EXHIBIT 10.1
OFFICE LEASE AGREEMENT
BY AND BETWEEN
WEDGEWOOD DRIVE PARTNERS, LTD.
AND
INTERPHASE CORPORATION
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PIANO, TEXAS 75093
TABLE OF CONTENTS
<Table>
1. DEFINITIONS .................................................. 1
2. LEASE GRANT .................................................. 5
3. LEASE TERM ................................................... 5
4. USE .......................................................... 6
5. BASE RENTAL .................................................. 6
6. OPERATING EXPENSE PAYMENT .................................... 7
7. ELECTRIC SERVICE BILLING ..................................... 8
8. SERVICES TO BE FURNISHED BY LANDLORD ......................... 9
9. IMPROVEMENTS TO BE MADE BY LANDLORD .......................... 10
10. MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD ............... 10
11. GRAPHICS; SIGNAGE ............................................ 11
12. CARE OF THE PREMISES BY TENANT ............................... 11
13. REPAIRS AND ALTERATIONS BY TENANT ............................ 11
14. PARKING ...................................................... 11
15. LAWS AND REGULATIONS ......................................... 12
16. BUILDING RULES ............................................... 12
17. ENTRY BY LANDLORD ............................................ 12
18. ASSIGNMENT AND SUBLETTING .................................... 12
19. MECHANIC'S LIEN .............................................. 13
20. PROPERTY INSURANCE ........................................... 13
21. LIABILITY INSURANCE .......................................... 14
22. INDEMNITY .................................................... 14
23. WAIVER OF SUBROGATION RIGHTS ................................. 15
24. CASUALTY DAMAGE .............................................. 15
25. CONDEMNATION ................................................. 16
26. DAMAGES FROM CERTAIN CAUSES .................................. 16
27. EVENTS OF DEFAULT ............................................ 16
28. RIGHTS OF LANDLORD UPON DEFAULT BY TENANT .................... 17
29. EXPENSE OF REPOSSESSION ...................................... 21
30. CUMULATIVE REMEDIES; WAIVER OR RELEASE ....................... 21
31. HAZARDOUS WASTE .............................................. 21
</Table>
i
<Table>
32. ATTORNEY'S FEES .............................................. 22
33. DEFAULT BY LANDLORD .......................................... 22
34. PEACEFUL ENJOYMENT ........................................... 22
35. HOLDING OVER ................................................. 23
36. SUBORDINATION TO MORTGAGE .................................... 23
37. LANDLORD'S CONTRACTUAL SECURITY INTEREST ..................... 24
38. USE AND STORAGE OF PERSONAL PROPERTY ......................... 24
39. SUBORDINATION OF LANDLORD'S LIEN ............................. 25
40. NO IMPLIED WAIVER ............................................ 25
41. PERSONAL LIABILITY ........................................... 26
42. SECURITY DEPOSIT ............................................. 26
43. NOTICE ....................................................... 26
44. SEVERABILITY ................................................. 27
45. AMERICANS WITH DISABILITIES ACT AND TEXAS
ARCHITECTURAL BARRIERS ACT ................................... 27
46. RECORDATION .................................................. 28
47. GOVERNING LAW ................................................ 28
48. FORCE MAJEURE ................................................ 28
49. TIME OF PERFORMANCE .......................................... 28
50. TRANSFERS BY LANDLORD ........................................ 28
51. BROKER ....................................................... 28
52. EFFECT OF DELIVERY OF THIS LEASE ............................. 29
53. ENTIRE AGREEMENT ............................................. 29
54. AMENDMENT .................................................... 29
55. LIMITATION OF WARRANTIES ..................................... 29
56. MAIL ......................................................... 29
57. EXHIBITS ..................................................... 29
</Table>
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OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made and entered into on this the
2nd day of August 2002, between the "Landlord" and "Tenant" hereafter set forth.
WITNESSETH:
1. DEFINITIONS: For the purpose of this Lease, the following definitions
shall govern:
(a) "Landlord": WEDGEWOOD DRIVE PARTNERS, LTD., a Texas limited
partnership.
(b) "Tenant": Interphase Corporation
(c) The "Property": The real property described in Exhibit A
attached hereto and incorporated herein, the improvements
constructed thereon.
(d) "Premises": Suite number: 200 (approximately 22,228 square
feet of Rentable Area), being the suite outlined on the floor
plan attached to this Lease as Exhibit B and incorporated
herein. At Tenant's request, Landlord shall provide Tenant
with an architect's certificate stating the actual number of
square feet contained within the Premises according to BOMA
standards. The Base Rental and Tenant's Pro Rata Share (as
below defined) shall be adjusted based on the actual number of
square feet in the Premises, if necessary. The Premises are
located in the office building known as Parkway Centre, Phase
I (the "Building") located on the Property known as 2901 North
Dallas Parkway, Plano, Texas 75093.
(e) "Base Rental": The sum of thirty-one thousand four hundred and
eighty nine dollars and sixty-seven cents ($31,489.67) per
month or $17.00 per square foot per year as Base Rental in
accordance with Paragraph 5 hereof, as same may be adjusted
pursuant to an architect's certificate delivered in accordance
with Paragraph 1(d); provided, however, that no rent shall be
due and payable for the first three (3) months following the
Commencement Date. The Base Rental due for the first month
during the Lease Term (as below defined) has been deposited
with Landlord by Tenant contemporaneously with the execution
hereof
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(f) "Commencement Date": The later of 10/01/02 or the date
specified in Paragraph 3(c) hereof. In the event Commencement
Date is not delayed pursuant to Paragraph 3(c), this Lease
shall expire on 12/31/05.
(g) "Rent Commencement Date": The date that is three (3) calendar
months after the Commencement Date, upon which Base Rental
shall become due and payable.
(h) "Lease Term": A term commencing on the Commencement Date and
continuing until Thirty-nine (39) months after the first day
of the first full month following Commencement Date.
(i) "Base Year": Calendar year 2002.
(j) "Security Deposit": The sum of thirty-one thousand four
hundred and eighty nine dollars and sixty-seven cents
($31,489.67).
(k) "Additional Security Deposit": The sum of thirty-one thousand
four hundred and eighty nine dollars and sixty-seven cents
($31,489.67) to be deposited with Landlord pursuant to Section
42(B).
(1) "Tenant's Prorata Share": 25.52% being a fraction the
numerator of which is the number of square feet of Rentable
Area in the Premises and the denominator of which is the
number of square feet of Rentable Area in the Building
(87,112), as same may be adjusted pursuant to an architect's
certificate delivered in accordance with Paragraph 1(d).
(m) "Permitted Use": General office use and engineering labs.
(n) "Common Areas": Those areas of the Building devoted to
corridors, elevator foyers, atria, restrooms, mechanical
rooms, janitorial closets, electrical and telephone closets,
vending areas and other facilities provided for the common use
or benefit of tenants generally and/or the public.
(o) "Service Areas": Those areas of the Building within the
outside walls used for elevator mechanical rooms, building
stairs, fire towers, elevator shafts, flues, vents, stacks,
pipe shafts and vertical ducts (but shall not include any such
areas for the exclusive use of the particular Tenant).
(p) "Rentable Area" of the Premises: The gross area within the
inside surface of the outer glass of the exterior walls, to
the mid-point of any walls separating portions of the Premises
from Common Areas and Service Areas, subject to the following:
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1) Rentable Area shall include any Service Areas.
2) Rentable Area shall include a prorata part of the
Common Areas in the Building, such proration based
upon the ratio of the Rentable Area within the
Premises to the total Rentable Area in the Building,
both determined without regard to the Common Areas.
3) Rentable Area shall include any columns and/or
projection(s) which protrude into the Premises and/or
the Common Areas.
(o) "Operating Expenses": All expenses incurred by Landlord with
respect to the maintenance and operation of the Property or
the Building of which the Premises are a part, including, but
not limited to:
1) Maintenance and repair costs;
2) Security;
3) Management fees, wages and fringe benefits payable to
employees of Landlord whose duties are directly
connected with the operation and maintenance of the
Building;
4) All services, utilities, supplies, repairs,
replacement or other expenses for maintaining and
operating the Common Areas and parking areas;
5) The cost, including interest, amortized over its
useful life as determined in accordance with
generally accepted accounting principles, of any
capital improvement made to the Building by Landlord
after the date of this Lease which is required under
any governmental law or regulation that was not
applicable to the Building at the time it was
constructed;
6) The cost, including interest, amortized over its
useful life as determined in accordance with
generally accepted accounting principles, of
installation of any device or other equipment which
improves the operating efficiency of any system
within the Premises and which thereby reduces
Operating Expenses;
7) All other current expenses or amortization of capital
improvements amortized over their useful life as
determined in accordance with generally accepted
accounting principles, which would generally be
regarded as operating and maintenance expenses or
expenditures to improve operating efficiency, but
excluding the exclusions from Operating Expenses
provided herein;
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8) All real property taxes and annual installments of
special assessments, including dues and assessments
by means of deed restrictions and/or owners'
associations which accrue against the Property or the
Building of which the Premises are a part during the
term of this Lease; and
9) All insurance premiums Landlord is required to pay or
deems necessary to pay, including public liability
insurance, with respect to the Building.
The term "Operating Expense" does not include the following:
10) Repairs, restoration or other work occasioned by
fire, windstorm or other casualty;
11) Income and franchise taxes of Landlord;
12) Expenses incurred in leasing to or procuring of
tenants, leasing commissions, advertising expenses
and expenses for the renovating of space for new
tenants;
13) Interest or principal payments on any mortgage or
other indebtedness of Landlord;
14) Compensation paid to any employee of Landlord above
the grade of property manager;
15) Any depreciation allowance or expense; or
16) Other operating expenses or Electrical Service
Billings, which are the responsibility of tenants of
the Building for their premises.
(p) "Controllable Operating Expenses": All Operating Expenses
other than taxes, insurance costs, utilities, and the
amortization of the cost of installation of capital
improvements to improve operating efficiency.
(q) "Exterior Common Areas": Those areas which are not located
within the Building and which are provided and maintained for
the common use and benefit of Landlord and Tenants of the
Building generally and the employees, invitees and licensees
of Landlord and such Tenants; including without limitation all
parking areas, enclosed or otherwise, and all streets,
sidewalks and landscaped areas located on the Property.
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(q) "Building Standard Improvements": When used herein, this term
shall mean those improvements to the Tenant-occupied spaces
within the Building which Landlord shall agree to provide
according to the Work Letter attached hereto as Exhibit D and
incorporated herein for all purposes. "Building Grade" shall
mean the type, brand and/or quality of materials designated on
Exhibit D to be the minimum quality to be used in the
Building.
(r) "Tenant's Address": For purposes of this Lease, Tenant's
address for notice prior to the Commencement Date shall be:
13800 Senlac Drive
Dallas, Texas 75234
Tenant's address for notice after the Commencement Date shall
be the address of the Leased Premises.
(s) "Landlord's Address": For purposes of this Lease, Landlord's
address for notice shall be: 501 Elm Street, Suite 375,
Dallas, Texas 75202, facsimile: 214-741-3477.
2. LEASE GRANT: Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises, as
defined in Paragraph 1(d).
3. LEASE TERM:
(a) This Lease shall continue in force during a period beginning on the
Commencement Date and continuing until the expiration of the Lease
Term, unless this Lease is sooner terminated or extended to a later
date under any other term or provision hereof.
(b) If by the first date specified in Paragraph 1(f) the Premises have
not been substantially completed pursuant to the Work Letter, due to
omission, delay or default by Tenant or anyone acting under or for
Tenant (hereinafter collectively, a "Tenant's Delay"), Landlord shall
have no liability, and the obligations of the Lease (including without
limitation, the obligation to pay rent) shall nonetheless commence as
of the Commencement Date.
(c) It however, the Premises are not substantially completed, other
than as a result of Tenant's Delay, by October 1, 2002, the
Commencement Date shall be delayed until the earlier of actual
occupancy by Tenant or substantial completion of the work which
Landlord has agreed to perform and the Rent Commencement Date will be
delayed accordingly.
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(d) In the event the Commencement Date has not occurred prior to
November 15, 2002, Tenant shall have the option to terminate this Lease
upon ten (10) days prior written notice to Landlord, unless Landlord
shall deliver the Premises substantially complete in accordance with
the terms of the Work Letter within such ten (10) day period. Tenant's
right to terminate shall expire on November 30, 2002. If Tenant elects
to terminate the Lease as provided herein, Tenant shall be released
from all obligations under this Lease.
For purposes of this Lease, the terms "substantially complete" or
"substantial completion" shall mean that a certificate of occupancy has
been issued for the Premises and all major "punch list" items have been
resolved to Tenant's reasonable satisfaction, except for minor items,
which would not have a material effect on Tenant's use, enjoyment, and
occupancy of the Premises.
4. USE: The Premises shall be used for the Permitted Use and for no other
purpose. The Tenant agrees not to use or permit the use of the Premises
for any purpose which is illegal, or which, in Landlord's reasonable
opinion, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building.
5. BASE RENTAL:
(a) Tenant agrees to pay during the Lease Term, to Landlord,
without any setoff or deductions whatsoever, the Base Rental,
and all other such sums of money as shall become due hereunder
as additional rent, including, without limitation, any
estimated Operating Expense payments pursuant to Paragraph 6
hereof then in effect, the Electric Service Billings pursuant
to Paragraph 7 hereof, and the rent for the reserved parking
spaces pursuant to Paragraph 14, all of which are sometimes
herein collectively called "rent" for the nonpayment of which
Landlord shall be entitled to exercise all such rights and
remedies as are herein provided in the case of the nonpayment
of Base Rental. The Base Rental, together with any estimated
Operating Expense payments pursuant to Paragraph 6 hereof, the
Electric Service Billings pursuant to Paragraph 7 hereof, and
the rent for the reserved parking spaces pursuant to Paragraph
14, shall be due and payable in advance monthly on the first
day of each calendar month during the initial term of this
Lease and any extensions or renewals thereof; provided,
however that Base Rental shall not commence until the Rent
Commencement Date, and Tenant hereby agrees to pay such Base
Rental and any adjustments and billings thereto to Landlord at
Landlord's address provided herein (or such other address as
may be designated by Landlord in writing from time to time)
monthly, in advance, and without demand. If the term of this
Lease commences on a day other than the first day of a month
or terminates on a day other the day other than the last day
of a month, then the installments of Base Rental and any
adjustments and
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billings thereto for such month or months shall be prorated,
based on the number of days in such month.
(b) If Tenant shall fail to pay the Base Rental on or before the
tenth (10th) day of the calendar month in which such Base
Rental is due, Tenant shall be deemed to be "late", and Tenant
shall pay to Landlord on demand a late charge equal to five
percent (5%) of such Base Rental.
6. OPERATING EXPENSE PAYMENT:
Operating Expenses. In addition to Base Rental, Tenant shall also pay
Tenant's Prorata Share of the amount, if any, by which Operating
Expenses during any calendar year of the Lease Term after the Base Year
of 2002 exceed the Operating Expenses of the Base Year; provided,
however, that Tenant shall not pay additional rent for excess Operating
Expenses for the calendar year 2003. Notwithstanding anything to the
contrary, Tenant's obligation for the payment of Controllable Operating
Expenses shall be capped so as not to exceed an annual increase from
the immediately preceding year in excess of 8% per annum cumulatively;
provided that such increase for the year 2004 shall be based on an
increase over the Base Year. Landlord shall, within nine (9) months
following the close of any calendar year provide a statement to Tenant
showing in reasonable detail the computations of the additional rent
due for Operating Expenses, if any (the "Statement"), which shall be
due thirty (30) days after the receipt of such Statement. If this Lease
shall terminate on a day other than the last day of the calendar year,
the amount of any additional rental payable by Tenant applicable to the
year in which such termination shall occur shall be prorated based on
the ratio that the number of days from the commencement of such
calendar year to and including such termination date bears to 365. If
at any time after calendar year 2003, Landlord has reason to believe
the per square foot Operating Expenses for the calendar year will
exceed the Operating Expenses for the Base Year, Landlord may by
invoice direct Tenant to prepay monthly one-twelfth of an amount equal
to (i) an estimate of the additional rent due under this paragraph for
the current year, or (ii) the amount paid in the previous calendar
year. If the Statement shows an amount owing by Tenant that is less
than the sum of the monthly payments made by Tenant in the previous
calendar year, the Statement shall be accompanied by a refund of the
excess from Landlord to Tenant (or, at Landlord's option, Landlord may
apply such overpayment against rentals due hereunder). During the year
in which this Lease terminates, Landlord shall have the option to
invoice Tenant for Tenant's Prorata Share of the excess Operating
Expenses based upon the previous year's excess Operating Expenses;
Landlord shall invoice Tenant under this option either prior to the
termination of this Lease or within thirty (30) days thereafter.
Landlord shall refund to Tenant, within thirty (30) days after the
termination of this Lease, any excess amounts paid by Tenant during the
final year or partial year of the Lease Term, as the case may be.
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Audit Rights. Tenant, at any time within one (1) year after receipt of
any Statement, and upon no less than thirty (30) days prior written
notice to Landlord, may cause an audit to be made of Landlord's books
and records relating to Operating Expenses. Landlord shall make
available for the audit at Landlord's office in Dallas, Texas, all
applicable books and records. If the audit discloses an overcharge of
Operating Expenses by Landlord, Landlord shall within thirty (30) days
pay to Tenant the amount of the overpayment. If the audit discloses an
overpayment in excess of five percent (5%) of the Operating Expenses
actually paid by Tenant, then Landlord shall also immediately pay to
Tenant all reasonable costs and expenses incurred in the audit. If the
audit discloses an underpayment of Operating Expenses actually paid by
Tenant, then Tenant shall, within thirty (30) days after the conclusion
of such audit, pay to Landlord the amount of such underpayment.
7. ELECTRIC SERVICE BILLING:
Tenant agrees to pay to Landlord, within ten (10) business days of the
date Tenant is billed by Landlord each month, as additional rent,
Tenant's Prorata Share of all electricity to be consumed in the
Building during each month, or portion of a month during the Lease
Term. Landlord shall bill Tenant monthly in advance for such utilities'
cost for the current month.
Tenant's utilities' cost shall be adjusted for a partial month of
occupancy on a per diem basis. Landlord shall make a good faith
estimate of charges for all electricity to be consumed in the Building
for purposes of electrical service billings. Any amounts paid based on
such estimate shall be subject to adjustment on an annual basis if
actual utility costs for any calendar year are not equal to Landlord's
estimate. Landlord shall refund to Tenant any overpayment of such costs
(or, at Landlord's option, apply such overpayment against rentals due
hereunder). Likewise, Tenant shall pay to Landlord, on demand, any
underpayment with respect to utility costs for prior year.
Landlord shall not be obligated to provide dedicated circuits or
electrical power in excess of Building Standard (4 watts per square
foot for Tenant's use plus 4 watts per square foot for Tenant's HVAC).
If the installation of said electrical equipment requires additional
air conditioning capacity above that provided by the Building Standard
systems, then the additional air conditioning installation and
operating costs will be the obligation of the Tenant. Landlord, at its
option, may cause an electric current meter or such similar device to
be installed on the Premises so as to measure the amount of electric
current consumed by Tenant. The cost of any such meters and of the
installation, maintenance and repair thereof shall be paid for by
Tenant and Tenant agrees to pay to Landlord, promptly upon demand by
Landlord, for all such electricity used or consumed.
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8. SERVICES TO BE FURNISHED BY LANDLORD:
(a) Hot and cold water at those points of supply provided for
general use of other tenants in the Building, central heat and
air conditioning in season, at such temperatures and in such
amounts as are considered by Landlord to be provided in first
class office buildings within the North Dallas Tollway/Plano
submarket or as required by governmental authority, provided,
however, heating and air conditioning service at times other
than for "Normal Business Hours" for the Building (which are
7:30 a.m. through 6:00 p.m. on Mondays through Fridays, and
7:30 a.m. to 1:00 p.m. on Saturdays, exclusive of normal
business holidays) shall be furnished only upon the written
request of Tenant delivered to Landlord prior to 3:00 pm.
Tenant shall bear the entire estimated cost of such additional
service for the floor of the Premises requiring additional
services, which cost to Tenant is currently billed at $35.00
per hour. Such amount shall be invoiced by Landlord with the
monthly Electric Service Billing. Normal business holidays
shall, for purposes of this Lease, be deemed to be New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, Good Friday, Christmas Day, and any other holidays
commonly observed by landlords of comparable buildings.
(b) Routine maintenance and repair, including, without limitation,
window washing, plumbing repairs, carpet cleaning, touch up
painting, and electric lighting service for all Common Areas
and Service Areas of the Building in the manner and to the
extent customary for first class buildings in the Dallas North
Tollway/Plano sub-market.
(c) Janitor service, five (5) times weekly, exclusive of normal
business holidays; provided, however, if Tenant's floor
covering or other improvements require special treatment,
Tenant shall pay the additional cleaning cost attributable
thereto as additional rent upon presentation of a statement
therefor by Landlord.
(d) Subject to the provisions of Paragraph 7, facilities to
provide all electrical current required by Tenant in its use
and occupancy of the Premises.
(e) All Building Standard fluorescent bulb replacement in the
Premises and incandescent bulb replacement in the Common Areas
and Service Areas.
(f) Elevator Service twenty-four (24) hours a day, seven (7) days
a week.
(g) Security in the form of limiting the general public's access
to the Building during other than Normal Business Hours shall
be provided in such form as Landlord deems appropriate, which
will include a controlled access entry
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system, such as a "cardex," keypad or similar system.
Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to
theft or burglary, or for damages done by unauthorized persons
on the Premises, the Building or the Property, except in the
event of liabilities or damage arising solely as a result of
Landlord's gross negligence or willful misconduct in
connection with providing security, and neither shall Landlord
be required to insure against any such losses. Tenant shall
cooperate fully in Landlord's efforts to maintain security in
the Building and shall follow all regulations promulgated by
Landlord with respect thereto.
The failure by Landlord to any extent to furnish or the interruption or
termination of these defined services in whole or in part, resulting from causes
beyond the reasonable control of Landlord shall not render Landlord liable in
any respect nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement hereof; provided, however, Base Rental and any additional rent due for
Operating Expenses and Electrical Service shall be abated pro rata, if any
failure to furnish or interruption or termination of such major services that
renders the Premises untenantable shall continue for a period of five (5)
business days or longer. Should any of the equipment or machinery used in the
provision of such services for any cause cease to function properly for any
cause, Tenant shall have no claim for offset or abatement of rent or damages on
account of an interruption in service occasioned thereby or resulting there
from.
9. IMPROVEMENTS TO BE MADE BY LANDLORD: Except as otherwise provided in
the Special Provisions attached hereto as Exhibit C and the Work Letter
attached hereto as Exhibit D, all installations and improvements now or
hereafter placed on the Premises other than Building Standard
Improvements shall be for Tenant's account and at Tenant's cost.
10. MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD: Landlord, at Landlord's
sole cost and expense, shall be responsible for the maintenance and
repair of the heating, ventilation and air conditioning system,
plumbing systems, electrical system and sprinkler system for the
Building, the exterior of the Building, including, without limitation,
the roof of the Building, the structural elements of the Building, the
Common Areas, the Service Areas, the Exterior Common Areas and the
repairs and replacements set forth on Exhibit D attached hereto. At
least ten (10) days prior to the Commencement Date, Tenant will conduct
a walkthrough of the Premises with Landlord to ensure that everything
is in working order and cosmetically presentable. Landlord agrees to
make repairs reasonably requested by Tenant prior to the Commencement
Date or within a reasonable period of time thereafter. Except as
otherwise expressly provided herein, Landlord shall not be required to
make any repairs to the Premises.
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11. GRAPHICS; SIGNAGE: Landlord shall provide and install, at Tenant's
cost, all letters or numerals or signs at or near the corridor entry
leading to the Premises. All such letters and numerals shall be in the
standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent.
Tenant, at Tenant's sole cost and expense, may place signage
identifying Tenant on the monument sign for the Building and on the
first floor directory. In addition, Tenant may, at Tenant's sole cost
and expense, place a sign on the exterior of the Building and in the
second floor lobby of the Building where the "Xalted" signs are
currently located.
12. CARE OF THE PREMISES BY TENANT: Tenant agrees not to commit or allow
any waste to be committed on any portion of the Premises, and at the
termination of this Lease to deliver up the Premises to Landlord in as
good condition as the same existed on the Commencement Date, ordinary
wear and tear excepted, consistent with a first-class office building.
13. REPAIRS AND ALTERATIONS BY TENANT: Tenant covenants and agrees with
Landlord, at Tenant's own cost and expense, to repair or replace any
damage done to the Building or any part thereof, caused by Tenant or
Tenant's agents, employees, invitees, or visitors, and such repairs
shall restore the Building to as good a condition as it was in prior to
such damage, ordinary wear and tear excepted, consistent with a
first-class office building, and shall be affected in compliance with
all applicable laws: provided, however, if Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, make
such repairs or replacements, and Tenant shall pay the cost thereof
(plus a reasonable fee for Landlord's supervision) to the Landlord on
demand as additional rent. Tenant agrees with Landlord not to make or
allow to be made any alterations to the Premises, or place signs on the
Premises which are visible from outside the Premises, without first
obtaining the written consent of Landlord in each such instance, which
consent may be given on such conditions as Landlord may elect. Any and
all alterations to the Premises shall become the property of Landlord
upon termination of this Lease (except for moveable equipment or
furniture owned by Tenant). Landlord may, nonetheless, require Tenant
to remove any and all fixtures, equipment and other improvements
installed on the Premises. In the event that Landlord so elects, and
Tenant fails to remove such improvements, Landlord may remove such
improvements at Tenant's cost, and Tenant shall pay Landlord on demand
the cost of restoring the Premises to Building Standard.
14. PARKING: During the Lease Term, Tenant shall have free of charge the
non-exclusive use in common with Landlord, other tenants of the
Building, their guests and invitees, of the non-reserved common
automobile parking areas, driveways, and footways, subject to rules and
regulations for the use thereof as prescribed from time to time by
Landlord. In addition, Tenant shall be entitled to the use of ten (10)
designated covered parking spaces at a rate of $35.00 per space
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per month, subject to adjustment during the option term based on the
then-current market rate.
15. LAWS AND REGULATIONS: Tenant agrees to comply with all applicable laws,
ordinances, rules, and regulations of any governmental entity or agency
having jurisdiction over the Premises.
16. BUILDING RULES: Tenant will comply with the rules of the Building and
the Property attached hereto as Exhibit E, as amended and altered by
Landlord from time to time, and will cause all of its agents,
employees, invitees and visitors to so comply; all changes to such
rules will be sent by Landlord to Tenant in writing.
17. ENTRY BY LANDLORD: Tenant agrees to permit Landlord or its agents or
representatives to enter and upon any part of the Premises during
ordinary business hours, or at such other times as Landlord deems
appropriate to inspect the same, or to show the Premises to prospective
purchasers, mortgages, or insurers, to clean or make repairs,
alterations or additions thereto, and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof.
18. ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein without Landlord's prior written
consent, which, except as provided in Paragraphs 18(b), may be
withheld or given upon such conditions as Landlord may elect.
Any attempted assignment or sublease by Tenant in violation of
the terms and covenants of this paragraph shall be void. If
Landlord should fail to notify Tenant in writing of its
decision within a fifteen (15) day period after Landlord is
notified in writing of any proposed assignment or sublease,
Landlord shall be deemed to have refused to consent to any
such assignment or subleasing, and to have elected to keep
this Lease in full force and effect.
(b) Landlord will not unreasonably withhold its consent to a
subsequent sublease of part or all of the Premises to a
subsequent subtenant of financial and other qualifications
reasonably satisfactory to Landlord. Any such sublease shall
call for all rent to be payable on a monthly basis. If the
rent and other sums received by Tenant on account of a
sublease of all or any portion of the Premises exceeds the
Base Rental and other rent due hereunder allocable to the
space subject to the sublease (in the proportion of the area
of such space to the entire Premises), then Tenant shall pay
to Landlord, as an additional charge, one hundred percent
(100%) of the net proceeds of such excess, monthly as received
by Tenant, after Tenant has recouped its leasing commissions,
advertising costs and all other costs associated with such
assignment or sublease. No consent by Landlord to an
assignment or
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subletting shall be construed to relieve Tenant or any successor
from obtaining the express consent in writing of Landlord to any
further assignment or subletting. Neither shall any consent by
Landlord to an assignment or subletting relieve Tenant of any of its
liability hereunder. It shall be a condition of Landlord's approval
to any sublease of the Premises that the subtenant agree in writing
satisfactory to Landlord, to be bound to Landlord with respect to
all of the obligations of Tenant hereunder, including, without
limitation, the covenant against further subletting or assignment,
and agree to reimburse Landlord for its out-of-pocket expenses
incurred in connection with such subleasing and an administrative
fee to Landlord of $1,000.00.
(c) Except as provided in Paragraph 18(b), all cash or other proceeds of
any assignment, sale or sublease of Tenant's interest in this Lease,
whether consented to by Landlord or not, shall be paid to Landlord
notwithstanding the fact that such proceeds exceed the rentals
called for hereunder, unless Landlord agrees to the contrary in
writing and Tenant hereby assigns all rights it might have or ever
acquire in any such proceeds to Landlord. This covenant and
assignment shall run with the land and shall bind Tenant and
Tenant's heirs, executors, administrators, personal representatives,
successors and assigns. Any assignee, sublessee or purchaser of
Tenant's interest in the Lease (all such assignees, sublessee and
purchasers being hereinafter referred to as "Successors"), by
occupying the Premises and/or assuming Tenant's obligations
hereunder shall assume liability to Landlord for all amounts paid to
persons other than Landlord by such successor in consideration of
any such sale, assignment or subletting, in violation of the
provisions hereof.
19. MECHANIC'S LIEN: Tenant will not permit any mechanic's lien or liens to be
placed upon the Premises or the Building and nothing in this Lease shall
be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by interference or otherwise, to any
person for the performance of any labor or the furnishing of any materials
to the Premises, or any part thereof, nor as giving Tenant any right,
power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises. In the event any such
lien is attached to the Premises, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to discharge
the same, upon thirty (30) days prior written notice to Tenant with an
opportunity to cure. Any amount paid by Landlord for any of the aforesaid
purposes shall be paid by Tenant to Landlord within ten (10) days of
receipt of written demand as additional rent.
20. PROPERTY INSURANCE: Landlord shall maintain fire and extended coverage
insurance on the Building and the Premises in such amounts as Landlord
mortgagees shall require, but in no event less than 90% of replacement
cost. Such
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insurance shall be maintained at the expense of Landlord (as a part of the
Operating Expenses) and payments for losses thereunder shall be made
solely to Landlord or the mortgagees of Landlord, as their interests shall
appear. Tenant shall maintain at its expense, in an amount equal to 90% of
replacement cost, fire and extended coverage insurance on all of its
personal property, including removable trade fixtures, located in the
Premises and in such additional amount as are required to meet Tenant's
obligations pursuant to Paragraph 24 hereof. In addition, Tenant shall be
required at its expense to procure rental loss insurance naming Landlord
as beneficiary. Tenant shall, at Landlord's request from time to time,
provide Landlord with current certificates of insurance evidencing
Tenant's compliance with this Paragraph 20 and Paragraph 21. Tenant shall
obtain the agreement of Tenant's insurers to notify Landlord that a
policy is due to expire at least ten (10) days prior to such expiration.
21. LIABILITY INSURANCE: Tenant and Landlord shall, each at its own expense,
maintain a policy or policies of comprehensive general liability insurance
with respect to the respective activities of each on the Property with the
premiums thereon fully paid on or before due date, issued by and binding
upon some insurance company approved by Landlord, such insurance to afford
minimum protection of not less than $1,000,000 combined single limit
coverage of bodily injury, property damage or combination thereof.
Landlord shall not be required to maintain insurance against thefts within
the Premises, the Building or Property generally.
22. INDEMNITY:
(a) Landlord shall not be liable to Tenant, or to Tenant's agents,
servants, employees, customers, or invitees for any injury to person or
damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants, or employees, invitees, licensees or any other person
entering the Property under the invitation of Tenant or arising out of the
use of the Premises by Tenant and the conduct of its business or out of a
default by Tenant in the performance of its obligations hereunder. Tenant
hereby indemnifies and holds Landlord harmless from all liability and
claims for any such damage or injury.
(b) Tenant shall not be liable to Landlord, or to Landlord's agents,
servants, employees, customers, or invitees for any injury to person or
damage to property caused by any act, omission, or neglect of Landlord,
its agents, servants, or employees, invitees, licensees or any other
person entering the Property under the invitation of Landlord or arising
out of the ownership of the Property by Landlord or out of a default by
Landlord in the performance of its obligations hereunder. Landlord hereby
indemnifies and holds Tenant harmless from all liability and claims for
any such damage or injury; provided the person causing such damage or
injury is under the control of Landlord, which the parties hereby agree
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specifically excludes damage or injury caused by other tenants of the
Building and the employees, agents, contractors, guests, invitees or
customers of such tenants.
23. WAIVER OF SUBROGATION RIGHTS: Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights
of recovery, claim, action, or cause of action, against the other, its
agents, officers, or employees, for any loss or damage that may occur to
the Premises, or any improvements thereto, or the Building of which the
Premises are a part, or any improvements thereto, or any personal property
of such party therein, by reason of fire, the elements, or any other
cause(s) which are insured against under the terms of the standard fire
and extended coverage insurance policies referred to in Paragraph 20
hereof, regardless of cause or origin, including negligence of the other
party hereto, its agents, officers, or employees. Each of Landlord and
Tenant also agrees that no right of recovery, claim, action or cause of
action hereby waived shall ever be assigned to its insurance carriers.
24. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial
alteration or reconstruction of the Building shall, in Landlord's sole
opinion, be required (whether or not the Premises shall have been damaged
by such casualty) or in the event any mortgagee of Landlord's should
require that the insurance proceeds payable as a result of a casualty be
applied in reduction of the mortgage debt or in the event of any material
uninsured loss to the Building, Landlord may, at its option, terminate
this Lease by notifying Tenant in writing of such termination within
ninety (90) days after the date of such damage. If Landlord is not
entitled to, or does not thus elect to terminate this Lease, Landlord
shall commence and proceed with reasonable diligence to restore the
Building to substantially the same condition in which it was immediately
prior to the happening of the casualty. Landlord's obligation to restore
shall not require Landlord to expend more than the insurance proceeds
actually received by Landlord as a result of the casualty. Except for such
insurance proceeds, all cost and expense of reconstructing the Premises
shall be borne by Tenant, and Tenant shall present Landlord with evidence
satisfactory to Landlord, of Tenant's ability to pay such costs prior to
Landlord's commencement of reconstruction of the Premises. Landlord shall
not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting in any way from such damage or the repair
thereof, except that, subject to the provisions of the next sentence,
Landlord shall allow Tenant a fair diminution of rent during the time and
to the extent the Premises are unfit for occupancy. If the Premises or any
other portion of the Building be damaged by fire or other casualty
resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to
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Landlord for the cost of the repair and restoration of the Building caused
thereby to the extent such cost and expense is not covered by insurance
proceeds.
25. CONDEMNATION: If the whole or substantially the whole of the Building or
the Premises should be taken for any public or quasi public use, by right
of eminent domain or otherwise, or should be sold in lieu of condemnation,
then this Lease shall terminate as of the date when physical possession of
the Building or the Premises is taken by the condemning authority. If less
than the whole or substantially the whole of the Building or the Premises
is thus taken or sold, (whether or not the Premises are affected thereby)
Landlord may terminate this Lease by giving written notice thereof to the
other, in which event this Lease shall terminate as of the date when
physical possession of such portion of the Building or Premises is taken
by the condemning authority. If this Lease is not so terminated upon any
such taking or sale, the Base Rental payable hereunder shall be diminished
by an equitable amount, and Landlord shall, to the extent Landlord deems
feasible, restore the Building and the Premises to substantially their
former condition, but such work shall not exceed the scope of the work
done by Landlord in originally constructing the Building and installing
Building Standard Improvements in the Premises, nor shall Landlord in any
event be required to spend for such work an amount in excess of the amount
received by Landlord as compensation for such damage. All amounts awarded
upon a taking of any part of all the Building or the Premises shall belong
to Landlord and Tenant shall not be entitled to and expressly waives all
claim to any such compensation; provided, however that Tenant shall be
entitled to pursue compensation for loss of business and for the taking of
Tenant's fixtures and improvements in an independent action.
26. DAMAGES FROM CERTAIN CAUSES: Neither party shall be liable to the other
for any loss or damage to any property or person occasioned by theft,
fire, act of God, public enemy, injunction, riot, strike, insurrection,
war, court order, requisition, or order of governmental body or authority
or by any other cause beyond the control of such party. Nor shall either
party be liable to the other for any damage or inconvenience which may
arise through repair or alteration of any part of the Property, Building
or Premises.
27. EVENTS OF DEFAULT: The following events shall be deemed to be events of
default by Tenant under this Lease:
(a) The failure of Tenant to pay the Base Rental, any other installment
of rent or any part thereof within five (5) business days of
Landlord's written notice of said failure to pay, provided however,
that such failure to pay does not occur twice in any consecutive
twelve (12) month period, in which case no notice shall be required;
or
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(b) Tenant shall fail to fulfill or perform, in whole or in part, any of
its obligations under this Lease (other than the payment of Rent)
and such failure or non-performance shall continue for a period of
thirty (30) days after written notice thereof has been given by
Landlord to Tenant; provided, however, that if such cure cannot be
completed within thirty (30) days, so long as Tenant has commenced
to cure within the thirty (30) day cure period and diligently
pursues such cure to completion within thirty (30) days thereafter,
Tenant shall not be in default hereunder; or
(c) The entry of a decree or order by a court having jurisdiction
adjudging Tenant to be bankrupt or insolvent or approving as
properly filed a petition seeking reorganization of Tenant under the
National Bankruptcy Act, or any other similar applicable Federal or
State law, or a decree or order of a court having jurisdiction for
the appointment of a receiver or liquidator or a trustee or assignee
in bankruptcy or insolvency of Tenant or its property or for the
winding up or liquidation of its affairs; or Tenant shall institute
proceedings to be adjudicated a voluntary bankruptcy or shall
consent to the filing of any bankruptcy, reorganization,
receivership or other proceeding against Tenant, or any such
proceedings shall be instituted against Tenant and the same shall
not be vacated within thirty (30) days after the same are commenced;
or
(d) Tenant shall make an assignment for the benefit of Tenant's
creditors or admit in writing Tenant's inability to pay the debts of
Tenant generally as they may become due; or
(e) Tenant shall desert or vacate or shall commence to desert or vacate
the Premises or any substantial portion of the Premises or shall
remove or attempt to remove all or a substantial value of Tenant's
personal property from the Premises without the prior written
consent of Landlord; or
(f) Tenant shall do or permit to be done anything which creates a lien
upon the Premises or any portion of the Premises, and fails to
discharge such lien within ten (10) days of receipt of written
notice thereof; or
(g) Tenant shall fail to take possession of the Premises within thirty
(30) days after Landlord notifies Tenant that the same are ready for
occupancy; or
(h) Tenant shall fail to vacate the Premises upon the expiration of the
Lease Term.
28. RIGHTS OF LANDLORD UPON DEFAULT BY TENANT:
(a) Remedies: Upon the occurrence of any event or events of default by
Tenant, whether enumerated in this Paragraph or not, Landlord shall
have the option to pursue any one or more of the following remedies
without any notice or
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demand for possession whatsoever (and without limiting the
generality of the foregoing. Tenant hereby specifically waives
notice and demand for payment of rent or other obligations due and
waives any and all other notices or demand requirements imposed by
applicable law):
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord;
(2) Terminate Tenant's right to occupy the Premises and re-enter
and take possession of the Premises (without terminating this
Lease);
(3) Enter upon and take possession of the premises and expel or
remove Tenant any other occupant therefrom, with or without
having terminated this Lease;
(4) Alter locks and other security devices at the Premises so that
Tenant will have access to the Premises with or without having
terminated this Lease or Tenant's right to possession under
the Lease; or
(5) Apply all or any portion of the Security Deposit to cure such
event of Default.
(b) Tenant's Obligation Continues; Alteration of Locks: It is hereby
expressly stipulated by Landlord and Tenant that any of the above
listed actions including without limitation, termination of this
Lease, termination of Tenant's right to possession, and re-entry by
Landlord, will not affect the obligations of Tenant under the Lease,
including the obligations to pay unaccrued monthly rentals and other
charges provided in this Lease for the remaining portion of the
Lease. The following provisions shall override and control any
conflicting provisions of Section 93.002 of the Texas Property Code.
If an event of default occurs, Landlord is entitled and is hereby
authorized, without any notice to Tenant whatsoever, to enter upon
the Premises by use of a master key, a duplicated key, or other
peaceable means, and to change, alter, and/or modify the door locks
on all entry doors of the Premises, thereby permanently excluding
Tenant, and its officers, principals, agents, employees, and
representatives therefrom. In the event that the Landlord has either
terminated Tenant's right to possession of the Premises pursuant to
the foregoing provisions of this Lease, or has terminated the Lease
by reason of Tenant's default, Landlord shall not thereafter be
obligated to provide Tenant with a key to the Premises at any time;
provided, however, that in any such instance, during Landlord's
normal business hours and at the convenience of Landlord, and upon
the written request of Tenant accompanied by such written waivers
and releases as the Landlord may require, Landlord will escort
Tenant or its authorized personnel to the
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Premises to retrieve any personal belongings or other property of
Tenant. If Landlord elects to exclude Tenant from the Premises
without permanently repossessing the Premises or terminating the
Lease pursuant to the forgoing provisions of this Lease, then
Landlord (at any time prior to actual permanent repossession or
termination) shall not be obligated to provide Tenant a key to
re-enter the Premises until such time as all delinquent Rent and
other amounts due under this Lease have been paid in full (and all
other defaults, if any, have been completely cured to Landlord's
satisfaction), and Landlord has been given assurance reasonably
satisfactory to Landlord evidencing Tenant's ability to satisfy its
remaining obligations under this Lease. During any such temporary
period of exclusion, Landlord will, during Landlord's regular
business hours and at Landlord's convenience, upon written request
by Tenant accompanied by such waivers and releases as the Landlord
may require, escort Tenant or its authorized personnel to the
Premises to retrieve personal belongings of Tenant or its employees,
and such other property of Tenant as is not subject to the
Landlord's lien and security interest described in Paragraph 37
below. This remedy of Landlord shall be in addition to and not in
lieu of, any of its other remedies set forth in this Lease, or
otherwise available to Landlord at law or in equity.
(c) No Acceptance of Surrender; Waiver of Damages: Exercise by Landlord
of any one or more remedies hereunder granted or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises
by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written
agreement of Landlord. No such alteration of locks or other security
devises and no removal or other exercise of dominion by Landlord
over the property of Tenant or others at the Premises shall be
deemed unauthorized or constitute a conversation, Tenant hereby
consenting, after any event of default, to the aforesaid exercise of
dominion over Tenant's property within the Premises. All claims for
damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as
are all claims for damages by reason of any distress warrant,
forcible detainer proceedings, sequestration proceeding or other
legal process, except for claims arising solely out of Landlord's
gross negligence or willful misconduct. Tenant agrees that any
re-entry by Landlord may be pursuant to a judgment obtained in
forcible detainer proceedings or other legal proceedings or without
the necessity for any legal proceedings, as Landlord may elect, and
Landlord shall not be liable in trespass or otherwise, except for
claims arising solely out of Landlord's gross negligence or willful
misconduct.
(d) Damages on Termination: In the event Landlord elects to terminate
this Lease by reason of an event of default, then notwithstanding
such termination, the Tenant shall be liable for and shall pay to
the Landlord, at the address
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specified in Paragraph 1(d) above, the sum of all Rent accrued to
the date of such termination, plus, as damages, (i) the cost of
recovering, reletting the Premises and the sum of the unamortized
portion of the initial Landlord's costs (including but not limited
to, Tenant improvement costs, commissions and architectural and
engineering fees), and (ii) an amount equal to the total of the Rent
provided in this Lease for the remaining portion of the Lease Term
(had such Lease Term not been terminated by Landlord), less the
reasonable rental value of the Premises for such period, discounted
to present value at the rate of six percent (6%) per annum.
(e) Alternate Measure of Damages on Termination: In the event Landlord
elects to terminate this Lease by reason of an event of Default, in
lieu of exercising the right of Landlord under the preceding
Paragraph 28(d), Landlord may instead hold Tenant liable for all
Rent accrued to the date of such termination, plus such Rent as
would otherwise have been required to be paid by Tenant to Landlord
during the period following termination of the Lease Term measured
from the date of such termination by Landlord until the expiration
of the Lease Term (had Landlord not elected to terminate the Lease
on account of such event of default), diminished by any net sums
thereafter received by Landlord through reletting the Premises
during said period (after deducting expenses incurred by Landlord as
provided in Paragraph 29 hereof). Actions to collect amounts due by
Tenant as provided for in this paragraph may be brought from time to
time by Landlord during the aforesaid period, on one or more
occasions, without the necessity of Landlord's waiting until the
expiration of such period; and in no event shall Tenant be entitled
to any excess of rent obtained by reletting over and above the Rent
provided for in this Lease. If Landlord elects to exercise the
remedy prescribed in this Paragraph 28(e), this election shall in no
way prejudice Landlord's right at anytime hereafter to cancel said
election in favor of the remedy prescribed in the foregoing
Paragraph 28(d).
(f) Damages If Lease Not Terminated: In the event that Landlord elects
to repossess the Premises without terminating the Lease, then Tenant
shall be liable for and shall pay to Landlord at the address
specified in Paragraph 1(d) above, all Rent accrued to the date of
such repossession, plus Rent as it becomes due required to be paid
by Tenant to Landlord during the remainder of the Lease Term as
stated in Paragraph 1(g), diminished by any net sums thereafter
received by Landlord through reletting the Premises during said
period (after deducting expenses incurred by Landlord as provided in
Paragraph 29). Actions to collect amounts due by Tenant as provided
in this paragraph may be brought from time to time by Landlord
during the aforesaid period, on one or more occasions, without the
necessity of Landlord's waiting until the expiration of such period;
and in no event shall Tenant be entitled to
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any excess of rent obtained by reletting over and above the Rent
provided for in this Lease.
(g) Recovery of Concessions. In the event of a default in the payment of
Rent, Tenant shall in addition to all other sums owed to Landlord,
pay to Landlord an amount equal to the dollar amount of all
unamortized "concessions" provided to Tenant in connection with
this Lease, which Landlord and Tenant hereby agree shall be an
amount equal to three months Base Rent and any unamortized leasing
commissions incurred in connection with this Lease. The foregoing
shall not, however, act to limit in any manner the damages or
remedies to which Landlord may be entitled under this Lease by law,
but shall act only as a reimbursement of such concessions as may
have been provided to Tenant as an incentive to enter into this
Lease.
29. EXPENSE OF REPOSSESSION: It is further agreed that, in addition to
payments required pursuant Paragraph 28 above, Tenant shall compensate
Landlord for all expenses incurred by Landlord in repossession (including
among other expenses, repairs, the sum of the unamortized portion of the
initial Landlord costs including, but not limited to, Tenant Improvement
costs, commissions and architectural and engineering fees, replacements,
advertisements and brokerage fees), and all losses incurred by Landlord as
a direct result of Tenant's default.
30. CUMULATIVE REMEDIES; WAIVER OR RELEASE: Landlord may restrain or enjoin
any breach or threatened breach of any covenant, duty or obligation of
Tenant herein contained without the necessity of providing the inadequacy
of any legal remedy or irreparable harm. The remedies of Landlord
hereunder shall be deemed cumulative and not exclusive of each other. No
action, omission or commission by Landlord, including specifically, the
failure to exercise any right, remedy or recourse, shall be deemed a
waiver or release of the same. A waiver or release shall exist and be
effective only as set forth in written document executed by Landlord, and
then only to the extent recited therein. A waiver or release with
reference to any one event shall not be construed as continuing as to, or
as a bar to, or as a waiver or a release of, any right, remedy or recourse
as to any other or subsequent event.
31. HAZARDOUS WASTE:
(a) Tenant agrees that no toxic or hazardous substances or wastes,
pollutants or contaminants, or any hazardous substance as defined in
the Comprehensive Environment Response, Compensation and Liability
Act of 1980, 42 USC 9601-9657, as amended ("CERCLA") (collectively,
"Environmental Pollutants") will be generated, treated, stored,
released or disposed of, or otherwise placed, deposited in or
located on the Premises or Building by Tenant, its agents,
contractors or employees, and no activity shall be
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undertaken on the Premises or Building by Tenant, its agents,
contractors or employees that would cause or contribute to (i) the
Premises to become a generation, treatment, storage or disposal
facility within the meaning of, or otherwise bring the Premises
within the ambit of the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 USC 6901 et. seq., or any similar state law or
local ordinance, (ii) a release or threatened release of toxic or
hazardous wastes or substances, pollutants or contaminants, from the
Premises or Building within the meaning of, or otherwise result in a
liability in connection with the Premises or Building within the
meaning of, or otherwise result in liability in connection with the
Premises within the ambit of CERCLA, or any similar state law or
local ordinance, or (iii) the discharge of pollutants or effluents
into any water source or system, the dredging or filling of any
waters, or the discharge into the air of any emissions, that would
require a permit under the Federal Water Pollution Control Act, 33
USC 1251 et. seq., or the Clean Air Act, 42 USC 7401 et. seq., or
any similar state law or local ordinance, except in each case for de
minimis amounts of cleaning supplies used in the Premises.
(b) Tenant agrees to indemnify and hold Landlord harmless from and
against and to reimburse Landlord with respect to, any and all
claims, demands, causes of action, loss, damage, liabilities, costs
and expenses (including attorney's fees and court costs) of any and
every kind and character, known or unknown, fixed or contingent,
asserted against or incurred by Landlord at any time and from time
to time by reason of or arising out the breach of its obligations
contained in Paragraph 31(a) above. Tenant's indemnification of
Landlord shall be limited to claims, reasonable demands, causes of
action, loss, damage liabilities, costs and expenses (including
attorney's fees and court costs) of any and every kind and
character, known or unknown, fixed or contingent, caused by Tenant's
use of the Premises, Building, or any other structure on the
Property during the Lease.
32. ATTORNEY'S FEES: If, on account of any breach or default by one party (the
"Defaulting Party") in its obligations hereunder, the other party (the
"Non-Defaulting Party") shall employ an attorney or attorneys to present,
enforce or defend any of the such party's rights or remedies hereunder,
the Defaulting Party agrees to pay any reasonable attorneys' fees incurred
by the Non-Defaulting Party in such connection.
33. DEFAULT BY LANDLORD: In the event of a default or breach by Landlord under
this Lease, then Tenant shall be entitled to such rights and remedies as
may be available to Tenant at law or in equity.
34. PEACEFUL ENJOYMENT: Tenant shall, and may peacefully have, hold, and enjoy
the Premises, subject to the other terms hereof, provided that Tenant pays
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the Rent and other sums herein recited to be paid by Tenant and performs
all of Tenant's covenants and agreements herein contained. This covenant
and any and all other covenants of Landlord shall be binding upon Landlord
and its successors only with respect to breaches occurring during its or
their respective periods of ownership of the Landlord's interest
hereunder.
35. HOLDING OVER: In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy
the Premises after the termination of Tenant's right of possession
pursuant to Paragraph 28 hereof, Tenant shall, throughout the entire
holdover period, pay rent equal to twice the Base Rental and additional
rent which would have been applicable had the term of this Lease continued
though the period of such holding over by Tenant. No holding over by
Tenant after the expiration of the term of this Lease shall be construed
to extend the term of this Lease.
36. SUBORDINATION TO MORTGAGE: Tenant accepts this Lease subject and
subordinate to any first mortgage, first deed of trust or other first lien
presently existing or hereafter arising upon the Premises, upon the
Building or upon the Property as a whole, and to any renewals, refinancing
and extensions thereof, provided that such mortgagee or lienholder enters
into an agreement not to disturb Tenant's use and occupancy of the
Premises so long as Tenant is not in default, but Tenant agrees that any
such first mortgagee shall have the right at any time to subordinate such
first mortgage, first deed of trust or other first lien on such terms and
subject to such conditions as such mortgagee may deem appropriate in its
discretion. Landlord hereby agrees to use commercially reasonable efforts
to obtain a non-disturbance agreement from any existing mortgagee or
lienholder in form reasonably acceptable to Tenant within 60 days of the
date of this Lease. Tenant agrees to execute such further instruments
subordinating this Lease (or such mortgage to this Lease) or attorning to
the holder of any such liens as Landlord may request in writing; provided
such instruments include non-disturbance language reasonably acceptable to
Tenant. In the event that Tenant should fail to execute any such
instrument within fifteen (15) days of such request, Tenant hereby
irrevocably constitutes Landlord as its attorney-in-fact to execute such
instrument in Tenant's name, place and stead, it being agreed that such
power is one coupled with an interest. Tenant agrees that it will from
time to time within fifteen (15) days of receipt of written request by
Landlord execute and deliver to such persons as Landlord shall request a
statement in recordable form certifying that this Lease is unmodified and
in full force and effect (or if there have been Modifications, that the
same is in full force and effect as so modified), stating the dates to
which rent and any other charges payable under this Lease have been paid,
stating that Landlord is not in default hereunder (or if Tenant alleges a
default stating the nature of such alleged default) and further stating
such other matters as Landlord shall reasonably require.
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37. LANDLORD'S CONTRACTUAL SECURITY INTEREST: In addition to the statutory
Landlord's lien, Tenant hereby grants to Landlord and Landlord shall have
at all times, a valid security interest to secure payment of all Rent and
other sums of money becoming due hereunder from Tenant, and to secure
payment of any damages or loss which Landlord may suffer by reason of the
breach by Tenant of any covenant, agreement or condition contained herein,
upon all goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Tenant presently, or which may hereafter may
be, situated on the Premises, and all proceeds therefrom, and such
property shall not be removed without the written consent of Landlord,
except in the ordinary course of Tenant's business. Landlord shall have
the rights and remedies of a secured party as set forth in the Texas
Uniform Commercial Code. Upon the occurrence of an event of default by
Tenant, Landlord may, in addition to any other remedies provided herein,
enter upon the Premises and take possession of any and all goods, wares,
equipment, fixtures, furniture, improvements and other personal property
of Tenant situated on the Premises, without liability for trespass or
conversion, and sell the same at public or private sale, with or without
having such property at the sale, after giving Tenant reasonable notice,
the requirement of reasonable notice of the time and place of any public
sale or of the time after which any private sale is to be made, at which
sale the Landlord or its assigns may purchase unless otherwise prohibited
by law. Unless otherwise provided by law, and without intending to exclude
any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner
prescribed in this Lease at least seven (7) days before the time of sale.
Any sale made pursuant to the provision of this Paragraph 37 shall be
deemed to have been a public sale conducted in a commercially reasonable
manner if held on the Premises or where the property is located after the
time, place, and method of sale and a general description of the types of
property to be sold have been advertised in a daily newspaper published in
the county in which the property is located for five (5) consecutive days
before the date of the sale. The proceeds from any such disposition, less
any and all expenses connected with the taking possession, holding and
selling of the property (including reasonable attorney's fees and legal
expenses), shall be applied as a credit against the indebtedness secured
by the security interest granted in this Paragraph. Any surplus shall be
paid to Tenant or as otherwise required by law; the Tenant shall pay any
deficiencies forthwith.
38. USE AND STORAGE OF PERSONAL PROPERTY: In the event that Landlord shall
have taken possession of the Premises pursuant to the authority herein
granted, then Landlord shall have the right to keep in place and use all
of the furniture, fixtures and equipment at the Premises, including that
which is owned by or leased to Tenant, at all times prior to any
foreclosure thereon by Landlord or repossession thereof by any Lessor
thereof or third party having a lien thereon. Landlord shall remove from
the Premises (without the necessity of obtaining a distress warrant, writ
of sequestration or other legal process) all or any portion of
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such furniture, fixtures, equipment and other property located thereon and
place same in storage at any premises within the county where the Building
is located, including premises owned by Landlord or an affiliate of
Landlord; and in such event, Tenant shall be liable to Landlord for costs
incurred by Landlord in connection with such removal and storage. Landlord
shall relinquish possession of all or any portion of such furniture,
fixtures, equipment and other property to any person ("Claimant") claiming
to be entitled to possession thereof who presents to Landlord a copy of
any instrument represented to Landlord 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, without the necessity on the part of Landlord
to inquire into the authenticity of said instrument or copy of Tenant's
(or Tenant's predecessor's) signature thereon and without the necessity of
Landlord's making any nature of investigation or inquiry as to the
validity of the factual or legal basis upon which Claimant purports to
act; and Tenant agrees to indemnify and hold Landlord harmless from all
cost, expense, loss, damage and liability incident to Landlord's
relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other property to Claimant. The rights of Landlord
herein stated shall be in addition to any and all other rights which
Landlord has or may hereafter have at law or in equity; and Tenant
stipulates and agrees that the rights herein granted Landlord are
commercially reasonable.
39. SUBORDINATION OF LANDLORD'S LIEN: Landlord hereby agrees to subordinate
all statutory and contractual landlord's liens (and, provided Tenant is
not in default at the time, agrees to sign documents so indicating [on
terms and conditions reasonably acceptable to Landlord], within ten (10)
days after Tenant's request) to any liens or security interests covering
Tenant's inventory, or fixtures, furniture or equipment of Tenant in favor
of third-party lenders providing financing to Tenant (including
purchase-money financing). Additionally, notwithstanding anything to the
contrary contained herein, Tenant shall be permitted to remove contents
from the Premises without Landlord's consent (free and clear of any
landlord's liens) whenever Tenant has not previously received from
Landlord a written notice of default, which remains uncured.
40. NO IMPLIED WAIVER: The failure of either party to insist at any time upon
the strict performance of any covenant or agreement herein, or to exercise
any option, right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future. No
payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of rent due under this lease shall be deemed to be
other than the earliest rent due hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
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41. PERSONAL LIABILITY: The liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease shall be limited to Landlord's
interest in the Building and the Property and Tenant agrees to look solely
to Landlord's interest in the Building and the Property for recovery of
any judgment from Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency.
42. SECURITY DEPOSIT:
(a) SECURITY DEPOSIT. Tenant shall deliver the Security Deposit to
Landlord upon the date of full execution of this lease. The Security
Deposit shall be held by Landlord without liability for interest and as
security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the
Security Deposit shall not be considered an advance payment of rental or a
measure of Tenant's damages in case of default by Tenant. Landlord may
commingle the Security Deposit with Landlord's other funds. Landlord may,
from time to time, without prejudice to any other remedy, use the Security
Deposit to the extent necessary to make any arrearages of rent or to
satisfy any other covenant or obligation of Tenant hereunder. Following
any such application of the Security Deposit, Tenant shall pay to Landlord
on demand the amount so applied in order to restore the Security Deposit
to its original amount. If Tenant is not in default at the termination of
this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant. If Landlord transfers
its interest in the Premises during the term of this Lease, Landlord may
assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of such Security Deposit.
(b) CREDIT ENHANCEMENT. Upon execution of the Lease, Tenant shall pay to
Landlord the Additional Security Deposit (equal to one month's Base
Rental) to be held in escrow. If (i) Tenant fails to show a profit for
three (3) successive quarters and (ii) Tenant's cash falls below
$10,000,000 at the end of any quarter during the Lease Term, Tenant will
be required to pay an amount equal to one (1) month's Base Rental to
Landlord to be held in escrow and added to the Additional Security
Deposit. If Tenant (i) has three (3) consecutive quarters of
profitability, (ii) has never been in default under the Lease, and (iii)
has never been "late" in making any Base Rental or other payments under
the Lease, then Landlord will return the Additional Security Deposit
(whether one month's Base Rental or two month's Base Rental) within thirty
(30) days of written request by Tenant.
43. NOTICE: All notices or other communications required or permitted to be
given pursuant to this Lease shall be in writing and shall be considered
as properly given (i) mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, (ii) by
delivering same in person to the
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intended addressee, (iii) by delivery to an independent third party
commercial delivery service for same day or next day delivery and
providing for evidence of receipt at the office of the intended addressee;
or (iv) by facsimile or similar transmission with confirmation of
transmission by sender. Notice so mailed shall be effective two (2) days
after its deposit with the United States Postal Service or any successor
thereto; notice sent by such a commercial delivery service shall be
effective upon delivery to such commercial delivery service; notice given
by personal delivery shall be effective only if and when received by the
addressee; and notice given by other means shall be effective only if and
when received at the designated address of the intended addressee. For
purposes of notice, the addresses and facsimile numbers of the parties
shall be as set forth on Paragraph I of this Agreement; provided, however,
that either party shall have the right to change its address and facsimile
numbers for notice hereunder to any other location within the continental
United States by the giving of thirty (30) days notice to the other party
in the manner set forth herein.
44. SEVERABILITY: If any term or provision of this Lease, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which
it held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
45. AMERICANS WITH DISABILITIES ACT AND TEXAS ARCHITECTURAL BARRIERS ACT: From
and after the Commencement Date, Tenant agrees to comply with all
requirements of the Americans with Disabilities Act (42 USC 12101 to
12213) and the Texas Architectural Barriers Act (Article 9102, Tex. Rev.
Civ. St., 1991) (collectively, the "Acts") applicable to the Premises.
Tenant agrees to indemnify and hold Landlord harmless from any and all
expenses, liabilities, costs or damages suffered by Landlord as result of
additional obligations which may be imposed on the Building or the
Property after the Commencement Date, under either of such Acts by virtue
of Tenant's operations and/or occupancy. Tenant acknowledges that from and
after the Commencement Date, it will be wholly responsible for any
accommodations or alterations, which need to be made to the Premises to
accommodate disabled employees, customers and invitees of Tenant. No
provision in this Lease should be construed in any manner as permitting,
consenting to or authorizing Tenant to violate requirements under either
such Act and any provision of the Lease which could arguably be construed
as authorizing a violation of either Act shall be interpreted in a manner
which permits compliance with such Act and is hereby amended to permit
such compliance. Landlord hereby represents and warrants that, to the best
of Landlord's knowledge, the Building and the Premises are in compliance
with the Acts as of the Commencement Date. Notwithstanding anything to the
contrary contained herein, to the extent that the Building and the
Premises are not in
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compliance with the Acts as of the Commencement Date, any
accommodations or alterations necessary to comply or to accommodate
disabled employees, customers and invitees of Tenant shall be the
responsibility of Landlord.
46. RECORDATION: Tenant agrees not to record this Lease, or any memorandum
hereof. In the event Landlord's first mortgagee may so require Tenant
and Landlord agree to execute a short form of this Lease for
recordation.
47. GOVERNING LAW: This Lease and the rights and obligations of the Parties
hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Texas.
48. FORCE MAJEURE: Whenever a period of time is herein prescribed for the
taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of
such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of
Landlord.
49. TIME OF PERFORMANCE: Except as expressly otherwise herein provided,
with respect to all required acts of Tenant time is of the essence of
this Lease.
50. TRANSFERS BY LANDLORD: Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder
and in the Building and Property, and in such event and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations. This
Lease shall not be affected by any such transfer.
51. BROKER: Tenant and Landlord each represents and warrants to the other
that Tenant and Landlord, respectively, have dealt with, and only with:
Landlord's representative: Jan Rhea, International Capital, Inc.
Tenant's representative: Bob Steinweg, RES Enterprises, Inc.
as brokers in connection with this Lease, and that, insofar as Tenant
and Landlord, respectively knows, no other broker negotiated this Lease
or is entitled to any commission in connection herewith and Tenant and
Landlord, respectively, shall indemnify and hold harmless the other
from and against all claims and costs (and costs of defending against
and such claims) of any broker or similar parties claiming by, through,
or under Tenant and Landlord respectively, in connection with this
Lease.
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52. EFFECT OF DELIVERY OF THIS LEASE: Landlord has delivered a copy of this
Lease to Tenant for Tenant's review only, and the delivery hereof does
not constitute an offer to Tenant or option. This Lease shall not be
effective until a copy executed by both Landlord and Tenant is
delivered to and accepted by Landlord.
53. ENTIRE AGREEMENT: It is expressly agreed by Tenant, as a material
consideration for the execution of this Lease, that this Lease, with
the specific references to written extrinsic documents, is the entire
agreement of the parties; that there are, and were, no verbal
representations, warranties, understandings, stipulations, agreements
or promises pertaining to this Lease or the expressly mentioned written
extrinsic documents not incorporated in writing in this Lease.
54. AMENDMENT: This Lease may not be altered, waived, amended or extended
except by an instrument in writing signed by Tenant and Landlord.
55. LIMITATION OF WARRANTIES: LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND
ARISING OUT OF THIS LEASE AND THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
56. MAIL: Tenant understands and agrees that mail delivery in the Building
shall be only to boxes contained in the mailroom provided by Landlord.
57. EXHIBITS: In addition to Exhibits A, B, C, D and E, the following
exhibits are attached hereto and incorporated herein and made a part of
this Lease for all purposes:
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
LANDLORD: TENANT
WEDGEWOOD DRIVE PARTNERS, LTD. INTERPHASE CORPORATION
a Texas limited partnership
By: Collinternational II, Inc.
Its: General Partner
By: /s/ GARY BRIEL By: /s/ STEVE KOVAC
------------------------------ -------------------------
Gary Briel
Its: Vice President Its: Chief Financial Officer
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EXHIBIT A
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
LEGAL DESCRIPTION
BEING all of that tract of land in the City of Plano, Collin County, Texas, a
part of the JOHN H. MOUNTS SURVEY, ABSTRACT NO. 610, and being a part of Lot 1,
Bock C, Carrington Park Addition, an addition to the City of Plano as recorded
in Cabinet 1, Page 328, Collin County Plat Records, and being further described
as follows:
BEGINNING at a "X" found in concrete at the northwest corner of said Lot 1, said
point being the intersection of the east line of Communications Parkway (a 110
foot wide right-of-way) with the south line of Wedgewood Drive (a 60 foot wide
right-of-way);
THENCE along the north line of said Lot 1 and along the south line of Wedgewood
Drive as follows:
Northeasterly, 125.10 feet along a curve to the right which has a
central angle of 17 degrees 03 minutes 58 seconds, a radius of 420.00 feet, a
tangent of 63.02 feet, and whose chord bears North 81 degrees 09 minutes 48
seconds East, 124.64 feet to a 1-inch iron rod found for corner;
North 89 degrees 41 minutes 47 seconds East, 551.53 feet to a "X",
found in the concrete at the northeast corner of said Lot 1, said point being in
the west line of Dallas North Tollway (a variable width right-of-way);
THENCE along the east line of said Lot 1 and along the west line of Dallas North
Tollway as follows:
South 00 degrees 18 minutes 13 seconds East, 299.35 feet to a 1-inch
iron rod found for corner;
Southeasterly, 4.65 feet along a curve to the left which has a central
angle of 00 degrees 08 minutes 20 seconds, a radius of 1919.86 feet, a tangent
of 2.33 feet, and whose chord bears South 00 degrees 22 minutes 23 seconds East,
4.65 feet to a 1-inch iron rod set for corner;
THENCE South 89 degrees 41 minutes 47 seconds West, 340.58 feet to a 1-inch iron
rod set for corner;
THENCE North 00 degrees 18 minutes 13 seconds West, 38.00 feet to a 1-inch iron
rod set for corner;
THENCE South 89 degrees 41 minutes 47 seconds West, 310.00 feet to a 1-inch iron
rod set for corner in the west line of said Lot 1, said point being in the east
line of Communications Parkway;
THENCE along the west line of said Lot 1 and along the east line of
Communications Parkway as follows:
North 00 degrees 06 minutes 00 seconds West, 56.14 feet to a 1-inch
iron rod found for corner;
Northwesterly, 193.46 feet along a curve to the left which has a
central angle of 14 degrees 56 minutes 59 seconds, a radius of 741.46 feet, a
tangent of 97.28 feet, and whose chord bears North 07 degrees 34 minutes 30
seconds West, 192.92 feet to the POINT OF BEGINNING and containing 187,170
square feet or 4.2968 acres of land.
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EXHIBIT B
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
DEMISED PREMISES
[ATTACHED]
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[SECOND FLOOR PLAN]
EXHIBIT C
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
SPECIAL PROVISIONS
Landlord agrees that (i) there will be no additional rent charged to Tenant for
Operating Expenses for the year 2003, (ii) the additional rent for Tenant's
Prorata Share of the 2004 Controllable Operating Expenses will be capped at 8%
over the Base Year and (iii) the additional rent for Tenant's Prorata Share of
the 2005 Controllable Operating Expenses will be capped at 8% over the amount
paid by Tenant in the year 2004.
Landlord agrees that Tenant will be entitled to ten (10) designated covered
parking spaces @ $35/month subject to adjustment during the option term based on
the then-current market rate.
Tenant, at Tenant's sole cost and expense, shall place signage identifying
Tenant on the monument sign for the Building and on the first floor directory.
In addition, Tenant may, at Tenant's sole cost and expense, place a sign on the
exterior of the Building and in the second floor lobby of the Building where the
"Xalted" signs are currently located. The design and size of these signs is to
be comparable to the existing Xalted signs and will be subject to Landlord's
approval, which shall not be unreasonably withheld, conditioned or delayed.
Landlord grants tenant Right of First Offer on any additional vacant space
currently occupied by Xalted.
If during the Lease Term, all or any part of the space currently occupied by
Xalted (the "Offer Space") shall become available for lease, Tenant shall have
an initial right of first offer (the "Right of First Offer") to lease all or any
portion of the Offer Space that Landlord elects to lease to bona fide third
parties (the "Subject Space"). Prior to Landlord leasing the Subject Space to
third parties, Landlord shall first offer the Subject Space to Tenant by written
notice (the "Offer"). The Offer shall contain all of the material terms and
conditions upon which Landlord would be willing to lease the Subject Space,
including, without limitation, rental rate, allowances and concessions, term and
date of occupancy. Tenant shall have fifteen (15) days from receipt of the Offer
to accept the Offer in writing. The failure of Tenant to accept the Offer within
such fifteen (15) day period shall constitute rejection of the Offer. If Tenant
accepts the Offer, Landlord and Tenant shall promptly enter into an amendment to
the Lease adding Subject Space the Premises and otherwise incorporating the
terms and conditions of the Offer. If the Subject Space constitutes less than
the Offer Space, the Right of First Offer shall continue with respect to the
balance of the Offer Space.
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Notwithstanding anything to the contrary in this Lease, Landlord will use its
best efforts to grant access to the Premises to Tenant by August 15, 2002, but
in no event later than September 1, 2002, in order to begin making improvements
to the Premises. After Tenant completes its improvements to the Premises,
Landlord will then complete the improvements required by Landlord under this
Lease prior to October 1, 2002.
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EXHIBIT D
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
WORK LETTER
Tenant takes the demised premises in an "as is" condition except Landlord will
replace the carpet with Building Standard grade (as defined below), repaint,
strip and wax VCT flooring, repair light fixtures and replace damaged or soiled
ceiling tiles.
Tenant may select the carpet and paint color from samples supplied by the
Landlord. The Building Standard grade carpet is 26 to 28 ounces.
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EXHIBIT E
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed nor shall refuse, furniture, boxes or other
items be placed therein by Tenant or its officers, agents, servants,
and employees, or used for any purpose other than ingress and egress to
and from the leased premises, or for going from one part of the
Building to another part of the Building. Canvassing, soliciting and
peddling in the Building is prohibited.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which constructed, and no unsuitable material shall be placed
therein.
3. No signs, directories, posters, advertisements, or notices shall be
painted or affixed on or to any of the windows or doors, or in
corridors or other parts of the Building, except in such color, size,
and style, and in such places, as shall be first approved in writing by
Landlord at Tenant's expense. Landlord shall have the right to remove
all unapproved signs without notice to Tenant, at the expense of
Tenant.
4. Tenants shall not do, or permit anything to be done in or about the
Building, or bring or keep anything therein, that will in any way
increase the rate of fire or other insurance on the Building, or on
property kept therein or otherwise increase the possibility of fire or
other casualty.
5. Landlord shall have the power to prescribe the weight and position of
heavy equipment or objects, which may over stress any portion of the
floor. All damage done to the Building by the improper placing of such
heavy items will be repaired at the sole expense of the responsible
Tenant.
6. Tenants shall notify the Building Manager when safes or other heavy
equipment are to be taken in or out of the Building, and the moving
shall be done after written permission is obtained from Landlord on
such conditions as Landlord shall require.
7. Corridor doors, when not in use, shall be kept closed.
8. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Landlord's
written approval must be obtained for any delivery after normal working
hours. Landlord will provide
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Tenants with a list of restricted types of deliveries which will be
performed only during certain hours.
9. Tenants shall cooperate with Landlord's employees in keeping the leased
premises neat and clean.
10. Tenants shall not cause or permit any improper noises in the Building,
or allow any unpleasant odors to emanate from the leased premises, or
otherwise interfere, injure or annoy in any way other tenants, or
persons having business with them.
11. No animals shall be brought into or kept in or about the Building,
except for "seeing eye" or lead dogs.
12. When conditions are such that Tenant must dispose of crates, boxes,
etc., on the sidewalk, it will be the responsibility of Tenant to
dispose of same prior to, or after the hours of 7:30 a.m. and 5:30
p.m., respectively. Crates and construction debris shall be removed
from the project by Tenant at Tenant's expense and shall not be placed
in ordinary trash removal receptacles.
13. No machinery of any kind, other than ordinary office machines such as
typewriters, computers, and printers, shall be operated on the leased
premises without the prior written consent of Landlord, nor shall
Tenants use or keep in the Building any inflammable or explosive fluid
or substance (including Christmas trees and ornaments), or any
illuminating materials, except candles. No space heaters or fans shall
be operated in the Building, without Landlord's prior consent.
14. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
15. No nails, hooks, or screws shall be driven into or inserted in any part
of the Building except as approved by Building maintenance personnel;
provided, however, that Tenant may use nails, hooks and screws to hang
pictures, shelves and other items within the Premises, as necessary,
without prior approval. Tenant will repair any resulting holes prior to
move-out.
16. Landlord has the right to evacuate the Building in the event of such an
emergency or catastrophe, and Tenant shall cooperate in such an
evacuation.
17. No food and/or beverages shall be distributed from Tenant's office
without the prior written approval of the Building Manager, except that
food and drinks may be served to Tenant's employees, agents, guests,
customers, and invitees within the Premises without prior approval.
18. No additional locks shall be placed upon any doors without the prior
written consent of Landlord. All necessary keys shall be furnished by
Landlord, and the same shall be surrendered upon termination of this
Lease, and Tenant shall initially be given two (2) keys to the Premises
by Landlord. No duplicates of such
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keys shall be made by Tenants. Additional keys shall be obtained only
from Landlord, at a fee to be determined by Landlord.
19. Tenants will not locate furnishings or cabinets adjacent to mechanical
or electrical access panels or over air conditioning outlets so as to
prevent operating personnel from servicing such units as routine or
emergency access may require. Cost of moving such furnishings for
Landlord's access will be for Tenant's account. The lighting and air
conditioning equipment of the Building will remain the exclusive charge
of the Building designated personnel.
20. Tenant shall comply with such parking rules and regulations as may be
posted and distributed from time to time.
21. No portion of the Building shall be used for the purpose of lodging
rooms.
22. Prior written approval, which shall be at Landlord's sole discretion,
must be obtained for installation of window shades, blinds, drapes, or
any other window treatment of any kind whatsoever. Landlord will
control all internal lighting that may be visible from the exterior of
the Building and shall have the right to change any unapproved
lighting, without notice to Tenant, at Tenant's expense.
23. No Tenant shall make any changes or alterations to any portion of the
Building without Landlord's prior written approval, which may be given
on such conditions as Landlord may elect. All such work shall be done
by Landlord or by contractors and/or workmen approved by Landlord,
working under Landlord's supervision.
24. Landlord reserves the right to rescind any of these rules and make such
other reasonable and further rules and regulations as in its reasonable
judgment shall from time to time be needful for the operation of the
Building, which rules shall be binding upon each Tenant upon delivery
to such Tenant of notice thereof in writing.
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EXHIBIT F
PARKWAY CENTRE, PHASE I
2901 NORTH DALLAS PARKWAY
PLANO, TEXAS
RENEWAL OPTION
Tenant (but not any assignee or subtenant of Tenant, even if Landlord's consent
is obtained as required under Article XIX of this lease) is granted the
option(s) to extend the term of this lease for one (1) consecutive extended term
of three (3) years, provided (a) Tenant is not in default at the time of
exercise of the option, and (b) Tenant gives written notice of its exercise of
the respective option at least one hundred eighty (180) days prior to the
expiration of the original term or the expiration of the then existing term.
Each extension term shall be upon the same terms, condition and rentals, except
(i) Tenant shall have no further right of renewal after the last extension term
prescribed above, and (ii) the monthly Minimum Guaranteed Rental will be at a
then Market Rate but not to exceed $19.50 psf in year 1, $20.50 psf in year 2
and $21.50 psf in year 3, and (iii) the additional rent for Tenant's Prorata
Share of the Controllable Operating Expenses will be prorata over the Base Year
expense. Notwithstanding the above provisions to the contrary: (A) in no event
will the adjusted monthly Base Rental for any option period be lower than the
monthly Base Rental for the immediately preceding period; and (B) in the event
Tenant has not agreed in writing to accept the monthly Base Rental before ninety
(90) days prior to the expiration of the then existing Lease Term, Landlord at
its option may terminate this Lease as of the expiration of the then existing
Lease Term. For purposes of this Lease, the term "Market Rate" shall mean the
rent actually received for properties of equivalent size, quality and utility
within a two (2) mile radius of the Property from tenants of similar size and
creditworthiness.
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