LEASE AGREEMENT BETWEEN GRAND HP, LTD. as Landlord, and
Exhibit
10.23
GRAND HP,
LTD.
as
Landlord,
and
GRANDE
COMMUNICATIONS NETWORKS, INC.
as
Tenant,
Covering
approximately 8.470 Acres of Land,
including
20,777 Square Feet of the Building known as
Grande
located
at
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▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇.
TABLE OF
CONTENTS
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Page No.
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1.
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PREMISES
AND TERM AND EXTENSION OPTIONS
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1
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2.
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BASE
RENT, ADDITIONAL RENT AND SECURITY DEPOSIT
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1
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3.
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TAXES
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2
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4.
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LANDLORD'S
MAINTENANCE
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2
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5.
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TENANT'S
MAINTENANCE AND REPAIR OBLIGATIONS
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2
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6.
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ALTERATIONS
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3
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7.
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SIGNS
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3
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8.
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UTILITIES
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3
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9.
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INSURANCE
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4
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10.
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CASUALTY
DAMAGE
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4
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11.
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LIABILITY,
INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE
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4
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12.
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USE
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5
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13.
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INSPECTION
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5
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14.
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ASSIGNMENT
AND SUBLETTING
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5
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15.
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CONDEMNATION
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6
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16.
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SURRENDER
OF PREMISES; HOLDING OVER
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6
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17.
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QUIET
ENJOYMENT
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6
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18.
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EVENTS
OF DEFAULT
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7
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19.
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REMEDIES
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7
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20.
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LANDLORD'S
DEFAULT
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8
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21.
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MORTGAGES
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8
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22.
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ENCUMBRANCES
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8
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23.
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MISCELLANEOUS
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8
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24.
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NOTICES
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10
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25.
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HAZARDOUS
WASTE
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10
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26.
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LANDLORD'S
LIEN
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10
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LIST OF
DEFINED TERMS
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Page
No.
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|
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Affiliate
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9
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Base
Rent
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1
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Building
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1
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Building's
Structure
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2
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Claimant
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8
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Collateral
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11
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Commencement
Date
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1
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Environmental
Law
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10
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Event
of Default
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7
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Hazardous
Substances
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10
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HVAC
Systems
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3
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including
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9
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New
Improvements
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1
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Landlord
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1
|
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Landlord's
Mortgagee
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8
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|
Law
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9
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|
Laws
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9
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Lease
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1
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Loss
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5
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Mortgage
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8
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MSDS
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11
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Operating
Expenses
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1
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Permitted
Activities
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10
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Permitted
Materials
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10
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Premises
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1
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Primary
Lease
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8
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rent
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2
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Repair
Period
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4
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Security
Deposit
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2
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Taking
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6
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Taxes
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2
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Tenant
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1
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Tenant
Party
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9
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Term
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1
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Transfer
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6
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UCC
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11
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Vacation
Date
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6
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This
Lease Agreement (this “Lease”),
entered into this 27 day of June , 2006, by and
between Grand HP, Ltd.
(“Landlord”), and Grande Communications Networks, Inc.
(“Tenant”), amends and restates that
certain original lease agreement entered into on Nov.
21, 2000, by and between the parties hereto (the “Original
Lease”).
The Original Lease pertained to the Premises as defined herein, plus an adjacent
lot and improvements thereon. For financing and expansion purposes, the Original
Lease is being split into two separate and distinct leases, one of which is this
Lease.
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1.
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PREMISES.
TERM. AND EXTENSION OPTIONS.
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(a) Landlord
leases to Tenant, and Tenant leases from Landlord, approximately 8.470 Acres of
Land, that includes 20,777 square feet of a Building located thereon, as more
particularly described on Exhibit A attached hereto (the "Premises"), and any
improvements hereafter constructed on the Premises, subject to the terms and
conditions in this Lease. The term "Building" shall mean any
improvements located on or hereafter constructed on the Premises. The term "Buildings" shall mean the
plural thereof.
(b) The
Original Lease commenced on December 1, 2000 (the “Commencement
Date”) for a term of two hundred
forty (240) months. This Lease, which shall have an “Effective
Date” of July 1, 2006, will
be deemed to have commenced on the Commencement Date and shall still end on
November 30,2020 (the “Term”), which defined term shall
include all renewals and extensions of the Term, if any.
(c) Tenant
shall have the right to extend the Term of this Lease pursuant to the terms and
conditions of the "Extension Options" more particularly described on attached
Exhibit
"E".
(d) Landlord
shall have no duty or obligation to construct new improvements on, or make
alterations or additions to, the Premises.
2. BASE
RENT. ADDITIONAL RENT AND SECURITY DEPOSIT.
(a) Beginning
on the Effective Date, Tenant shall pay to Landlord "Base
Rent", monthly in
advance, without demand, deduction or set off, equal to the following amounts
for the following periods of time:
|
Tune Period
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Monthly Base Rent
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07.01.06
through 11.30.10
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$31,296.65
per month
|
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12.01.10
through 11.30.15
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$34,426.32
per month
|
|
12.01.15
through 11.30.20
|
$37,868.95
per month
|
The first
monthly installment, plus the other monthly charges set forth in Section 2(b),
shall be due on the Effective Date; thereafter, monthly installments of Base
Rent shall be due on the first day of each calendar month following the
Effective Date. If the Term begins on a day other than the first day of a month
or ends on a day other than the last day of a month, the Base Rent and
additional rent for such partial month shall be prorated.
(b) It
is the intention of Landlord and Tenant that, except as provided herein to the
contrary, the Base Rent shall be absolutely net to Landlord; that all costs,
expenses, and obligations of every kind relating to Tenant's use, occupancy, and
possession of the Premises, which may arise or become due during the Term shall
be paid by Tenant. Except for the Pass-Through Expenses (defined below), Tenant
shall pay directly to the provider of any goods and services, as additional rent
all costs incurred in owning, operating, managing, repairing and maintaining the
Premises (collectively, “Operating
Expenses”), including, without
limitation, the following items: (1) the cost of repairs, replacement,
management fees and expenses, landscape maintenance and replacement, janitorial
services, trash service (if provided), security service (if provided); (2) the
cost of dues, assessments, and other charges applicable to the Premises payable
to any property or community owner association under restrictive covenants or
deed restrictions to which the Land is subject; (3) maintenance of fire
sprinkler and other Building systems; (4) the cost of utilities; and (5)
alterations, additions, and improvements (except as provided on Exhibit "B"
attached hereto. It being acknowledged that Tenant (not Landlord) shall be
responsible for providing each of the foregoing services. Tenant shall pay to
Landlord, as additional rent (i) all Taxes (defined below), including the cost
of any tax consultant employed to assist Landlord in determining the fair tax
valuation of the Premises (provided that Landlord shall provide Tenant with at
least thirty (30) days prior written notice before hiring any such consultant);
(ii) the cost of any insurance maintained by Landlord on the Premises; and (iii)
a monthly administrative fee of $200.00 for costs incurred by Landlord in
administrating such pass-through expenses (collectively, “Pass-Through
Expenses”). On the same day that
Base Rent is due, Tenant shall pay to Landlord an amount equal to 1/12 of
Landlord's estimate of annual Pass-Through Expenses. The initial monthly
payments are based upon Landlord's estimate of the Pass-Through Expenses for the
year in question, and shall be increased or decreased annually to reflect the
projected actual Pass-Through Expenses for that year. Within 90 days after each
calendar year or as soon thereafter as is reasonably practicable, Landlord shall
deliver to Tenant a statement setting forth the actual Pass-Through Expenses for
such year. If Tenant's total payments in respect of estimated Pass-Through
Expenses for any year are less than actual Pass-Through Expenses for that year,
Tenant shall pay the difference to Landlord within thirty (30) days after
Landlord's request therefor; if such payments of estimated Pass-Through Expenses
are more than actual Pass-Through Expenses, Landlord shall retain such excess
and credit it against Tenant's future monthly payments, except that any credit
remaining at the expiration or earlier termination of this Lease shall be paid
to Tenant within thirty (30) days after such expiration or termination. Neither
Pass-Through Expenses nor Operating Expenses shall include the following: (A)
any costs for interest, amortization, or other payments on loans to Landlord, or
any depreciation on the Premises; (B) legal expenses other than those incurred
for the general benefit of the Premises; (C) federal income taxes imposed on or
measured by the income of Landlord from the operation of the Premises; (D) costs
incurred in selling, syndicating, financing, mortgaging, or hypothecating any of
Landlord's interests in the Premises. There shall be no duplication of costs for
reimbursements in calculating Pass-Through Expenses.
1
(c) If
any payment required of Tenant under this Lease is not paid within ten (10) days
after due, Landlord may charge Tenant a fee equal to 5% of the delinquent
payment to reimburse Landlord for its cost and inconvenience incurred as a
consequence of Tenant's delinquency; provided, however, that in the event Tenant
is one (1) or more days late in any payment required under this Lease, Tenant
shall pay upon demand any late fees or default interest charged by any
Landlord's Mortgagee (as hereinafter defined), resulting solely from such late
payment, provided that such amount shall not exceed 5% of the delinquent
payment.
(d) All
payments and reimbursements required to be made by Tenant under this Lease shall
constitute "rent" (herein so
called).
(e) Landlord
shall keep good and accurate books and records in accordance with sound
accounting principles consistently applied concerning the Pass-Through Expenses,
and Tenant shall have the right, upon 10 days notice, to inspect and copy such
books and records. In any event, Landlord shall credit Tenant in the same manner
as overpayments of Pass-Through Expenses per subparagraph (b) above all
Pass-Through Expenses shown by such inspection to have been overpaid by Tenant,
as mutually determined by Landlord and Tenant in good faith, and, similarly,
Tenant shall promptly pay Landlord all Pass-Through Expenses shown by such
inspection to have been underpaid by Tenant, as mutually determined by Landlord
and Tenant in good faith. Tenant shall not have the right to conduct any such
inspection more frequently than once annually or for periods prior to the
immediately preceding five year period.
(f) Tenant
deposited with Landlord on or before the Commencement Date the amount of Thirty
Three Thousand Seven Hundred Thirty Seven and No/100 Dollars ($33,737.00) (the
"Security
Deposit"), which
shall be held by Landlord to secure Tenant's obligations under this Lease;
however, the Security Deposit is not an advance rental deposit or a measure of
Landlord's damages for an Event of Default (defined below). Landlord may use any
portion of the Security Deposit to satisfy Tenant's unperformed obligations
hereunder, without prejudice to any of Landlord's other remedies. If so used,
Tenant shall pay Landlord an amount that will restore the Security Deposit to
its original amount upon request. In connection with any waiver of a Tenant
default or modification of this Lease, Landlord may require that Tenant provide
Landlord with an additional amount to be held as part of the Security Deposit.
The unused portion of the Security Deposit (together with a detailed accounting
and supporting evidence of the amounts, if any, withheld from the Security
Deposit) will be returned to Tenant within 30 days after the end of the Term,
provided that Tenant has fully and timely performed its obligations hereunder
throughout the Term.
3.
TAXES.
Subject
to Tenant's payment of Pass-Through Expenses as provided in Section 2(b) above,
Landlord shall pay all taxes, assessments and governmental charges whether
federal, state, county, or municipal and whether they are imposed by taxing or
management districts or authorities presently existing or hereafter created
(collectively, "Taxes") that accrue
against the Premises prior to delinquency. If, during the Term, there is levied,
assessed or imposed on Landlord a capital levy or other tax directly on the rent
or a franchise tax, assessment, levy or charge measured by or based, in whole or
in part, upon rent, then all such taxes, assessments, levies or charges, or the
part thereof so measured or based, shall be included in the term "Taxes".
Landlord shall pay any penalties levied on, and shall indemnify and hold Tenant
harmless for any losses or damage incurred by Tenant as a result of, delinquent
taxes, provided Tenant has made all payments required herein in a timely
manner.
(a) Tenant
shall (1) before delinquency pay all taxes levied or assessed against any
personal property, or equipment placed in the Premises and (2) upon the request
of Landlord, deliver to Landlord receipts from the applicable taxing authority
or other evidence acceptable to Landlord to verify that such taxes have been
paid. If any such taxes are levied or assessed against Landlord or Landlord's
property and Landlord pays them after Landlord provides Tenant with notice and a
reasonable opportunity to pay them, then Tenant shall pay to Landlord such
taxes within ten days after Landlord's request therefor.
4.
LANDLORD'S
MAINTENANCE. This
Lease is intended to be a net lease; Landlord's maintenance obligations are
limited to assigning to Tenant (without warranty) all of Landlord's rights under
any warranties pertaining to the Premises.
5.
TENANT'S
MAINTENANCE AND REPAIR OBLIGATIONS.
(a) Tenant
shall maintain all parts of the Premises, including maintenance and replacement
of the Buildings' roofs, foundation, piers and structural members of the
exterior walls (collectively, the “Buildings'
Structure”) in good condition and promptly make all necessary repairs and
replacements to the Premises, normal wear and tear and damage by casualty
excepted. Tenant shall repair and pay for any damage caused by a Tenant Party
(defined below) or caused by Tenant's default hereunder.
(b) Tenant
shall maintain the hot water equipment and the heating, air condition, and
ventilation equipment and systems (the “HVAC
Systems”) in
good repair and condition and in accordance with Law and with such equipment
manufacturers' suggested operation/maintenance service program; such obligation
shall include replacement of all equipment necessary to maintain such equipment
and system in good working order. Within ten days after the Commencement Date,
Tenant shall enter into regularly scheduled preventive maintenance/service
contracts for such equipment, each in compliance with Landlord's specifications
and otherwise in form and substance and with a contractor reasonably acceptable
to Landlord, and deliver copies thereof to Landlord. At least 14 days before the
end of the Term, Tenant shall deliver to Landlord a certificate from an engineer
reasonably acceptable to Landlord certifying that the hot water equipment and
the HVAC Systems are then in good repair and working
order.
2
(c) Additionally,
Tenant shall maintain the parking areas, driveways, alleys, landscaping and
grounds located on the Premises in a clean and sanitary condition, consistent
with the operation of suburban office/warehouse buildings, including prompt
maintenance, repairs and replacements of the exterior of the Buildings
(including painting and caulking), sprinkler systems and sewage and other
utility lines, and any other items normally associated with the
foregoing.
6.
ALTERATIONS.
Tenant shall not make any alterations, additions or improvements to the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld conditioned or delayed. Notwithstanding the foregoing,
Tenant shall not be required to obtain Landlord's consent with respect to any
alteration which (i) does not affect the exterior of a Building, a Building's
Structure or load bearing portions of a Building, (ii) does not adversely affect
the mechanical systems, plumbing systems, the HVAC Systems or other systems in a
Building, and (iii) the cost of which does not exceed $50,000; provided that
Tenant provides Landlord with a reasonable description of the alteration at
least seven (7) days prior to undertaking such alteration. Landlord shall not be
required to notify Tenant of whether it consents to any alteration, addition or
improvements until it has received plans and specifications therefor which are
sufficiently detailed to allow construction of the work depicted thereon to be
performed in a good and workmanlike manner, and has had a reasonable opportunity
to review them. Landlord shall have ten (10) days after the submittal of plans
and specifications to review them and provide Tenant with approval or
disapproval with enough detail for the reasons for disapproval to enable Tenant
to respond to Landlord's concerns. If Landlord fails to respond to Tenant within
said period of time, the plans and specifications shall be deemed approved,
provided that the notice delivered to Landlord shall include a bold-face
reminder that failure to respond in ten (10) days shall result in deemed
approval. If the alteration, addition or improvement will affect a Building's
Structure, HVAC Systems, or mechanical, electrical, or plumbing systems, then
the plans and specifications therefor must be prepared by a licensed engineer
reasonably acceptable to Landlord. Landlord's approval of any plans and
specifications shall not be a representation that the plans or the work depicted
thereon will comply with law or be adequate for any purpose, but shall merely be
Landlord's consent to performance of the work. Upon completion of any
alteration, addition, or improvement, Tenant shall deliver to Landlord accurate,
reproducible as-built plans therefor. Tenant may erect shelves, bins, machinery
and trade fixtures provided that such items do not alter the basic character of
the Premises; do not overload or damage the same; and may be removed without
damage to the Premises. Unless Landlord specifies in writing otherwise, all
alterations, additions, and improvements shall be Landlord's property when
installed in the Premises, except for furnishings, trade fixtures, and all trade
equipment installed by Tenants, including, but not limited to,
telecommunications equipment associated with Tenant's business, which, any
provision of this Lease to the contrary notwithstanding, shall remain the
property of Tenant and shall be removable by Tenant at all times during the Term
of this Lease, regardless of default. All work performed by a Tenant Party in
the Premises (including that relating to the installations, repair, replacement,
or removal of any item) shall be performed in accordance with Law and with
Landlord's specifications and requirements, in a good and workmanlike manner,
and so as not to damage or alter a Building. Any contractors used by Tenant must
carry liability insurance reasonably acceptable to Landlord, and Tenant shall
deliver evidence of such insurance to Landlord before any construction is
commenced. In the event that Tenant requests that Landlord supervise or contract
for any such alteration, addition or improvement, Tenant shall pay Landlord an
administration fee of 5% of all costs incurred for such work; otherwise, Tenant
shall pay Landlord for all out-of pocket architectural or engineering costs
incurred by Landlord in inspecting or reviewing the plans and specifications for
such work. Tenant shall be responsible for causing the Premises and all
improvements thereon, to be in compliance with Americans With Disabilities Act
of 1990.
7.
SIGNS.
(a) Tenant
shall not place, install or attach any exterior signage, decorations,
advertising media, bars, or make any security installations to the Buildings
without Landlord's prior written approval, which approval will not be
unreasonable conditioned, withheld or delayed. Tenant shall repair, paint,
and/or replace any portion of the Premises or the Buildings damaged or altered
as a result of its signage when it is removed (including, without limitation,
any discoloration of the Buildings). Tenant shall not make any changes to the
exterior of the Building, install any exterior lights, decorations, balloons,
flags, pennants, banners or paintings, or erect or install any signs, windows or
door lettering, decals, window or storefront stickers, placards, decorations or
advertising media of any type that is visible from the exterior of the Building
without Landlord's prior written consent, which consent will not be unreasonably
conditioned, withheld or delayed. Landlord shall not be required to notify
Tenant of whether it consents to any sign until it (1) has received detailed,
to-scale drawings thereof specifying design, material composition, color scheme,
and method of installation, and (2) has had a reasonable opportunity to review
them.
(b) Notwithstanding
anything to the contrary in subparagraph (a) above, Landlord agrees that Tenant
may, at Tenant's expense, erect and maintain a monument sign bearing Tenant's
name and/or logo in Tenant's company colors (subject to Landlord's reasonable
approval of the exact location of such signage), and such other signage of any
nature on the Premises or Buildings as Tenant may deem appropriate, provided
that all such signage complies with all applicable laws. Tenant shall be solely
responsible for all costs of designing, installing and repairing such signage,
shall diligently construct such signage to completion in a good and workmanlike
manner and shall maintain such signage in an attractive condition, and comply
with all governmental codes and regulations.
8.
UTILITIES. Tenant shall pay directly to
the utility provider all water, sewer, electricity, gas, telephone and other
utility charges used in the Building, together with any taxes, penalties,
surcharges, maintenance charges, and the like pertaining thereto. Tenant shall
be responsible for obtaining all utility service to the Premises. Landlord shall
not be liable for any interruption or failure of utility service to the
Building.
9.
INSURANCE.
3
(a) Tenant
shall maintain workers' compensation insurance (with a waiver of subrogation
endorsement reasonably acceptable to Landlord) and commercial general liability
insurance (with contractual liability endorsement), including personal injury
and property damage in the amount of $3,000,000 per occurrence combined single
limit for personal injuries and death of persons and property damage occurring
in or about the Premises, plus umbrella coverage of at least $5,000,000 per
occurrence, fire and extended coverage insurance covering the replacement cost
of all of Tenant's furniture, trade fixtures and equipment and personal property
in the Premises, and loss of profits in the event of an insured peril damaging
the Premises, and such other insurance as Landlord may reasonably require in
writing. Such policies shall name Landlord as an additional insured (and as loss
payees on the fire and extended coverage insurance), shall be issued by an
insurance company reasonably acceptable to Landlord, shall provide that such
insurance may not be canceled unless 30-days' prior written notice is first
given to Landlord, shall be delivered to Landlord by Tenant before the
Commencement Date and at least 15 days before each renewal thereof, shall
provide primary coverage to Landlord when any policy issued to Landlord is
similar or duplicate in coverage, in which case Landlord's policy shall be
excess over Tenant's policies, and may provide coverage for the entire premises
covered under the Original Lease.
(b) Landlord
shall, during the term, maintain in full force All-Risk Property insurance on
all Buildings, issued by one or more insurance carriers licensed to do business
in the State of Texas with an A.M. Best rating of B+ VII or better, covering the
Premises to the extent of its full replacement value and, if applicable, Flood
Insurance. All costs in maintaining the insurance described in this Section 9(b)
shall be included in Pass-Through Expenses, subject to the applicable provisions
of Section 2(b) hereof. The policy or policies shall contain an endorsement
providing that the policy cannot be canceled without thirty (30) days prior
written notice to Tenant at the address set forth herein.
10. CASUALTY
DAMAGE.
(a) Tenant
shall give written notice to Landlord of any damage to any Building promptly on
discovery of the same. If the Building is totally destroyed by an insured peril,
or so damaged by an insured peril that, in Landlord's reasonable estimation,
rebuilding or repairs cannot be substantially completed within 180 days after
the date of Landlord's actual knowledge of such damage, Tenant may terminate
this Lease by delivering to Landlord written notice thereof within thirty (30)
days after receipt of Landlord's estimate of the time period for completion of
rebuilding or repairs, or if Landlord fails to undertake and complete the
rebuilding or repairs within 210 days after the date of Landlord's actual
knowledge of such damage (the “Outside Completion Date”), Tenant may terminate this
Lease by delivering to Landlord written notice thereof to Landlord prior to the
first to occur of (i) Landlord's completion of rebuilding or repairs of such
damage, or (ii) five (5) days after the expiration of the Outside Completion
Date. In either event, the rent shall be abated from the date of occurrence
through the unexpired portion of this Lease, effective upon the date such damage
occurred. Time is of the essence with respect to the delivery of such notices
and making of repairs.
(b) Subject
to Section 10(c), if this Lease is not terminated under Section 10(a), then
Landlord shall restore the Building to substantially its previous condition by
the Outside Completion Date, except that Landlord shall not be required to
rebuild, repair or replace any part of the furniture fixtures, equipment or
personal property required to be covered by Tenant's insurance under Section
(a), and not covered by the insurance required to be maintained by Landlord
under this Lease. If the Building in question is untenantable, in whole or in
part, during the period beginning on the date such damage occurred and ending on
the date of substantial completion of Landlord's repair or restoration work (the
“Repair
Period”), then the rent for such
period shall be reduced to such extent as may be fair and reasonable under the
circumstances.
(c) If
any Building is destroyed or substantially damaged by any peril not covered by
the insurance required to be maintained by Landlord or Landlord's Mortgagee
(defined below as the first lienholder on the Premises) requires that insurance
proceeds be applied to the indebtedness secured by its Mortgage (defined below),
Landlord may terminate this Lease by delivering written notice of termination to
Tenant within 30 days after such destruction or damage or such requirement is
made known by Landlord's Mortgagee, as applicable, whereupon all rights and
obligations hereunder shall cease and terminate, except for any liabilities
of Landlord or Tenant which accrued before this Lease is terminated, provided
that all Base Rent and any additional rent accruing after the date of the
casualty shall be abated, and any rent or other monies paid in advance by Tenant
under the terms of this Lease for the period from and after the casualty shall
be repaid to Tenant. Notwithstanding the foregoing, if the Building is destroyed
or substantially damaged by any peril not covered by the insurance maintained by
Landlord, Tenant may, at its option, agree to pay the cost or expense of
restoration of the Building to substantially its previous condition by
delivering written notice to Landlord thereof (the "Restoration Notice") within
fifteen (15) days after Tenant receives Landlord's termination notice as
provided above. In which event (i) Tenant must deposit necessary additional
funds in escrow on or before thirty (30) days after delivering the Restoration
Notice, (ii) this Lease shall not terminate, (iii) any insurance proceeds
actually received by Landlord shall be used for restoration, and (iv) provided
Tenant timely provides the necessary additional funds, Landlord shall complete
such restoration as provided in Section 10(b) above.
11. LIABILITY.
INDEMNIFICATION. WAIVER OF SUBROGATION AND NEGLIGENCE.
(a) Landlord
shall not be liable to Tenant or Tenant's agents, employees or contractors, or
those claiming
by, through or under any of them for any injury to or death of any person or
persons or any damage to or loss, or loss of use of any real or personal
property caused by casualty, theft, or any criminal or tortious acts or
omissions of any third party, unless caused solely by Landlord's gross
negligence or intentional misconduct. In addition, Landlord and Tenant each
waives any claims it might have against the other for any damage to or theft,
destruction, loss or loss of use of any property, to the extent the same is
insured against under any insurance policy that covers the Premises, Landlord's
or Tenant's fixtures, personal property, leasehold improvements, or business, or
is required to be insured against by the party which might have such claim under
the terms of this Lease, regardless of whether the negligence (of whatever type
or nature, including, but not
limited to, gross negligence) or fault of the other party caused such loss. EACH
PARTY
4
SHALL
CAUSE ITS INSURANCE CARRIER TO ENDORSE ALL APPLICABLE POLICIES WAIVING THE
CARRIER'S RIGHT OF RECOVERY UNDER SUBROGATION OR OTHERWISE AGAINST THE OTHER
PARTY.
(b) Subject
to paragraph 11 (a), Tenant shall defend, indemnify, and hold harmless Landlord
and its agents and employees from and against all claims, demands, liabilities,
causes of action, suits, judgments, attorney's fees and expenses for any Loss
arising from any occurrence within, on or about the Premises or arising from
Tenant's failure to perform its obligations under this Lease or arising from any
act or omission (whether negligent, intentional or otherwise) of Tenant or
Tenant's agents, employees, invitees or contractors, except to the extent that a
Loss is caused solely by the gross negligence or intentional misconduct of
Landlord. The term "Loss" means any injury to or death of any person or persons
or any damage to or theft, destruction, loss or loss of any use of any real or
personal property caused by casualty, theft, fire or any acts or omissions of
any person or party, and any injury or damage or inconvenience which may arise
through repair or alteration of any part of the Building or failure to make
repairs, or from any other cause.
(c) Subject
to paragraph 11 (a), Landlord shall defend, indemnify, and hold harmless Tenant
and its agents and employees from and against all claims, demands, liabilities,
causes of action, suits, judgments, attorney's fees and expenses for any Loss
arising from any occurrence within, on or about the Premises, to the extent, and
only to the extent the Loss is caused solely by the gross negligence or
intentional misconduct of Landlord, or its agents, employees, invitees or
contractors.
THESE
WAIVER AND INDEMNITY PROVISIONS IN THIS SECTION 11 SHALL SURVIVE TERMINATION OR
EXPIRATION OF THIS LEASE.
12. USE.
(a) The
Premises shall be used only for office/warehouse (including related and
incidental uses), and any lawful use associated with providing
telecommunications services. Subject to the provisions of paragraph 25 below,
Tenant shall not use the Premises to receive, store or handle any product,
material or merchandise that is explosive or highly inflammable or hazardous;
provided that the Premises contains underground and above-ground storage tanks
which are the property of Landlord, but which are to be used by Tenant under the
terms of this Lease and in compliance with all Laws. Subject to the provisions
of paragraph 25 below, Tenant shall be solely responsible for complying with all
Laws applicable to the use, occupancy, and condition of the Premises. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas, light,
noise or vibrations to emanate from the Premises; nor take any other action that
would constitute a nuisance or would disturb, unreasonably interfere with, or
endanger Landlord or any other person; nor permit the Premises to be used for
any purpose or in any manner that would void the insurance thereon, increase the
insurance risk, or cause the disallowance of any sprinkler credits. Tenant shall
pay to Landlord on demand any increase in the cost of any insurance on the
Premises incurred by Landlord, which is caused by Tenant's use of the Premises
or because Tenant vacates the Premises.
(b) Tenant
and its employees and invitees shall have the right to use any parking areas
associated with the Premises.
13. INSPECTION. Upon reasonable notice,
Landlord and Landlord's agents and representatives may enter the Premises during
business hours to inspect the Premises; to make such repairs as may be required
or permitted under this Lease; to perform any unperformed obligations of Tenant
hereunder; and to show the Premises to prospective purchasers, mortgagees,
ground lessors, and (during the last 6 months of the Term) tenants; provided
that Landlord, its agents or representatives and any prospective tenant shall be
accompanied at all times while on the Premises by a designated employee or
representative of Tenant. During the last 6 months of the Term, Landlord may
erect a sign on the Premises indicating that the Premises are available. Tenant
shall notify Landlord in writing of its intention to vacate the Premises at
least 60 days before Tenant will vacate the Premises; such notice shall specify
the date on which Tenant intends to vacate the Premises (the “Vacation
Date”). At
least 30 days before the Vacation Date, Tenant shall arrange to meet with
Landlord for a joint inspection of the Premises. After such inspection, Landlord
shall prepare a list of items that Tenant must perform before the Vacation Date,
which shall not include repairs due to normal wear and tear or casualty. If
Tenant fails to arrange for such inspection, then Landlord may conduct such
inspection and Landlord's determination of the work Tenant is required to
perform before the Vacation Date shall be conclusive. If Tenant fails to perform
such work before the Vacation Date, then Landlord may perform such work at
Tenant's cost. Tenant shall pay all costs incurred by Landlord in performing
such work within ten days after Landlord's request therefor.
14. ASSIGNMENT
AND SUBLETTING.
(a) Tenant
shall not, without the prior written consent of Landlord, which consent will not
be unreasonably
withheld, delayed or conditioned, (1) advertise that any portions of the
Premises is available for lease or cause or allow any such advertisement, (2)
assign, transfer or encumber this Lease or any estate or interest herein,
whether directly or by operation of law (3) permit any other entity to become
Tenant hereunder by merger, consolidation, or other reorganization; provided,
however, that such a transfer may occur without Landlord's consent so long as
the primary business of the new entity remains substantially similar to Tenant's
primary business and the net worth of the new entity is equal or greater to that
of Tenant, (4) if Tenant is an entity other than a corporation whose stock is
publicly traded (or a corporation whose stock is in the process of being
publicly traded), permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, (5) sublet any portion
of the Premises, (6) grant any license, concession, or other right of occupancy
of any portion of the Premises (except as provided in subparagraph (e) below),
or (7) permit the use of the Premises by any parties other than Tenant (any of
the events listed in Sections 14.(a)(2) through 14.(a)(7) being a “Transfer”). If Tenant requests
Landlord's consent to a Transfer, then Tenant shall provide Landlord with a
written description of all terms and conditions of the proposed Transfer, copies
of the proposed documentation, and the following information about the proposed
transferee: name and address; reasonably satisfactory information about its
business and business history; its proposed use of the Premises; banking,
financial, and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's creditworthiness and
character. Tenant shall reimburse Landlord for its reasonable attorneys' fees
and other expenses incurred in connection with considering any request for its
consent to a Transfer. If Landlord consents to a proposed Transfer, then the
proposed transferee shall deliver to Landlord a written agreement whereby it
expressly assumes the Tenant's obligations hereunder (however, any transferee of
less than all of the space in the Premises shall be liable only for obligations
under this Lease that are properly allocable to the space subject to the
Transfer, and only to the extent of the rent it has agreed to pay Tenant
therefor). Landlord's consent to a Transfer shall not release Tenant from
performing its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Tenant's rent obligations. Tenant authorizes its transferees to
make payments of rent in the event of a default by Tenant, directly to Landlord
upon receipt of notice from Landlord to do so.
5
(b) Notwithstanding
the foregoing, Tenant may assign this Lease or sublease all or any portion of
the Premises without Landlord's consent to any of the following (a "Permitted
Transferee"), provided that either the Permitted Transferee's financial
condition, creditworthiness and business reputation following the transfer are
equal to or exceed those of Tenant or Tenant remains liable on the Lease: (i)
any successor corporation or other entity resulting from a merger or
consolidation of Tenant; (ii) any purchaser or all or substantially all of
Tenant's assets; or (iii) any entity which controls, is controlled by or is
under common control with Tenant. Tenant shall give Landlord thirty (30) days
prior written notice of such assignment or sublease. Any permitted Transferee
shall assume in writing all of Tenant's obligations under this Lease. Tenant
shall nevertheless at all times remain fully responsible and liable for the
payment of rent and the performance and observance of all of Tenant's other
obligations under this Lease unless the transferee has a net worth of
$100,000,000.00, in which case Tenant shall be released from its obligations
hereunder. Nothing in this paragraph is intended to nor shall permit Tenant to
transfer its interest under this Lease as part of a fraud or subterfuge to
intentionally avoid its obligations under this Lease (for example, transferring
its interest to a shell corporation that subsequently files for bankruptcy), and
any such transfer shall constitute a default hereunder.
(c) Landlord,
may, within 30 days after the submission of Tenant written request for
Landlord's consent to a Transfer, cancel this Lease (or, as to a subletting or
assignment, cancel as to the portion of the Premises proposed to be sublet or
assigned) as of the date the proposed Transfer was to be effective. If Landlord
cancels this Lease as to any portion of the Premises, then this Lease shall
cease for such portion of the Premises and Tenant shall pay to Landlord all rent
accrued through the cancellation date relating to the portion of the Premises
covered by the proposed Transfer. Thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other person) without
liability to Tenant. Notwithstanding the foregoing, the provisions of this
paragraph shall not apply to a Permitted Transferee, or in the event of a
proposed sublease, which sublease shall be for less than the entire
Premises.
(d) Tenant
hereby assigns, transfers and conveys one-half of all consideration received by
Tenant under any Transfer, which are in excess of the rents payable by Tenant
under this Lease and the reasonable costs incurred by Tenant in connection with
such reletting. Tenant shall hold such amounts in trust for Landlord and pay
them to Landlord within 10 days after receipt. Notwithstanding the foregoing,
Tenant shall not be required to assign any consideration received from a
Permitted Transferee or from any Co-location licenses (as defined below) granted
by Tenant.
(e) Any
provision in this Lease to the contrary notwithstanding, Landlord acknowledges
that the business to be conducted by Tenant on the Premises requires the Tenant
to grant licenses to the customers of Tenant for the installation of certain
communications equipment owned by customers of Tenant on the Premises, granting
to such customers the right to use, among other things, the rack space and power
of Tenant in the Premises in order for such customers to interconnect with
Tenant's terminal facilities (such licensing process being referred to as
"Co-location"). Landlord agrees that Tenant may enter into Co-location licenses
to allow such use of Tenant's telecommunications equipment without the prior
written consent of Landlord.
15. CONDEMNATION. If a "substantial portion"
of the Premises is taken for any public or quasi-public use by right of eminent
domain or private purchase in lieu thereof (a “Taking”), and the Taking prevents the
use of the Premises for the purpose for which it was leased to Tenant, Tenant
may terminate this Lease by delivering to the Landlord written notice thereof
within 30 days after the Taking, in which case rent shall be abated during the
unexpired portion of the Term, effective on the date of such Taking. If less
than a substantial portion of the Premises is taken or any portion of the
Premises are subject to a Taking, but the Taking does not prevent the use of the
Premises for the purpose for which it was leased to Tenant, then Tenant may not
terminate this Lease, but the rent payable during the unexpired portion of the
Term shall be reduced to such extent as may be fair and reasonable under the
circumstances. All compensation awarded for any Taking shall be the property of
Landlord and Tenant assigns any interest it may have in any such award to
Landlord; however, Landlord shall have no interest in any award made to Tenant
for loss of business or goodwill or for the taking of Tenant's trade fixtures,
the cost of relocating Tenant and/or disruption of Tenant's business, if a
separate award for such items is made to Tenant.
A
"substantial portion" of the Premises is defined to mean any of the following:
(i) twenty percent (20%) or more of the parking areas of the Premises; (ii) ten
percent (10%) or more of one or more of the Building(s) on the Premises; (iii)
loss through a taking of legal access from the Premises to an adjacent street or
highway; or (iv) any Taking that makes it unfeasible (in Landlord's reasonable
discretion) to build an additional 30,000 square foot building on the
Premises.
6
16. SURRENDER
OF PREMISES; HOLDING OVER.
(a) No
act by Landlord shall be an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless it is in
writing and signed by Landlord. At the end of the Term or the termination of
Tenant's right to possess the Premises, Tenant shall deliver to Landlord the
Premises with all improvements located thereon in good repair and condition,
reasonable wear and tear (subject however to Tenant's maintenance obligations)
excepted, and with the HVAC System and hot water equipment, light and light
fixtures (including ballasts), and overhead doors and related equipment in good
working order, deliver to Landlord all keys to the Premises, and remove all
signage placed on the Premises by or at Tenant's request. All fixtures,
alterations, additions, and improvements (whether temporary or permanent) shall
be Landlord's property and shall remain on the Premises except as provided in
the next two sentences. Tenant may remove all trade fixtures, furniture, trade
equipment and personal property placed in the Premises by Tenant (but Tenant
shall not remove any such item which was paid for, in whole or in part, by
Landlord). Additionally, Tenant shall remove such alterations, additions,
improvements, fixtures, equipment, wiring, furniture, and other property as
Landlord may request, provided such request is made within sixty (60) days prior
to the end of the Term and provided that the installation or construction of the
applicable alteration, improvement, additions, fixture or wiring was not
consented to by Landlord in writing (unless at the time of consent, Landlord
informed Tenant that such item would need to be removed upon expiration of
the Lease). All items not so removed shall, at the option of Landlord, be deemed
abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items and Tenant shall pay for the costs incurred
by Landlord in connection therewith. All work required of Tenant under this
Section shall be coordinated with Landlord and be done in a good and workmanlike
manner, in accordance with all Laws, and so as not to damage the Building or
unreasonably interfere with other tenants' use of their premises. Tenant shall,
at its expense, repair all damage caused by any work performed by Tenant under
this Section.
(b) If
Tenant fails to vacate the Premises at the end of the Term, then Tenant shall be
a Tenant at will and Tenant shall pay a daily rental equal to 125% of all rental
payable during the last month of the Term. Additionally, Tenant shall defend,
indemnify, and hold harmless Landlord from any damage (including consequential
damages), liability and expense (including attorneys' fees and expenses)
incurred because of such holding over. No payments of money by Tenant to
Landlord after the Term shall reinstate, continue or extend the Term, and no
extension of this Term shall be valid unless it is in writing and signed by
Landlord and Tenant.
17.
QUIET
ENJOYMENT.
Provided Tenant has fully performed its obligations under this Lease,
Landlord warrants that Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise.
18.
EVENTS OF
DEFAULT. Each of
the following events shall constitute an "Event of
Default" under
this Lease:
(a) Tenant
fails to pay any rent or other payment due to Landlord under this Lease within
twenty (20) days after notice of default is received by Tenant; provided,
however if such failure occurs more than one (1) time during any 12-month
period, then any subsequent failure shall be an immediate Event of Default
without notice;
(b) The
filing of a petition by or against Tenant or any guarantor of Tenant's
obligations hereunder (1) in any bankruptcy or other insolvency proceeding; (2)
seeking any relief under any debtor relief Law; (3) for the appointment of a
liquidator, receiver, trustee, custodian, or similar official for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
or (4) for reorganization or modification of Tenant's capital structure
(however, if any such petition is filed against Tenant, then the filing of such
petition shall not constitute an Event of Default, unless it is not dismissed
within sixty (60) days after the filing thereof).
(c) Tenant
fails to comply with any term, provision or covenant of this Lease within thirty
(30) days after notice of default, provided that if such failure cannot be cured
within such 30-day period with reasonable diligence, then such 30-day period
shall be extended for an additional period as may be reasonable required for
Tenant to perform such cure, but in no event in excess of ninety (90) days,
provided that Tenant must commence such cure within such thirty (30) day period
and complete such cure within ninety (90) days after Tenant's receipt of
Landlord's notice.
19. REMEDIES.
(a) Upon
any Event of Default, Landlord may, in addition to all other rights and remedies
afforded
Landlord hereunder or by Law, take any of the following
actions:
(1) Terminate
this Lease by giving Tenant written notice thereof, in which event, Tenant shall
pay to Landlord the sum of all rent accrued hereunder through the date of
termination, all amounts due under Section 19.(b), and an amount equal to the
total rent that Tenant would have been required to pay for the remainder of the
Term discounted to present value at a per annum rate equal to the rate of
interest set forth for 26-week U.S. governmental bills sold at a discount from
face value in units of $10,000 to $1,000,000 as published on the date this Lease
is terminated by The Wall Street Journal, Southwest Edition, in its listing of
"Money Rates" under the heading "Treasury Bills" (or, if no such rate is
published, the "Discount Rate" as published on such date under the "Money Rates"
listing), minus the then present fair rental value of the Premises for such
period, similarly discounted; or
(2) Terminate
Tenant's right to possess the Premises without terminating this Lease by giving
written notice thereof to Tenant, in which event Tenant shall pay to Landlord
all rent and other amounts accrued hereunder to the date of termination of
possession, all amounts due from time to time under Section 19.(b), and all rent
and other sums required hereunder to be paid by Tenant during the remainder of
the Term, diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period. Landlord shall have a duty to
mitigate damages; however, so long as Landlord uses commercially reasonable
efforts to mitigate damages, Landlord's failure to relet the Premises or receive
rent therefor shall not diminish or reduce Tenant's obligations hereunder.
Tenant shall not be entitled to the excess of any consideration obtained by
reletting over the rent due hereunder. Reentry by Landlord in the Premises shall
not affect Tenant's obligations hereunder for the unexpired Term; rather,
Landlord may, from time to time, bring action against Tenant to collect amounts
due by Tenant, without the necessity of Landlord's waiting until the expiration
of the Term. Unless Landlord delivers written notice to Tenant expressly stating
that it has elected to terminate this Lease, all actions taken by Landlord to
exclude or dispossess Tenant of the Premises shall be deemed to be taken under
this Section 19. (a)(2). If Landlord elects to proceed under this Section 19.
(a)(2), it may at any time elect to terminate this Lease under Section
19.(a)(1).
7
Additionally,
without notice, Landlord may alter locks or other security devices at the
Premises to deprive Tenant of access thereto, provided that Landlord shall be
required to provide a new key or right of access to Tenant upon payment by
Tenant of all delinquent rents.
(b) Tenant
shall pay to Landlord all reasonable costs incurred by Landlord (including court
costs and
reasonable attorneys' fees and expenses) in obtaining possession of the
Premises, removing and storing Tenant's or any other occupant's property,
repairing, restoring, altering, remodeling, or otherwise putting the Premises
into condition acceptable to a new tenant, if Tenant is dispossessed of the
Premises and this Lease is not terminated, reasonable and necessary costs of
reletting all or any part of the Premises (including the prorated portion for
the unexpired Term of this Lease of reasonable brokerage commissions incurred in
reletting), performing Tenant's obligations which Tenant failed to perform.
Tenant shall be responsible only for the portion of such amortized expense
attributable to the unexpired term of this Lease. Landlord's acceptance of rent
following an Event of Default shall not waive Landlord's rights regarding such
Event of Default. Landlord's receipt of rent with knowledge of any default by
Tenant hereunder shall not be a waiver of such default, and no waiver by
Landlord of any provision of this Lease shall be deemed to have been made unless
set forth in writing and signed by Landlord. No waiver by Landlord of any
violation or breach of any of the terms contained herein shall waive Landlord's
rights regarding any future violation of such term or violation of any other
term. If Landlord repossesses the Premises pursuant to the authority herein
granted, then Landlord shall have the right to remove and store, at Tenant's
expense, all of the furniture, fixtures, equipment and other property in the
Premises, including that which is owned by or leased to Tenant at all times
before any foreclosure thereon by Landlord or repossession thereof by any lessor
thereof or third party having a lien thereon. Landlord may relinquish possession
of all or any portion of such furniture, fixtures, equipment and other property
to any person (a “Claimant”) who presents to Landlord
a copy of any instrument represented by Claimant to have been executed by Tenant
(or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Landlord to inquire into the
authenticity or legality of the instrument. Landlord may, at its option and
without prejudice to or waiver of any rights it may have, escort Tenant to the
Premises to retrieve any personal belongings of Tenant and/or its employees and
make such property available to Tenant and/or Tenant's employees; however,
Tenant first shall pay in cash all costs and estimated expenses to be incurred
in connection with the removal of such property and making it available. The
rights of Landlord herein stated are in addition to any and all other rights
that Landlord has or may hereafter have at law or in equity, and Tenant agrees
that the rights herein granted Landlord are commercially
reasonable.
20. LANDLORD'S
DEFAULT. If
Landlord fails to perform any of its obligations hereunder within 30 days after
written notice from Tenant specifying such failure, Tenant's sole and exclusive
remedy shall be an action for damages or an action for specific performance.
Unless Landlord fails to so cure such default after such notice, Tenant shall
not have any remedy or cause of action by reason thereof.
21. MORTGAGES.
(a) This
Lease shall be subordinate to any deed of trust, mortgage or other security
instrument (a “Mortgage”)
that now or hereafter covers any portion of the Premises (the mortgagee under
any Mortgage is referred to herein as "Landlord's Mortgagee") and to increases,
renewals, modifications, consolidations, replacements, and extensions thereof.
However, any Landlord's Mortgagee may elect to subordinate its Mortgage to this
Lease by delivering written notice thereof to Tenant. The provisions of this
Section 21 shall be self-operative, and no further instrument shall be required
to effect such subordination; however, Landlord shall use commercially
reasonable efforts to deliver to Tenant, and Tenant shall execute from time to
time within ten days after delivery thereof to Tenant, an instrument from each
Landlord's Mortgagee evidencing the subordination of this Lease to any such
Mortgagee or Primary Lease (which instrument shall include a commercially
reasonable non-disturbance provision in favor of Tenant and shall be on
Landlord's Mortgagee's standard form). Notwithstanding the foregoing, Tenant
shall not be required to subordinate to any Mortgage, nor shall this Lease be
subordinate to any future Mortgage, the proceeds of which were not used for
acquisition of, or improvements to, the Premises.
(b) Tenant
shall attorn to any party succeeding to Landlord's interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale,
termination of lease, or otherwise, upon such party's request, and shall execute
such agreements confirming such attornment as such party may reasonably request.
If requested by Landlord's Mortgagee in writing, Tenant shall not seek to
enforce any remedy it may have for any default on the part of Landlord without
first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail to the Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
22. ENCUMBRANCES.
Tenant has no authority, express or implied, to create or place any lien or
encumbrance of any kind or nature whatsoever upon, or in any manner to bind
Landlord's property or the interest of Landlord in the Premises, including those
who may furnish materials or perform labor for any construction or repairs.
Landlord shall promptly deliver to Tenant copies of any notices of mechanics
liens received by Landlord. Tenant shall pay or cause to be paid all sums due
for any labor performed or materials furnished in connection with any work
performed on the Premises by or at the request of Tenant within thirty (30) days
after the filing of any such lien, unless Tenant is validly contesting the lien
in good faith and provides to Landlord a bond in the amount of 150% of the claim
or provides other security reasonably acceptable to Landlord. Tenant shall give
Landlord immediate written notice of the placing of any lien or encumbrance
against the Premises. Tenant shall discharge any lien placed upon the Premises
in violation of this provision, within twenty (20) days after Tenant receives
notice that any such lien or encumbrance is filed against the Premises, or
bond around or provide other security acceptable to Landlord, within twenty (20)
days after Tenant leams that the lien is placed on the
Premises.
8
23. MISCELLANEOUS.
(a) Words
of any gender used in this Lease shall include any other gender, and words in
the singular shall include the plural, unless the context otherwise requires.
The captions inserted in this Lease are for convenience only and in no way
affect the interpretation of this Lease. The following terms shall have the
following meanings: “Laws”
shall mean all federal, state, and local laws, rules, and regulations; all court
orders, governmental directives, and governmental orders; and all restrictive
covenants affecting the Property, and "Law" shall mean any of the foregoing;
“affiliate”
shall mean any person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with the party in question; “Tenant
Party” shall include Tenant, any assignees claiming by, through, or under
Tenant, any subtenants claiming by, through, or under Tenant, and any of then
respective agents, contractors, employees, and invitees; and “including”
shall mean including, without limitation. The normal rule of construction that
any ambiguities be resolved against the drafting party shall not apply to the
interpretation of this Lease or any exhibits or amendments
hereto.
(b) The
liability of Landlord to Tenant under the terms of this Lease shall be limited
to the interest of Landlord in the Premises (including any insurance, sales and
condemnation proceeds therefrom), and Landlord shall not be personally liable
for any deficiency. Landlord may transfer and assign, in whole or in part, its
rights and obligations in the Premises and property that are the subject of this
Lease, in which case Landlord shall have no further liability hereunder for
events occurring after the date of assignment. Each party shall furnish to the
other, promptly upon demand, a corporate resolution, proof of due authorization
by partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
(c) Whenever
a period of time is herein prescribed for action to be taken by a party (other
than the payment of rent), the party shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations, or restrictions, or any other causes of any kind
whatsoever which are beyond the control of the party in
question.
(d) Tenant
shall, from time to time, within ten days after request of Landlord, deliver to
Landlord, or Landlord's designee, financial statements for itself and any
guarantor of its obligations hereunder, evidence reasonably satisfactory to
Landlord that Tenant has performed its obligations under this Lease (including
evidence of the payment of the Security Deposit), and an estoppel certificate
stating that this Lease is in full effect, the date to which rent has been paid,
the unexpired Term and such other factual matters pertaining to this Lease as
may be reasonably requested by Landlord. Tenant's obligation to furnish the
above-described items in a timely fashion is a material inducement for
Landlord's execution of this Lease.
(e) This
Lease constitutes the entire agreement of the Landlord and Tenant with respect
to the subject matter of this Lease, and contains all of the covenants and
agreements of Landlord and Tenant with respect thereto. Landlord and Tenant each
acknowledge that no representations, inducements, promises or agreements, oral
or written, have been made by Landlord or Tenant, or anyone acting on behalf of
Landlord or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations, or representations not expressly set forth in this Lease
are of no effect. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
(f) All
obligations of Tenant hereunder not fully performed by the end of the Term shall
survive, including, without limitation, all payment obligations with respect to
Operating Expenses and Pass-Through Expenses and all obligations concerning the
condition and repair of the Premises. Upon the end of the Term and before Tenant
vacates the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises in good condition and
repair, reasonable wear and tear excluded. Tenant shall also, prior to vacating
the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for Operating Expenses and Pass-Through Expenses through
the end of the Term for the year in which the Term ends. All such amounts shall
be used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied as the case may be. Any Security
Deposit held by Landlord may be credited against the amount due by Tenant under
this Section 23.(f).
(g) If
any provision of this Lease is illegal, invalid or unenforceable, then the
remainder of this Lease shall not be affected thereby, and in lieu of each such
provision, there shall be added, as a part of this Lease, a provision as similar
in terms to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
(h) All
references in this Lease to "the date hereof or similar references shall be
deemed to refer to the
last date, in point of time, on which all parties hereto have executed this
Lease.
9
(i) Landlord
and Tenant each warrant to the other that it has not dealt with any broker or
agent in connection with this Lease. Tenant and Landlord shall each indemnity
the other against all costs, attorneys' fees, and other liabilities for
commissions or other compensation claimed by any broker or agent claiming the
same by, through, or under the indemnifying party.
(j) If
and when included within the term "Tenant," as used in this instrument, there is
more than one person, firm or corporation, all shall jointly arrange among
themselves for then joint execution of notice specifying an individual at a
specific address within the continental United States for the receipt of notices
and payments to Tenant. If and when included within the term “Landlord,” as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying an individual at a specific address within the continental United
States for the receipt of notices and payments to Landlord. All parties included
within the terms "Landlord" and "Tenant," respectively, shall be bound by
notices given in accordance with the provisions of Section 24 to the same effect
as if each had received such notice.
(k) The
terms and conditions of this Lease are confidential and Tenant shall not
disclose the terms of this Lease to any third party except as may be required by
law or to enforce its rights hereunder.
(1) Tenant
shall pay interest on all past-due rent from the date due until paid at the
maximum lawful rate. In no event, however, shall the charges permitted under
this Section 23.(m) or elsewhere in this Lease, to the extent they are
considered to be interest under applicable Law, exceed the maximum lawful rate
of interest.
(m)
THIS LEASE WILL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
24. NOTICES. Each provision of this
instrument or of any applicable Laws and other requirements with reference to
the sending, mailing or delivering of notice or the making of any payment
hereunder shall be deemed to be complied with when and if the following steps
are taken:
(a) All
rent shall be payable to Landlord at the address for Landlord set forth below or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent shall
not be deemed satisfied until such rent has been actually received by
Landlord.
(b) All
payments required to be made by Landlord to Tenant hereunder shall be payable to
Tenant at the address set forth below, or at such other address within the
continental United States as Tenant may specify from time to time by written
notice delivered in accordance herewith.
(c) Any
written notice or document required or permitted to be delivered hereunder shall
be deemed to be delivered upon the earlier to occur of (1) tender of delivery
(in the case of a hand-delivered notice) with written acknowledgment of receipt
obtained, (2) deposit in the United States Mail, postage prepaid, Certified
Mail, or (3) receipt by facsimile transmission, in each case, addressed to the
parties hereto at the respective addresses set out below, or at such other
address as they have theretofore specified by written notice delivered in
accordance herewith. If Landlord has attempted to deliver notice to Tenant at
Tenant's address reflected on Landlord's books but such notice was returned or
acceptance thereof was refused, then Landlord may post such notice in or on the
Premises, which notice shall be deemed delivered to Tenant upon the posting
thereof.
25. HAZARDOUS WASTE. The
term “Hazardous
Substances,” as used in this Lease
shall mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the removal of which is required or the use of which is restricted,
prohibited or penalized by any “Environmental
Law,” which term shall mean
any Law relating to health, pollution, or protection of the environment. Tenant
hereby agrees that (a) no activity will be conducted on the Premises that will
produce any Hazardous Substances, except for such activities that are part of
the ordinary course of Tenant's current business activities (the “Permitted
Activities”) provided such Permitted
Activities are conducted in accordance with all Environmental Laws and provided
further, however, if Tenant changes its business or subleases or assigns (other
than to a Permitted Transferee) then such Permitted Activities must also be
approved in advance in writing by Landlord; (b) the Premises will not be used in
any manner for the storage of any Hazardous Substances except for any temporary
storage of such materials that are used in the ordinary course of Tenant's
current business (the “Permitted
Materials”) provided such Permitted
Materials are properly stored in a manner and location satisfying all
Environmental Laws and provided further, however, if Tenant changes its business
or subleases or assigns (other than to a Permitted Transferee) then such
Permitted Materials must also be approved in advance in writing by Landlord; (c)
no portion of the Premises or Land will be used as a landfill or a dump; (d)
Tenant will not install any underground tanks of any type without Landlord's
consent; (e) Tenant will not allow any surface or subsurface conditions to exist
or come into existence that constitute, or with the passage of time may
constitute a public or private nuisance; (f) Tenant will not permit any
Hazardous Substances to be brought onto the Premises or Land, except for the
Permitted Materials, and if so brought thereon, the same shall be immediately
removed by Tenant, with proper disposal, and all required cleanup procedures
shall be diligently undertaken pursuant to all Environmental Laws; (g) Tenant
will maintain on the Premises a list of all materials stored at the Premises for
which a material safety data sheet (an “MSDS”) was issued by the
producers or manufacturers thereof, together with copies of the MSDS's for such
materials, and shall deliver such list and MSDS copies to Landlord upon
Landlord's request therefor; and (h) Tenant shall remove all Permitted Materials
from the Premises in a manner acceptable to Landlord before Tenant's right to
possess the Premises is terminated. If at any time during or after the Term, the
Premises are found to be so contaminated or subject to such conditions which
arose after the Commencement Date of the Lease, Tenant shall defend, indemnify
and hold Landlord harmless from all claims, demands, actions, liabilities,
costs, expenses, damages and obligations of any nature arising from or as a
result of the use of the Premises by Tenant, except for any conditions or
contamination of the Premises caused by Landlord or ▇.▇. ▇▇▇▇▇ (as hereinafter
defined). The foregoing indemnity shall survive termination or expiration of
this Lease. Unless expressly identified on an addendum to this Lease, as of the
date hereof there are no “Permitted Activities” or "Permitted Materials" for
purposes of the foregoing provision and none shall exist unless and until
approved in writing by the Landlord. Landlord may enter the Premises and conduct
environmental inspections and tests therein as it may reasonably require from
time to time, provided that Landlord shall use reasonable efforts to minimize
the interference with Tenant's business. Such inspections and tests shall be
conducted at Landlord's expense, unless they reveal the presence of Hazardous
Substances (other than Permitted Materials or those placed in the Premises by
Landlord) or that Tenant has not complied with the requirements set forth in
this Section 25, in which case Tenant shall reimburse Landlord for the cost
thereof within ten days after Landlord's request
therefor.
10
Any
provision to the contrary notwithstanding, Landlord shall and does hereby agree
to indemnify, protect, defend and hold harmless Tenant and its partners,
directors, officers, agents and employees and each of their respective
successors and assigns from and against any and all costs, claims, judgments,
damages, penalties, fines, taxes, costs, liabilities, losses and expenses
(including reasonable attorneys' fees) as a result of or in connection with the
presence of any Hazardous Substances on the Premises which either (i) exist on
the date hereof, or (ii) are the direct result of Landlord's (or its agents,
employees or contractors) actions on or about the Premises after the date
hereof. This indemnification, and all other indemnifications provided by
Landlord under this Lease shall survive termination or expiration of this
Lease.
TENANT
ACKNOWLEDGES THAT UPON OCCUPANCY OF THE PREMISES (1) IT HAS INSPECTED AND
ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION, EXCEPT FOR ENVIRONMENTAL
CONTAMINATION TO BE REMEDIATED BY LANDLORD (AS PROVIDED IN PARAGRAPH 25 ABOVE),
(2) THE PREMISES ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED
AND LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL
OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS AND EXCEPT AS MAY BE
SET FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED, IMPLIED OR STATUTORY, EXCEPT AS PROVIDED HEREIN.
[Signature
Page to Follow]
11
Executed
by Landlord on the 27
day of June,
2006.
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LANDLORD:
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||
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GRAND
HP, LTD. a Texas limited partnership
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||
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BY:
2800 Industrial, Inc. a Texas corporation, its
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General
Partner
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||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
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President
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Address:
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c/o Hill Partners, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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||
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▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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||
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Telephone:
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(▇▇▇) ▇▇▇-▇▇▇▇
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Fax:
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(▇▇▇)
▇▇▇-▇▇▇▇
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Executed
by Tenant on the 19th
day of June 2006.
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TENANT:
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||
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GRANDE
COMMUNICATIONS NETWORKS, INC.
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a
Texas Corporation
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||
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By:
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/s/
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name:
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▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Title:
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COO
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Address:
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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| ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
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Attn:
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Legal
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Telephone:
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▇▇▇-▇▇▇-▇▇▇▇
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|
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Fax:
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▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT
"A"
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-
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Premises
|
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EXHIBIT
"B"
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-
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Intentionally
Deleted
|
|
EXHIBIT
"C"
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-
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Intentionally
Deleted
|
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EXHIBIT
"D"
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-
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Right
of First Offer
|
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EXHIBIT
"E"
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-
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Renewal
Option
|
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EXHIBIT
"F"
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-
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Purchase
Option Rider
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SCHEDULE
ONE
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-
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Title
Exceptions
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12