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Exhibit
10.2
AMENDED AND
RESTATED
LEASE
BETWEEN
TARRANT COUNTY COLLEGE
DISTRICT,
AS
LANDLORD,
AND
RADIOSHACK
CORPORATION,
AS TENANT
DATED AS OF JUNE 25,
2008
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Page |
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1.
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Demise of
Premises. |
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2 |
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2.
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Title and
Condition. |
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2 |
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3.
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Use of
Premises. |
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3 |
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4.
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Term. |
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3 |
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5.
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Rent. |
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4 |
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6.
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Non-Terminability. |
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4 |
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7.
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Taxes and
Assessments; Compliance with Law; Environmental
Matters. |
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5 |
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8.
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Indemnification. |
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7 |
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9.
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Liens. |
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8 |
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10.
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Maintenance and Repair. |
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8 |
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11.
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Alterations. |
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9 |
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12.
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Insurance. |
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10 |
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13.
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Casualty |
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12 |
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14.
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Condemnation. |
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13 |
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15.
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Assignment and Subletting. |
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14 |
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16.
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Permitted
Contests. |
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14 |
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17.
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Default
Provisions. |
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15 |
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18.
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Additional Rights of Landlord. |
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17 |
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19.
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Notices,
Demands and Other Instruments. |
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18 |
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20.
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Transfer
by Landlord. |
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19 |
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21.
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Mortgaging by Landlord. |
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20 |
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22.
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Estoppel
Certificates. |
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20 |
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23.
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No
Merger. |
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21 |
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24.
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Surrender. |
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21 |
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25.
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Severability. |
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21 |
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26.
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Savings
Clause. |
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21 |
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27.
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Binding
Effect. |
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22 |
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28.
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Memorandum of Lease. |
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22 |
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29.
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Table of
Contents; Headings. |
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22 |
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30.
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Governing
Law. |
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22 |
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31.
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Certain
Definitions. |
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22 |
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32.
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Tenant’s Use of Campus Amenities |
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23 |
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33.
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Exhibits. |
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24 |
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34.
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Signage
Rights |
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24 |
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35.
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Brokers |
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25 |
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36.
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Force
Majeure |
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25 |
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37.
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Exculpatory Clause |
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25 |
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38.
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Waiver of
Landlord Liens |
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25 |
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39.
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Transition Period |
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25 |
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40.
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Landlord’s Access to Loading Docks |
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27 |
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41.
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Parking |
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27 |
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42.
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Security |
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27 |
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43.
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Partial
Consideration |
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27 |
EXHIBITS
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Exhibit 1.3
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Control
Center |
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Exhibit 1.4
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Data
Center |
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Exhibit 5
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Basic
Rent |
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Exhibit 9
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Permitted
Exceptions |
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Exhibit 21
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Subordination, Non-Disturbance and Attornment
Agreement |
AMENDED AND RESTATED
LEASE
This AMENDED AND RESTATED
LEASE, dated as of June 25, 2008 (“ Amendment
Date ”), between Tarrant County College District ,
a political subdivision of the State of Texas (herein, as further
defined in Subparagraph 31(d), called “ Landlord
”), and RadioShack Corporation , a Delaware
corporation (herein called “ Tenant
”).
RECITALS
A. Concurrently herewith,
Landlord has purchased from KAN AM GRUND KAPITALANLAGEGESELLSCHAFT
MBH, a German limited liability company, for the benefit of the Kan
Am-grundinvest Fonds, a German open-end real estate fund sponsored
by Kan Am Grund Kapitalanlagegesellschaft mbH (“ Kan
Am ”) that certain tract of real property described as
Lot 1, Block 1, RadioShack Addition, an Addition to the City of
Fort Worth, Texas, according to the replat thereof recorded in
Cabinet A, Slide 10730, Plat Records of Tarrant County, Texas,
(“ Lot 1 Land ”) together with all improvements
located on the Lot 1 Land including a five building office campus
containing approximately 875,694 square feet of floor area (the
“ Buildings ”) and a 2,362 space structured
garage (“ Parking Garage ”) and all other
parking areas on the Lot 1 Land (collectively, the “ Lot 1
Improvements ”; the Lot 1 Land and the Lot 1 Improvements
may be referred to collectively herein as the “ Lot 1
Property ”).
B. Tenant leases the Lot 1
Property pursuant to that certain Lease dated December 20,
2005 between Landlord’s predecessor in interest, Kan Am
Riverfront Campus, LP (“ Riverfront ”), as
landlord, and Tenant, as tenant, which was assigned to Landlord at
the closing of the purchase and sale of the Lot 1 Property.
Riverfront and Tenant executed a Memorandum of Lease with respect
to the Lease, dated December 20, 2005, and recorded as
Instrument No. D205379265, Real Property Records of Tarrant County,
Texas (the “ Memorandum ”). Kan Am and Tenant
amended the Memorandum pursuant to that certain Amendment to
Memorandum of Lease dated June 15, 2007, recorded in
Instrument No. D207219120, which Amendment provided notice that Kan
Am had accepted an assignment of all of Riverfront’s right,
title and interest as “Landlord” under the
Lease.
C. Concurrently herewith,
pursuant to that certain Purchase and Sale Agreement by and between
Tenant as seller, and Landlord as buyer, dated effective as of
June 25, 2008 (the “ PSA ”), Landlord has
purchased from Tenant certain property interests and rights,
including (i) certain real property described as Lots 2 and 3,
Block 1, RadioShack Addition, an Addition to the City of Fort
Worth, Texas, according to the replat thereof recorded in Cabinet
A, Slide 10730, Plat Records of Tarrant County, Texas together with
all improvements located thereon (collectively, the “ Lots
2 and 3 Property ”); the Lot 1 Property and Lots 2 and 3
Property may be collectively referred to herein as “
Landlord’s Property ”), (ii) Tenant’s
mineral rights in and under Landlord’s Property,
(iii) certain personal property heretofore used by Tenant in
connection with its use and occupancy of the Lot 1 Property, and
(iv) certain parking easements, all as more particularly
described in the PSA.
D. Landlord desires to occupy
and use Landlord’s Property as a campus for Tarrant County
College (the “ Campus ”) and Tenant desires to
accommodate Landlord’s planned use of Landlord’s
Property by consolidating Tenant’s offices and associated
business operations into a portion of the Lot 1
Property.
Page 1
E. The parties desire to
amend and restate the Lease in certain respects as herein
provided.
NOW THEREFORE, in
consideration of the mutual covenants and promises hereinafter set
forth, and intending to be legally bound, the parties agree as
follows:
1. Demise of
Premises.
In consideration of the rents
and covenants herein stipulated to be paid and performed, Landlord
hereby demises and lets to Tenant, and Tenant hereby lets from
Landlord, for the Term herein described, the premises (herein
collectively called the “ Premises ”) consisting
of the following Lot 1 Improvements:
1.1 The building known as the
“ West Fork Building ” (herein so
called.
1.2 The building known as the
“ Clear Fork Building ” (herein so called),
excluding the Control Center and the Data Center.
1.3 The “ Control
Center ” (herein so called), which is located in the
Clear Fork Building, as depicted on Exhibit 1.3 attached
hereto.
1.4 The “ Data
Center ” (herein so called), which is located in the
Clear Fork Building, as depicted on Exhibit 1.4 attached hereto,
subject to the joint use provisions in Subparagraph
39(d).
For purposes of this Lease,
the Premises shall not include any mineral rights or interest in,
to or underlying the land on which the Premises are
located.
2. Title and
Condition.
(a) The Premises are demised
and let subject to (i) the rights of any parties in possession
and the existing state of the title as of the commencement of the
Term of this Lease, (ii) any state of facts which an accurate
survey or physical inspection thereof might show, (iii) all
zoning regulations, restrictions, rules and ordinances, building
restrictions and other laws and regulations now in effect or
hereafter adopted by any Governmental Authority (as defined in
Subparagraph 31(b)) having jurisdiction, and (iv) the
condition of the Premises, as of the commencement of the Term of
this Lease, without representation or warranty by Landlord. Tenant
represents that it is in possession of the Premises and is fully
familiar with the Premises in all respects, having been in
possession of the Premises immediately prior to the commencement of
the Term of this Lease, having owned the Premises prior to the
commencement of the Term of this Lease and having caused the
construction of the Lot 1 Improvements thereon. Tenant further
represents that it has examined the title to, zoning of and other
restrictions applicable to, and the condition of, the Premises and
has found the same to be satisfactory to it. Tenant has
unconditionally accepted the Premises in all respects.
Page 2
(b) During the Term, Tenant
shall retain all economic development incentives including, but not
limited to, economic development grants and property tax abatements
and reimbursements previously or at any time granted to Tenant by
the City of Fort Worth, the Tax Increment Reinvestment Zone Number
Six, City of Fort Worth, Texas, or any other Governmental Authority
(collectively, “ Incentives ”); provided,
however, that if during any portion of the Interim Term or the
Primary Term any Taxes are assessed on all or any portion of the
Premises, all such Incentives that provide any property tax
abatements (‘ Tax Abatements ”) shall be
assigned by Tenant to Landlord (if assignment is permitted by the
terms thereof), without further consideration, so that Landlord
will have the full benefit of the Tax Abatements for the period
covered by the Interim Term and the Primary Term; provided,
further, Landlord will reassign the Tax Abatements to Tenant during
any Extended Term upon Tenant’s request.
3. Use of
Premises.
Subject to applicable Legal
Requirements (as defined in Subparagraph 31(f)), Tenant may use the
Premises for general office use, including executive, managerial,
administrative and sales offices, media and broadcast production,
training and testing facilities, employee related services,
parking, and uses ancillary thereto, and otherwise in conformity
with this Lease, but for no other purposes.
4. Term.
Subject to the terms and
conditions hereof, Tenant shall have and hold the Premises for an
interim term (herein called the “ Interim Term
”) commencing on the date hereof and continuing until the
last day of the calendar month in which the date hereof occurs
(provided that if the Lease commences on the first day of a
calendar month there shall be no Interim Term) and a primary term
(herein called the “ Primary Term ”) commencing
on the first day of the first calendar month following the date
hereof (except if this Lease commences on the first day of a
calendar month, the Primary Term shall commence on said first day)
and continuing for three (3) years for all of the Premises.
Tenant shall have the option to extend this Lease for one term of
two (2) years for each of the West Fork Building, the Control
Center and the Data Center, unless this Lease shall expire or be
sooner terminated pursuant to the terms hereof. Tenant may exercise
this two (2) year option as to one or more of the West Fork
Building, the Control Center and the Data Center. If Tenant
exercises the two (2) year option as to the Control Center and
the Data Center, Tenant thereafter shall have the option to extend
this Lease for up to three (3) consecutive terms of five
(5) years each for the Control Center and the Data Center,
unless this Lease shall expire or be sooner terminated pursuant to
the terms hereof. Each such extension is herein individually called
an “ Extended Term ” and, together with the
Interim Term, if any, and the Primary Term, called the “
Term .” In the event Tenant elects to extend the Term
for an Extended Term, Tenant shall give a written notice to
Landlord (an “ Extension Notice ”) no later than
six (6) months prior to the then-scheduled expiration of the
Term, which notice shall designate those portions of the Premises
(as described in Paragraph 1) as to which the Extended Term will
cover. Upon the giving of an Extension Notice, the Term shall be
automatically extended for such Extended Term as to the portion of
the Premises designated in the Extension
Page 3
Notice on the terms and conditions
provided in this Lease, except that Tenant shall have no further
option to extend the Term beyond said (i) one (1) term of
two (2) years for the West Fork Building and (ii) three
(3) consecutive terms of five (5) years each for the
Control Center and the Data Center (assuming Tenant exercises its
initial option to extend for two (2) years with respect to the
Control Center and the Data Center). Upon the request of Landlord
or Tenant, the parties hereto will execute and exchange an
instrument in recordable form setting forth any extension of the
Term in accordance with this Paragraph 4. If (i) an Event of
Default shall exist as of the giving of the Extension Notice and
such Event of Default remains uncured thirty (30) days after
the giving of the Extension Notice or (ii) Tenant does not
timely give an Extension Notice in accordance with the provisions
of this Paragraph 4, then, unless Landlord and Tenant otherwise
agree in writing, Tenant shall thereafter have no right to extend
the Term for the subject or any succeeding Extended
Term.
5. Rent.
(a) If Tenant extends the
Term in accordance with Paragraph 4, beginning on the Rent
Commencement Date (as defined in Paragraph 5(c) below), Tenant
covenants to pay to Landlord, as rent for the Premises during each
Extended Term of this Lease, the amounts set forth on Exhibit
5 attached hereto (herein called the “ Basic Rent
”) in monthly installments, in advance, on the first business
day of each calendar month (herein called the “ Basic Rent
Payment Dates ”) by wire or other electronic transfer of
immediately available funds to the Landlord at the address set
forth above or to such other person or such other place or account
as Landlord from time to time may designate to Tenant in
writing.
(b) Tenant covenants that all
other amounts, liabilities and obligations which Tenant assumes or
agrees to pay or discharge pursuant to this Lease together with
every fine, penalty, interest and cost which may be added for
nonpayment or late payment thereof, shall constitute additional
rent hereunder (herein called “ Additional Rent
”). In the event of any failure by Tenant to pay or discharge
any Additional Rent, Landlord shall have all rights, powers and
remedies provided herein or by law in the case of nonpayment of
Basic Rent. Tenant further covenants to pay to Landlord on demand
interest on all Basic Rent and Additional Rent due to Landlord
beginning five (5) days after the date due until such amount
is paid in full at the per annum rate of interest (the “
Default Rate ”) equal to the annual “prime
rate” identified in the “Money Rates” column in
the Wall Street Journal (the “ Prime Rate
”) plus four percent (4%), but in no event shall the Default
Rate exceed the maximum rate permitted by law. If the Wall
Street Journal is no longer published or the Wall Street
Journal discontinues publication of the “prime
rate,” then Landlord shall designate a reasonably comparable
source to identify the Prime Rate.
(c) The first (1
st
) monthly installment of
Basic Rent shall be due and payable on or before the first business
day of the thirty-seventy (37 th ) calendar month following the commencement of the Primary
Term (“ Rent Commencement Date ”).
6. Non-Terminability.
Except as otherwise provided herein, Basic Rent and Additional Rent
shall be paid by Tenant without notice or demand, setoff,
counterclaim, abatement, suspension, deduction or defense;
provided, however, that overpayments of Basic Rent or Additional
Rent, as reasonably substantiated in writing by Tenant, shall be
subject to a right of offset against subsequent payments of Basic
Rent or Additional Rent.
Page 4
7. Taxes; Compliance with
Law; Environmental Matters.
(a) If Tenant exercises any
extension option under Paragraph 4 and subject to Paragraphs 16 and
43 below, Tenant shall reimburse Landlord for all Taxes (as defined
in Subparagraph 31(c)), if any, assessed against the portion of the
Premises leased by Tenant during any Extended Term, but only to the
extent such Taxes are proportionately allocated to that portion of
the Extended Term included within the tax year for which such Taxes
are assessed. Notwithstanding the foregoing provisions of this
Subparagraph 7(a), Tenant shall not be required to pay any
franchise, business margin, severance, corporate, estate,
inheritance, succession, net income or excess profits taxes of
Landlord hereunder. Taxes shall be prorated from the Rent
Commencement Date through the end of the Term.
(b) Landlord will bill Tenant
when the Taxes become payable and Tenant shall pay the same no
later than twenty (20) Business Days (as defined in
Subparagraph 31(a) below) following Tenant’s receipt of
Landlord’s bill therefor (along with any supporting
documentation reasonably requested by Tenant).
(c) Landlord agrees, to the
extent reasonably necessary for Tenant to continue to prosecute any
tax abatement proceedings or to obtain any economic development
grants and/or tax incentives granted to Tenant by any Governmental
Authority, to reasonably cooperate with Tenant, at no cost to
Landlord, and also agrees to promptly endorse or pay over to Tenant
any such abatement amounts, grants and/or incentives received by
Landlord for any years prior to the Amendment Date or falling
within the Term; provided, however, Landlord shall have the full
and exclusive benefit of all Tax Abatements attributable to the
Interim Term and/or the Primary Term or any part
thereof.
(d) Tenant shall conduct its
operations in and on the Premises in accordance with all Legal
Requirements applicable to the Premises. Each party shall provide
the other party(ies) with notice as soon as reasonably possible of
any written complaints from any Governmental Authority pertaining
to any alleged violation of any Legal Requirements and/or the
commencement of any proceedings or investigation (of which the
notifying party has knowledge) under any Legal Requirements
affecting or pertaining to the Premises.
(e) Tenant shall:
(i) Not cause or knowingly
permit any Hazardous Material (as defined below) to exist on or be
discharged from or be released at the Premises in violation of
Environmental Laws (as defined below) and to the extent caused or
permitted by Tenant, Tenant shall promptly: (A) remove,
remediate and dispose of any such Hazardous Material in compliance
with all Environmental Laws, (B) pay any claim against Tenant,
Landlord, any Indemnified Party (as defined below) or the Premises
arising therefrom, (C) remove any charge or lien upon any of
the Premises relating thereto, and (D) without limitation of
the foregoing comply, at its sole cost and expense, during the Term
in all respects with all Environmental Laws applicable to the
Premises in regard to all Hazardous Materials.
Page 5
(ii) Notify Landlord in
writing of any Hazardous Material (other than Hazardous Material
stored or transported to or from the Premises in the ordinary
course of Tenant’s or Tenant’s sublessee’s
business and in compliance with all Environmental Laws) that exists
on or is discharged from or onto or released at the Premises within
twenty (20) days after Tenant first has actual knowledge of
such existence or discharge.
(iii) Defend (with counsel
selected by Tenant and reasonably acceptable to Landlord),
indemnify and hold harmless Landlord and its officers, directors,
trustees, members, partners, shareholders, beneficiaries, employees
and agents (herein collectively called “Indemnified
Parties” and individually an “Indemnified Party”)
from and against any and all claims, expenses, liability, loss or
damage (including all reasonable attorneys’ fees and
expenses) resulting from the failure of Tenant to comply during the
Term with Environmental Laws. Tenant shall give Landlord notice as
soon as reasonably possible of (A) any proceeding or inquiry
of which Tenant becomes aware during the Term by any Governmental
Authority with respect to the presence of any Hazardous Material
on, under, from or about the Premises, (B) all claims made by
any third party against Tenant or the Premises relating to any loss
or injury resulting from any Hazardous Material of which Tenant
becomes aware, and (C) Tenant’s discovery of any
occurrence or condition on any real property adjoining or in the
vicinity of the Premises that Tenant reasonably determines is
likely to cause the Premises to be subject to any investigation or
cleanup pursuant to any Environmental Law. Tenant shall permit
Landlord to join and participate in, as a party if it so elects,
any legal proceedings or action initiated with respect to the
Premises in connection with any Environmental Law or Hazardous
Material, and Tenant shall pay all reasonable attorneys’ fees
and disbursements incurred by Landlord in connection therewith to
the extent such proceedings or action relate to the breach by
Tenant of its obligations under this Lease.
(iv) Not change the use of
the Premises or permit the use of the Premises to be changed to any
purpose other than the use on the date hereof, or change
Tenant’s business operations conducted at the Premises from
that conducted on the date hereof, if any such change of use or
operations would (A) increase the risk of any Hazardous
Material being released or discharged at or from the Premises in
violation of any Environmental Laws, (B) result in Tenant or
Landlord being obligated to perform any remediation of any
Hazardous Material, or (C) result in the rescinding or adverse
modification of any waiver or stand-still agreement as to
environmental compliance matters granted by any Governmental
Authority.
For purposes of this Lease,
the following terms shall have the following meanings:
(1) “ Hazardous Material ” means any
hazardous or toxic material, substance or waste which is defined by
those or similar terms and is regulated as such under any
Environmental Laws, except for cleaning solvents, paints,
construction materials, fuel supplies, and similar materials used
in the ordinary course of business and in compliance with all
applicable laws (including Environmental Laws) with respect
thereto; and (2) “ Environmental Laws ”
means any statute, law, ordinance, rule or regulation of any local,
county, state or federal authority having
Page 6
jurisdiction over the Premises or any
portion thereof or its use, which pertains to environmental, health
or safety matters and/or the regulation of any Hazardous Materials,
including but not limited to: ( a ) the Federal Water
Pollution Control Act (33 U.S.C. §1317 et seq .) as
amended; ( b ) the Resource Conservation and Recovery
Act (42 U.S.C. §6901 et seq .) as amended; ( c
) the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. §9601 et seq. ) as amended; (
d ) the Toxic Substances Control Act (15 U.S.C.
§2601 et seq .), as amended; and ( e ) the
Clean Air Act (42 U.S.C. §7401 et seq. ), as amended.
Tenant’s obligations and liabilities under this Subparagraph
7(e) shall survive the expiration or earlier termination of this
Lease with respect to any obligation accruing prior to the end of
the Term and any Hazardous Material which exists or is discharged
from or onto or released at the Premises (to the extent caused or
permitted by Tenant) prior to the end of the Term in violation of
any Environmental Law.
8.
Indemnification.
(a) Tenant agrees to pay,
and to protect, defend (with counsel reasonably acceptable to
Landlord), indemnify and hold harmless Landlord and its Indemnified
Parties from and against any and all liabilities, losses, damages,
costs, expenses (including all reasonable attorneys’ fees and
expenses), causes of action, suits, claims, demands or judgments of
any nature (herein collectively called “Damages”)
whatsoever arising from (i) any injury to, or the death of,
any person or damage to property on Landlord’s Property prior
to or during the Term arising from the negligent acts or willful
misconduct of Tenant, (ii) any violation by Tenant of any
agreement or condition of this Lease, and (iii) any violation
by Tenant of any Legal Requirement; provided, however, the
foregoing indemnity shall not apply with respect to claims arising
from the negligent acts or willful misconduct of Landlord or any
Indemnified Party. If Landlord or any Indemnified Party shall be
made a party to any litigation covered by Tenant’s indemnity,
Tenant shall, at its option, either defend, at Tenant’s sole
cost and expense, such party with counsel selected by Tenant
reasonably acceptable to Landlord or pay all costs and reasonable
attorneys’ fees and expenses incurred or paid by Landlord or
such Indemnified Party in connection with such litigation. In the
event Tenant shall, pursuant to this Paragraph 8, discharge any
claim against Landlord or any Indemnified Party, Tenant shall be
subrogated to the rights of Landlord or such Indemnified Party with
respect thereto.
(b) Tenant shall indemnify
Landlord with respect to any loss or damage suffered by Landlord by
reason of any material inaccuracy or misstatement in any
representation or warranty of Tenant set forth in this
Lease.
(c) If and to the extent
allowed by applicable law and without waiving any immunities,
Landlord agrees to pay, and to protect, defend (with counsel
reasonably acceptable to Tenant), indemnify and hold harmless
Tenant and its Indemnified Parties from and against any and all
Damages whatsoever arising from (i) any injury to, or the
death of, any person or damage to property on Landlord’s
Property during the Term arising from the negligent acts or willful
misconduct of Landlord, (ii) any violation by Landlord of any
agreement or condition of this Lease, and (iii) any violation
by Landlord of any Legal Requirement; provided, however, the
foregoing indemnity shall not apply with respect to claims arising
from the negligent acts or willful misconduct of Tenant
or
Page 7
any Indemnified Party. If Tenant or
any Indemnified Party shall be made a party to any litigation
covered by Landlord’s indemnity, Landlord shall, at its
option, either defend, at Landlord’s sole cost and expense,
such party with counsel selected by Landlord reasonably acceptable
to Tenant or pay all costs and reasonable attorneys’ fees and
expenses incurred or paid by Tenant or such Indemnified Party in
connection with such litigation. In the event Landlord shall,
pursuant to this Paragraph 8, discharge any claim against Tenant or
any Indemnified Party, Landlord shall be subrogated to the rights
of Tenant or such Indemnified Party with respect
thereto.
(d) Tenant’s and
Landlord’s obligations and liabilities under this Paragraph 8
shall survive expiration or earlier termination of this
Lease.
9. Liens.
Tenant will not, directly or
indirectly, create or permit to be created and to remain for more
than thirty (30) days after the creation thereof, and will,
subject to Paragraph 16 below, promptly discharge, at
Tenant’s expense, within thirty (30) days after receipt
of notice thereof, any mortgage, lien, encumbrance or charge on,
pledge of, or conditional sale or other title retention agreement
with respect to, the Premises or any part thereof, which was
created or permitted to be created by Tenant.
10. Maintenance and
Repair; Landlord Services.
(a) Tenant acknowledges that
Tenant has accepted the condition, state of repair and appearance
of the Premises as such exists on the Amendment Date.
(b) Except as otherwise
provided herein and subject to Paragraphs 10(b), 12, 13 and 43,
Landlord shall maintain, repair and replace, as Landlord deems
reasonably necessary, the Premises, the Buildings and all other
improvements located or installed in or on Landlord’s
Property, including, without limitation, the roof and structural
members thereof (including gutters and downspouts), the
foundations, the interior and exterior walls of the Buildings,
windows, doors, door closure devices and other exterior openings;
window and door frames, molding locks and hardware; interior and
exterior lighting; all Building systems including, without
limitation, heating, air conditioning, underground and all above
ground plumbing and plumbing fixtures, elevators, escalators and
other electrical, mechanical and electromotive installations,
equipment and fixtures; and the structural soundness of the
Buildings. Landlord shall maintain and repair the Premises and all
common areas on Landlord’s Property in the manner and to the
extent reasonably deemed by Landlord to be standard for buildings
of similar class, size, age and location. Any roof cuts made
necessary because of Tenant’s use of the Premises or the
installation of any equipment required by Tenant and approved by
Landlord, shall be performed by Tenant at its sole cost and expense
and under Landlord’s supervision. Landlord, however, if
required to make any repairs occasioned by the act or negligence of
Tenant, its agents, employees, subtenants, licensees and
concessionaires shall be reimbursed by Tenant for all uninsured
damage within thirty (30) days after receipt of a bill sent by
Landlord. In the event that the Premises should become in need of
repairs required to be made by Landlord hereunder, Tenant shall
give prompt written notice thereof to Landlord; and Landlord shall
not be responsible for failure to make any such repairs until a
reasonable time shall have elapsed after receipt by Landlord of
such written notice.
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(c) Landlord agrees to
furnish Tenant the following services: (i) hot and cold water
for use in the lavatories and break areas on the floor(s) on which
the Premises is located; (ii) central heat and air
conditioning in season during Tenant’s normal business hours,
at such temperatures and in such amounts as are standard for
buildings of similar class, size, age and location, or as required
by Governmental Authority; (iii) janitorial and cleaning
service in and about the Premises on Business Days;
(iv) electricity to the Premises for general office use;
(v) fluorescent and incandescent bulb and ballast replacement
in the Premises and common areas of the Buildings; and
(vi) passenger and freight elevator service and escalator
service in common with Landlord and other persons.
(d) Landlord and its agents
and designees may, in the company of a representative of Tenant if
Tenant so requires, enter upon and inspect the Premises at
reasonable times and on reasonable prior notice and show the
Premises to prospective Mortgagees and/or purchasers. Tenant may
designate an employee to accompany Landlord, any Mortgagee and
their respective agents and designees on such
examinations.
11.
Alterations.
(a) Tenant may make or suffer
to be made any non-structural alterations, additions or
improvements in, on or to the Premises or any part thereof (“
Alterations ”), provided Tenant shall not make any
Alterations which would (i) cost more than $100,000 (as
determined with respect to each Alterations project),
(ii) create a hazardous or illegal condition or violate any
Legal Requirements, (iii) change the intended use of the
Premises from the use permitted under Paragraph 3, or
(iv) increase the risk of a violation of any Environmental Law
or otherwise increase any environmental risk to the Premises, or
(v) result in the modification of any mechanical system,
without, in each such case, submitting a written request for and
obtaining the prior written consent of Landlord, which consent may
be withheld in Landlord reasonable discretion (Alterations
described in any one or more of the foregoing clauses
(i) – (v) being referred to as “
Restricted Alterations .”) Redecoration of the
interior of the Premises, such as painting, wallpapering,
replacement of light fixtures or floor covering and installation or
deinstallation of artworks shall not constitute Alterations for
purposes of this Lease. Moreover, Tenant shall not be required to
obtain the prior written consent of Landlord as to non-structural
alterations consisting solely of the reconfiguration of offices,
workstations, support spaces and common areas in the Premises which
are not Restricted Alterations.
(b) All Alterations shall be
constructed in a good and workmanlike manner in compliance with all
Legal Requirements.
(c) Except as Landlord and
Tenant otherwise agree in writing, all Alterations other than
Severable Additions (as defined below) shall at once become a part
of the realty and belong to Landlord. Severable Additions, moveable
furniture, furnishings, decorations, art work, trade fixtures and
other personal property of Tenant and its sublessees may be removed
from the Premises upon or at any time prior to the expiration or
earlier termination of this Lease, provided
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that Tenant shall repair any damage to
the Premises resulting from such removal. For purposes of this
Lease, the term “ Severable Additions ” shall
mean all additions to the Premises prior to or during the Term
which (i) are readily removed without causing more than de
minimus damage to the Premises, (ii) will not materially
reduce the value, useful life or utility of the Premises if
removed, and (iii) are not required for lawful occupancy of
the Premises. The obligations of Tenant under this Paragraph 11
shall survive expiration or earlier termination of this
Lease.
12.
Insurance.
(a) Tenant shall maintain, or
cause to be maintained, at its sole expense, the following
insurance on the Premises (herein called the “
Tenant’s Required Insurance ”):
(i) Commercial general
liability insurance naming Landlord and any Mortgagee as additional
insureds against any and all claims as are customarily covered
under a standard policy form routinely accepted, for bodily injury,
death and property damage occurring in or about the Premises. Such
insurance shall have a combined single limit of not less than
$2,000,000 per occurrence with a minimum $5,000,000 aggregate limit
and excess umbrella liability insurance in the amount of at least
$10,000,000. If Tenant has other locations that it owns or leases,
the liability insurance provided by this clause (ii) policy
may be a so-called blanket policy. Such liability insurance shall
be primary and not contributing to any insurance available to
Landlord, and Landlord’s insurance, if any, shall be in
excess thereto.
(ii) During any period of
construction by Tenant on the Premises, builder’s risk
insurance insuring perils covered by the loss-special form (all
risk, extended coverage) shall be purchased for the value of the
alteration and/or additions made to the Premises when the work is
not insured under the Tenant’s property insurance policy.
Each builder’s risk policy shall name Landlord and any first
Mortgagee as additional insureds and loss payees as their interests
may appear.
(b) The policies required to
be maintained by Tenant shall be with companies having (i) an
insurance company claims paying rating equal to or greater than A-
by Standard & Poor’s Corporation or A2 by
Moody’s Investment Service, or (ii) a general policy
rating of A or better and a financial class of X or better by A.M.
Best Company, Inc. Insurers shall be licensed to do business in the
State of Texas and domiciled in the USA. Certif
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