlord, and Tenant shall have no liability for any action taken by Landlord in
connection therewith, it being understood that Landlord is not required to
provide any security procedures and shall have no liability for such security
procedures or the lack thereof.
19. Tenant shall not do or permit the manufacture, sale or purchase of any
fermented, intoxicating or alcoholic beverages without obtaining written consent
of Landlord.
20. Tenant shall not disturb the quiet enjoyment of any other tenant.
21. Tenant shall not provide any janitorial services or professional
cleaning without Landlord's written consent, not to be unreasonably withheld,
and then only subject to supervision of Landlord and at Tenant's sole
responsibility and by janitor or professional cleaning contractor or employees
at all times reasonably satisfactory to Landlord.
22. No equipment, mechanical ventilators, awnings, special shades or other
forms of window covering shall be permitted either inside or outside the
exterior windows of the Premises without the prior written consent of Landlord,
and then only at the expense and risk of Tenant, and they shall be of such
shape, color, material, quality, design and make as may be reasonably approved
by Landlord.
B-3
23. Tenant shall not during the term of this Lease canvas or solicit other
tenants of the Building for any purpose.
24. Tenant shall not install or operate any phonograph, musical or sound-
producing instrument or device, radio receiver or transmitter, TV receiver or
transmitter, or similar device in the Building, nor install or operate any
antenna, aerial, wires or other equipment inside or outside the Building, nor
operate any electrical device from which may emanate electrical waves to the
extent any such items interfere with or impair radio or television broadcasting
or reception from or in the Building or elsewhere, without in each instance the
prior written approval of Landlord. The use thereof, if permitted, shall be
subject to control by Landlord to the end that others shall not be disturbed.
25. Tenant shall not exhibit, sell or offer for sale, rent or exchange in
the Premises or at the Project any article, thing or service, except those
ordinarily included within the use of the Premises specified in Section 6 of
this Lease, without the prior written consent of Landlord.
26. Tenant shall not overload any floors in the Premises or any public
corridors or elevators in the Building. Upon request by Tenant, Landlord shall
provide Tenant with information as to the load limits for such areas.
27. Tenant shall not do any painting in the Premises, or xxxx, paint, cut
or drill into, drive nails or screws into, or in any way deface any part of the
Premises or the Building, outside or inside (other than the hanging of ordinary
art work or decorations on the inside of the Premises), without the prior
written consent of Landlord, not to be unreasonably withheld.
28. Whenever Landlord's consent, approval or satisfaction is required
under these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance.
29. Tenant and its employees shall cooperate in all fire drills
conducted by Landlord in the Building. Unless required otherwise by applicable
law, Tenant shall be allowed to keep essential personnel in the Building during
fire drills.
B-4
APPENDIX C
TENANT IMPROVEMENT AGREEMENT
1. INITIAL IMPROVEMENTS. Landlord shall cause to be performed the
improvements (the "Initial Improvements") in the Premises in accordance with
plans and specifications approved by Tenant and Landlord (the "Plans"), which
approvals shall not be unreasonably withheld. The Initial Improvements shall be
performed at the Tenant's cost, subject to the Landlord's Contribution
(hereinafter defined). The Initial Improvements shall include Tenant's building
and common area signage.
Landlord shall cause the Plans to be prepared, at Landlord's cost as part
of Landlord's Contribution, by a registered professional architect, and
mechanical and electrical engineer(s). Within forty-five (45) days after the
date of the Lease, Landlord shall furnish the initial draft of the Plans to
Tenant for Tenant's review and approval. Tenant shall within two (2) weeks
after receipt either provide comments to such Plans or approve the same. Tenant
shall be deemed to have approved such Plans if it does not provide comments on
such Plans within such 2-week period. If Tenant provides Landlord with comments
to the initial draft of the Plans, Landlord shall provide revised Plans to
Tenant incorporating Tenant's comments within one week after receipt of Tenant's
comments. Tenant shall within one week after receipt then either provide
comments to such revised Plans or approve such Plans. Tenant shall be deemed to
have approved such revised Plans if Tenant does not provide comments on such
Plans within such 1-week period. The process described above shall be repeated,
if necessary, until the Plans have been finally approved by Tenant.
Landlord, with consultation of Tenant, shall select a contractor to perform
the construction of the Initial Improvements. Landlord shall use commercially
reasonable efforts to cause the Initial Improvements to be substantially
completed, except for minor "Punch List" items, on or before the Commencement
Date specified in the Schedule to the Lease, subject to Tenant Delay (as defined
in Section 4 hereof) and Force Majeure.
Landlord, or an agent of Landlord, shall provide project management
services in connection with the construction of the Initial Improvements and the
Change Orders (hereinafter defined). Such project management services shall be
performed, at Tenant's cost, for a fee of two percent (2%) of all costs related
to the preparation of the Plans and the construction of the Initial Improvements
and the Change Orders.
2. CHANGE ORDERS. If, prior to the Commencement Date, Tenant shall
require improvements or changes (individually or collectively, "Change Orders")
to the Premises in addition to, revision of, or substitution for the Initial
Improvements, Tenant shall deliver to Landlord for its approval plans and
specifications for such Change Orders. If Landlord does not approve of the
plans for Change Orders, Landlord shall advise Tenant of the revisions required
within five (5) business days of Landlord's receipt of such plans. Tenant shall
revise and redeliver the plans and specifications to Landlord within five (5)
business days of Landlord's advice or Tenant shall be deemed to have abandoned
its request for such Change Orders. Tenant
shall pay for all preparations and revisions of plans and specifications with
respect to Change Orders, and the construction of all Change Orders, subject to
Landlord's Contribution.
3. LANDLORD'S CONTRIBUTION. Landlord shall contribute an amount up to
$19.00 per square foot of Usable Area within the Premises ("Landlord's
Contribution") toward the costs incurred for the Initial Improvements and Change
Orders, including costs for architectural and engineering services and
permitting and construction fees. Landlord has no obligation to pay for costs
of the Initial Improvements or Change Orders in excess of Landlord's
Contribution. If the cost of the Initial Improvements and/or Change Orders
exceeds the Landlord's Contribution, Tenant shall pay such overage to Landlord
fifty percent (50%) upon commencement of construction of the Initial
Improvements and/or Change Orders and fifty percent (50%) upon the later of
receipt of documentation of the final costs and the Commencement Date.
4. COMMENCEMENT DATE DELAY. Commencement Date shall be delayed until the
Initial Improvements have been substantially completed (the "Completion Date"),
except to the extent that the delay shall be caused by any one or more of the
following (a "Tenant Delay"):
(a) Tenant's request for Change Orders whether or not any such Change
Orders are actually performed; or
(b) Contractor's performance of any Change Orders; or
(c) Tenant's request for materials, finishes or installations
requiring unusually long lead times; or
(d) Tenant's delay in reviewing, revising or approving plans and
specifications beyond the periods set forth herein; or
(e) Tenant's delay in providing information critical to the normal
progression of the project. Tenant shall provide such information as soon as
reasonably possible, but in no event longer than one week after receipt of such
request for information from the Landlord; or
(f) Tenant's delay in making payments to Landlord for costs of the
Initial Improvements and/or Change Orders in excess of the Landlord's
Contribution; or
(g) Any other act or omission by Tenant, its agents, contractors or
persons employed by any of such persons.
If the Commencement Date is delayed for any reason, then Landlord shall cause
Landlord's Architect to certify the date on which the Initial Improvements would
have been completed but for such Tenant Delay, or were in fact completed without
any Tenant Delay.
5. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord shall permit
Tenant and its agents to enter the Premises not less than fifteen (15) days
prior to the
C-2
Commencement Date to prepare the Premises for Tenant's use and occupancy. Such
permission shall constitute a license only, conditioned upon Tenant's:
(a) working in harmony with Landlord and Landlord's agents,
contractors, workmen, mechanics and suppliers and with other tenants and
occupants of the Building;
(b) obtaining in advance Landlord's approval of the contractors
proposed to be used by Tenant and depositing with Landlord in advance of any
work the contractor's affidavit for the proposed work and the waivers of lien
from the contractor and all subcontractors and suppliers of material; and
(c) furnishing Landlord with such insurance as Landlord may require
against liabilities which may arise out of such entry.
Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's property or installations in the Premises
prior to the Commencement Date. Tenant shall protect, defend, indemnify and save
harmless Landlord from all liabilities, costs, damages, fees and expenses
arising out of the activities of Tenant or its agents, contractors, suppliers or
workmen in the Premises or the Building. Any entry and occupation permitted
under this Section shall be governed by Section 5 and all other terms of the
Lease.
6. LATE COMPLETION DATE. In the event the Completion Date has not
occurred by August 21, 1998 (subject to any Tenant Delays), Landlord shall
relocate Tenant to temporary space ("Temporary Space") elsewhere. Landlord
shall deliver the Temporary Space to Tenant on or before August 21, 1998. The
Temporary Space shall be located in no more than three (3) buildings within the
Austin, Texas metropolitan area, and shall contain no less than 45,000 rentable
square feet in the aggregate in occupiable condition, but otherwise "as is."
Tenant's gross rent for the Temporary Space shall be $14.50 per rentable square
foot per year from August 21, 1998 through and including November 30, 1998, and
$0.00 per rentable square foot thereafter, continuing until Landlord delivers
the substantially completed Premises to Tenant. Landlord shall reimburse Tenant
for Tenant's reasonable cost associated with such move (including, but not
limited to, the cost of installing equipment and telecommunications lines) from
Tenant's current office space location to the Temporary Space upon Tenant's
delivery to Landlord of paid invoices evidencing such costs.
7. MISCELLANEOUS. Terms used in this Appendix C shall have the meanings
assigned to them in the Lease. The terms of this Appendix C are subject to the
terms of the Lease. Notwithstanding anything to the contrary in this Appendix
C, the total amount payable by Tenant shall not exceed $1,422,263, less the
Landlord's Contribution, but increased by the cost of any changes to the Initial
Improvements from: (i) the "Schematic Test Fit" and/or the "Architectural
Pricing Criteria for the NetSolve Lease in the Riata Office Park Austin, Texas"
each of which as prepared by RTG/Partners, Inc. and dated August 4, 1997; and/or
(ii) the "Mechanical/Electrical Pricing Criteria for the NetSolve Lease in the
Riata Office Park, Austin, Texas" prepared by MEJ & Associates, Inc. on August
5, 1997.
C-3
APPENDIX D
MORTGAGES CURRENTLY AFFECTING THE PROJECT
None.
D-1
APPENDIX E
COMMENCEMENT DATE CONFIRMATION
Landlord: CarrAmerica Realty, L.P., a Delaware limited partnership
t/a Riata Corporate Park
Tenant: ____________________, a _____________
This Commencement Date Confirmation is made by Landlord and Tenant pursuant
to that certain Lease dated as of _________, 199__ (the "Lease") for certain
premises known as Suite ____ in the building commonly known as [PROPERTY NAME]
(the "Premises"). This Confirmation is made pursuant to Item 9 of the Schedule
to the Lease.
1. Lease Commencement Date, Termination Date. Landlord and Tenant hereby
agree that the Commencement Date of the Lease is _____________, 199__, and the
Termination Date of the Lease is _______________, _____.
2. Acceptance of Premises. Tenant has inspected the Premises and affirms
that the Premises is acceptable in all respects in its current "as is"
condition.
3. Incorporation. This Confirmation is incorporated into the Lease, and
forms an integral part thereof. This Confirmation shall be construed and
interpreted in accordance with the terms of the Lease for all purposes.
TENANT:
NETSOLVE, INCORPORATED, a Delaware
corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
LANDLORD:
CARRAMERICA REALTY, L.P., a Delaware
limited partnership
By: CarrAmerica Realty GP Holdings, Inc.,
a Delaware corporation, General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
E-1
APPENDIX F
SPECIAL PROVISIONS
1. EXTENSION OPTION. Subject to Subsections B and C below, Tenant may at
its option extend the Term of this Lease for the entire Premises for one period
of five (5) years (the "Renewal Term") upon the same terms contained in this
Lease, excluding the provisions of Appendix C of the Lease and except for the
amount of Base Rent payable during the Renewal Term. Tenant shall have no
additional extension option.
A. The Base Rent during the Renewal Term shall be the greater of (i) the
Base Rent applicable to the last day of the final Lease Year prior to the
applicable Renewal Term, or (ii) the then prevailing market rate for a
comparable term commencing on the first day of the Renewal Term for tenants of
comparable size and creditworthiness for comparable space (including the extent
of tenant improvements) in the Project and other first class office buildings in
the vicinity of the Project as reasonably determined by Landlord.
B. To exercise its option, Tenant must deliver an initial non-binding
notice to Landlord not more than twelve (12) months, nor less than nine (9)
months, prior to the proposed commencement of the Renewal Term. Within ninety
(90) days of Landlord's receipt of Tenant's initial non-binding notice, Landlord
shall calculate and inform Tenant of the Base Rent for the Premises during the
Renewal Term. Such calculation shall be final and shall not be recalculated at
the actual commencement of the Renewal Term if any. Tenant shall give Landlord
final binding notice of intent to exercise its option to extend within fifteen
(15) days after receiving Landlord's calculation of Base Rent. If Tenant fails
to give either its initial nonbinding notice or its final binding notice timely,
Tenant will be deemed to have waived its option to extend.
C. Tenant's option to extend this Lease is subject to the conditions
that: (i) that on the date that Tenant delivers its final binding notice
exercising its option to extend, Tenant is not in default under this Lease after
the expiration of any applicable notice and cure periods, and (ii) Tenant shall
not have assigned this Lease, or sublet any portion of the Premises under a
sublease which is in effect at any time during the final 12 months of the Term.
D. Tenant agrees to accept the Premises at the commencement of the
Renewal Term in its then-present condition, "AS IS" and "WITH ALL FAULTS."
2. RIGHT OF FIRST REFUSAL. Subject to Subsection B below, Landlord
hereby grants to Tenant for the term of the Lease a right of first refusal for
the balance of the first (1st) floor of the Building, comprising approximately
21,455 Rental Square Feet (subject to adjustment pursuant to Section 1C of the
Lease) (the "Expansion Space"), to be exercised in accordance with Subsection A
below.
A. In the event Landlord receives a bona fide offer from a third party to
lease all or a portion of the Expansion Space, or Landlord makes such an offer
to a third party with respect
F-1
to all or a portion of the Expansion Space, Landlord shall so notify Tenant
("Landlord's RFR Notice"), identifying the available Expansion Space (the "RFR
Space"). Landlord's RFR Notice shall contain the terms upon which Landlord is
willing to lease the RFR Space, including base rent at the then prevailing
market rate for a comparable term for tenants of comparable size and
creditworthiness for comparable space in the Project and other first class
office buildings in the vicinity of the Project as reasonably determined by
Landlord. Tenant shall notify Landlord within ten (10) business days of receipt
of Landlord's RFR Notice whether it desires to lease the RFR Space on the terms
set forth in Landlord's RFR Notice. If Tenant does not notify Landlord within
said 10-business day period that it will lease the RFR Space, Tenant shall be
deemed to have refused the RFR Space. After any refusal, Tenant shall have no
further right of first refusal for such RFR Space and Landlord shall be free to
lease such space to any party for any term. If Tenant exercises its right of
first refusal with respect to the RFR Space, such space shall be added to the
Premises for all purposes of this lease for the remaining Term of the Lease on
(a) the terms specified in Landlord's RFR Notice, and (b) the terms of this
Lease to the extent that they do not conflict with the terms specified in
Landlord's RFR Notice, except that the terms of Landlord's RFR Notice shall not
apply during any Renewal Term, and instead, the terms of the Lease applying to
the remainder of the Premises during the Renewal Term shall also apply to the
RFR Space.
B. Tenant's right of first refusal is subject to the conditions that:
(i) on the date that Tenant delivers its notice exercising its right of first
refusal, Tenant is not in default under this Lease after the expiration of any
applicable notice and cure periods, (ii) Tenant shall not have assigned the
Lease, or sublet any portion of the Premises under a sublease which is in effect
at any time during the period commencing with Tenant's delivery of its notice
and ending on the date the RFR Space is added to the Premises, and (iii) Tenant
failed to exercise its option under Paragraph 2 of this Appendix F to lease the
Expansion Space.
C. Promptly after Tenant's exercise of its right of first refusal under
this Xxxxxxxxx 0, Xxxxxxxx shall execute and deliver to Tenant an amendment to
the Lease to reflect changes in the Premises, Base Rent, Tenant's Proportionate
Share and any other appropriate terms changed by the addition of the RFR Space.
Within fifteen (15) days after Tenant's receipt of an accurate amendment from
Landlord, Tenant shall execute and return the amendment.
F-2
