EXHIBIT 10.12
OFFICE LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF Dallas
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THIS LEASE AGREEMENT, made and entered into as of the ____ day of ____,
19____, by and between the Landlord and Tenant hereinafter named.
WITNESSETH:
1. DEFINITIONS AND BASIC PROVISIONS. The following definitions and basic
provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this Lease:
(a) "Landlord": Government Employees Insurance Company
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(b) "Tenant": Efficient Network Technology Inc.
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(c) "Building": The GEICO Building
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(d) "Premises": 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx
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75244
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as generally outlined in the plan attached hereto as Exhibit "A". On each floor
of the Building on which the entire space rentable to tenants is or will be
leased to one (1) tenant, the term "Rentable Area" for such floor shall be
computed by measuring to the inside face of the glass in the permanent outer
walls of the Building and adding a pro rata portion of the area located within
the lobby on the ground floor of the Building. No deductions shall be made for
elevator lobbies, corridors, restrooms, mechanical rooms, electric rooms,
telephone closets, all vertical penetrations of the floor that are included for
the special use of Tenant, columns, projections and other structural portions of
the Building, and other similar facilities for the use of all tenants
(hereinafter sometimes called "Common Areas"). On each floor of the Building on
which the entire space rentable to tenants is or will be leased to more than one
(1) tenant, the term "rentable area" shall be the sum of (i) the entire area
included within the leased premises, being the area bounded by the interior of
the exterior wall or walls of the Building, the exterior of all walls separating
the leased premises from any public corridors or other public areas, and the
centerline of all walls separating the leased premises from other areas leased
or to be leased to other tenants, (ii) a pro rata portion of the area covered by
the elevator lobbies, corridors, restrooms, mechanical rooms, electric rooms,
columns and telephone closets situated on such floor, and (iii) a pro rata
portion of the area located within the lobby on the ground floor of the
Building. The Rentable Area within the leased premises shall be the number of
square feet set forth below. The Rentable Area in the Premises has been
calculated on the basis of the foregoing definition and is hereby stipulated for
all purposes hereof to be 10,348 square feet, which includes Tenant's occupied
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space plus Tenant's portion of Common areas. Such stipulation of the rentable
square feet comprising the Premises shall govern the Lease for all purposes,
notwithstanding that the same should be more or less as a result of a minor
variations resulting from actual construction and completion of the Premises for
occupancy so long as such work is done in accordance with the terms and
provisions hereof. Notwithstanding the inclusion of Common Areas in the
calculation of rentable square feet, it is understood that certain areas, such
as mechanical rooms and janitor closets, may be intended solely for use by
Landlord and the building manager in the operation of (See Rider) the Building.
The total rentable area of the Building shall be 244,585 square feet.
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(e) "Lease term": A period of 61 months, commencing on Sept 1, 1993,
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(the "Commencement Date") and ending on Sept 30, 1998. (See Rider)
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(f) "Basic Annual Rental": $*, subject to escalation as described in
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Paragraph 3
hereinbelow.
(g) "Monthly Rental Installment": $**.
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(h) "Operating Expense Adjustment": $1994 Base, subject to escalation
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as described in Paragraph 4 hereinbelow.
(i) "Security Deposit": $10,434.23, deposited with Landlord on the date
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hereof.
(j) "Permitted use": The Premises are to be used and occupied by Tenant
solely for Office/Research and for no other purpose or use without the
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prior written consent of Landlord.
2. LEASE GRANT. Landlord, in consideration of the rent to be paid and
the other covenants and agreements to be performed by Tenant and upon the terms
and conditions hereinafter stated, does hereby lease, demise and let unto Tenant
the Premises (as defined in paragraph 1(d) hereof) commencing on the
Commencement Data (as defined in paragraph 1(e) hereof or as adjusted as
hereinafter provided) and ending on the last day of the lease term, unless
sooner terminated as herein provided. In the event the Premises are occupied by
Tenant prior to the stated date, the Commencement Date shall be the date such
occupancy commenced if this Lease is executed before the Premises become vacant,
or otherwise available and ready for occupancy, or if any present tenant or
occupant of the premises holds over, and Landlord cannot acquire possession of
the Premises prior to the Commencement Date of the Lease, Landlord shall not be
deemed to be in default hereunder, the Tenant agrees to accept possession of the
Premises at such time as Landlord is able to tender the same and such date shall
be deemed to be the Commencement Date and this Lease shall continue for the
lease term described in paragraph 1(e) hereof. By occupying the Premises, Tenant
shall be deemed to have accepted the same as suitable for the purpose herein
intended and to have acknowledged that the same comply fully with Landlord's
covenants and obligations.
3. RENT. In consideration of this Lease, Tenant promises and agrees to
pay Landlord, as an independent covenant, the Basic Annual Rental (as defined in
paragraph 1(f) hereof) and which is subject to escalation as hereinafter
described, without
*Basic Annual Rental **Basic Monthly Rental
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*** Year 1 $119,002.00 $9,916.83
Year 2 $124,176.00 $10,348.00
Year 3 $124,176.00 $10,348.00
Year 4 $129,350.00 $10,779.17
Year 5 $129,350.00 $10,779.17
*** Month two (2) shall be free.
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deduction or set off, including the Operating Expense Adjustment as described in
Paragraph 1(g) hereinabove. It is agreed that, notwithstanding anything to the
contrary the Premises herein are leased for the Basic Annual Rental for the
lease term hereof, payable at the time of the making of this Lease and that the
provisions herein contained for the payment of such rent in Monthly Rental
Installments (as defined in paragraph 1(g) hereof) are for the convenience of
the Tenant only, and that, upon default in the payment of any such Monthly
Rental Installment as herein allowed, the whole of the rent hereby reserved for
the whole of the lease term herein provided for and then remaining unpaid shall,
at the option of the Landlord, become due and payable without any notice or
demand. One such Monthly Rental Installment, together with the Security Deposit
(as defined in paragraph 1(i) hereof), shall be payable by Tenant to Landlord
contemporaneously with the execution hereof, and a like Monthly Rental
Installment shall be due and payable to Landlord at Landlord's address provided
herein (or such other address as may be designated by Landlord in writing from
time to time) without demand on or before the first day of each succeeding
calendar month during the term hereof. A Monthly Rental Installment for any
fractional month at the beginning or the end of the lease term shall be
promised. Without impairing any of Landlord's rights or remedies herein for the
late payments of rent, if any Monthly Rental Installment is not received by the
Landlord on or before the 5th day of the month for which said Monthly Rental
Installment is due, a service charge of 10% of the Monthly Rental Installment
owed shall become due and payable in addition to the monthly rental installment
owed. Said service charge is for the purpose of reimbursing Landlord for the
extra costs and expenses incurred in connection with the handling and processing
of late Monthly Rental Installment payments.
4. OPERATING EXPENSE ADJUSTMENT.
The Basic Annual Rental payable under paragraph 1(f) hereof is based, in
part, on operating expenses existing during the calendar year in which the lease
commences ("Base Year"). For the purposes of rental escalations under the terms
of this Lease. said operating expenses are defined as and limited to: (i) ad
valorem taxes, for which Landlord is liable, assessed against the land, Building
and Improvements and in and upon which the Premises are located together with
any special assessments and other real estate costs in the nature of taxes or
assessments for which Landlord is responsible; (ii) expenses of operation,
maintenance and repair of the land, Building, sidewalks and curbs adjacent
thereto in a manner deemed reasonable and appropriate and for the best interest
of the occupants; (iii) actual expenses incurred for employees, such as wages,
fringe benefits, taxes, unemployment and disability insurance, workmen's
compensation insurance, social security benefits and any other expenses incurred
in connection with such employees. The term "employees" includes employees such
as superintendents, engineers, electricians, clerks, mechanics, helpers,
security officers, porters, cleaners, and window washers, as well as contract
laborers performing services for the Building and other persons, firms or
corporations providing contract services for the benefit of the Building; (iv)
actual cost of materials and supplies used and consumed for the benefit of the
Building and the occupants; (v) full contract cost of third-party contractors
for all of the foregoing, including rubbish removal, elevator maintenance,
maintenance of air conditioning, heating and ventilation equipment, management
services, uniform supply, past control and security service; (vi) all utility
services; and (vii) actual cost of insurance, including fire and extended
coverage and general liability insurance, but no change for insurance is
included that reflects premiums due to any act or omission of any tenant of the
Building for which Landlord would be entitled to reimbursement from such tenant.
Said operating expenses shall not include administrative salaries and wages
of persons not involved in the day-to-day operations of the Building, state or
federal income taxes or periodic alterations of improvements to the construction
of the Building, and in no case shall Tenant be charged additional rent for any
operating expense such as painting, repainting, redecorating, special cleaning
service of special security service which can be directly related to the sole
advantage of Landlord or any other particular occupant of the Building other
than Tenant. Operating expenses shall not include cost of any repair or
replacement which is or should be capitalized on Landlord's books under
generally accepted accounting principles.
In the event that during the lease term said operating expenses for 1995 or
any succeeding calendar year exceed the 1994 expenses per square foot per year
("base expense rate") for the total Rentable Area of the Building (as defined in
Paragraph 1(d) hereof), Tenant, within thirty (30) days after written
notification of the foregoing by Landlord, shall:
(a) Pay to the Landlord Tenant's proportionate share (4.23 %) of such
increase for the year in question, said proportionate share being
defined to mean a fraction, the numerator of which is the square footage
of the Premises set out in Paragraph 1(d), and the denominator of which
is the total rentable area of the Building set out in Paragraph 1(d).
The product resulting from the
application of such fraction to the increases shall constitute the
amount of additional rent Tenant shall pay. (See Rider)
(b) Additionally, Tenant shall pay to Landlord with the payment of
Monthly Rental installments for the months following the month during
which a notice of escalated rents is given, a monthly escalation reserve
on the first day of each month for the remainder of the calendar year.
The monthly escalation reserve shall be equal to the total of Tenant's
proportionate share of such operating expense increase for the previous
calendar year divided by the number of months remaining in the then
current calendar year subsequent to the month in which the notice of
escalated rent is given. Landlord shall apply the total of the monthly
escalation reserves paid by the Tenant to any increase over the base
expense rate for the calendar year in which the monthly escalation
reserves are paid. After the end of every calendar year Landlord will
deliver to Tenant a statement which sets forth (i) the previous year's
operating expenses (ii) Tenant's proportionate share of any increases,
(iii) the adjustment, if any, reflecting the monthly escalation reserves
paid, and (iv) the net amount due Landlord or due to be reimbursed to
Tenant, provided, however, in no event shall the basic rent or the
monthly rental installments ever be less than the amounts specified in
Paragraphs 1(f) and 1(g), respectively.
Notwithstanding any expiration or termination of this Lease prior to the
lease expiration date (except in the case of a cancellation by mutual agreement)
Tenant's obligation to pay any and all additional rent under this Lease shall
continue and shall cover all periods up to the lease expiration date. Tenant's
obligation to pay any and all additional rent under this Lease and Landlord's
and Tenant's obligation to make the adjustments referred to in this Lease shall
survive any expiration or termination of this Lease.
If any amounts which become due by reason of escalation of rent are not
paid by the fifth day following the day on which they are due a service charge
of 10% of such rental escalation amount shall become due and payable in addition
to such rental escalation. Said service charge is for the purpose of reimbursing
Landlord for the extra costs and expenses incurred in connection with the
handling and processing of late rental escalation payments.
5. SERVICES:
(a) Landlord agrees to furnish Tenant while occupying the Premises,
at Landlord's sold cost and expense: (i) hot and cold water at those
points of supply provided for general use to tenantry; (ii) electrical
current for Tenant's use and occupancy of the Premises to the extent
reasonably deemed to be standard by the Landlord, provided however,
that all costs for extraordinary or unusual demand for electrical
service shall be borne by Tenant; (iii) heating and air
Note: (ii) Not to exceed 8 xxxxx per sq. ft.
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conditioning at such times as Landlord normally furnishes such
services to all tenants of the Project and at such temperatures and in
such amounts as are reasonably considered by Landlord to be standard;
(iv) periodic janitor service; and (v) replacement of proper standard
light bulbs and tubes.
(b) Landlord does not warrant that any of said specified services
will be free from interruption or stoppage, but nevertheless Landlord
shall use reasonable diligence to resume any such interrupted or
stopped service. Anything to the contrary notwithstanding, no failure,
to any indent, to furnish such services or any stoppage or
interruption of these defined services shall render Landlord liable in
any respect for damages to either person, property or business, nor
shall any such failure, interruption or stoppage of such services be
deemed or construed as an eviction, actual or constructive, of Tenant
nor work an abatement of rent nor relieve Tenant from the obligation
to fulfill any covenant or agreement contained in this Lease.
6. LEASEHOLD IMPROVEMENTS. Landlord agrees to install at Landlord's cost
and expense, except as otherwise stated herein, the improvements described in
Exhibit "B" attached hereto. Landlord has made no representations as to the
condition of the Premises or the Building or to remodel, repair or decorate,
except as expressly set forth herein.
7. USE. Tenant shall use the Premises only for the permitted use (as
defined in paragraph 10 hereof). Tenant will not occupy or use the Premises, or
permit any portion of the Premises to be occupied or used for any business or
purpose other than the permitted use or for any use or purpose which is unlawful
in part or in whole or deemed to be disreputable in any manner or extrahazardous
on account of fire, nor permit anything to be done which will in any way
increase the rate of fire insurance on the Building or contents; and in the
event that, by reason of acts of Tenant, there shall be any increase in the rate
of fire insurance on the Building or contents; and in the event that, by reason
of acts of Tenant, there shall be any increase in the rate of the insurance on
the Building or contents created by Tenant's acts or conduct of business then
such acts of Tenant shall be deemed to be an event of default hereunder and
Tenant hereby agrees to pay to Landlord the amount of such increases on demand
and acceptance of such payment shall not constitute a waiver of any of
Landlord's other rights provided herein. Tenant will conduct its business and
control its agents, employees and invites in such a manner as not to create any
nuisance, nor interfere with, annoy or disturb other tenants or Landlord in
management of the Building, or carry on or permit any operation which might omit
offensive odors or conditions into other portions of the Building or use any
apparatus which might make undue noise or set up vibrations in the Building.
Tenant will maintain the Premises in a clean, healthful and safe condition and
will comply with all law, ordinances, orders, rules and regulations (state,
federal, municipal and other agencies or bodies having any jurisdiction thereof)
with reference to use, condition or occupancy of premises. Tenant will not,
without the prior written consent of Landlord, paint, install lighting, window
coverings or decoration, or install any signs, window or door lettering or
advertising media of any type on or about the Premises or any part thereof.
Should Landlord agree in writing to any of the foregoing items in the preceding
sentence. Tenant will maintain such permitted items in good condition and repair
at all times.
8. ENVIRONMENTAL OBLIGATIONS.
(A) The Tenant covenants that no hazardous or toxic materials shall be
brought onto, stored, or used at the Premises by the Tenant or any of its
employees, agents, independent contractors, licensees, subtenants or invitees,
except such materials as are typically found at first-class suburban office
complexes similar to the Premises, and that no substances shall be placed into
the plumbing and waste treatment systems of the Premises other than substances
such systems are designed to treat and discharge appropriately under the Laws.
The Tenant shall hold harmless, indemnify and defend the Landlord, to the extent
that the Landlord shall have any liability to any of the following: its
respective directors, officers, shareholders or partners, employees, successors
and assigns, (collectively, the indemnified Persons) from and against any direct
(but not indirect or consequential) Environmental Damages, resulting from events
occurring during the Term, except for Environmental Damages arising from the
acts or omissions of the Indemnified Persons.
(B) "Environmental Damages" shall mean all claims, judgments, damages
(including punitive damages), losses, penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs and expenses of investigation and
defense of any claim, or any directive of any governmental or quasi-governmental
agency, department, commission, board, or bureau, whether or not such is
ultimately defeated, and of any settlement or judgment, for which the Tenant or
an Indemnified Person is liable under Environmental Laws and which are required
to be incurred under the Laws applicable to Hazardous Material, including
reasonable attorney's fees and disbursements and consultants' fees, any of which
are
incurred as a result of the existence or release of Hazardous Material upon,
about or beneath the Premises or migrating from the Premises, or the existence
of a violation of such Laws pertaining to the Premises.
(C) "Hazardous Material" shall mean any hazardous or toxic substance,
material or waste (including constituents thereof) which is or becomes regulated
by one or more Governmental Authorities (hereinafter defined). The words
"Hazardous Material" include any material or substance which is (a) listed or
defined as a "hazardous waste," "extremely hazardous waste," "restricted
hazardous waste," "hazardous substance" or "toxic substance" under any Laws, (b)
petroleum and its byproducts, (c) asbestos, (d) polychlorinated biphenyl, (e)
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. 1317), (f) defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,
(42 U.S.C. 6903), (g) defined as a "hazardous substance" pursuant to Section 101
of the Comprehensive Environmental Response, Compensation and Liability Act, (42
U.S.C. 9601 et seq.), or (h) defined as a toxic substance in the Toxic Substance
Control Act (15 U.S.C. 2601 et seq.).
9. REPAIRS AND MAINTENANCE.
(a) BY LANDLORD: Landlord shall at its expense maintain only the
roof, foundation, heating and air conditioning systems, common areas,
plumbing, elevators, the structural soundness of the exterior walls,
the paving outside the Buildings, and the landscaping in good repair
and condition, except for reasonable wear and tear. Landlord shall be
responsible for pest eradication. Tenant shall give immediate written
notice to Landlord of the need for repairs or corrections and Landlord
shall proceed promptly to make such repairs or corrections. Landlord's
liability hereunder shall be limited to the cost of such repairs or
corrections.
(b) BY TENANT: Tenant shall at its expense and risk maintain the
Premises and related facilities in good repair and condition,
including but not limited to repairs (including all necessary
replacements, to the windows, window glass, plate glass, doors and the
interior of the Premises in general. Tenant will not in any manner
deface or injure the Building, the Premises or related facilities and
will pay the cost of repairing any damage or injury done by Tenant or
Tenant's agents, employees or invitees. Tenant shall throughout the
term of this Lease take good care of the Premises and related
facilities and keep them free from waste and nuisance of any kind. If
Tenant shall fail to make any repair required hereunder (including all
necessary replacements) within fifteen (15) days after written
notification to do so. Landlord may at its option make such repair,
and Tenant shall, upon demand therefor, pay Landlord for the cost
thereof together
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with Interest on any such cost which remains unpaid following such
demand at the rate of ten percent (10%) per annum until paid.
10. ALTERATIONS AND IMPROVEMENTS. At the end or other termination of this
Lease. Tenant shall deliver up the Premises with all improvements located
thereon (except as otherwise herein provided) in good repair and condition,
reasonable wear and tear excepted, and shall deliver to Landlord all keys to the
Premises. The cost and expense of any repairs necessary to restore the condition
of the Premises to said condition in which they are to be delivered to Landlord
shall be borne by Tenant. Tenant will not make or allow to be made any
alterations or physical additions in or to the Premises without the prior
written consent of the Landlord. All alterations, additions or improvements
(whether temporary or permanent in character) made in or upon the Premises,
either by Landlord or Tenant, shall be Landlord's property on termination of
this Lease and shall remain on the Premises, without compensation to the Tenant.
All furniture, movable trade fixtures and equipment installed by Tenant may be
removed by Tenant at the termination of this Lease if Tenant so elects, and
shall be so removed if required by Landlord, or if not so removed shall, at the
option of the Landlord, become the property of Landlord. All such installations,
removals and restoration shall be accomplished in good workmanlike manner so as
not to damage the Premises or the primary structure or structural qualities of
the Building or the plumbing, electrical lines or other utilities.
11. COMMON AREAS. The use and occupation by Tenant of the Premises shall
include the use in common with others entitled thereto of the Common Areas,
parking areas, service roads, loading facilities, sidewalks, and other
facilities as may be designated from time to time by Landlord, subject, however,
to the terms and conditions of this agreement and to reasonable rules and
regulations for the use thereof as prescribed from time to time by Landlord.
All common areas described above shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in this Article.
Landlord shall have the right to construct, maintain, and operate lighting
facilities on all said areas and improvements; to police same; from time to time
to change the area, level, location and arrangement of parking areas and other
facilities hereinabove referred to; and to restrict parking by tenants, their
officers, agents and employees to employee parking areas.
All common areas and facilities not within the Premises, which Tenant may
be permitted to use and occupy, are to be used and occupied under a revocable
license, and if the amount of such areas to be diminished, Landlord shall not be
subject to liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
12. ASSIGNMENT AND SUBLETTING.
(A) Except as specified herein, Tenant shall not, without the prior written
consent of Landlord, such consent shall not be unreasonable witheld or delayed
which may be withheld in Landlord's sole and absolute discretion, (a) assign or
in any manner transfer this Lease or any estate or interest therein, (b) permit
any assignment of this Lease or any estate or interest therein by operation of
law, (c) sublease the Premises or any part thereof, (d) grant any license,
concession or other right of occupancy of any portion of the Premises, or (e)
permit the use of the Premises by any parties other than Tenant, its agents and
employees. Any such consent, transfer, sublease, grant or permit made without
Landlord's prior written consent shall be absolutely void. Consent by Landlord
to one or more assignments or subleases shall not operate as a waiver of
Landlord's right to any subsequent assignments and subleases. Notwithstanding
any assignment or subleasing. Tenant and any guarantor of Tenant's obligations
under this Lease shall, at all times, remain fully responsible and liable for
the payment of the rent herein specified and for compliance with all of Tenant's
other obligations under this Lease. Moreover, in the event that the rental due
and payable under any sublease (or a combination of the rental payable under any
sublease plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, or if with respect to a permitted
assignment, permitted license or other transfer by Tenant permitted by Landlord,
the consideration payable to Tenant exceeds the rental payable under this Lease,
then Tenant shall be bound and obligated to pay Landlord all such excess rental
and other excess consideration within ten (10) days following receipt thereof by
Tenant from such sublessee, assignee, licensee or other transferee, as the case
may be. Subleases to any parent companies, subsidiaries, or affiliates of Tenant
shall not require Landlord's consent. However, any subsidiary or affiliate type
of business must be similar to Tenant's.
(B) If Tenant is a general partnership or joint venture and there shall be
any change in the membership of such partnership or joint venture subsequent to
the execution
of this Lease, such change in membership shall be deemed an assignment of this
Lease for purposes of Section 11(A) hereof. If Tenant is a limited partnership
and there shall be any change in the general partner subsequent to the execution
of this Lease, such change in the general partner shall be deemed an assignment
of this Lease for purposes of Section 11(A) hereof. If Tenant is a corporation
and there shall be any change in the control of the corporation subsequent to
the execution of this Lease, such change in control shall be deemed an
assignment of this Lease, for purposes of Section 11(A) hereof. This Section
11(B) shall not apply, however, if Tenant is a corporation which has its
outstanding voting trust listed on a recognized security exchange.
13. INDEMNITY. Landlord shall not be liable for and Tenant will indemnify
and save harmless Landlord of and from all fines, suits, claims, demands, losses
and actions (including attorney's fees) for any injury to person or damage to or
loss of property on or about the Premises caused by any actual or alleged act,
omission, negligence or misconduct from any cause, including Landlord's
negligence, or breach of this Lease by Tenant, Its agents, employees,
subtenants, invitees or by any other person entering the Building, the Premises,
or related facilities. Landlord shall not be liable or responsible for any loss
or damage to any property or death or injury to any person occasioned by theft,
fire, act of God, public enemy, criminal conduct of third parties, injunction,
riot, strike, insurrection, war, court order, requisition or order of any
governmental body or authority, by other tenants of the Building or related
facilities or any other matter, or for any injury or damage or inconvenience
which may arise through repair or alteration of any part of the Building, the
Premises or related facilities, or failure to make repairs or from any cause
whatsoever.
14. MORTGAGES. Tenant accepts this Lease subject to any deeds of trust,
security interests or mortgages which might now or hereafter constitute a lien
upon the Building or improvements therein, the Premises, or related facilities,
and to zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of the property. Tenant shall at any time
hereafter, on demand, execute any instruments or releases or other documents
that may be required by any mortgagee for the purpose of subjecting and
subordinating this Lease of any such deed of trust, security interest of
mortgage. With respect to any deed of trust, security interest or mortgage
hereafter constituting a lien on the Building or improvements therein, the
Premises, or related facilities, Landlord, at its sole options, shall have the
right to waive the applicability of this paragraph 13 so that this Lease will
not be subject and subordinate to any such deed of trust, security interest or
mortgage.
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15. CASUALTY INSURANCE
(A) Landlord shall, at all times during the term of this Lease maintain a
policy or policies of insurance with the premiums thereon fully paid in advance,
issued by and binding upon some solvent insurance company, insuring the Building
against loss or damage by fire, explosion, or other hazards and contingencies
for the full insurable value thereof; provided that Landlord shall not be
obligated to insure any furniture, equipment, machinery, goods or supplies not
covered by this Lease which Tenant may bring or obtain upon the Premises, or any
additional improvements which Tenant may construct thereon.
(B) Tenant shall maintain, at its sole expense, fire and extended coverage
insurance in an amount nor less than eighty percent (80%) of the full insurable
value of all of its personal property, including removable trade fixtures
located in the Premises and on all additions and improvements thereto made by
Tenant. Tenant shall maintain, at its sole cost and expense, bodily injury
liability insurance in an amount of $500,000.00 bodily injury or death per
person, $1,000,000.00 bodily injury or death in the aggregate and property
damage liability insurance in an amount of $500,000.00. Such insurance shall
specifically make reference to the indemnity provision of Section 12 of this
Lease and shall name Landlord as an additional insured.
(C) All policies of insurance provided for herein to be carried by Tenant
shall be issued by insurance companies reasonably acceptable to Landlord and
certified to do business by the State of Texas and its insurance regulatory
bodies and shall be issued in the names of both Landlord and Tenant as named
insureds (without any liability on the part of Landlord for premiums). Executed
copies of such policies of insurance or certificates thereof shall be delivered
to Landlord within ten (10) days before delivery of possession of the Premises,
and thereafter, within thirty (30) days prior to the expiration of such policy.
As often as any such policy shall expire or terminate, renewal or additional
policies shall be procured and maintained by Tenant in like manner and to like
extent. All policies of insurance delivered to Landlord must contain a provision
that the company writing said policy will give to Landlord twenty (20) days'
notice in writing in advance of any cancellation or lapse or the effective date
of any reduction in the amounts of insurance. All public liability and property
damage policies shall be written as primary policies, not contributing with, and
not in excess of, coverage which Landlord may carry, if any. If Tenant fails to
provide Landlord with such evidence of insurance, Landlord may, at its option,
obtain insurance coverage, as provided above, and charge Tenant for the cost of
the same, plus a 15% administrative fee.
16. INSPECTION. Landlord or representatives shall have the right to enter
into and upon any and all parts of the Premises if accompanied by Tenant at
reasonable hours with prior notice to (i) inspect same or clean or make repairs
or alterations or additions as Landlord may deem necessary (but without any
obligation to do so, except as expressly provided for herein), or (ii) show the
Premises to prospective tenants, purchasers of lenders in the last ninety (90)
days of this Lease, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof, nor shall such be deemed to be an actual or
constructive eviction.
17. CONDEMNATION. If, during the term of this Lease, or any extension or
renewal thereof, all of the Premises should be taken for any public or quasi-
public use under any governmental law, ordinance or regulation or by right of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date physical possession is taken by the condemning
authority, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
In the event a portion but not all of the Premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by private sale in lieu thereof and the partial
taking or condemnation shall render the Premises unsuitable for Tenant's
business, then Landlord shall have the option, in its sole discretion, of
terminating this Lease, or, at Landlord's sole risk and expense, restoring and
reconstructing the Premises to the extent necessary to make some reasonably
tenantable. Should Landlord elect to restore, the Lease shall continue in full
force and effect with the rent payable during the unexpired portion of this
Lease adjusted to such an extent as may be fair and reasonable under the
circumstances, and Tenant shall have no claim against Landlord for the value of
any interrupted portion of this Lease.
In the event of any condemnation or taking, total or partial. Tenant shall
not be entitled to any part of the award or price paid in lieu thereof, and
Landlord shall receive the full amount of such award or price, Tenant hereby
expressly waiving any right or claim to any part thereof.
18. FIRE OR OTHER CASUALTY. 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 by fire or other casualty
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 fire or other casualty), or in the event any mortgagee
under a first mortgage or first deed of trust covering the Building should
require that the insurance proceeds payable as a result of said fire or other
casualty be used to retire the mortgage debt, Landlord may, at its opinion,
terminate this Lease and the term and estate hereby granted by notifying Tenant
in writing of such termination within sixty (60) days after the date of such
damage or determination by such Landlord does not thus elect to terminate this
Lease, Landlord shall within sixty (60) days after the date of such damage
commence to repair and restore the Building and shall proceed with reasonable
diligence to restore the Building (except that Landlord shall not be responsible
for delays outside its control and the time period within which Landlord is
obligated to commence and/or complete such repairs shall be extended by a period
equal to such delay) to substantially the same condition in which it was
immediately prior to the happening of the fire or other casualty, except that
Landlord shall not be required to rebuild, repair, or replace any part of
Tenant's furniture or furnishings or fixtures and equipment removable by Tenant
under the provisions of this Lease or any additions or improvements to the
Demised Premises made by Tenant at Tenant's expense, but such work shall not
exceed the scope of the work done by Landlord at Landlord's expense in
originally improving the Building nor shall Landlord in any event be required to
spend for such work an amount in excess of the insurance proceeds actually
received by Landlord as a result of the fire or other casualty plus any
deductible amounts thereunder. In addition, in the event of the occurrence of a
casualty which is not insured under the casualty insurance requirements to be
carried by Landlord pursuant to the terms hereof, Landlord shall have the option
to terminate this Lease. 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, servants, employees, licensees, or invitees, the rent hereunder shall
not be diminished during the repair of such damage, and Tenant shall be liable
to Landlord for the cost and expense of the repair and restoration of the
Building caused thereby to the extent such cost and expense is not covered by
insurance proceeds. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or the Premises shall be for the sole
benefit of the party carrying such insurance and under its sole control.
19. HOLDING OVER. Should Tenant, or any of its successors in interest,
hold over the Premises, or any xxx thereof, after the expiration of the term of
this Lease or of any renewal or extension thereof, unless otherwise agreed in
writing, such holding over may constitute and may be construed, at Landlord's
sole option, as a tenancy from month to month only at a rental equal to the
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Monthly Rental Installment, and the Operating Expense Adjustment as described in
paragraph hereof, plus fifty percent (50%) of such amount. The inclusion of the
preceding sentence shall not be construed as Landlord's consent for the Tenant
to hold over.
20. TAXES ON TENANT'S PROPERTY. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture or fixtures placed by
Tenant in the Premises. If any such taxes for which Tenant is liable are levied
or assessed against Landlord's property and if Landlord elects to pay the same
or if the assessed value of the Landlord's property is increased by inclusion of
personal property, furniture or fixtures placed by Tenant in the Premises, and
Landlord elects to pay the taxes based on such increases, the Tenant shall pay
to Landlord upon demand that part of such taxes for which Tenant is primarily
liable hereunder.
21. EVENTS OF DEFAULT. The following events shall be deemed to be events
of default by Tenant under this Lease:
(a) Tenant shall fail to pay any Monthly Rental Installment, or any
portion of the Basic Rental hereby reserved, any portion of the
Operating Expense Adjustment, or any other sum owing under the terms
of this Lease when due;
(b) Tenant shall fail to comply with any term, provision or covenant
of this Lease, other than the payment of rent, and shall not cure such
failure within ten (10) days after written notice thereof to Tenant;
(c) Tenant shall make an assignment for the benefit of creditors;
(d) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or
statute of the United States or any State thereof, or Tenant shall be
adjudged bankruptcy or insolvent in any proceeding filed against
Tenant thereunder and such adjudication shall not be vacated or set
aside within thirty (30) days;
(e) A receiver or Trustee shall be appointed for all or substantially
all of the assets of Tenant and such receivership shall not be
terminated or stayed within thirty (30) days;
(f) Tenant shall desert or vacate any substantial portion of the
Premises for a period of thirty (30) or more days; with non-payment of
rent or
(g) Tenant makes an assignment or enters into a sublease in violation
of Paragraph 11 hereof.
22. REMEDIES. Upon the occurrence of any event of default specified in
paragraph 20 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever;
(a) Terminate this Lease in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and peaceably take
possession and expel or remove Tenant and any other person who may be
occupying said Premises or any part thereof without being liable for
prosecution or any claim of damages thereof. Tenant agrees to pay to
Landlord on demand the amount of all loss and damage which Landlord
may suffer by reason of such termination, whether through inability to
relet the Premises on satisfactory terms or otherwise, including the
loss of the basic rental then remaining unpaid.
(b) Enter upon and peaceably take possession of the Premises and
expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof without being liable for prosecution or
any claim for damages therefor, and if Landlord so elects, relet the
Premises on such terms as Landlord shall deem advisable and receive
the rent thereof. Tenant agrees to pay to Landlord on demand any
deficiency in basic rental that may arise by reason of such relating;
and
(c) Enter upon the Premises, without being liable for prosecution or
any claim for damage therefor, and do whatever Tenant is obligated to
do under the terms of this Lease, and Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, and
Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action.
No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such relating
or re-entry or taking possession, Landlord may at any time thereafter elect to
terminate this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies herein provided
or any other remedies provided by law nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of rent
following an event of default hereunder shall not be construed as Landlord's
waiver of such event of default. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants herein contained. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of any other
violation or default. The loss or damage that Landlord may suffer by reason of
termination of this Lease or the deficiency from any reletting as provided for
above shall include the expense of repossession and any repairs or remodeling
undertaken by Landlord following possession. Should Landlord at any time
terminate this Lease for any default, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur by
reason of such default, including the cost of recovering the premises and the
loss of the basic rental then remaining unpaid.
23. SURRENDER OF PREMISES. No act or thing done by the Landlord or its
agents during the term hereby granted shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and subscribed by the
Landlord.
24. ATTORNEY'S FEES. In case it should be necessary or proper for Landlord
to bring any action under the Lease or to consult or place said Lease, or any
amount payable by Tenant thereunder, with an attorney concerning or for the
enforcement of any of Landlord's rights hereunder, then Tenant agrees in each
and any such case to pay to Landlord on demand a reasonable attorney's fee.
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25. LANDLORD'S LIEN. In addition to the statutory Landlord's lien,
Landlord shall have at all times, a valid security interest to secure payment of
all rentals and other sums of money becoming due hereunder from Tenant, and to
secure payment of any damages or loss which Landlord may suffer by reason of the
breach by Tenant of any covenant, agreement or condition contained herein, upon
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant presently or which may hereafter be situated on the
Premises and all proceeds therefrom, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent, as well
as any and all other sums of money than due to Landlord hereunder, shall first
have been paid and discharged and all the covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant. Upon the
occurrence of an event of default by Tenant, Landlord may, in addition to any
other remedies provided herein, enter upon the Premises and take possession of
any and all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant situated on the Premises, without liability for
trespass or conversion, and sell the same at public or private sale, without
having such property at the sale, after giving Tenant reasonable notice of the
time and place of any public sale or of the time after which any private sale is
to be made, at which sales the Landlord or its assigns may purchase unless
otherwise prohibited by law. Unless otherwise provided by law, and without
intending to exclude any other manner of giving Tenant reasonable notice, the
requirement of reasonable notice shall be met if such notice is given in the
manner prescribed in paragraph 27 of this Lease at least five (5) days before
the time of sale. The proceeds from any such disposition, less any and all
expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorney's fees and other expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted in this paragraph 24. Any surplus shall be paid to Tenant or as
otherwise required by law; and the Tenant shall pay any deficiencies forthwith.
Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a
financing statement in form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Uniform Commercial Code in force in the State of Texas. The
statutory lien for rent is not hereby waived, the security interest herein
granted being in addition and supplementary thereto.
26. MECHANIC'S LIEN. Tenant will not permit any mechanic's lien or liens
to be placed upon the Premises or the Building or improvements thereon during
the term hereof caused by resulting from any work performed, materials furnished
or obligation incurred by or at the request of Tenant, and in the case of the
filling of any such lien Tenant will promptly pay same. If default in payment
thereof shall continue for twenty (20) days after written notice thereof from
Landlord to Tenant, the Landlord shall have the right and privilege at
Landlord's option of paying the same or any portion thereof without inquiry as
to the validity thereof, and any amounts so paid, including expenses and
interest, shall be so much additional indebtedness hereunder due from Tenant to
Landlord and shall be repaid to Landlord immediately on rendition of xxxx
therefor, together with interest at ten percent (10%) per annum until repaid.
27. WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, the parties hereto hereby waive any and all rights of recovery,
claim, action or cause of action against each other, their agents, officers, and
employees, for any loss or damage that may occur to the Premises hereby demised,
or any improvements thereto, or said Building of which the Premises are a part,
any improvements thereto, or related facilities, by reason of fire, the
elements, or any other cause which could be insured against under the terms of
standard fire and extended coverage insurance policies, regardless of cause or
origin, including negligence of the parties hereto, their agents, officers and
employees.
28. NOTICES. Each provision of this Agreement, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
(a) All rent and other payment required to be made by Tenant to
Landlord hereunder shall be payable to Landlord in Dallas County,
Texas, at the address hereinbelow set forth, or at such other address
as Landlord may specify from time to time by written notice delivered
in accordance herewith:
(b) Any notice or document required to be delivered hereunder shall be
deemed to be delivered if actually received and whether or not
received when deposited in the United States mail, postage prepaid,
certified or registered mail (with or without return receipt
requested) addressed to the parties hereto at the respective addresses
set out opposite their names below, or at such other address as they
have heretofore specified by written notice delivered in accordance
herewith;
LANDLORD:
Government Employees Insurance Co.
---------------------------------
0000 Xxxxxx Xxxxxx Xxxx, #000
-----------------------------
Xxxxxx, Xxxxx 00000
-------------------
TENANT:
Efficient Network Technology Inc.
---------------------------------
0000 Xxxxxx Xxxxxx Xxxx, #0000
------------------------------
Xxxxxx, Xxxxx 00000
-------------------
29. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord, the Landlord shall not be liable or responsible
for, and there shall be excluded from the computation of any such period of
time, any delays due to strikes, riots, Acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Landlord.
30. SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby, and it is also
the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid, or unenforceable, there be
added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
31. ENTIRE AGREEMENT; AMENDMENTS; BINDING EFFECT. This Lease contains the
entire agreement between parties and may not be altered, changed or amended,
except by instrument in writing signed by both parties hereto. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver be
in writing signed by Landlord and addressed to Tenant, nor shall any custom or
practice which may grow up between the parties in the administration of the
terms hereof be construed to waive or lessen the right of Landlord to insist
upon the performance by Tenant in strict accordance with the terms
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hereof. The terms, provisions, covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon the parties hereto,
and upon their respective successors in interest and legal representatives,
except as otherwise expressly provided.
32. QUIET ENJOYMENT. Provided Tenant has performed all of the terms,
covenants, agreements and conditions of this Lease, including the payment of
rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the term hereof, without hindrance from Landlord, subject
to the terms and conditions of this Lease.
33. RULES AND REGULATIONS. Tenant and Tenant's agents, employees, and
invitees will comply fully with all requirements of the rules and regulations of
the Project and related facilities which are attached hereto as Exhibit "C", and
made a part hereof as though fully set out herein. Landlord shall at all times
have the right to change such rules and regulations or to promulgate other rules
and regulations in such reasonable manner as may be deemed advisable for safety,
care, or cleanliness of the Building, the Premises, or related facilities, and
for preservation of good order therein, all of which rules and regulations,
changes and amendments will be forwarded to Tenant in writing and shall be
carried out and observed by Tenant. Tenant shall further be responsible for the
compliance with such rules and regulations by the employees, servants, agents,
visitors and invitees of Tenant.
34. BROKER'S OR AGENT'S COMMISSION. Tenant represents and warrants that
there are no claims for brokerage commissions or finder's fees in connection
with the execution of this Lease, except as listed below, and Tenant agrees to
indemnity and hold harmless Landlord against all liabilities and costs arising
from such claims, including without limitation attorney's fees in connection
therewith.
35. GENDER. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
36. GUARANTY, JOINT AND SEVERAL LIABILITY. If there be more than one
Tenant, the obligations hereunder Imposed upon Tenant shall be joint and
several. If there be a guarantor of Tenant's obligations hereunder and
obligations hereunder Imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor and Landlord need not first proceed
against the Tenant hereunder before proceeding against such guarantor, nor shall
any such guarantor be released from its guaranty for any reasons whatsoever,
including without limitation, in case of any amendments hereto, waivers hereof
or failure to give such guarantor any notices hereunder.
37. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right to
transfer and assign, in whole or in part, all and every feature of its rights
and obligations hereunder, and in the Building and other property referred to
herein. Tenant agrees that, in the event of such assignment, Landlord will be
relieved of all obligations and liability under this Lease as to such
assignment.
38. SECURITY DEPOSIT. Upon the occurrence of any event of default by
Tenant, Landlord may, from time to time without prejudice to any other remedy,
use the security deposit paid to landlord by Tenant as herein provided to the
extent necessary to make good any arrears of rent and any other damages, injury,
expense or liability caused to Landlord by such event of default, any remaining
balance of such security deposit to be returned by Landlord to Tenant upon
termination of the Lease. Such security deposit shall not be considered an
advance payment of rent or a measure of Landlord's damages in case of default by
Tenant. In the event Landlord so uses the security deposit. Tenant shall, upon
demand, restore the same.
39. LANDLORD'S RIGHT OF INSPECTION. Tenant agrees to permit Landlord and
the authorized representative of Landlord to enter the Premises at all
reasonable hours for the purpose of inspecting the same and making any necessary
repairs to the Premises with reasonable notice or to the Building and performing
any work therein that may be necessary to comply with any laws, ordinances,
rules, regulations or requirements of any public authority or of the Board of
Fire Underwriters or any similar body. Nothing herein shall imply any duty upon
the part of Landlord to do any such work which, under any provision of this
Lease Tenant may be required to perform and the performance thereof by landlord
shall not constitute a waiver of Tenant's default in failing to perform the
same. Landlord may, during the progress of any work in the Premises, keep and
store upon the Premises all necessary materials, tools and equipment. Landlord
shall not in any event be liable for inconvenience, annoyance, disturbance, loss
of business or other damage of Tenant by reason of making repairs or the
performance of any work on the Premises, or on account of bringing materials,
supplies and equipment into or through the Premises during the course thereof,
and the obligations of Tenant under this Lease shall not thereby be affected in
any manner
whatsoever. Tenant agrees to permit Landlord and the authorized representatives
of Landlord to enter the Premises at all times during usual business hours
during the final year of the Term for purposes of showing the Premises to
prospective tenants or purchases.
40. ESTOPPEL CERTIFICATE. Tenant will, at any time and from time to time,
upon request by Landlord, execute, acknowledge, and deliver to Landlord a
statement in writing executed by Tenant certifying that Tenant is in possession
of the Demised Premises under the terms of this Lease, that this Lease is
unmodified and in full effect (or, if there have been modifications, that this
Lease is in full effect as modified, and setting forth such modifications),
stating the dates to which the rent has been paid, and either stating that to
the knowledge of Tenant no default exists hereunder, or specifying each such
default of which Tenant may have knowledge, and such other matters as may be
reasonably requested by Landlord, it being intended that any such statement by
Tenant may be relied upon by prospective purchaser or mortgagee of the Building.
41. CAPTIONS. The captions contained in this Lease are for convenience of
reference only, and in no way limit or enlarge the terms and conditions of this
Lease.
42. PLACE OF PERFORMANCE. Tenant shall perform all covenants, conditions
and agreements contained herein, including but not limited to payment of rent,
in Dallas County, Texas. Any suit arising from or relating to this agreement
shall be brought in Dallas County, Texas.
43. SPECIAL PROVISIONS.
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EXECUTED as of the date first written above.
LANDLORD:
GOVERNMENT EMPLOYEES INSURANCE COMPANY
By: ____________________________________
Title: _________________________________
TENANT:
EFFICIENT NETWORK TECHNOLOGY INC
--------------------------------
By: /s/ Xxxx X. Xxxxx
Title: President & CEO
ATTEST:
-----------------------------
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EXHIBIT "A"
Final space plan to be inserted upon completion.
EXHIBIT "B"
ATTACHED TO AND MADE A PART OF LEASE AGREEMENT BY AND BETWEEN GOVERNMENT
EMPLOYEES INSURANCE COMPANY (LANDLORD) AND EFFICIENT NETWORK TECHNOLOGY INC.
---------------------------------
(TENANT) DATED _________, 19__.
Landlord shall provide an Improvement Allowance equal to $13.50 per rentable
square foot of the premises. This allowance is to be paid to a mutually
acceptable contractor elected through a bidding process (three contractors) to
finish-out the premises per the attached space plan. This allowance shall be
used for all hard and soft cost associated with construction as well as all
kitchen appliances and all co-axial wiring of tenants CRT's. If the allowance is
inadequate to finish-out per the plan attached, Landlord will provide additional
finish dollars to complete the premises. However, Tenant shall be responsible
for repaying Landlord for such additional cost which shall be amortized over the
term of the Lease in addition to base rental plus six percent (6%) interest.
If the entire allowance is not utilized, tenant shall have the option to:
1. Place the funds in reserve with Landlord for future finish-out use. Such
fund must be used within the first twenty-four (24) months of occupancy.
2. Receive a one time rent credit in the form of free rent based on a $.75 on
the dollar ratio.
Example: Finish allowance $13.50
Allowance used $12.50
------
Unused allowance $1.00
Rent credit $.75 x 10,348 sq.ft. = $7,761.00
Space Planning. Landlord will assume all cost associated with space planning
--------------
including preliminary plan with one revision and construction documents. The
cost for providing MEP's, if required, will be paid for out of the Improvement
Allowance discussed above.
EXHIBIT "C"
RULES AND REGULATIONS
1. Landlord shall provide all locks for doors in each Tenant's leased
premises, at the cost of such Tenant, and no Tenant shall place any additional
lock or locks on any door in its leased area without Landlord's prior written
consent. A reasonable number of keys to the locks on the doors in each Tenant's
leased premises shall be furnished by Landlord to each Tenant, at the cost of
such Tenant, and the Tenants shall not have any duplicate keys made.
2. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of any merchandise or materials which requires
use of elevators or stairways, or movement through Building entrances or lobby
shall be restricted to hours designated by Landlord. All such movement shall be
under supervision of Landlord and in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangements initiated by
Tenant will include determination by Landlord and be subject to its decision and
control of the time, method and routing of movement, and limitations imposed by
safety or other concerns which may prohibit any article, equipment or any other
item from being brought into the Building. Tenant is to assume all risk as to
damage to articles moved and injury to persons or public engaged or not engaged
in such movement, including equipment, property and personnel of Landlord If
damaged or injured as a result of acts in connection with carrying out this
service for Tenant from time of entering the Land on which the Building stands
to completion of work, and Landlord shall not be liable for acts of any person
engaged in, or any damage or loss to any of said property or persons resulting
from any acts in connection with such service performed by Tenant.
3. No signs will be allowed in any form on the exterior of the Building
or on the inside or outside of the windows of the Building and no signs except
in uniform location and uniform styles fixed by Landlord will be permitted in
the public corridors or on corridor doors or entrances to Tenant's space. All
signs will be contracted for by Landlord for Tenant at the rate fixed by
Landlord from time to time, and Tenant will be billed and shall pay for such
service accordingly.
4. No draperies, shutters, or other window coverings shall be installed
on exterior windows or walls or windows and doors facing public corridors
without Landlord's prior written approval.
5. No portion of the Premises or any other part of Building shall at any
time be used or occupied as sleeping or lodging quarters.
6. Tenant shall not place, install or operate on the Premises or in any
part of the Building, any engine, stove, or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the Premises
any explosives, gasoline, kerosene, oil, acids, caustics, or any other
inflammable explosive, or hazardous materials without written consent of
Landlord.
7. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the Premises or public rooms regardless of
whether such loss occurs when the Building and/or the Premises are locked
against entry or not.
8. No birds or animals shall be brought into or kept in or about the
Building.
9. Employees of Landlord shall not receive or carry messages for or to
Tenant or other persons, nor contract with or tender free or paid services to
Tenant or Tenant's agents, employees, or invitees.
10. Landlord will not permit entrance to the Premises by use of pass keys
controlled by Landlord, to any person at any time without written permission by
Tenant, except employees, contractors, or service personnel directly supervised
by Landlord and employees of the United States Postal Service.
11. None of the entries, passages, doors, elevator doors, hallways, or
stairways shall be blocked or obstructed, or any rubbish, litter, trash, or
material of any nature placed, empties or thrown into these areas, nor shall
such areas be used at any time except for ingress by Tenant, Tenant's agents,
employees, or invitees.
12. Tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the Premises
surrounding the Building. Landlord shall not be responsible for any damage to
any vehicle towed because of non-compliance with parking regulations.
13. Landlord shall have the right to prescribe the weight and position of
safes, computers and other heavy equipment which shall, in all cases, in order
to distribute their weight, stand on supporting devices approved by Landlord.
14. To insure orderly operation of the Building no ice, mineral water or
other beverages, food, towels, newspapers, etc., shall be delivered to the
Premises except by persons and at times approved by Landlord in writing.
15. Should a Tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct an electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Electric current shall not be used for power or heating
without Landlord's prior written permission.
16. Without Landlord's prior approval, Tenant shall not install any radio
or television antenna, loudspeaker, music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
17. No hand trucks or other vehicles of any kind shall be used in or
brought into the Building or the Premises by Tenant or others unless such
vehicle shall have been inspected and approved in writing by Landlord.
18. Tenant shall store all its trash and garbage within its Premises. No
material shall be placed in the trash boxes or receptacles If such material is
of such nature that it may not be disposed of in the customary manner of
removing and disposing of trash and garbage and without being in violation of
any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord shall designate.
19. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease covering premises in the
Building.
20. Landlord reserves the right o make such other reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building, and for the preservation of good order
therein.
21. Corridor doors, when not in use, shall be kept closed.
22. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the premises unless otherwise agreed to
by Landlord. Except with the written consent of Landlord no person or persons
other than those approved by Landlord shall be permitted to enter the Building
for the purpose of clearing the same. Tenant shall not cause any unnecessary
labor by reason of Tenant's carelessness or indifference in the preservation of
good order and cleanliness. Landlord shall not be responsible to any Tenant for
any loss of Property on the premises, however occurring, or for any damage done
to the effects of any Tenant by the janitor or any employee or any other person.
Janitor service shall include ordinary dusting and cleaning by the janitor
assigned to such work and shall not include beating of carpets or rugs or moving
of service will not be furnished to areas which are occupied after 9:30 P.M.
Window cleaning shall be done only by Landlord, and only between 6:00 A.M. and
5:00 P.M.
23. Tenants shall not make or permit any Improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other Tenants or persons having business with them.
24. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
25. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 P.M. and 8:00 A.M. the following day, access to the building,
or to the halls, corridors, elevators or stairways in the building, or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the building charge and has a pass or is properly identified. The
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the building of any person. Landlord further, in
case of invasion, mob, riot, public excitement, or other commotion, reserves the
right to prevent access to the Building during the continuance of the same by
closing the doors or otherwise, for the safety of the Tenants and protection of
property in the Building and the Building. Landlord further reserves the right
to close and keep locked all entrances and exit doors of the building on
Saturdays, Sundays, and legal holidays and on other days between the hours of
6:00 P.M. and 8:00 A.M. of the following day, and during such further hours as
Landlord may deem advisable for the adequate protection of said Building and the
property of its Tenants.
Landlord agrees to be reasonable when regulating and inforcing all rules
and regulations.
EXHIBIT "D"
ATTACHED TO AND MADE A PART OF LEASE AGREEMENT BY AND BETWEEN GOVERNMENT
EMPLOYEES INSURANCE COMPANY (LANDLORD) AND EFFICIENT NETWORK TECHNOLOGY Inc.
---------------------------------
(TENANT) DATED __________, 19__.
Parking. Landlord will provide sixteen (16) covered parking spaces in the
--------
building garage at a ratio of one (1) space per six hundred (600) square feet at
no charge for the term of the Lease. At least three (3) of these spaces shall be
reserved for the Lease term. The remaining spaces required by Tenant shall be
surface parking on a first come, first serve basis.
There are no open; un-numbered parking spaces in the garage.
RIDER TO OFFICE LEASE AGREEMENT
-------------------------------
THIS RIDER TO OFFICE LEASE AGREEMENT (this "Rider") is incorporated into
and made a part of that certain Office Lease Agreement (the "Lease") by and
between Government Employees Insurance Company as Landlord and Efficient Network
Technology, Inc. as Tenant.
The following additional terms are incorporated into the Lease:
A. Measurement of Months. Whenever the Lease or this Rider refers to a
---------------------
period of months, or an event which is to take place a period of months
following the Commencement Date, a month shall be deemed to begin on the day of
the month that this Lease commenced, and shall be deemed to end on the preceding
day of the following month. For example, if the Commencement Date is September
15, then the first month of the Lease shall be from September 15 through October
14.
B. Supplementary Language. The following language shall be added to
----------------------
supplement language set forth in existing sections of the Lease:
(1) Section 1(d). The following language shall be added to the end of
------------
Section 1(d):
The 10.348 rentable square feet constituting the Premises (i) shall be
architecturally verified by Landlord prior to the Commencement Date,
(ii) shall include elevator frontage exposure, (iii) shall be
designated Suite Number 1200 of the Building, and (iv) shall be based
upon a maximum common area factor of 15% as determined by Landlord,
provided that if such area factor is ever reduced to a lower
percentage, rentable square feet shall be recalculated and the Tenant
shall be entitled to an equitable reduction in the Basic Annual
Rental.
(2) Section 1(e). Notwithstanding the language set forth in the Lease,
------------
the "Lease term" shall be a period of 61 months, commencing on the third
business day or weekend following the third business day following written
notice from Landlord to Tenant that the Premises are ready for occupancy (the
"Commencement Date") and ending at the end of the 61st month following the
Commencement Date.
(3) Section 3. The word "5th" in the fifteenth printed line of Section
---------
3 shall be changed to "10th".
(4) Section 5(b). The words "(except for a failure due to Landlord's
------------
gross negligence or intentional acts)" should be added after the word "failure"
in the third line of Section 5(b).
(5) Section 9(b). The words "ordinary wear and tear excepted" should
------------
be added to the end of the first sentence of Section 9(b).
(6) Section 13. The words "including Landlord's negligence" should be
----------
deleted from the third and fourth lines of Section 13. The following words
should be added to the end of the last sentence of Section 13: "except to the
extent such injury or damage results from Landlord's gross negligence or
intentional misconduct."
(7) Section 21(a). The words "when due" should be deleted from the end
-------------
of Section 21(a) and replaced with "on or before the tenth (10th) day following
the due date."
Rider - Page 1
-----
(8) Section 21(b). The following language should be added at the end of
-------------
Section 21(b): "or within thirty (30) days if such default cannot be cured
within ten (10) days and Tenant is actively attempting to cure such default."
(9) Section 22. The words "and continuously uncured" should be added after
----------
the word "previous" in the third line of the last paragraph of Section 22.
(10) Section 24. The following sentence shall be added to the end of
----------
Section 24:
In case it should be necessary or proper for Tenant to bring any action
under the Lease, the losing party in such action shall pay the prevailing
party on demand a reasonable attorney's fee.
(11) Section 29. The following sentence should be added to the end of
----------
Section 29:
Whenever a period of time is hereindescribed for action to be taken by
Tenant, except for the period of time given for payment of any amount of
money hereunder, the Tenant shall not be liable or responsible for, and
there shall be excluded from the computation of any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Tenant.
(12) Section 34. The language in Section 34 shall be deleted and replaced
----------
with the following:
Landlord and Tenant represent and warrant that there are no claims for
brokerage commissions or finders fees in connection with this lease other
than those due to The Staubach Company and to Landlord's representative,
and Landlord and Tenant each agree to indemnify and hold harmless the other
against all liabilities and costs arising from claims against the other for
brokerage commissions or finders' fees, including without limitation
attorneys' fees in connection therewith.
(13) Exhibit "B". The following language should be inserted following the
-----------
second sentence of the first full paragraph of Exhibit "B":
Tenant requires that XxXxxxxx - Xxxx, Inc. be one of the contractors
allowed to bid. All construction bids and line item detail will be provided
to Tenant (or its representative) prior to the awarding of the Contract,
for Tenant's review and approval. If the second lowest acceptable
construction bid is within $1,000 of the lowest acceptable bid, Tenant
shall have the right to choose either contractor. There should be no
specified subcontractors unless the additional cost of such subcontractor
is borne by Landlord. No construction management fee will be charged to the
allowance by Landlord.
The portion of Exhibit "B" captioned "Space Planning" shall be deleted and
replaced with the following language:
Rider - Page 2
-----
Landlord will assume all costs associated with space planning,
including all preliminary plans with revisions (up to August 12, 1993)
and construction documents. The costs for providing the required MEP's
will be paid for by Landlord out of the Improvement Allowance discussed
above, the preparer of MEP's to be approved by Tenant.
C. Termination Option. Notwithstanding the Lease term set forth in
------------------
Paragraph (1)(e), and in the event and only in the event that Tenant has made a
bona fide request to Landlord to expand Tenant's leased Premises by a minimum of
1500 square feet and Landlord is not able to make available sufficient expansion
space on a floor then occupied by Tenant by the end of the 37th month following
the Commencement Date, then Tenant shall have the right and option to terminate
the Lease effective at the end of the 37th month following the Commencement
Date, upon six (6) months' prior written notice to Landlord (given in accordance
with the requirements of Paragraph 28) and upon payment of the Termination Fee
hereinafter described. As used herein, the Termination Fee shall be the sum of
$70,000, plus the total of all unamortized costs incurred by Landlord in
connection with Tenant's occupancy of any expansion space or additional
improvements, including but not limited to (1) that portion of any and all
broker commissions for such expansion space earned but not yet paid and (2) the
unamortized portion of the Tenant Improvement Allowance (as hereinafter
defined). As used herein, the Tenant Improvement Allowance shall include
construction costs, space planning costs, and construction oversight expenses
for any expansion space or additional improvements.
D. Payment of Rent and Letter of Credit. Notwithstanding anything set
------------------------------------
forth in the Lease, on the Commencement Date, Tenant shall pay in advance all
Basic Monthly Rental which will become due and payable from the Commencement
Date through the end of the seventh (7th) month following the Commencement Date.
In addition, as additional security for the performance of its obligations under
this Lease, Tenant, upon execution of this Lease, shall deliver to Landlord a
letter of credit (the "Letter of Credit") in form acceptable to Landlord, (such
form being attached hereto as Exhibit "X" to this Rider) issued by a financial
institution acceptable to Landlord. The Letter of Credit will be in the amount
of Sixty Thousand and No/100 Dollars ($60,000.00) and shall be transferrable.
The Letter of Credit may be drawn on after the end of the seventh (7th) month
following the Commencement Date and shall expire at the end of the 25th month
following the Commencement Date. In the event of an event of default under this
Lease, Landlord may draw on the Letter of Credit and retain the proceeds thereof
as an additional Security Deposit, to be held and/or applied in accordance with
Paragraph 38. If Landlord transfers its interest in the Premises during the term
of this Lease, Landlord may assign its rights under the Letter of Credit to the
transferee.
E. Ongoing Right of First Offer. Provided Tenant is not in default under
----------------------------
the terms and provisions of this Lease, Tenant shall have an ongoing right of
first offer (the "Ongoing Right of First Offer"), to lease space on the 11th and
12th floor of the Building on the same terms and conditions as offered to other
prospective tenants of the space. Landlord shall notify Tenant in writing when
such space is available for lease and the terms under which the space may be
leased, which notice shall provide Tenant (i) three (3) business days in which
to exercise the Ongoing Right of First Offer with respect to space on the 11th
floor, and (ii) ten (10) calendar days in which to exercise the Ongoing Right of
First Offer with respect to space on the 12th floor. In connection therewith, if
Tenant elects to lease such space, then this Lease shall be modified with
respect to the lease of the additional premises. The Ongoing Right of First
Offer to lease additional space is expressly nonassignable and nontransferable
by Tenant.
Rider - Page 3
-----
F. Expansion. If Tenant expands into additional adjacent space on the
---------
12th floor, either due to the exercise of the Ongoing Right of First Offer or
otherwise, between the beginning of the eighth (8th) month of this Lease and the
last day of the tenth (10th) month of this Lease, and such expansion is for not
less than 2500 square feet, then the Basic Annual Rental shall be at the same
rate per rentable square foot as the original Premises. With respect to any
expansion space described in this paragraph, Landlord shall also provide Tenant
with a Tenant Improvement Allowance of 22 1/2 cents per rentable square foot of
expansion space for each remaining month of the primary Lease term. Said
allowance shall only be used for the purpose of making improvements to the
expansion space.
G. Renewal Option.
--------------
(1) Grant of Option. Provided that, at the time in question, this
---------------
Lease is then in full force and effect and there is no uncured Event of Default
hereunder, Landlord hereby grants to Tenant two (2) successive options (each a
"Renewal Option") to renew this Lease for an additional three (3) year term
each. The first such Renewal Option shall be for the three (3) year period
beginning on the day following the final day of the initial Lease term and
continuing thereafter until three (3) years after such date; and the second
Renewal Option shall be for a three (3) year period beginning on the day
following the final day of the first renewal term and continuing thereafter
until three (3) years after such date unless this Lease shall sooner terminate
as provided herein. Each Renewal Option is granted to Tenant upon the terms and
conditions hereinafter set forth.
(2) Exercise of Option. Tenant may, by notifying Landlord in writing
------------------
not less than ninety (90) days nor more than one hundred eighty (180) days prior
to the final day of the initial Lease term or the final day of the first renewal
term, as appropriate, renew this Lease for an additional three (3) year term as
stated above. Landlord shall provide to Tenant a written estimate of Fair Market
Rental Value (as defined below) not less than six (6) months or more than twelve
(12) months prior to the final day of the initial Lease term or the final day of
the first renewal term, as appropriate, so that Tenant may meaningfully evaluate
the renewal rental rate.
(3) Terms of Lease. (a) Each renewal of this Lease shall be upon the
--------------
same terms, covenants and conditions applicable to the original Lease term,
except that the Basic Annual Rental payable during such extended term shall be
an amount equal to ninety-five percent (95%) of the Fair Market Rental Value (as
hereinafter defined) of the Premises as of the commencement of the lease term
covered by the applicable Renewal Option. As used herein, "Fair Market Rental
Value" of the Premises shall mean the price that a ready and willing tenant
would pay as of the commencement of the extended lease term as rent to a ready
and willing landlord of property comparable to the Premises if such property
were exposed for lease on the open market for a reasonable period of time and
taking into account all of the purposes for which such property may be used and
not just the use proposed to be made of the premises by Tenant.
(b) (i) If Landlord and Tenant have not been able to agree on the Fair
Market Rental Value by the forty-fifth (45th) day prior to the commencement date
of the renewal term, the Basic Annual Rental for the extended term shall be
determined as follows: For a period of ten (10) days, Landlord and Tenant shall
endeavor in good faith to agree upon a single appraiser and the single appraiser
shall determine the Fair Market Rental Value. If Landlord and Tenant are unable
to agree upon a single appraiser within said ten (10) day period, each shall
then, by written notice to the other, given within five (5) days after said ten
(10) day period, appoint one appraiser. Within five (5) days after the two
appraisers are appointed, they shall appoint a third appraiser. If either
Landlord or Tenant fails to appoint its appraiser within the
Rider - Page 4
-----
prescribed time period, the single appraiser appointed shall determine the Fair
Market Rental Value of the Premises. If the two appointed appraisers fail to
agree on the third appraiser, he or she shall be appointed by the then president
of the Greater Dallas Association of Realtors. Each party shall bear the cost of
the appraiser appointed by it and the parties shall share equally the cost of
the third appraiser. Each of the three selected appraisers shall then determine
the Fair Market Rental Value of the Premises for the first year of the extension
term, and the Fair Market Rental Value for purposes of determining the Basic
Annual Rental shall be the average of the three.
(ii) If the procedure set forth herein is implemented and if for any reason
whatsoever (including, without limitation, the institution of any judicial or
other legal proceedings), the Fair Market Rental Value for any extended lease
term has not been finally determined prior to the first day of said extended
term, then Tenant shall initially pay as rental an amount equal to the Basic
Annual Rental for the final year of the prior term; when the Fair Market Rental
Value is finally determined as set forth above, Landlord and Tenant shall by
appropriate payments to the other, correct any overpayment or underpayment which
may have been made prior to such final determination.
F. Non-Disturbance, Subordination and Attornment. In the event Landlord's
---------------------------------------------
lender or its successors or assigns (collectively, "Lender") succeed to the
interest of Landlord in and to the Property, or under this Lease, then Tenant
will, upon request of Lender, automatically become the lessee of Lender or any
one claiming interest through Lender without change in the terms or other
provisions of this Lease; provided, however, that said successor in interest
shall not be bound by (i) any payment of rent or additional rent for more than
one (1) month in advance, except prepayments in the nature or security for the
performance by the Tenant of its obligations under the Lease, or (ii) any
amendment or modification of the Lease made without the consent of Lender or
successor in interest. In the event Lender or any purchaser at foreclosure shall
succeed to Landlord's interest in the Premises, this Lease will remain in full
force and effect and be binding upon Lender or such purchaser and Tenant as
though each were the original parties thereto. Upon the request of Lender or
anyone claiming through Lender, Tenant shall execute and deliver an instrument
or instruments confirming the subordination described in Paragraph 4 and
agreeing to attorn to the rights of Lender or anyone claiming interest through
Lender. Lender has agreed, subject to the conditions specified in this
paragraph, upon Landlord's request, to execute a nondisturbance and attornment
agreement with Tenant, in Lender's then standard form.
G. Commencement Date. The Lease term shall commence on the third business
day or weekend following the third business day following written notice by
Landlord to Tenant that the premises are ready for occupancy. Landlord will
provide approximately 1,500 square feet of temporary space adjacent to the
premises (with customary office amenities, such as phone hookups)at no charge
until the Premises are ready for occupancy. Occupancy of the temporary space
may begin upon full execution of this lease but must be arranged as specified by
Landlord.
Lights should stay on (without timer) until 12:00 am.
H. Building Hours. The Building Hours are:
--------------
7:00 a.m. to 8:00 p.m. M-F
8:00 a.m. to 2:00 p.m. Sat
Landlord will provide HVAC Monday thru Friday from 7:00 until 12:00 a.m.
and Saturday from 8:00 until 6:00 p.m. at no additional charge to Tenant. Any
above standard electrical usage will be separately metered and paid for by
Tenant on a direct xxxx basis. If such additional meter is required, which shall
be determined by Landlord, the cost of materials and installation shall be borne
by Tenant.
Note: Not to exceed 8 xxxxx per sq. ft.
Rider - Page 5
-----
I. Building Signage. Landlord will provide, at Landlord's expense,
----------------
building directory signage and suite signage. Such signage shall be the building
standard.
J. Consent. In all cases in this Lease where the consent of either
-------
Landlord or Tenant shall be required, including sublease and assignment of all
or any portion of the Premises, such consent shall not be unreasonably withheld
or delayed.
K. Confidentiality. Each of Landlord and Tenant agree not to disclose to
---------------
any third party (other than the lender, auditors or attorneys of either and the
issuing bank and any confirming bank with respect to the letters of credit) the
terms of this Lease or the identities of the principals and agents of the other
party, except as otherwise mutually agreed to in writing by Landlord and Tenant;
provided, however, that in the event of a default by Tenant under the terms of
this Lease, Landlord may pursue whatever collection and enforcement efforts as
it deems appropriate and are permissible under Texas law and the terms of this
Lease.
EXECUTED as of the _____ day of _______________, 1993.
Government Employees Insurance
Company
By:______________________
Printed Name:_____________________
Title:____________________________
Efficient Network Technology, Inc.
By: /s/ Xxxx X. Xxxxx
--------------------------
Printed Name: XXXX X XXXXX
Title: PRESIDENT & CEO
Rider - Page 6
-----
EXHIBIT "X"
-----------
IRREVOCABLE LETTER OF CREDIT
----------------------------
Beneficiary:
GOVERNMENT EMPLOYEES INSURANCE COMPANY
0000 XXXXXX XXXXXX XXXX, #000
XXXXXX, XXXXX 00000
We hereby authorize you to draw on the (Bank) by order of:
and for the account of:
Efficient Network Technology, Inc.
0000 Xxxxxx Xxxxxx Xxxx, #0000
Xxxxxx, Xxxxx 00000
up to an aggregate amount of Sixty Thousand and No/100 Dollars ($60,000.00)
available by your drafts at sight accompanied by the original of this Letter of
Credit and statement signed by a representative on behalf of Government
Employees Insurance Company, stating that:
"Efficient Network Technology, Inc. or its successor and
assigns, Tenant, under a lease agreement dated _______________,
1993, by and between Government Employees Insurance Company and
Efficient Network Technology, Inc. for certain premises located
at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxx, is in default of the
Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Efficient Network Technology disputes
the content of such statement.
This Letter of Credit shall expire on [a date which is the end of the 25th
month following the Commencement Date], and is irrevocable and transferrable.
Drafts must be drawn and presented at _______________, not later than [a
date which is the end of the 25th month following the Commencement Date]. Drafts
drawn hereunder must be marked:
"Drafts are drawn under_______________ Letter of Credit No. _____" and
indicate the date hereof.
We hereby agree with the drawers, endorsers and bonafide holders of all
drafts drawn under and in compliance with the terms of the Credit, that such
drafts will be duly honored upon presentation to the Drawee.
In view of the fact that this Letter of Credit is issued in transferrable
form, if it is your intention to transfer your interest hereunder, you must
return this Letter of Credit to us for endorsement reflecting the new
Beneficiary.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1983 Revision) International Chamber of Commerce
Publication No. 400.
Very truly yours,
__________________________________
EXHIBIT "X" TO RIDER - Solo Page
--------------------