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EXHIBIT 10.22
LEASE AGREEMENT
BETWEEN
KRAMER 34 HP, LTD.
as Landlord,
and
IXC COMMUNICATIONS SERVICES, INC.
as Tenant,
Covering the Building
known (or to be known) as
Kramer 2
Located at
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Austin, Texas
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TABLE OF CONTENTS
PAGE NO.
1. PREMISES, TERM, AND IMPROVEMENTS..................................................1
2. BASE RENT, ADDITIONAL RENT AND SECURITY DEPOSIT...................................1
3. TAXES.............................................................................2
4. LANDLORD'S MAINTENANCE............................................................2
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.......................................3
6. ALTERATIONS.......................................................................3
7. SIGNS.............................................................................3
8. UTILITIES.........................................................................3
9. INSURANCE.........................................................................4
10. CASUALTY DAMAGE...................................................................4
11. LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE..................4
12. USE...............................................................................5
13. INSPECTION........................................................................5
14. ASSIGNMENT AND SUBLETTING.........................................................5
15. CONDEMNATION......................................................................6
16. SURRENDER OF PREMISES; HOLDING OVER...............................................6
17. QUIET ENJOYMENT...................................................................7
18. EVENTS OF DEFAULT.................................................................7
19. REMEDIES..........................................................................7
20. LANDLORD'S DEFAULT................................................................8
21. MORTGAGES.........................................................................8
22. ENCUMBRANCES......................................................................9
23. MISCELLANEOUS.....................................................................9
24. NOTICES..........................................................................10
25. HAZARDOUS WASTE..................................................................10
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LIST OF DEFINED TERMS
Lease.....................................................................................1
Landlord..................................................................................1
Tenant....................................................................................1
Premises..................................................................................1
Building..................................................................................1
Land......................................................................................1
Proportionate Share.......................................................................1
Commencement Date.........................................................................1
Term......................................................................................1
Shell Improvement.........................................................................1
Base Rent.................................................................................1
Operating Expenses........................................................................1
rent......................................................................................2
Taxes.....................................................................................2
Building's Structure......................................................................2
HVAC System...............................................................................3
Repair Period.............................................................................4
Vacation Date.............................................................................5
Transfer..................................................................................5
Taking....................................................................................6
Event of Default..........................................................................7
Claimant..................................................................................8
Mortgage..................................................................................8
Primary Lease.............................................................................8
Landlord's Mortgagee......................................................................8
Laws......................................................................................9
Law.......................................................................................9
affiliate.................................................................................9
Tenant Party..............................................................................9
including.................................................................................9
Hazardous Substances.....................................................................10
Environmental Law........................................................................10
Permitted Activities.....................................................................10
Permitted Materials......................................................................10
MSDS.....................................................................................10
Working Drawings........................................................................D-1
Initial Improvements....................................................................D-1
Construction Allowance..................................................................D-1
Total Construction Costs................................................................D-1
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LEASE AGREEMENT
This Lease Agreement (this "LEASE") is entered into by KRAMER 34 HP,
LTD., ("LANDLORD"), and IXC COMMUNICATIONS SERVICES, INC., ("TENANT").
1. PREMISES, TERM AND IMPROVEMENTS.
(a) Landlord leases to Tenant, and Tenant leases from
Landlord, the space depicted on the floor plan attached as EXHIBIT A (the
"PREMISES"), which is part of the approximately 68,400 square foot building (the
"BUILDING") located on the real property described on EXHIBIT A (the "LAND"),
subject to the terms and conditions in this Lease. The Building is a part of the
seven (7) building project known as Braker Center IV, as more particularly shown
on EXHIBIT A-1 attached hereto (the "PROJECT"). Landlord and Tenant stipulate
that, as of the date of this Lease, the size of the Premises is 36,024 square
feet (subject to increase as provided on Exhibit C) and the size of the Building
is 68,400 square feet, and Tenant's initial "PROPORTIONATE SHARE" is 52.7%. The
size of the Premises and Proportionate Share shall be adjusted if the size of
the Premises changes, including, without limitation, increases in the Premises
due to Tenant's lease of the Expansion Space as provided on Exhibit C.
(b) The Lease term shall be seventy two (72) months, beginning
on the later of (i) sixty (60) days after substantial completion of the Shell
Improvements (as defined on Exhibit B) or (ii) August 1, 1999 (the "COMMENCEMENT
DATE"), and ending July 31, 2005 (the "TERM", which defined term shall include
all renewals and extensions of the Term, if any). Notwithstanding the foregoing
if the Commencement Date does not occur on August 1, 1999, then the Term shall
end seventy-two (72) months after the first day of the first full calendar month
after the Commencement Date.
(c) Landlord shall construct the shell improvements (the
"SHELL IMPROVEMENTS") described on EXHIBIT B, and, by occupying the Premises,
Tenant shall have accepted the Premises in their shell condition, subject to
latent defects and completion of any punch-list items relating to the Shell
Improvements. Tenant shall be responsible for constructing the Initial
Improvements described on the plans and specifications referenced on Exhibit B.
2. BASE RENT, ADDITIONAL RENT AND SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord "BASE RENT", in advance,
without demand, deduction or setoff, equal to the following amounts for the
following periods of time:
TIME PERIOD MONTHLY BASE RENT
Months 1 through 72 $1.06 per square foot of the Premises
The first monthly installment, plus the other monthly charges set forth in
Section 2.(b), shall be due on the date hereof; thereafter, monthly installments
of Base Rent shall be due on the first day of each calendar month following the
Commencement Date. If the Term begins on a day other than the first day of a
month or ends on a day other than the last day of a month, the Base Rent and
additional rent for such partial month shall be prorated.
(b) Tenant shall pay, as additional rent its Proportionate
Share of all costs incurred in operating, managing, and maintaining the
Premises, the Land and the Building and the facilities and services provided for
the common use of Tenant and any other tenants of the Building (collectively,
"OPERATING EXPENSES"), including the following items: (1) Taxes (defined below)
and the cost of any tax consultant employed to assist Landlord in determining
the fair tax valuation of the Building and Land; (2) the cost of all utilities
used in the Building which are not billed separately to a tenant for above
building standard utility consumption; (3) the cost of insurance; (4) the cost
of repairs, replacement, management fees and expenses, landscape maintenance and
replacement, security service (if provided), trash service (if provided); (5)
the cost of dues, assessments, and other charges applicable to the Land payable
to any property or community owner association under restrictive covenants or
deed restrictions to which the Land is subject; (6) maintenance of the
Building's fire sprinkler systems; and (7) alterations, additions, and
improvements made by Landlord to comply with Law (defined below) or in order to
reduce Operating Expenses. On the same day that Base Rent is due, Tenant shall
pay to Landlord an amount equal to 1/12 of Landlord's estimate of Tenant's
Proportionate Share of annual Operating Expenses. The initial monthly payments
are based upon Landlord's estimate of the Operating Expenses for the year in
question, and shall be increased or decreased annually to reflect the projected
actual Operating Expenses for that year. Within 90 days after each calendar year
or as soon thereafter as is reasonably practicable, Landlord shall deliver to
Tenant a statement setting forth the actual Operating Expenses for such year. If
Tenant's total payments in respect of Operating Expenses for any year are less
than Tenant's Proportionate Share of Operating Expenses for that year, Tenant
shall pay the difference to Landlord within 30 days after Landlord's request
therefor; if such payments are more than Tenant's Proportionate Share of
Operating Expenses, Landlord shall retain such excess and credit it against
Tenant's future monthly payments, except that any credit remaining at the
expiration or earlier termination of this Lease shall be paid to Tenant within
thirty (30) days after such expiration or termination. Operating Expenses shall
not include the following: (A) any costs for interest, amortization, or other
payments on loans to Landlord; (B) commissions or other expenses incurred in
leasing or procuring tenants; (C) legal expenses other than those incurred for
the direct benefit of the tenants of the Building; (D) allowances, concessions,
and other costs of renovating or otherwise improving space for occupants of the
Building or vacant space in the Building; (E) federal income taxes imposed on or
measured by the income of Landlord from the operation of the Building; (F) rents
under
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ground leases; (G) costs incurred in selling, syndicating, financing,
mortgaging, or hypothecating any of Landlord's interests in the Building; and
(H) costs of capital improvements except for those provided in (7) above and
except that Landlord may include in Operating Expenses only such portion of
capital improvement costs as is necessary to amortize such improvements over
their useful life. There shall be no duplication of costs for reimbursements in
calculating Operating Expenses. The amounts of the initial monthly Base Rent and
Tenant's Proportionate Share of Operating Expenses (and the part thereof
attributable to Taxes) are as follows:
Base Rent (Section 2.(a)).................................................$38,185.44
Operating Expenses, excluding Taxes (Section 2(b)).........................$3,362.24
Taxes (Sections 2.(b) and 3.(a))...........................................$4,803.20
Total initial monthly payment.............................................$46,350.88
(c) If any payment required of Tenant under this Lease is not
paid within fifteen (15) days after due, Landlord may charge Tenant a fee equal
to 5% of the delinquent payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency; provided,
however, that if Tenant is late more than three (3) times in any given 12 month
period, then subsequent to any such third late payment any failure to pay rent
or any other sum when due shall be subject to the foregoing late fee immediately
(i.e., without the 15-day grace period).
(d) All payments and reimbursements required to be made by
Tenant under this Lease shall constitute "RENT" (herein so called).
(e) Landlord shall keep good and accurate books and records in
accordance with sound accounting principles consistently applied concerning the
Operating Expenses, and Tenant shall have the right, upon 10 days notice, to
inspect and copy such books and records. In any event, Landlord shall credit
Tenant in the same manner as overpayments of Operating Expenses per subparagraph
(b) above all Operating Expenses shown by such inspection to have been overpaid
by Tenant, as mutually determined by Landlord and Tenant in good faith, and,
similarly, Tenant shall promptly pay Landlord all Operating Expenses shown by
such inspection to have been underpaid by Tenant, as mutually determined by
Landlord and Tenant in good faith. Tenant shall not have the right to conduct
any such inspection more frequently than once annually or for periods prior to
the immediately preceding lease year. Landlord shall reimburse Tenant for the
audit expense if any overpayment is found to be 10% or greater.
3. TAXES.
(a) Landlord shall pay all taxes, assessments and governmental
charges whether federal, state, county, or municipal and whether they are
imposed by taxing or management districts or authorities presently existing or
hereafter created (collectively, "TAXES") that accrue against the Premises, the
land and the Building. If, during the Term, there is levied, assessed or imposed
on Landlord a capital levy or other tax directly on the rent or a franchise tax,
assessment, levy or charge measured by or based, in whole or in part, upon rent,
then all such taxes, assessments, levies or charges, or the part thereof so
measured or based, shall be included within the term "Taxes".
(b) Tenant shall (1) before delinquency pay all taxes levied
or assessed against any personal property, fixtures or alterations placed in the
Premises and (2) upon the request of Landlord, deliver to Landlord receipts from
the applicable taxing authority or other evidence acceptable to Landlord to
verify that such taxes have been paid. If any such taxes are levied or assessed
against Landlord or Landlord's property and (A) Landlord pays them or (B) the
assessed value of Landlord's property is increased thereby and Landlord pays the
increased taxes, then Tenant shall pay to Landlord such taxes within ten days
after Landlord's request therefor.
4. LANDLORD'S MAINTENANCE.
(a) This Lease is intended to be a net lease; accordingly,
Landlord's maintenance obligations are limited to the replacement of the
Building's roof and maintenance of the foundation piers and structural members
of the exterior walls (collectively, the "BUILDING'S STRUCTURE"); however,
Landlord shall not be responsible for alterations to the Building's Structure
required by law because of Tenant's use of the Premises (which alterations shall
be performed by Tenant). Landlord's liability for any defects, repairs,
replacement or maintenance for which Landlord is responsible hereunder shall be
limited to the cost of performing such work.
(b) Additionally, Landlord shall maintain the parking areas,
driveways, alleys and grounds surrounding the Premises in a clean and sanitary
condition, consistent with the operation of a first-class office/warehouse
building, including prompt maintenance, repairs and replacements of (1) any
drill or spur tract servicing the Premises, (2) the exterior of the Building
(including painting), (3) sprinkler systems and sewage lines, and (4) any other
items normally associated with the foregoing. Tenant shall promptly notify
Landlord of any work required to be performed under this Section 4.(b), and
Landlord shall not be responsible for performing such work until Tenant delivers
to Landlord such notice. All costs in performing the work described in this
Section 4.(b) shall be included in Operating Expenses, subject to the applicable
provisions of Section 2(b) hereof.
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(c) Additionally, Landlord shall maintain the private entry
drive, the detention pond, and other common areas for the Project as shown on
Exhibit A-1. The Building's Proportionate Share of all costs in performing the
work described in this Section 4(c) shall be included in Operating Expenses,
subject to the applicable provisions of Section 2(b) hereof. As used herein, the
term "Building's Proportionate Share" shall mean a fraction which is determined
by dividing the number of square feet contained in the Building (68,400) by the
number of square feet then contained in the Project. Currently there are 296,646
square feet in the Project, and therefore the initial Building's Proportionate
Share is 23%. As additional square footage in the Project is completed and ready
for occupancy, the number of square feet in the Project will be increased and
the Building's Proportionate Share will be adjusted accordingly.
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.
(a) Tenant shall maintain all parts of the Premises [except
for maintenance work which Landlord is expressly responsible for under Section
4.(a)] in good condition and promptly make all necessary repairs and
replacements to the Premises, normal wear and tear and damage by casualty
excepted. Tenant shall repair and pay for any damage caused by a Tenant Party
(defined below) or caused by Tenant's default hereunder.
(b) Tenant shall maintain the hot water equipment and the
heating, air condition, and ventilation equipment and system (the "HVAC SYSTEM")
in good repair and condition and in accordance with Law and with such equipment
manufacturers' suggested operation/maintenance service program; such obligation
shall include replacement of all equipment necessary to maintain such equipment
and system in good working order. Within ten days after the Commencement Date,
Tenant shall enter into regularly scheduled preventative maintenance/service
contracts for such equipment, each in compliance with Landlord's specifications
and otherwise in form and substance and with a contractor reasonably acceptable
to Landlord, and deliver copies thereof to Landlord. At least 14 days before the
end of the Term, Tenant shall deliver to Landlord a certificate from an engineer
reasonably acceptable to Landlord certifying that the hot water equipment and
the HVAC System are then in good repair and working order.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord.
Landlord shall not be required to notify Tenant of whether it consents to any
alteration, addition or improvements until it (a) has received plans and
specifications therefor which are sufficiently detailed to allow construction of
the work depicted thereon to be performed in a good and workmanlike manner, and
(b) has had five (5) business days to review them. If the alteration, addition
or improvement will affect the Building's Structure, HVAC System, or mechanical,
electrical, or plumbing systems, then the plans and specifications therefor must
be prepared by a licensed engineer reasonably acceptable to Landlord. Landlord's
approval of any plans and specifications shall not be a representation that the
plans or the work depicted thereon will comply with law or be adequate for any
purpose, but shall merely be Landlord's consent to performance of the work. Upon
completion of any alteration, addition, or improvement, Tenant shall deliver to
Landlord accurate, reproducible as-built plans therefor. Tenant may erect
shelves, bins, machinery and trade fixtures provided that (1) such items do not
alter the basic character of the Premises; (2) such items do not overload or
damage the same; and (3) Tenant promptly repairs any damage caused by removal of
such items. Unless Landlord specifies in writing otherwise, all alterations,
additions, and improvements shall be Landlord's property when installed in the
Premises. All work performed by a Tenant Party in the Premises (including that
relating to the installations, repair, replacement, or removal of any item)
shall be performed in accordance with Law and with Landlord's specifications and
requirements, in a good and workmanlike manner, and so as not to damage or alter
the Building's Structure or the Premises. Tenant shall be responsible for
compliance with American With Disabilities Act of 1990 for the interior,
non-structural portions of the Premises, Landlord shall be responsible for
compliance with the American with Disabilities Act of 1990 relative to the
Building's Structure, unless such compliance is required solely in connection
with a Tenant alteration of the Building, in which case such compliance shall be
Tenant's responsibility.
7. SIGNS. Tenant shall not place, install or attach any signage,
decorations, advertising media, blinds, draperies, window treatments, bars, or
security installations to the Premises or the Building without Landlord's prior
written approval. Landlord hereby agrees that the Tenant may erect such signage
as is shown on the Plans approved by Landlord in accordance with Exhibit B
attached hereto. Tenant shall repair, paint, and/or replace any portion of the
Premises or the Building damaged or altered as a result of its signage when it
is removed (including, without limitation, any discoloration of the Building).
Tenant shall not (a) make any changes to the exterior of the Premises or the
Building, (b) install any exterior lights, decorations, balloons, flags,
penants, banners or paintings, or (c) erect or install any signs, windows or
door lettering, decals, window or storefront stickers, placards, decorations or
advertising media of any type that is visible from the exterior of the Premises
or the Building without Landlord's prior written consent. Landlord shall not be
required to notify Tenant of whether it consents to any sign until it (1) has
received detailed, to-scale drawings thereof specifying design, material
composition, color scheme, and method of installation, and (2) has had a
reasonable opportunity to review them.
8. UTILITIES. Tenant shall pay directly to the utility provider all
electricity and telephone charges used at the Premises, together with any taxes,
penalties, surcharges, maintenance charges, and the like pertaining thereto.
Tenant shall obtain telephone and computer line service to the Premises.
Landlord shall provide, as part of the Initial Improvements, all other utility
service and connections to the Premises, including water, gas, electricity and
sewer. Except for electricity and telephone service, Tenant's use of all
utilities shall be part of Operating Expenses; provided, however, if Tenant's
use of any utility exceeds building-standard service, Landlord may, at Tenant's
expense, separately meter and bill Tenant directly for its use of any such
utility service, in which case, the amount separately billed to Tenant for above
building-standard utility service shall not be duplicated in Tenant's
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obligation to pay additional rent under Section 2.(b). Landlord shall not be
liable for any interruption or failure of utility service to the Premises,
unless caused by Landlord. Landlord shall grant access to the Premises for
telecom providers designated by Tenant on the same terms as other current
providers of such service. All amounts due Landlord from Tenant under this
Section 8 shall be payable within ten days after Landlord's request therefor.
9. INSURANCE. Tenant shall maintain (a) workers' compensation insurance
(with a waiver of subrogation endorsement reasonably acceptable to Landlord) and
commercial general liability insurance (with contractual liability endorsement),
including personal injury and property damage in the amount of $1,000,000 per
occurrence combined single limit for personal injuries and death of persons and
property damage occurring in or about the Premises, plus umbrella coverage of a
least $2,000,000 per occurrence, (b) fire and extended coverage insurance
covering (1) the replacement cost of all alterations, additions, partitions and
improvements installed in the Premises, (2) the replacement cost of all of
Tenant's personal property in the Premises, and (3) loss of profits in the event
of an insured peril damaging the Premises, and (c) such other insurance as
Landlord may reasonably require. Such policies shall (A) name Landlord,
Landlord's agents, and their respective Affiliates (defined below), as
additional insurers (and as loss payees on the fire and extended coverage
insurance), (B) be issued by an insurance company acceptable to Landlord, (C)
provide that such insurance may not be cancelled unless 30-days' prior written
notice is first given to Landlord, (D) be delivered to Landlord by Tenant before
the Commencement Date and at least 15 days before each renewal thereof, and (E)
provide primary coverage to Landlord when any policy issued to Landlord is
similar or duplicate in coverage, in which case Landlord's policy shall be
excess over Tenant's policies.
10. CASUALTY DAMAGE.
(a) Tenant shall give written notice to Landlord of any damage
to the Premises or the Building promptly on discovery of the same. If the
Premises or the Building is totally destroyed by an insured peril, or so damaged
by an insured peril that, in Landlord's reasonable estimation, rebuilding or
repairs cannot be substantially completed within 90 days after the date of
Landlord's actual knowledge of such damage, then either Landlord or (if a Tenant
Party did not cause such damage) Tenant may terminate this Lease by delivering
to the other written notice thereof within 30 days after such damage, in which
case, the rent shall be abated from the date of occurrence through the unexpired
portion of this Lease, effective upon the date such damage occurred. Time is of
the essence with respect to the delivery of such notices.
(b) Subject to Section 10.(c), if this Lease is not terminated
under Section 10.(a), then Landlord shall restore the Premises to substantially
its previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements or personal property required to be covered by Tenant's insurance
under Section 9. If the Premises are untenantable, in whole or in part, during
the period beginning on the dated such damage occurred and ending on the date of
substantial completion of Landlord's repair or restoration work (the "REPAIR
PERIOD"), then the rent for such period shall be reduced to such extent as may
be fair and reasonable under the circumstances.
(c) If the Premises are destroyed or substantially damaged by
any peril not covered by the insurance maintained by Landlord or any Landlord's
Mortgagee (defined below) requires that insurance proceeds be applied to the
indebtedness secured by its Mortgage (defined below) or to the Primary Lease
(defined below) obligations, Landlord may terminate this Lease by delivering
written notice of termination to Tenant within 30 days after such destruction or
damage or such requirement is made known by any such Landlord's Mortgagee, as
applicable, whereupon all rights and obligations hereunder shall cease and
terminate, except for any liabilities of Tenant which accrued before this Lease
is terminated, provided that all Base Rent and any additional rent accruing
after the date of the casualty shall be abated.
11. LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE.
(a) Landlord shall not be liable to Tenant or Tenant's agents,
employees or contractors, or those claiming by, through, or under any of them
for any Loss, except and only to the extent such Loss is caused solely by
Landlord's gross negligence or intentional misconduct. The term "Loss" means any
injury to or death of any person or persons or any damage to or theft,
destruction, loss, or loss of use of any real or personal property caused by
casualty, theft, fire, or any acts or omissions of any person or party, and any
injury or damage or inconvenience which may arise through repair or alteration
of any part of the Premises, or failure to make repairs, or from any other
cause. In addition, Landlord and Tenant each waives any claims it might have
against the other for any damage to or theft, destruction, loss or loss of use
of any property, to the extent the same is insured against under any insurance
policy that covers the Premises, Landlord's or Tenant's fixtures, personal
property, leasehold improvements, or business, or is required to be insured
against by the party which might have such claim under the terms of this Lease,
regardless of whether the negligence (of whatever type or nature, including, but
not limited to, gross negligence) or fault of the other party caused such loss.
EACH PARTY SHALL CAUSE ITS INSURANCE CARRIER TO ENDORSE ALL APPLICABLE POLICIES
WAIVING THE CARRIER'S RIGHT OF RECOVERY UNDER SUBROGATION OR OTHERWISE AGAINST
THE OTHER PARTY.
(b) Subject to paragraph 11 (a), Tenant shall defend,
indemnify, and hold harmless Landlord and its agents and employees from and
against all claims, demands, liabilities, causes of action, suits, judgments,
attorney's fees and expenses for any Loss arising from any occurrence within, on
or about the Premises or arising from Tenant's failure to perform its
obligations under this Lease or arising from any act or omission (whether
negligent, intentional or otherwise) of Tenant or Tenant's agents, employees,
invitees or contractors, except to the extent that a Loss is caused solely by
the gross negligence or intentional misconduct of Landlord.
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Subject to paragraph 11 (a), Landlord shall defend, indemnify, and hold
harmless Tenant and its agents and employees from and against all claims,
demands, liabilities, causes of action, suits, judgments, attorney's fees and
expenses for any Loss arising from any occurrence within, on or about the
Premises, to the extent, and only to the extent the Loss is caused solely by the
gross negligence or intentional misconduct of Landlord, or its agents,
employees, invitees or contractors.
THIS INDEMNITY PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF
THIS LEASE.
12. USE.
(a) The Premises shall be used only for receiving, storing,
shipping and selling products, materials and merchandise made or distributed by
Tenant, for a data center and for such other lawful purposes as may be
incidental thereto; however, no retail sales may be made from the Premises.
Tenant shall not use the Premises to receive, store or handle any product,
material or merchandise that is explosive or highly inflammable or hazardous.
Outside storage is prohibited. Tenant shall be solely responsible for complying
with all Laws applicable to the use, occupancy, and condition of the Premises;
provided, however, that Landlord shall deliver the Premises to Tenant in a
condition which is in compliance with all Laws. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, light, noise or vibrations
to emanate from the Premises; nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any other person; nor permit the Premises to be used for any purpose or in any
manner that would (1) void the insurance theron, (2) increase the insurance
risk, or (3) cause the disallowance of any sprinkler credits. Tenant shall pay
to Landlord on demand any increase in the cost of any insurance on the Premises
incurred by Landlord, which is caused by Tenant's use of the Premises or because
Tenant vacates the Premises.
(b) Tenant and its employees and invitees shall have the
non-exclusive right to use, in common with others, any parking areas associated
with the Premises which Landlord has designated for such use, subject to (1)
such reasonable rules and regulations as Landlord may promulgate from time to
time and (2) rights of ingress and egress of other tenants and their employees,
agents and invitees. Landlord agrees to provide at least one (1) parking space
for every two hundred eight-five (285) square feet of space leased within the
building for the common use of all of the tenants of the Building.
(c) Landlord shall have the right to establish and amend from
time to time, rules and regulations governing all tenants' uses and occupancy of
the Building (provided the same are reasonable, non-discriminatory and uniformly
enforced), and provided further that in the event of a conflict between those
rules and this Lease, the Lease shall control.
13. INSPECTION. Upon reasonable notice, Landlord and Landlord's agents
and representatives may enter the Premises during business hours to inspect the
Premises; to make such repairs as may be required or permitted under this Lease;
to perform any unperformed obligations of Tenant hereunder; and to show the
Premises to prospective purchasers, mortgagees, ground lessors, and (during the
last 6 months of the Term) tenants. During the last 6 months of the Term,
Landlord may erect a sign on the Premises indicating that the Premises are
available. Tenant shall notify Landlord in writing of its intention to vacate
the Premises at least 60 days before Tenant will vacate the Premises; such
notice shall specify the date on which Tenant intends to vacate the Premises
(the "VACATION DATE"). At least 30 days before the Vacation Date, Tenant shall
arrange to meet with Landlord for a joint inspection of the Premises. After such
inspection, Landlord shall prepare a list of items that Tenant must perform
before the Vacation Date, which shall not include repairs due to normal wear and
tear or casualty. If Tenant fails to arrange for such inspection, then Landlord
may conduct such inspection and Landlord's determination of the work Tenant is
required to perform before the Vacation Date shall be conclusive. If Tenant
fails to perform such work before the Vacation Date, then Landlord may perform
such work at Tenant's cost. Tenant shall pay all costs incurred by Landlord in
performing such work within ten days after completion of the work and Landlord's
request therefor.
14. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent of
Landlord which will not be unreasonably withheld, (1) advertise that any portion
of the Premises is available for lease or cause or allow any such advertisement,
(2) assign, transfer, or encumber this Lease or any estate or interest herein,
whether directly or by operation of law, (3) permit any other entity to become
Tenant hereunder by merger, consolidation, or other reorganization; provided,
however, that such a transfer may occur without Landlord's consent so long as
the primary business of the new entity remains the same as Tenant's primary
business and the net worth of the new entity is equal or greater to that of
Tenant, (4) if Tenant is an entity other than a corporation whose stock is
publicly traded (or a corporation whose stock is in the process of being
publicly traded), permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, (5) sublet any portion
of the Premises, (6) grant any license, concession, or other right of occupancy
of any portion of the Premises, or (7) permit the use of the Premises by any
parties other than Tenant (any of the events listed in Sections 14.(a)(2)
through 14.(a)(7) being a "TRANSFER"). If Tenant requests Landlord's consent to
a Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Tenant shall reimburse
Landlord for its reasonable attorneys' fees and other
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expenses incurred in connection with considering any request for its consent to
a Transfer. If Landlord consents to a proposed Transfer, then the proposed
transferee shall deliver to Landlord a written agreement whereby it expressly
assumes the Tenant's obligations hereunder (however, any transferee of less than
all of the space in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the Transfer, and only
to the extent of the rent it has agreed to pay Tenant therefor). Landlord's
consent to a Transfer shall not release Tenant from performing its obligations
under this Lease, but rather Tenant and its transferee shall be jointly and
severally liable therefor. Landlord's consent to any Transfer shall not waive
Landlord's rights as to any subsequent Transfers. If an Event of Default occurs
while the Premises or any part thereof are subject to a Transfer, then Landlord,
in addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Tenant's rent
obligations. Tenant authorizes its transferees to make payments of rent directly
to Landlord upon receipt of notice from Landlord to do so.
(b) Landlord may, within 30 days after submission of Tenant's
written notification of intent to Transfer, cancel this Lease (or, as to a
subletting or assignment cancel as to the portion of the Premises proposed to be
sublet or assigned) effective 30 days after receiving notice of intent to
Transfer. If Landlord cancels this Lease as to any portion of the Premises, then
this Lease shall cease for such portion of the Premises and Tenant shall pay to
Landlord all rent accrued through the cancellation date relating to the portion
of the Premises covered by the proposed Transfer. Thereafter, Landlord may lease
such portion of the Premises to the prospective transferee (or to any other
person) without liability to Tenant.
(c) Tenant hereby assigns, transfers and conveys all
consideration received by Tenant under any Transfer, which are in excess of the
rents payable by Tenant under this Lease plus reasonable costs incurred by
Tenant in connection with such reletting. Tenant shall hold such amounts in
trust for Landlord and pay them to Landlord within ten days after receipt.
(d) Notwithstanding anything to the contrary contained in
subpart (2) of Section 14(a) above, Tenant may assign the Lease without
Landlord's consent to any of the following (a "Permitted Transferee"), provided
that the Permitted Transferee's financial condition, creditworthiness and
business reputation following the transfer are equal to or exceed those of
Tenant: (i) any successor corporation or other entity resulting from a merger or
consolidation of Tenant; (ii) any purchaser of all or substantially all of
Tenant's assets; or (iii) any entity which controls, is controlled by, or is
under common control with Tenant. Tenant shall give Landlord thirty (30) days
prior written notice of such assignment or sublease. Any Permitted Transferee
shall assume in writing all of Tenant's obligations under this Lease. Tenant
shall nevertheless at all times remain fully responsible and liable for the
payment of rent and the performance and observance of all of Tenant's other
obligations under this Lease. Nothing in this paragraph is intended to nor shall
permit Tenant to transfer its interest under this Lease as part of a fraud or
subterfuge to intentionally avoid its obligations under this Lease (for example,
transferring its interest to a shell corporation that subsequently files a
bankruptcy), and any such transfer shall constitute an Event of Default
hereunder.
15. CONDEMNATION. If more than 50% of the Premises or 25% of the
Building or Land is taken for any public or quasi-public use by right of eminent
domain or private purchase in lieu thereof (a "TAKING"), and the Taking prevents
or materially interferes with the use of the Premises for the purpose for which
they were leased to Tenant, (including a data center) either party may terminate
this Lease by delivering to the other written notice thereof within 30 days
after the Taking, in which case rent shall be abated during the unexpired
portion of the Term, effective on the date of such Taking. If (a) less than 50%
of the Premises or 25% of the Building or Land are subject to a Taking or (b)
more than 50% of the Premises or 25% of the Building or Land are subject to a
Taking, but the Taking does not prevent or materially interfere with the use of
he Premises for the purpose for which they were leased to Tenant (including a
data center), then neither party may terminate this Lease, but the rent payable
during the unexpired portion of the Term shall be reduced to such extent as may
be fair and reasonable under the circumstances. All compensation awarded for any
Taking shall be the property of Landlord and Tenant assigns any interest it may
have in any such award to Landlord; however, Landlord shall have no interest in
any award made to Tenant for loss of business or goodwill or for the taking of
Tenant's trade fixtures, the cost of relocating Tenant and/or disruption of
Tenant's business, if a separate award for such items is made to Tenant.
16. SURRENDER OF PREMISES; HOLDING OVER.
(a) No act by Landlord shall be an acceptance of a surrender
of the Premises, and no agreement to accept a surrender of the Premises shall be
valid unless it is in writing and signed by Landlord. At the end of the Term or
the termination of Tenant's right to possess the Premises, Tenant shall (1)
deliver to Landlord the Premises with all improvements located thereon in good
repair and condition, reasonable wear and tear (subject however to Tenant's
maintenance obligations) excepted, and with the HVAC System and hot water
equipment, light and light fixtures (including ballasts), and overhead doors and
related equipment in good working order, (2) deliver to Landlord all keys to the
Premises, and (3) remove all signage placed on the Premises, the Building or the
Land by or at Tenant's request. All fixtures, alterations, additions, and
improvements (whether temporary or permanent) shall be Landlord's property and
shall remain on the Premises except as provided in the next two sentences.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises by Tenant (but Tenant shall not remove any such item which was paid
for, in whole or in part, by Landlord). Additionally, Tenant shall remove such
alterations, additions, improvements, fixtures, equipment, wiring, furniture,
and other property as Landlord may request, provided such request is made within
fifteen (15) days after the end of the Term and provided that the installation
or construction of the applicable alteration, improvement, additions, fixture or
wiring was not consented to by Landlord in writing (unless at the time of
consent, Landlord informed Tenant that such item would need to be
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removed upon expiration of the Lease). All items not so removed shall, at the
option of Landlord, be deemed abandoned by Tenant and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant
and without any obligation to account for such items and Tenant shall pay for
the costs (if a sale, after deducting proceeds of sale of such items) incurred
by Landlord in connection therewith. All work required of Tenant under this
Section 16.(a) shall be coordinated with Landlord and be done in a good and
workmanlike manner, in accordance with all Laws, and so as not to damage the
Building or unreasonably interfere with other tenants' use of their premises.
Tenant shall, at its expense, repair all damage caused by any work performed by
Tenant under this Section 16.(a).
(b) If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a Tenant at will and Tenant shall pay, in addition to
the other rent due hereunder, a daily base rental equal to 200% of the daily
Base Rent payable during the last month of the Term. Additionally, Tenant shall
defend, indemnify, and hold harmless Landlord from any damage, liability and
expense (including attorneys' fees and expenses) incurred because of such
holding over. No payments of money by Tenant to Landlord after the Term shall
reinstate, continue or extend the Term, and no extension of this Term shall be
valid unless it is in writing and signed by Landlord and Tenant.
17. QUIET ENJOYMENT. Provided Tenant has fully performed its
obligations under this Lease, Tenant shall peaceably and quietly hold and enjoy
the Premises for the Term, without hindrance from Landlord or any party claiming
by, through, or under Landlord, but not otherwise.
18. EVENTS OF DEFAULT. Each of the following events shall constitute an
"EVENT OF DEFAULT" under this Lease:
(a) Tenant fails to pay any rent when due or any payment or
reimbursement required under any other lease with Landlord when due, and in
either case such failure continues for a period of five days from the date
Landlord delivers written notice of such failure; provided, however, that
Landlord shall not be required to deliver written notice more than three (3)
times in any given 12 month period or more than six (6) times during the Term,
and subsequent to any such third notice in 12 months, or any such sixth notice
during the Term, any failure to pay rent or any other sum when due shall be an
immediate Event of Default without notice.
(b) The filing of a petition by or against Tenant or any
guarantor of Tenant's obligations hereunder (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any debtor relief Law; (3)
for the appointment of a liquidator, receiver, trustee, custodian, or similar
official for all or substantially all of Tenant's property or for Tenant's
interest in this Lease; or (4) for reorganization or modification of Tenant's
capital structure (however, if any such petition is filed against Tenant then
the filing of such petition shall not constitute an Event of Default, unless it
is not dismissed within sixty (60) days after the filing thereof).
(c) Tenant fails to discharge any lien placed upon the
Premises in violation of Section 22 within thirty (30) days after any such lien
or encumbrance is filed against the Premises.
(d) Tenant fails to comply with any term, provision or
covenant of this Lease (other than those listed in this Section 18), and such
failure continues for thirty (30) days after written notice thereof to Tenant.
19. REMEDIES.
(a) Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by Law, take any of
the following actions:
(1) Terminate this Lease by giving Tenant written
notice thereof, in which event, Tenant shall pay to Landlord the sum of
(A) all rent accrued hereunder through the date of termination, (B) all
amounts due under Section 19.(b), and (C) an amount equal to (i) the
total rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at a per annum rate
equal to the rate of interest set forth for 26-week U.S. governmental
bills sold at a discount from face value in units of $10,000 to
$1,000,000 as published on the date this Lease is terminated by The
Wall Street Journal, Southwest Edition, in its listing of "Money Rates"
under the heading "Treasury Bills" (or, if no such rate is published,
the "Discount Rate" as published on such date under the "Money Rates"
listing), minus (ii) the then present fair rental value of the Premises
for such period, similarly discounted; or
(2) Terminate Tenant's right to possess the Premises
without terminating this Lease by giving written notice thereof to
Tenant, in which event Tenant shall pay to Landlord (A) all rent and
other amounts accrued hereunder to the date of termination of
possession, (B) all amounts due from time to time under Section 19.(b),
and (C) all rent and other sums required hereunder to be paid by Tenant
during the remainder of the Term, diminished by any net sums thereafter
received by Landlord through reletting the Premises during such period;
Landlord shall use commercially reasonable efforts to mitigate Tenant's
damages however, Landlord shall not be obligated to relet the Premises
and shall not be liable for, nor shall Tenant's obligations hereunder
be diminished because of, Landlord's failure to relet the Premises or
to collect rent due for a reletting. Tenant shall not be entitled to
the excess of any consideration obtained by reletting over the rent due
hereunder. Reentry by Landlord in the Premises shall not affect
Tenant's obligations hereunder for the unexpired Term; rather, Landlord
may, from time to time, bring action against Tenant to collect amounts
due by Tenant, without the necessity of Landlord's waiting until the
expiration of the Term. Unless Landlord delivers written notice to
Tenant expressly stating that
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it has elected to terminate this Lease, all actions taken by Landlord
to exclude or dispossess Tenant of the Premises shall be deemed to be
taken under this Section 19.(a)(2). If Landlord elects to proceed under
this Section 19.(a)(2), it may at any time elect to terminate this
Lease under Section 19.(a)(1).
Additionally, without notice, Landlord may alter locks or other security devices
at the Premises to deprive Tenant of access thereto, and Landlord shall not be
required to provide a new key or right of access to Tenant.
(b) Tenant shall pay to Landlord all direct reasonable costs
incurred by Landlord (including court costs and reasonable attorneys' fees and
expenses) in (1) obtaining possession of the Premises, (2) removing and storing
Tenant's or any other occupant's property, (3) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition acceptable to a new
tenant, (4) if Tenant is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises (including brokerage
commissions, cost of tenant finish work, and other costs incidental to such
reletting), (5) performing Tenant's obligations which Tenant failed to perform,
and (6) enforcing, or advising Landlord of, its rights, remedies, and recourses.
Landlord's acceptance of rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. Landlord's receipt of rent
with knowledge of any default by Tenant hereunder shall not be a waiver of such
default, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless set forth in writing and signed by Landlord. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such term
or violation of any other term. If Landlord repossesses the Premises pursuant to
the authority herein granted, then Landlord shall have the right to (A) keep in
place and use or (B) remove and store, at Tenant's expense, all of the
furniture, fixtures, equipment and other property in the Premises, including
that which is owned by or leased to Tenant at all times before any foreclosure
thereon by Landlord or repossession thereof by any lessor thereof or third party
having a lien thereon. Landlord may relinquish possession of all or any portion
of such furniture, fixtures, equipment and other property to any person (a
"CLAIMANT") who presents to Landlord a copy of any instrument represented by
Claimant to have been executed by Tenant (or any predecessor of Tenant) granting
Claimant the right under various circumstances to take possession of such
furniture, fixtures, equipment or other property; provided Landlord is
reasonable in believing that the instrument is authentic and legal. Landlord
may, at its option and without prejudice to or waiver of any rights it may have,
(i) escort Tenant to the Premises to retrieve any personal belongings of Tenant
and/or its employees not covered by the Landlord's statutory lien or (ii) obtain
a list from Tenant of the personal property of Tenant and/or its employees that
is not covered by the Landlord's statutory lien and make such property available
to Tenant and/or Tenant's employees; however, Tenant first shall pay in cash all
costs and estimated expenses to be incurred in connection with the removal of
such property and making it available. The rights of Landlord herein stated are
in addition any and all other rights that Landlord has or may hereafter have at
law or in equity, and Tenant agrees that the rights herein granted Landlord are
commercially reasonable.
20. LANDLORD'S DEFAULT. If Landlord fails to perform any of its
obligations hereunder within 30 days after written notice from Tenant specifying
such failure, Tenant's exclusive remedy shall be an action for damages. Unless
Landlord fails to so cure such default after such notice, Tenant shall not have
any remedy or cause of action by reason thereof. Except for gross negligence or
willful misconduct, Liability of Landlord to Tenant for any default by Landlord,
shall be limited to actual, direct, but not consequential, damages therefor and
shall be recoverable only from the interest of Landlord in the Building and the
Land, and neither Landlord nor Landlord's owners shall have any personal
liability therefor.
21. MORTGAGES.
(a) This Lease shall be subordinate to any deed of trust,
mortgage or other security instrument (a"MORTGAGE"), and any ground lease,
master lease, or primary lease (a "PRIMARY LEASE") that now or hereafter covers
any portion of the Premises (the mortgagee under any Mortgage or the Lessor
under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGEE"), and to
increases, renewals, modifications, consolidations, replacements, and extensions
thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage
or Primary Lease (as the case may be) to this Lease by delivering written notice
thereof to Tenant. The provisions of this Section 21 shall be self-operative,
and not further instrument shall be required to effect such subordination;
however, Landlord shall deliver to Tenant, and Tenant shall execute from time to
time within ten days after delivery thereof to Tenant, an instrument from each
Landlord's Mortgagee evidencing the subordination of this Lease to any such
Mortgage or Primary Lease (which instrument shall include a non-disturbance
provision in favor of Tenant and shall be on Landlord's Mortgagee's standard
form).
(b) Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request. Tenant shall not seek to enforce any remedy
it may have for any default on the part of Landlord without first giving written
notice by certified mail, return receipt requested, specifying the default in
reasonable detail to any Landlord's Mortgagee whose address has been given to
Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
(c) Notwithstanding any such attornment or subordination of a
Mortgage or Primary Lease to this Lease, the Landlord's Mortgagee shall not be
liable for any acts of any previous landlord, shall not be obligated to install
the Shell or Initial Improvements, and shall not be bound by any amendment to
which it did not consent in writing nor any payment of rent made more than one
month in advance.
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22. ENCUMBRANCES. Tenant has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind Landlord's property or the interest of Landlord or
Tenant in the Premises or to charge the rent for any claim in favor of any
person dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs. Tenant shall pay or cause to be paid all
sums due for any labor performed or materials furnished in connection with any
work performed on the Premises by or at the request of Tenant. Tenant shall give
Landlord immediate written notice of the placing of any lien or encumbrance
against the Premises.
23. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall include any
other gender, and words in the singular shall include the plural, unless the
context otherwise requires. The captions inserted in this Lease are for
convenience only and in no way affect the interpretation of this Lease. The
following terms shall have the following meanings: "LAWS" shall mean all
federal, state, and local laws, rules, and regulations; all court orders,
governmental directives, and governmental orders; and all restrictive covenants
affecting the Property, and "LAW" shall mean any of the foregoing; "AFFILIATE"
shall mean any person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with the party question; "TENANT
PARTY" shall include Tenant, any assignees claiming by, through, or under
Tenant, any subtenant claiming by, through, or under Tenant, and any of their
respective agents, contractors, employees, and invitees and "INCLUDING" shall
mean including, without limitation. The normal rule of construction that any
ambiguities be resolved against the drafting party shall not apply to the
interpretation of this Lease or any exhibits or amendments hereto.
(b) Landlord may transfer and assign, in whole or in part, its
rights and obligations in the Building and property that are the subject to this
Lease, in which case Landlord shall have no further liability hereunder, except
for events occurring during the term of its ownership. Each party shall furnish
to the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
(c) Whenever a period of time is herein prescribed for action
to be taken by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations, or restrictions, or any other causes of any kind
whatsoever which are beyond the control of Landlord.
(d) Tenant shall, from time to time, within ten days after
request of Landlord, deliver to Landlord, or Landlord's designee, a certificate
of occupancy for the Premises, financial statements for itself and any guarantor
of its obligations hereunder, evidence reasonably satisfactory to Landlord that
Tenant has performed its obligations under this Lease (including evidence of the
payment of the Security Deposit), and an estoppel certificate stating that this
Lease is in full effect, the date to which rent has been paid, the unexpired
Term and such other factual matters pertaining to this Lease as may be requested
by Landlord. Tenant's obligation to furnish the above-described items in a
timely fashion is a material inducement for Landlord's execution of this Lease.
(e) This Lease constitutes the entire agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no effect. This
Lease may not be altered, changed or amended except by an instrument in writing
signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed by
the end of the Term shall survive, including, without limitation, all payment
obligations with respect to Taxes and insurance and all obligations concerning
the condition and repair of the Premises. Upon the end of the Term and before
Tenant vacates the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises in good condition and
repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating
the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for Operating Expenses for the year in which the Term ends.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs therefor upon demand by Landlord or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied as the case
may be. Any Security Deposit held by Landlord may be credited against the amount
due by Tenant under this Section 23.(f).
(g) If any provision of this Lease is illegal, invalid or
unenforceable, then the remainder of this Lease shall not be affected thereby,
and in lieu of each such provision, there shall be added, as a part of this
Lease, a provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
(h) All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
(i) Landlord and Tenant each warrant to the other that it has
not dealt with any broker or agent in connection with this Lease, other than
Hill Partners, Inc. and C. B. Richard Ellis (the "Brokers"). Tenant and Landlord
shall each indemnify the other against all costs, attorneys' fees, and other
liabilities for commissions
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or other compensation claimed by any broker or agent (other than the named
Brokers) claiming the same by, through, or under the indemnifying party.
Landlord shall pay commissions to such Brokers pursuant to separate agreements.
(j) If and when included withing the term "Tenant," as used in
this instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying an individual at a specific address within the continental United
States for the receipt of notices and payments to Tenant. All parties included
within the terms "Landlord" and "Tenant," respectively, shall be bound by
notices given in accordance with the provisions of Section 24 to the same effect
as if each had received such notice.
(k) The terms and conditions of this Lease are confidential
and Tenant shall not disclose the terms of this Lease to any third party except
as may be required by law or its auditors or to enforce its rights hereunder.
(l) Tenant shall pay interest on all past-due rent from the
date due until paid at the maximum lawful rate. In no event, however, shall the
charges permitted under this Section 23.(l) or elsewhere in this Lease, to the
extent they are considered to be interest under applicable Law, exceed the
maximum lawful rate of interest.
(m) THIS LEASE SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS.
24. NOTICES. Each provision of this instrument or of any applicable
Laws and other requirements with reference to the sending, mailing or delivering
of notice or the making of any payment hereunder shall be deemed to be complied
with when and if the following steps are taken:
(a) All rent shall be payable to Landlord at the address for
Landlord set forth below or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent shall not be deemed satisfied until such rent has been
actually received by Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth below, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered upon the earlier to occur of
(1) tender of delivery (in the case of a hand-delivered notice), (2) deposit in
the United States Mail, postage prepaid, Certified Mail, or (3) receipt by
facsimile transmission, in each case, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith. If
Landlord has attempted to deliver notice to Tenant at Tenant's address reflected
on Landlord's books but such notice was returned or acceptance thereof was
refused, then Landlord may post such notice in or on the Premises, which notice
shall be deemed delivered to Tenant upon the posting thereof.
25. HAZARDOUS WASTE. The term "HAZARDOUS SUBSTANCES," as used in
this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or
any other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "ENVIRONMENTAL LAW," which term shall
mean any Law relating to health, pollution, or protection of the environment.
Tenant hereby agrees that (a) no activity will be conducted on the Premises that
will produce any Hazardous Substances, except for such activities that are part
of the ordinary course of Tenant's business activities (the "PERMITTED
ACTIVITIES") provided such Permitted Activities are conducted in accordance with
all Environmental Laws and have been approved in advance in writing by Landlord;
(b) the Premises will not be used in any manner for the storage of any Hazardous
Substances except for any temporary storage of such materials that are used in
the ordinary course of Tenant's business (the "PERMITTED MATERIALS") provided
such Permitted Materials are properly stored in a manner and location satisfying
all Environmental Laws and approved in advance in writing by Landlord; (c) no
portion of the Premises will be used as a landfill or a dump; (d) Tenant will
not install any underground tanks of any type; (e) Tenant will not allow any
surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute a public or private
nuisance; (f) Tenant will not permit any Hazardous Substances to be brought onto
the Premises, except for the Permitted Materials, and if so brought or found
located thereon, the same shall be immediately removed by Tenant, with proper
disposal, and all required cleanup procedures shall be diligently undertaken
pursuant to all Environmental Laws; (g) Tenant will maintain on the Premises a
list of all materials stored at the Premises for which a material safety data
sheet (an "MSDS") was issued by the producers or manufacturers thereof, together
with copies of the MSDS's for such materials, and shall deliver such list and
MSDS copies to Landlord upon Landlord's request therefor; and (h) Tenant shall
remove all Permitted Materials from the Premises in a manner acceptable to
Landlord before Tenant's right to possess the Premises is terminated. If at any
time during or after the Term, the Premises are found to be so contaminated or
subject to such conditions, Tenant shall defend, indemnify and hold Landlord
harmless from all claims, demands, actions, liabilities, costs, expenses,
damages and obligations of any nature arising from or as a result of the use of
the Premises by Tenant. Unless expressly identified on an addendum to this
Lease, as of the date hereof there are no "Permitted Activities" or "Permitted
Materials" for purposes of the foregoing provision and none shall exist unless
and until approved in writing by the Landlord. Landlord may enter the Premises
and conduct environmental inspections and tests therein as it may reasonably
require from time to time, provided that Landlord shall use reasonable efforts
to minimize the interference with Tenant's business. Such inspections and tests
shall be conducted at Landlord's expense, unless
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they reveal the presence of Hazardous Substances (other than Permitted
Materials) or that Tenant has not complied with the requirements set forth in
this Section 25, in which case Tenant shall reimburse Landlord for the cost
thereof within ten days after Landlord's request therefor.
26. YEAR 2000. Landlord represents to and covenants with Tenant that
all of the Building's systems, hardware, equipment, software and goods which are
installed by Landlord will properly perform date sensitive functions before,
during and after January 1, 2000.
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TENANT ACKNOWLEDGES THAT UPON OCCUPANCY OF THE PREMISES EXCEPT FOR
WRITTEN PUNCH LIST ITEMS (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES IN AN "AS
IS, WHERE IS" CONDITION (EXCEPT FOR LATENT DEFECTS), (2) THE BUILDING'S
IMPROVEMENTS ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND
LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL
OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS AND EXCEPT AS MAY BE
SET FORTH IN EXHIBIT B ATTACHED TO THIS LEASE, OR AS IS OTHERWISE EXPRESSLY SET
FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED, IMPLIED OR STATUTORY, EXCEPT AS PROVIDED HEREIN.
Executed by Landlord on the 13th day of May, 1999.
LANDLORD:
KRAMER 34 HP, LTD.
2800 Industrial, Inc., general partner
By: /s/R.E. Anderson
-----------------------------------------
Richard E. Anderson
Vice President
Address: c/o Hill Partners, Inc.
2800 Industrial Terrace
Austin, Texas 78758
Telephone: (512) 835-4455
Fax: (512) 835-1222
Executed by Tenant on the day of May, 1999.
TENANT:
IXC COMMUNICATIONS SERVICES, INC.
By: /s/ Stuart K. Coppens
-----------------------------------------
Name: Stuart K. Coppens
Title: VP
Address:
Approved as to form
Legal dept.
Telephone:
Fax:
EXHIBIT "A" - Description of Premises, Floor Plan
EXHIBIT "A-1 - Description of Project
EXHIBIT "B" - Landlord's Work
EXHIBIT "C" - Expansion Space
EXHIBIT "D" - Renewal Option
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EXHIBIT A
BUILDING: KRAMER 2
LEGAL DESCRIPTION: Lot 2, BRAKER CENTER IV, a
subdivision in Travis County, Texas,
according to the map or plat of record in
Volume 101, Page 1, Plat Records of Travis
County, Texas.
ADDRESS: 1835B Kramer Lane, Suite
Austin, Texas 78758
<SITE PLAN>
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EXHIBIT A-1
Project
<SITE PLAN>
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EXHIBIT B
TENANT FINISH-WORK: ALLOWANCE
1. Landlord, at its sole cost and expense, shall complete construction
of the shell of the Building including the roof, slab, exterior walls and site
work (the "SHELL IMPROVEMENTS"). All such construction shall be completed by
Landlord in a good and workmanlike manner and in accordance with all applicable
laws and regulations.
2. Tenant, at its sole cost and expense, shall provide to Landlord for
its approval final working drawings, prepared by an architect that has been
approved by Landlord (which approval shall not be unreasonably withheld), of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, HVAC, mechanical and plumbing systems of the
Building, and detailed plans and specifications for the construction of the
improvements called for under this Exhibit in accordance with all applicable
governmental laws, codes, rules, and regulations. Landlord's approval of such
working drawings shall not be unreasonable withheld or delayed, provided that
(a) they comply with all applicable governmental laws, codes, rules, and
regulations, (b) such working drawings are sufficiently detailed to allow
construction of the improvements in a good and workmanlike manner, (c) the
improvements depicted thereon conform to the rules and regulations promulgated
from time to time by the Landlord for the construction of tenant improvements (a
copy of which has been delivered to Tenant), and (d) the materials used are
building standard (including doors, ceiling tiles, lights and occupancy
sensors). As used herein, "WORKING DRAWINGS" shall mean the final working
drawings approved by Landlord, as amended from time to time by any approved
changes thereto, and "INITIAL IMPROVEMENTS" shall mean all improvements to be
constructed in accordance with and as indicated on the Working Drawings.
Approval by Landlord of the Working Drawings shall not be a representation or
warranty of Landlord that such drawings are adequate for any use, purpose, or
condition, or that such drawings comply with any applicable law or code, but
shall merely be the consent of Landlord to the performance of the Initial
Improvements. Tenant shall, at Landlord's request, sign the Working Drawings to
evidence its review and approval thereof. All changes in the Initial
Improvements must receive the prior written approval of Landlord and upon
completion of the Initial Improvements, Tenant shall furnish Landlord with an
accurate, reproducible "as-built" plan (e.g., sepia) and a CADI disk of the
improvements as constructed, which plan shall be incorporated into this Lease by
this reference for all purposes.
3. Upon substantial completion of the Shell Improvements by Landlord,
Tenant shall be responsible for constructing and installing the Initial
Improvements. Tenant agrees to file for all required building and signage
permits necessary for the construction of the Initial Improvements and to use
good faith and diligent efforts to obtain all such permits. The cost of the
pursuit of such permits shall be borne by Tenant; however, Landlord will provide
its cooperation in connection therewith and, if necessary, shall join in such
applications, and execute such other documents, as Tenant may reasonably request
for such purposes. The Initial Improvements shall be diligently performed by
contractors and subcontractors reasonably acceptable to Landlord in a good and
workmanlike manner that is free of defects and is in strict conformance with the
Working Drawings and all applicable governmental laws, codes, rules, and
regulations. Tenant and its contractors and subcontractors shall be required to
maintain such liability and builder's risk insurance during construction of the
Initial Improvements as is reasonably required by Landlord.
4. If completion of the Initial Improvements is delayed beyond August
1, 1999 for any reason other than Landlord's failure to substantially complete
construction of the Shell Improvements on or before June 1, 1999, then,
notwithstanding any provision to the contrary in this Lease Tenant's obligation
to pay Basic Rent and Tenant's proportionate Share of Operating Expenses
hereunder shall commence on August 1, 1999. If the Premises are not ready for
occupancy and the Initial Improvements are not substantially completed on August
1, 1999 due to Landlord's failure to timely complete the Shell Improvements,
then the Commencement Date shall be sixty (60) days after Landlord delivers the
Premises in Shell Condition.
5. Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") equal to $27.00 per usable square foot in the
Premises.
6. Tenant shall bear the entire cost of constructing the Initial
Improvements (including, without limitation, costs of design, engineering,
construction, labor and materials, additional janitorial services, related taxes
and insurance costs, all of which costs are herein collectively called the
"TOTAL CONSTRUCTION COSTS") in excess of the Construction Allowance. Landlord
shall advance the Construction Allowance at such time as Tenant has furnished to
Landlord a certificate of occupancy for the Premises, lien waiver(s) from
Tenant's general contractor(s) establishing that all bills for labor and
materials incorporated in the Initial Improvements have been paid, and a
certificate from Tenant's architect certifying that the Initial Improvements
have been completed in accordance with the Working Drawings. All of the Initial
Improvements will become and shall remain Landlord's property on and after its
construction or installation on the Premises.
7. Landlord or its affiliate shall have the right to inspect and
supervise the Work, and to ensure the Work does not adversely affect the
Building, and the Building's systems.
B-1
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EXHIBIT C
[Expansion Space]
On or before January 1, 2000, Tenant shall lease for the remaining Term
32,376 additional square feet of rentable area in the Building, constituting the
remainder of the Building (the "Expansion Space"). Tenant may commence its lease
of the Expansion Space in segments at various times provided that (i) it has
leased all of the Expansion Space on or before January 1, 2000, (ii) each
segment so leased (except for the last segment) must be at least 5,000 square
feet, and (iii) Tenant gives Landlord at least forty-five (45) days prior
written notice of the date on which it desires to commence the lease of any
given segment (each such date being referred to herein as an "Exhibition Date").
Landlord shall cause the Expansion Space (or applicable portion
thereof) to be in shell condition and made ready for Tenant's occupancy thirty
(30) days prior to the applicable Expansion Date, and otherwise in accordance
with the procedures referenced in Exhibit B. The Allowance applicable to the
Expansion Space shall be a sum equal to $27.00 per rentable square foot in the
expansion space (or applicable portion thereof). Except as set forth in this
Exhibit C, all Expansion Space taken by Tenant shall be taken "as is" and
Landlord shall have no obligation to construct any leasehold improvements
therein or to make any alterations thereto.
Tenant shall be required to commence paying rent on any applicable
portion of the Expansion Space upon the date that is the sooner to occur of (a)
the date that Tenant commences to occupy such space or (b) thirty (30) days
after Landlord delivers such portion of the Expansion Space in shell condition;
provided that Landlord shall not deliver the any portion of the Expansion Space
in shell condition prior to December 1, 1999, unless Tenant requests an earlier
delivery as provided above. If the applicable portion of the Expansion Space is
not in shell condition thirty (30) days prior to the applicable Expansion Date,
Landlord shall not be liable for damages therefor and Tenant shall accept
possession of such portion of the Expansion Space when Landlord tenders
possession thereof to Tenant in shell condition and Tenant's obligation to pay
Base Rent and Operating Expenses under Section 2.(b) of this Lease with respect
to such portion of the Expansion Space shall commence thirty (30) days after
Landlord tenders possession of such portion of the Expansion Space to Tenant in
shell condition. Tenant hereby acknowledges that if Tenant is not required to
commence paying rent on any given portion of the Expansion Space on an earlier
date as provided above, then in any event, so long as Landlord delivers such
portion of the Expansion Space in shell condition on or before December 1, 1999,
Tenant's obligation to pay Base Rent and Operating Expenses under Section 2.(b)
of this Lease with respect to any portion of the Expansion Space so delivered
shall commence on January 1, 2000.
Except as provided in this Exhibit C, the leasing of the Expansion
Space shall be upon the same terms and conditions as the leasing of the initial
Premises and shall be upon and subject to all of the provision of this Lease.
Upon any given Expansion Date: (i) the Base Rent payable by Tenant shall be
increased by the number of square feet contained within the applicable portion
of the Expansion Space multiplied by the dollar amount per square foot provided
in Section 2(a) of this Lease, (ii) the "Premises" (as defined in the Lease)
shall be deemed to include such portion the Expansion Space, and (iii) Tenant's
Proportionate Share shall be increased commensurately to reflect the addition of
such portion of the Expansion Space to the Premises. It being acknowledged that
at such time as Tenant has leased all of the Expansion Space, Tenant will be
leasing the entire Building and therefore its Proportionate Share of Operating
Expenses shall be 100%.
C-1
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EXHIBIT D
EXTENSION OPTION
Provided no Event of Default exists and Tenant (or a Permitted
Transferee) is occupying at least fifty percent (50%) of the Building at the
time of such election, Tenant may renew this Lease for one (1) additional period
of five (5) years on the same terms provided in this Lease (except as set forth
below), by delivering written notice of the exercise thereof to Landlord not
later than one hundred eighty (180) days before the expiration of the Term. On
or before the commencement date of the extended Term, Landlord and Tenant shall
execute an amendment to this Lease extending the Term on the same terms provided
in this Lease, except as follows:
(a) The Base Rent payable for each month during each such
extended Term shall be the prevailing rental rate in the Project, at
the commencement of such extended Term, for space of equivalent
quality, size, utility and location, with the length of the extended
Term and the credit standing of Tenant to be taken into account;
(b) Tenant shall have no further renewal options unless
expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, except that Tenant shall be entitled to an
improvement allowance equal to the prevailing rate in the Project, at
the commencement of such extended Term, for space of equivalent
quality, size, utility and location, with the length of the extended
Term to be taken into account.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises (other
than to a Permitted Transferee), or (3) Tenant fails to timely exercise its
option under this Exhibit, time being of the essence with respect to Tenant's
exercise thereof.
D-1
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FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT is made and entered as of the
_____ day of June 1999, by and between IXC COMMUNICATIONS SERVICES, INC.
("Tenant"), and KRAMER 34 HP, LTD. ("Landlord").
RECITALS
A. Pursuant to a Lease Agreement dated May 13, 1999 (the "Lease"),
Landlord leased to Tenant certain space in the building commonly known as
"Kramer 2" in Austin, Texas, as more fully described in the Lease.
B. Landlord and Tenant desire to delay the Commencement Date of the
Lease until August 23, 1999.
C. Pursuant to Exhibit "C" attached to the Lease, Landlord acknowledges
that it has been notified that Tenant desires to commence its lease of the
entire 32,376 square feet of Expansion Space on August 23, 1999.
AMENDMENT
In consideration of the premises, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby amend
the Lease as follows:
1. Paragraph 1 (b) of the Lease is hereby replaced in its
entirety by the following:
The Lease term shall be seventy two (72) months, beginning on the later
of (i) sixty (60) days after substantial completion of the Shell
Improvements (as defined on Exhibit B) or (ii) August 23, 1999 (the
"COMMENCEMENT DATE"), and ending August 22, 2005 (the "TERM", which
defined term shall include all renewals and extensions of the Term, if
any). Notwithstanding the foregoing if the Commencement Date does not
occur on August 23, 1999, then the Term shall end seventy-two (72)
months after the Commencement Date.
2. Paragraph 4 of Exhibit B to the Lease is hereby replaced in
its entirety by the following:
If completion of the Initial Improvements is delayed beyond August 23,
1999 for any reason other than Landlord's failure to substantially
complete construction of the Shell Improvements on or before June 23,
1999, then, notwithstanding any provision to the contrary in this
Lease, Tenant's obligation to pay Basic Rent and Tenant's Proportionate
Share of Operating Expenses hereunder shall commence on August 23,
1999. If the Premises are not ready for occupancy and the Initial
Improvements are not substantially
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completed on August 23, 1999 due to Landlord's failure to timely complete the
Shell Improvements, then the Commencement Date shall be sixty (60) days after
Landlord delivers the Premises in Shell Condition.
3. Except as defined differently herein or the context clearly requires
otherwise, all capitalized terms used in this Amendment shall have the meanings
ascribed to them under the Lease. Except as expressly amended hereby, the Lease
shall remain unchanged and in full force and effect, and is hereby ratified by
Landlord and Tenant.
EXECUTED as of the date first written above.
TENANT:
IXC COMMUNICATIONS SERVICES, INC.
By: /s/ Stuart Coppens
--------------------------------------
Name: Stuart Coppens
Title: VP
Approved as to form
Legal dept. ALJ
LANDLORD:
KRAMER 34 HP, LTD.
By: 2800 Industrial Inc., General Partner
By: /s/ R.E. Anderson
---------------------------------
Richard E. Anderson
Vice President
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