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Previous: AVANEX CORP, 10-Q, EX-3, 2000-11-15 |
Next: FAIRHOLME CAPITAL MANAGEMENT LLC, 13F-HR, 2000-11-15 |
Exhibit 10.36
Lease Agreement between CFH Realty II/Glenville, L.P. and Avanex Corporation for the building at 1801 N. Glenville Drive, Richardson, Texas dated August 9, 2000.
Lease Date:
Tenant:
Tenant's Address:
Landlord: CFH Realty II/Glenville, L.P., a Texas limited partnership
Landlord's Address: with a copy to:
CFH Realty II/Glenville, L.P. Stream Realty Partners, L.P.
c/o Crow Holdings 9101 North Central Expressway
2100 McKinney Avenue, Suite 100
Suite 1420 Dallas, Texas 75231
Dallas, TX 75201 Attn.: Property Manager
Attn.: J. Coe Juracek
Premises: Approximately 43,655 rentable square fee ("PREMISES") comprising the entire two-story office building (the "BUILDING") located on that certain real property commonly known as 1801 N. Glenville Drive, Richardson, Dallas County, Texas, as more particularly described on Exhibit A (the "LAND").
Term: 120 months, commencing 60 days after delivery of the Base Building (as defined in Exhibit D) (the "COMMENCEMENT DATE") and ending at 5:00 p.m. 120 months after the Commencement Date, subject to adjustment and earlier termination as provided in the Lease. Tenant has the right to extend the Term in accordance with Exhibit F.
Lease Year: The 12 month period commencing on the Commencement Date and ending 12 months less 1 day thereafter, and each anniversary of the date such period commenced, or, for any period in which fewer than 12 months remain in the Term after any such anniversary, the period commencing on such anniversary date through the last day of the Term.
Basic Rental: $67,301.46 per month (net of utilities), which is based on an annual Basic Rental of $18.50 per rentable square foot for months 1-60 and $71,848.85 per month (net of utilities), which is based on an annual Basic Rental of $19.75 per rentable square foot for months 61-120.
Security Deposit: $71,848.85.
Rent: Basic Rental, Utility Costs, Excess, and all other sums that Tenant may owe to Landlord under the Lease.
Permitted Use: General office and light assembly use, subject to applicable zoning restrictions.
Expense Stop: $4.23 per square foot.
Initial
Liability Insurance
Amount: $5,000,000
Maximum $12.00 per rentable square foot, plus up to and Construction additional $40,000.00 for the construction of the Allowance: 2nd floor restrooms.
Credit Enhancement: $1,250,000 Letter of Credit for Lease Years 1-5; $1,000,000 Letter of Credit for Lease Year 6; $750,000 Letter of Credit for Lease Year 7; $500,000 Letter of Credit for Lease Year 8; $250,000 Letter of Credit for Lease Year 9.
The foregoing Basic Lease Information is incorporated into and made a part of the Lease identified above. If any conflict exists between any Basic Lease Information and the Lease, then the Lease shall control.
LANDLORD:
CFH REALTY II/GLENVILLE, L.P., a Texas limited partnership
By: CH Realty Investors II GP, LLC, a Delaware limited liability company, General Partner
By: Crow Holdings Managers, L.L.C., a Texas limited liability company, Manager
By: /s/ CAROL KREDITOR
------------------------------
Name: Carol Kreditor
------------------------
Title: Vice President
-----------------------
TENANT:
AVANEX CORPORATION, a Delaware corporation
By: /s/ JESSY CHAO
-------------------------------------------------
Name:
------------------------------------------------
Title:
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TABLE OF CONTENTS
Page
DEFINITIONS AND BASIC PROVISIONS......................................... 1
LEASE GRANT.............................................................. 1
TERM..................................................................... 1
RENT..................................................................... 1
(a) Payment........................................................... 1
(b) Utility Costs..................................................... 1
DELINQUENT PAYMENT; HANDLING CHARGES..................................... 0
SECURITY DEPOSIT......................................................... 2
LANDLORD'S OBLIGATIONS................................................... 2
(a) Services.......................................................... 2
(b) Discontinuance.................................................... 2
(c) Restoration of Services; Abatement................................ 3
IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.......................... 3
(a) Improvements; Alterations......................................... 3
(b) Repairs; Maintenance.............................................. 3
(c) Performance of Work............................................... 4
(d) Mechanic's Liens.................................................. 4
USE...................................................................... 4
ASSIGNMENT AND SUBLETTING................................................ 4
(a) Transfers; Consent................................................ 4
(b) Permitted Transfers............................................... 5
(c) Cancellation...................................................... 5
(d) Additional Compensation........................................... 5
INSURANCE, WAIVERS; SUBROGATION; INDEMNITY............................... 5
(a) Insurance......................................................... 5
(b) Waiver of Negligence Claims; No Subrogation....................... 6
(c) Indemnity......................................................... 6
SUBORDINATION ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE................. 6
(a) Subordination..................................................... 6
(b) Attornment........................................................ 6
(c) Notice to Landlord's Mortgagee.................................... 6
RULES AND REGULATIONS.................................................... 7
CONDEMNATION........................................................... 7
(a) Taking - Termination............................................ 7
(b) Taking - Rent Reduction......................................... 7
(c) Rent Abatement.................................................. 7
(d) Award........................................................... 7
FIRE OR OTHER CASUALTY................................................. 7
(a) Notice.......................................................... 7
(b) Landlord's Rights............................................... 7
(c) Repair Obligation............................................... 8
(d) Tenant's Rights................................................. 8
TAXES.................................................................. 8
EVENTS OF DEFAULT...................................................... 8
REMEDIES............................................................... 9
PAYMENT BY TENANT; NON-WAIVER.......................................... 9
(a) Payment by Tenant............................................... 9
(b) No Waiver....................................................... 10
SURRENDER OF PREMISES.................................................. 10
HOLDING OVER........................................................... 10
CERTAIN RIGHTS RESERVED BY LANDLORD ................................... 10
HAZARDOUS SUBSTANCES................................................... 11
(a) Hazardous Substances............................................ 11
(b) Tenant's Restrictions........................................... 11
(c) Environmental Clean-up.......................................... 11
(d) Tenant's Indemnity.............................................. 11
PARKING................................................................ 12
MISCELLANEOUS.......................................................... 12
(a) Landlord Transfer............................................... 12
(b) Landlord's Liability............................................ 12
(c) Force Majeure................................................... 12
(d) Brokerage....................................................... 12
(e) Estoppel Certificates........................................... 12
(f) Notices......................................................... 12
(g) Separability.................................................... 12
(h) Amendments; and Binding Effect.................................. 12
(i) Quiet Enjoyment................................................. 13
(j) Joint and Several Liability..................................... 13
(k) Captions........................................................ 13
(l) No Merger....................................................... 13
(m) No Offer......................................................... 13
(n) Exhibits......................................................... 13
(o) Entire Agreement................................................. 13
(p) Credit Enhancement............................................... 13
SPECIAL PROVISIONS...................................................... 14
LIST OF DEFINED TERMS
Page
Affiliate................................................................... 6
Annual Cost Statement....................................................... C-1
Authorities................................................................. 11
Basic Lease Information..................................................... 1
Basic Cost.................................................................. C-1
Building.................................................................... i
Commencement Date........................................................... i
Construction Allowance...................................................... D-2
Deed of Trust............................................................... G-1
Event of Default............................................................ 8
Excess...................................................................... C-1
Expense Stop................................................................ C-1
Initial Liability Insurance Amount.......................................... 5
Land........................................................................ i
Landlord.................................................................... 1
Landlord.................................................................... G-1
Landlord's Mortgagee........................................................ 6
Laws........................................................................ 11
Lease....................................................................... 1
Lease....................................................................... G-1
Lender...................................................................... G-1
Letter of Credit............................................................ 13
Loan........................................................................ G-1
Loss........................................................................ 6
Mortgage.................................................................... 6
Parking Facilities.......................................................... E-1
Permitted Transfer.......................................................... 5
Premises.................................................................... i
Primary Lease............................................................... 6
Property.................................................................... G-1
substantial completion...................................................... D-2
substantially complete...................................................... D-2
Taxes....................................................................... C-1
Tenant...................................................................... 1
Tenant...................................................................... G-1
Total Construction Costs.................................................... D-2
Transfer.................................................................... 4
Utility Costs............................................................... 1
Work........................................................................ D-1
LEASE
THIS LEASE (this "LEASE") is entered into this ___ day of July, 2000, between CFH Realty II/Glenville, L.P., a Texas limited partnership ("LANDLORD"), and Avanex Corporation, a Delaware corporation ("TENANT").
DEFINITIONS AND BASIC PROVISIONS
1. The definitions and basic provisions set forth in the Basic Lease Information (the "BASIC LEASE INFORMATION") executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes.
LEASE GRANT
2. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises.
TERM
3. If the Commencement Date is not the first day of a calendar month,
then the Term shall be extended by the time between the Commencement Date and
the first day of the next month. If this Lease is executed before the Premises
become vacant or otherwise available and ready for occupancy by Tenant, or if
any present occupant of the Premises holds over and Landlord cannot acquire
possession of the Premises before the Commencement Date, then (i) Tenant's
obligation to pay Rent hereunder shall be waived until Landlord tenders
possession of the Premises to Tenant, (ii) the Term shall be extended by the
time between the scheduled Commencement Date and the date on which Landlord
tenders possession of the Premises to Tenant (which date will then be defined as
the Commencement Date), (iii) Landlord shall not be in default hereunder or be
liable for damages therefor, and (iv) Tenant shall accept possession of the
Premises when Landlord tenders possession thereof to Tenant. By occupying the
Premises, Tenant shall be deemed to have accepted the Premises in their
condition as of the date of such occupancy, subject to the performance of
punch-list items that remain to be performed by Landlord, if any. Tenant shall
execute and deliver to Landlord, within ten days after Landlord has requested
same, a letter confirming (i) the Commencement Date, (ii) that Tenant has
accepted the Premises, and (iii) that Landlord has performed all of its
obligations with respect to the Premises (except for punch-list items specified
in such letter). If Landlord has not delivered the Base Building on or before
December 31, 2000, Tenant may terminate this Lease upon notice to Landlord prior
to the date Landlord delivers the Base Building to Tenant.
RENT
4. (a) PAYMENT. Tenant shall timely pay to Landlord the Basic Rental
and all additional sums to be paid by Tenant to Landlord under this Lease,
including the amounts set forth in Exhibit C, without deduction or set off, at
Landlord's Address (or such other address as Landlord may from time to time
designate in writing to Tenant). Basic Rental, adjusted as herein provided,
shall be payable monthly in advance. The first monthly installment of Basic
Rental shall be payable contemporaneously with the execution of this Lease;
thereafter, monthly installments of Basic Rental shall be due on the first day
of the second calendar month immediately following the earlier to occur of (i)
sixty (60) days after the Lease Date and (ii) the date Tenant occupies the
Premises, which installment shall also contain any prorated amounts due if such
date does not fall on the first day of said month. Monthly installments shall
continue on the first day of each succeeding calendar month during the Term.
Basic Rental for any fractional month at the beginning of the Term shall be
prorated based on 1/365 of the current annual Basic Rental for each day of the
partial month this Lease is in effect, and shall be due on the Commencement
Date.
(b) UTILITY COSTS. All utilities, including without limitation, the
Building water (both hot and cold) and electricity (to include cost of
electricity for Landlord to provide HVAC) will be separately metered in
TENANT'S name and Tenant shall pay the cost of all utilities used by the
Building ("UTILITY COSTS"). The Utility Costs shall be payable directly to the
provider of such utility.
DELINQUENT PAYMENT;
5. All payments required of Tenant hereunder shall bear interest from
the date due until paid at the lesser of the Prime Rate (as defined in Section
18.(a)) or the maximum lawful rate. Alternatively, Landlord may charge
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HANDLING Tenant a fee equal to 5% of any delinquent payment to
CHARGES reimburse Landlord for its cost and inconvenience incurred
as a consequence of Tenant's delinquency within 5 days
after Landlord has delivered to Tenant written notice of
such delinquency; however, after Landlord has notified
Tenant of a delinquency twice during the Term, Landlord
may, without delivering to Tenant notice of such
delinquency, charge Tenant such 5% fee immediately upon
any future delinquency. In no event, however, shall the
charges permitted under this Section 5 or elsewhere in
this Lease, to the extent the same are considered to be
interest under applicable law, exceed the maximum lawful
rate of interest.
SECURITY 6. Contemporaneously with the execution of this
DEPOSIT Lease, Tenant shall pay to Landlord, in immediately
available funds, the Security Deposit, which shall be held
by Landlord without liability for interest and as security
for the performance by Tenant of its obligations under
this Lease. The Security Deposit is not an advance payment
of Rent or a measure or limit of Landlord's damages upon
an Event of Default (defined below). Landlord may, from
time to time and without prejudice to any other remedy,
use all or a part of the Security Deposit to perform any
obligation which Tenant was obligated, but failed, to
perform hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand
the amount so applied in order to restore the Security
Deposit to its original amount. Within a reasonable time
after the Term ends, provided Tenant has performed all of
its obligations hereunder, Landlord shall return to Tenant
the balance of the Security Deposit not applied to satisfy
Tenant's obligations. If Landlord transfers its interest
in the Premises, then Landlord may assign the Security
Deposit to the transferee and Landlord thereafter shall
have no further liability for the return of the Security
Deposit.
LANDLORD'S 7. (a) SERVICES. Subject to the provisions of Section
OBLIGATIONS 4.(b), Landlord shall use all reasonable efforts to
furnish to Tenant (i) water (hot and cold) at those points
of supply provided for general use of tenants of the
Building; (ii) heated and refrigerated air conditioning
which is currently provided 24 hours per day, at such
temperatures and in such amounts as are reasonably
considered by Landlord to be standard; however, Landlord
reserves the right to change such service to provide heat
and refrigerated air conditioning to such times as
reasonably considered by Landlord to be standard; (iii)
janitorial service and maintenance to the outside of the
Building and Parking Facilities (as hereinafter defined)
on weekdays other than holidays for Building-standard
installations (Landlord reserves the right to bill Tenant
separately for extra janitorial service required for
non-standard installations) and such window washing as may
from time to time in Landlord's judgment be reasonably
required; (iv) elevators for access to the second floor in
common with other tenants, if applicable, provided that
Landlord may reasonably limit the number of elevators to
be in operation at times other than during customary
business hours and on holidays; (v) replacement of
Building-standard light bulbs and fluorescent tubes,
provided that Landlord's standard charge for such bulbs
and tubes shall be paid by Tenant; and (vi) electrical
current to the Building during all hours other than for
computers (other than personal computers), electronic data
processing equipment, special lighting, equipment that
requires more than 110 volts, or other equipment whose
electrical energy consumption exceeds normal office usage.
Landlord shall maintain the common areas of the Building
in reasonably good order and condition. If Tenant desires
any of the services specified in this Section 7.(a) at any
time other than times herein designated, as may be changed
from time to time, such services shall be supplied to
Tenant upon the written request of Tenant delivered to
Landlord before 3:00 p.m. on the business day preceding
such extra usage, and Tenant shall pay to Landlord the
cost of such services within 10 days after Landlord has
delivered to Tenant an invoice therefor.
(b) DISCONTINUANCE. Landlord's obligation to
furnish services under Section 7.(a) shall be subject to
the rules and regulations of the supplier of such services
and governmental rules and regulations. Landlord may, upon
not less than 30-days' prior written notice to Tenant,
discontinue any such service to the Premises, provided
Landlord first arranges for a direct connection thereof
through the supplier of such service. Tenant shall,
however, be responsible for contracting with the supplier
of such service and for paying all deposits for, and
Landlord shall pay all costs relating to the installation
of such service.
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(c) RESTORATION OF SERVICES; ABATEMENT. Landlord shall
use reasonable efforts to restore any service that becomes
unavailable; however, such unavailability shall not render
Landlord liable for any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty,
or, except as provided in the next sentence, entitle Tenant to
any abatement of Tenant's obligations hereunder. However, if
Tenant is prevented from making reasonable use of the Premises
for more than 30 consecutive days because of the unavailability
of any such service, Tenant shall, as its exclusive remedy
therefor, be entitled to a reasonable abatement of Rent for each
consecutive day (after such 30-day period) that Tenant is
so-prevented from making reasonable use of the Premises.
IMPROVEMENTS; 8. (a) IMPROVEMENTS; ALTERATIONS. Initial Improvements to
ALTERATIONS; the Premises, shall be installed in accordance with Exhibit D.
REPAIRS; Improvements to the Premises shall be installed at the expense
MAINTENANCE of Tenant only in accordance with plans and specifications
submitted to and approved in writing by Landlord. After the
initial Tenant Improvements are made, no alterations or physical
additions in or to the Premises may be made without Landlord's
prior written consent. Tenant may, subject to applicable law and
Landlord's reasonable approval and management, install signage at
the Premises. All alterations, additions, or improvements
(whether temporary or permanent in character, and including
without limitation all air-conditioning equipment and all other
equipment that is in any manner connected to the Building's
plumbing system) made in or upon the Premises, either by Landlord
or Tenant, shall be Landlord's property at the end of the Term
and shall remain on the Premises without compensation to Tenant.
Approval by Landlord of any Tenant's drawings and plans and
specifications prepared in connection with any improvements in
the Premises shall not constitute a representation or warranty of
Landlord as to the adequacy or sufficiency of such drawings,
plans and specifications, or the improvements to which they
relate, for any use, purpose, or condition, but such approval
shall merely be the consent of Landlord as required hereunder.
Notwithstanding anything in this Lease to the contrary, Tenant
shall be responsible for the cost of all work required to comply
with the retrofit requirements of the Americans with Disabilities
Act of 1990 ("ADA") or other applicable laws pertaining to
accessibility of the Premises by disabled or handicapped persons,
and all rules, regulations, and guidelines promulgated
thereunder, as the same may be amended from time to time,
necessitated by any installations, additions, or alterations made
in or to the Premises at the request of or by Tenant or by
Tenant's use of the Premises (other than retrofit work to the
Building that is outside the Premises whose cost has been
particularly identified as being payable by Landlord in an
instrument signed by Landlord and Tenant), regardless of whether
such cost is incurred in connection with retrofit work required
in the Premises, including the Work (as defined in Exhibit D) or
in other areas of the Building. Notwithstanding the foregoing,
Tenant shall have the right to construct non-structural
alterations and improvements to the Premises without Landlord's
prior approval, if the cost of any alteration project does not
exceed $25,000. Upon Tenant's written request delivered with
notice to Landlord of, or request for consent from Landlord for,
improvements or alterations, Landlord shall advise Tenant in
writing whether Landlord will require Tenant to remove any
alterations or improvements upon termination of this Lease.
Tenant's furniture, equipment and other personal property
installed in the Premises shall at all times be Tenant's
property, and Tenant may remove any or all of such property from
the Premises at any time and from time to time provided that
Tenant repairs all damages caused by such removal.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the
Premises in a clean, safe, operable, attractive condition, and
shall not permit or allow to remain any waste or damage to any
portion of the Premises. Landlord shall, at its own expense,
maintain the structure and foundation of the Building and
Landlord shall, subject to reimbursement by Tenant as provided in
Exhibit C, maintain the roof of the Building and the electrical,
mechanical, plumbing and HVAC systems of the Building. Tenant
shall repair or replace, subject to Landlord's direction and
supervision, any damage to the Building caused by Tenant or
Tenant's agents, contractors, or invitees. If Tenant fails to
make such repairs or replacements within 15 days after the
occurrence of such damage, then Landlord may make the same at
Tenant's cost. In lieu of having Tenant repair any such damage
outside of the Premises, Landlord may repair such damage at
Tenant's cost. The cost of any repair or replacement work
performed by Landlord under this Section 8 shall be paid by
Tenant to Landlord within ten days after Landlord has delivered
to Tenant an invoice therefor.
3
(c) PERFORMANCE OF WORK. All work described in this
Section 8 shall be performed only by Tenant or by contractors and
subcontractors approved in writing by Landlord, which approval
shall not be unreasonably withheld. Tenant shall cause all
contractors and subcontractors to procure and maintain insurance
coverage against such risks, in such amounts, and with such
companies as Landlord may reasonably require, and to procure
payment and performance bonds reasonably satisfactory to Landlord
covering the cost of the work. All such work shall be performed
in accordance with all legal requirements and in a good and
workmanlike manner so as not to damage the Premises, the primary
structure or structural qualities of the Building, or plumbing,
electrical lines, or other utility transmission facility. All
such work which may affect the HVAC, electrical system, or
plumbing must be approved by the Building's engineer of record.
(d) MECHANIC'S LIENS. Tenant shall not permit any
mechanic's liens to be filed against the Building for any work
performed, materials furnished, or obligation incurred by or at
the request of Tenant. If such a lien is filed, then Tenant
shall, within 10 days after Landlord has delivered notice of the
filing to Tenant, either pay the amount of the lien or diligently
contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord may pay the lien
claim without inquiry as to the validity thereof, and any amounts
so paid, including expenses and interest, shall be paid by Tenant
to Landlord within 10 days after Landlord has delivered to Tenant
an invoice therefor.
9. Tenant shall continuously occupy and use the Premises
only for the Permitted Use and shall comply with all laws,
orders, rules, and regulations relating to the Permitted Use,
condition, and occupancy of the Premises. The Premises shall not
be used for any use which is disreputable or creates
extraordinary fire hazards or results in an increased rate of
insurance on the Building or its contents or the storage of any
hazardous materials or substances. If, because of Tenant's acts,
the rate of insurance on the Building or its contents increases,
then Tenant shall pay to Landlord the amount of such increase on
demand, and acceptance of such payment shall not constitute a
waiver of any of Landlord's other rights. Tenant shall conduct
its business and control its agents, employees, and invitees in
such a manner as not to create any nuisance or interfere with
other tenants or Landlord in its management of the Building.
ASSIGNMENT 10. (a) TRANSFERS; CONSENT. Tenant may with the prior
AND written consent of Landlord (which Landlord shall not
SUBLETTING unreasonably withhold or delay), (i) advertise that any portion
of the Premises is available for lease, (ii) assign or transfer
this Lease, or (iii) sublet any portion of the Premises (any of
the events listed in Sections 10.(a)(ii) through 10.(a)(iii)
being a "TRANSFER"). Landlord shall not unreasonably withhold its
consent to any assignment or subletting of the Premises to a
party which (i) has a good credit standing and may reasonably be
expected to fulfill the obligations of Tenant hereunder, (ii) has
a good reputation in the business community, and (iii) will use
the Premises for the purposes herein stated. If Tenant requests
Landlord's consent to a Transfer, then Tenant shall provide
Landlord with a written description of all terms and conditions
of the proposed Transfer, copies of the proposed documentation,
and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its
business and business history; its proposed use of the Premises;
banking, financial and other credit information; and general
references sufficient to enable Landlord to determine the
proposed transferee's creditworthiness and character. Tenant
shall reimburse Landlord for its attorneys' fees and other
expenses incurred in connection with considering any request for
its consent to a Transfer. If Landlord consents to a proposed
Transfer, the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes the Tenant's
obligations hereunder; however, any transferee of less than all
of the space in the Premises shall be liable only for obligations
under this Lease that are properly allocable to the space subject
to the Transfer, and only to the extent of the rent it has agreed
to pay Tenant therefor. Landlord's consent to a Transfer shall
not release Tenant from performing its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and
severally liable therefor. Landlord's consent to any Transfer
shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part
thereof are subject to a Transfer, then Landlord, in addition to
its other remedies, may collect directly from such transferee all
rents
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becoming due to Tenant and apply such rents against Rent and
Tenant authorizes its transferees to make payments of Rent
directly to Landlord upon receipt of notice from Landlord to do
so.
(b) PERMITTED TRANSFERS. Notwithstanding the foregoing,
Tenant may Transfer all or part (a "PERMITTED TRANSFER") of its
interest in this Lease or all or part of the Premises to the
following types of entities without the written consent of
Landlord:
(i) any person or entity who or which controls, is
controlled by, or is under common control with Tenant, provided
the net worth of such person or entity is not less than the net
worth of Tenant as of the date hereof;
(ii) any corporation in which or with which Tenant,
or its corporate successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions
governing merger and consolidation of corporations, so long as
(A) Tenant's obligations hereunder are assumed by the
corporation surviving such merger or created by such
consolidation; and (B) the net worth of the surviving or created
corporation is not less than the net worth of Tenant as of the
date hereof; or
(iii) any corporation acquiring all or substantially
all of Tenant's assets if such corporation's net worth after
such acquisition is not less than the net worth of Tenant as of
the date hereof.
Upon the occurrence of a Permitted Transfer, Tenant shall
immediately notify Landlord of such Permitted Transfer.
(c) CANCELLATION. Landlord may, within 30 days after
submission of Tenant's written request for Landlord's consent to
a Transfer, cancel this Lease (or, as to a subletting or
assignment, cancel as to the portion of the Premises proposed to
be sublet or assigned) as to that portion of the Premises sought
to be transferred as of the date the proposed Transfer was to be
effective; provided that, Landlord shall give 30 days written
notice to Tenant of Landlord's intent to terminate the Lease,
during which time Tenant shall have the option to withdraw its
written request for Landlord's consent to Transfer upon notice
to Landlord prior to the expiration of such 30 day period.
Notwithstanding the foregoing, Landlord shall have no right to
cancel this Lease as provided in this Section 10.(c) during the
1st Lease Year if Tenant subleases 22,000 rentable square feet
or less, subject to the provisions of Section 10.(a). If Landlord
cancels this Lease as to any portion of the Premises, then this
Lease shall cease for such portion of the Premises and Tenant
shall pay to Landlord all Rent accrued through the cancellation
date relating to the portion of the Premises covered by the
proposed Transfer. Thereafter, Landlord may lease such portion
of the Premises to the prospective transferee (or to any other
person) without liability to Tenant.
(d) ADDITIONAL COMPENSATION. Tenant shall pay to Landlord,
immediately upon receipt thereof, one-half of all compensation
received by Tenant for a Transfer or Permitted Transfer that
exceeds the Basic Rental, Utility Costs and Excess, after first
subtracting the reasonable cost of tenant improvements paid for
by Tenant, and brokerage fees.
INSURANCE; 11. (a) INSURANCE. Tenant shall at its expense procure and
WAIVERS; maintain throughout the Term the following insurance policies:
SUBROGATION; (i) comprehensive general liability insurance in amounts of not
INDEMNITY less than a combined single limit of $3,000,000 (the "INITIAL
LIABILITY INSURANCE AMOUNT") or such other amounts as Landlord
may from time to time reasonably require, insuring Tenant,
Landlord, Landlord's agents and their respective affiliates
against all liability for injury to or death of a person or
persons or damage to property arising from the use and occupancy
of the Premises, (ii) contractual liability insurance coverage
sufficient to cover Tenant's indemnity obligations hereunder,
(iii) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others),
in the Premises, (iv) worker's compensation insurance, containing
a waiver of subrogation endorsement reasonably acceptable to
Landlord, and (v) business interruption insurance. Tenant's
5
insurance shall provide primary coverage to Landlord when any
policy issued to Landlord provides duplicate or similar
coverage, and in such circumstance Landlord's policy will be
excess over Tenant's policy. Tenant shall furnish certificates
of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required
hereunder, and Tenant shall obtain a written obligation on the
part of each insurance company to notify Landlord at least 30
days before cancellation or a material change of any such
insurance. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord. The
term "AFFILIATE" shall mean any person or entity which, directly
or indirectly, controls, is controlled by, or is under common
control with the party in question.
(b) WAIVER OF NEGLIGENCE CLAIMS; NO SUBROGATION.
Landlord shall not be liable to Tenant or those claiming by,
through, or under Tenant for any injury to or death of any
person or persons or the damage to or theft, destruction, loss,
or loss of use of any property or inconvenience (a "LOSS")
caused by casualty, theft, fire, third parties, or any other
matter (including Losses arising through repair or alteration of
any part of the Building, or failure to make repairs, or from
any other cause), REGARDLESS OF WHETHER THE NEGLIGENCE OF ANY
PARTY CAUSED SUCH LOSS IN WHOLE OR IN PART. Landlord and Tenant
each waives any claim it might have against the other for any
damage to or theft, destruction, loss, or loss of use of any
property, to the extent the same is insured against under any
insurance policy that covers the Building, the Premises,
Landlord's or Tenant's fixtures, personal property, leasehold
improvements, or business, or, in the case of Tenant's waiver,
is required to be insured against under the terms hereof,
REGARDLESS OF WHETHER THE NEGLIGENCE OR FAULT OF THE OTHER PARTY
CAUSED SUCH LOSS; HOWEVER, LANDLORD'S WAIVER SHALL NOT INCLUDE
ANY DEDUCTIBLE AMOUNTS ON INSURANCE POLICIES CARRIED BY LANDLORD
OR APPLY TO ANY COINSURANCE PENALTY WHICH LANDLORD MIGHT
SUSTAIN. Each party shall cause its insurance carrier to endorse
all applicable policies waiving the carrier's rights of recovery
under subrogation or otherwise against the other party.
(c) INDEMNITY. Subject to Section 11.(b), Tenant shall
defend, indemnify, and hold harmless Landlord and its agents
from and against all claims, demands, liabilities, causes of
action, suits, judgments, and expenses (including attorneys'
fees) for any Loss arising from any occurrence on the Premises
or from Tenant's failure to perform its obligations under this
Lease (other than a Loss arising from the sole or gross
negligence of Landlord or its agents), even though caused or
alleged to be caused by the joint, comparative, or concurrent
negligence or fault of Landlord or its agents, and even though
any such claim, cause of action, or suit is based upon or
alleged to be based upon the strict liability or Landlord or its
agents. THIS INDEMNITY PROVISION IS INTENDED TO INDEMNIFY
LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES OF THEIR OWN
NEGLIGENCE OR FAULT AS PROVIDED ABOVE WHEN LANDLORD OR ITS
AGENTS ARE JOINTLY, COMPARATIVELY, OR CONCURRENTLY NEGLIGENT
WITH TENANT. This indemnity provision shall survive termination
or expiration of this Lease.
SUBORDINATION 12. (a) SUBORDINATION. This Lease shall be subordinate
ATTORNMENT; to any deed of trust, mortgage, or other security instrument (a
NOTICE TO "MORTGAGE"), or any ground lease, master lease, or primary lease
LANDLORD'S (a "PRIMARY LEASE"), that hereafter covers all or any part of
MORTGAGEE the Premises (the mortgagee under any Mortgage or the lessor
under any Primary Lease is referred to herein as "LANDLORD'S
MORTGAGEE"). Tenant agrees to execute and deliver to Landlord a
non-disturbance agreement substantially in the form of
Exhibit G.
(b) ATTORNMENT. Tenant shall attorn to any party
succeeding to Landlord's interest in the Premises, whether by
purchase, foreclosure, deed in lieu of foreclosure, power of
sale, termination of lease, or otherwise, upon such party's
request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not
seek to enforce any remedy it may have for any default on the
part of the Landlord without first giving written notice by
certified mail, return receipt requested, specifying the default
in reasonable detail, to any Landlord's Mortgagee whose address
has been given to Tenant, and affording such Landlord's
Mortgagee a reasonable opportunity to perform Landlord's
obligations hereunder.
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RULES AND 13. Tenant shall comply with the rules and
REGULATIONS regulations of the Building which are attached hereto as
Exhibit B. Landlord may, from time to time, change such
rules and regulations for the safety, care, or cleanliness
of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and
will not unreasonably interfere with Tenant's use of the
Premises. Tenant shall be responsible for the compliance
with such rules and regulations by its employees, agents,
and invitees.
CONDEMNATION 14. (a) TAKING - TERMINATION. If 30% or more of the
floor area of the Building 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 Landlord may terminate this Lease
upon notice to Tenant, effective on the date physical
possession of the Building is taken by the condemning
authority. If Landlord does not elect to terminate this
Lease, Basic Rental shall be reduced as provided in Section
14.(b).
(b) TAKING - RENT REDUCTION. If less than 30% of the
floor area of the Building should betaken 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 not terminate;
however, the Basic Rental payable hereunder during the
unexpired portion of this Lease shall be reduced in
proportion to the area of the Premises taken, if any,
effective on the date physical possession of the Premises
is taken by the condemning authority. Following such
partial taking, Landlord shall make all necessary repairs
or alterations to the remaining premises required to make
the remaining portions of the Premises an architectural
whole.
(c) RENT ABATEMENT. If any part of the parking area
should be taken as aforesaid, this Lease shall not
terminate, nor shall the Basic Rental be reduced, except
that either Landlord or Tenant may terminate this Lease if
the parking area remaining following such taking shall be
less than 70% of the area of the parking area immediately
prior to the taking and Landlord does not provide
reasonable alternative parking. Any election to terminate
this Lease in accordance with this Section 14.(c) shall be
evidenced by written notice of termination delivered to the
other party within thirty (30) days after date physical
possession of the Premises is taken by condemning
authority.
(d) AWARD. All compensation awarded for any taking
(or the proceeds of private sale in lieu thereof) of the
Premises or parking area shall be the property of Landlord
and Tenant hereby assigns its interest in any such award to
Landlord; provided, however, Landlord shall have no
interest in any award made to Tenant for Tenant's moving
and relocation expenses or for the loss of Tenant's
fixtures and other tangible personal property if a separate
award for such items is made to Tenant as long as such
separate award does not reduce the amount of the award that
would otherwise be awarded to Landlord.
FIRE OR OTHER 15.(a) NOTICE. Tenant shall give immediate written
CASUALTY notice to Landlord of any damage caused to the Premises by
fire or other casualty.
(b) LANDLORD'S RIGHTS. If the Premises are damaged
or destroyed by fire or other casualty insured under
standard fire and extended coverage insurance maintained by
Landlord in accordance with Section 11.(a) and Landlord
does not elect to terminate this Lease as hereinafter
provided, Landlord shall proceed with reasonable diligence
and at its sole cost and expense to rebuild and repair the
Premises. If (a) the Building is destroyed or substantially
damaged by a casualty not covered by Landlord's insurance
or (b) the Building is destroyed or rendered untenantable
in excess of 50% of the rentable square footage of the
Building by a casualty covered by insurance maintained
by Landlord in accordance with Section 11.(a), or (c) the
holder of a mortgage, deed of trust or other lien on the
Building at the time of the casualty elects, pursuant to
such mortgage, deed of trust or other lien, to require the
use of all or part of Landlord's insurance proceeds in
satisfaction of all or part of the indebtedness secured by
the mortgage, deed of trust or other lien, then Landlord
may elect either to (i) terminate this Lease, or (ii)
proceed to rebuild and repair the Premises. Landlord shall
give written notice to Tenant of such election within
7
60 days after the occurrence of such casualty and, if it
elects to rebuild and repair, shall proceed to do so with
reasonable diligence and at its sole cost and expense.
(c) REPAIR OBLIGATION. Landlord's obligation to
rebuild and repair under this Section 15 shall in any event
be limited to restoring the Premises to substantially the
condition in which the same existed prior to such casualty,
exclusive of any alterations, additions, improvements,
fixtures and equipment installed by Tenant. Tenant agrees
that promptly after completion of such work by Landlord,
Tenant will proceed with reasonable diligence and at
Tenant's sole cost and expense to restore, repair and
replace all alterations, additions, improvements, fixtures,
signs and equipment installed by Tenant. If Landlord does
not elect to terminate this Lease, or is not entitled to
terminate this Lease following any damage described in this
paragraph, then Landlord shall repair such damage as soon
as reasonably possible at Landlord's expense.
Notwithstanding the foregoing, Landlord shall not have the
right to terminate this Lease if the damage to the Premises
or the Building would cost less 5% of the replacement cost
of the Building.
(d) TENANT'S RIGHTS. If, during the last two (2)
years of the Term, 50% or more of the Premises is
destroyed, Tenant shall also have the right, exercisable by
written notice to be given within thirty (30) days after
the casualty, to terminate this Lease as of the date of
such casualty. If Landlord fails to complete such repairs
within nine (9) months after such casualty, then Tenant may
terminate this Lease upon thirty (30) days notice to
Landlord and this Lease shall terminate after the
expiration of such 30-day period if Landlord has not
completed such repairs.
(e) RENTAL ABATEMENT. Tenant agrees that during any
period of reconstruction or repair of the Premises, it will
continue the operation of its business within the Premises
to the extent practicable. During the period from the
occurrence of the casualty until Landlord's repairs are
completed, the Basic Rental shall be reduced to such extent
as may be fair and reasonable under the circumstances.
TAXES 16. Tenant shall be liable for all taxes levied or
assessed against personal property, furniture, or fixtures
placed by Tenant in the Premises. If any taxes for which
Tenant is liable are levied or assessed against Landlord or
Landlord's property and Landlord elects to pay the same, or
if the assessed value of Landlord's property is increased
by inclusion of such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on such
increase, then Tenant shall pay to Landlord, upon demand,
that part of such taxes for which Tenant is primarily
liable hereunder.
EVENTS OF 17. Each of the following occurrences shall
DEFAULT constitute an "EVENT OF DEFAULT":
(a) Tenant's failure to pay Rent when due and the
continuance of such failure for a period of 5 days after
Landlord has delivered to Tenant written notice thereof;
however, an Event of Default shall occur hereunder without
any obligation of Landlord to give any notice if Landlord
has given Tenant written notice under this Section
17.(a)(i) on more than 2 occasions during the 12-month
interval preceding such failure by Tenant;
(b) Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant under
this Lease and the continuance of such failure for a period
of 30 days after the date Landlord delivers to Tenant
written notice thereof; however, if such failure cannot be
cured with such 30-day period and Tenant commences to cure
such failure within such 30-day period and thereafter
diligently pursues such cure to completion, then such
failure shall not be an Event of Default unless it is not
fully cured within a reasonable time but in no event later
than 75 days following receipt of written notice from
Landlord of such failure;
(c) the filing of a petition by or against Tenant
(the term "Tenant" shall include, for the purpose of this
Section 17.(c), any guarantor of the Tenant's obligations
hereunder) (1) in any bankruptcy or other insolvency
proceeding; (2) seeking any relief under any state or
federal debtor relief law; (3) for the appointment of a
liquidator
8
or receiver for all or substantially all of Tenant's
property or for Tenant's interest in this Lease; or (4) for
the reorganization or modification of Tenant's capital
structure;
(d) Tenant shall desert or vacate any portion of the
Premises;
(e) the admission by Tenant that it cannot meet its
obligations as they become due or the making by Tenant of
an assignment for the benefit of its creditors; and
(f) Tenant fails to provide a replacement Letter of
Credit (as defined in Section 27.(p)) within the period
required by Section 27.(p); Tenant hereby acknowledges that
no notice for such failure shall be required to constitute
an Event of Default.
REMEDIES 18. Upon any Event of Default, Landlord may, in
addition to all other rights and remedies afforded Landlord
hereunder or by law or equity, take any of the following
actions:
(a) Landlord may terminate this Lease by giving
Tenant written notice thereof, in which event, Tenant shall
pay to Landlord the sum of (i) all Rent accrued hereunder
through the date of termination, (ii) all amounts due under
Section 19.(a), and (iii) and amount equal to (A) the total
Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at a per
annum rate equal to the "Prime Rate" as published on the
date this Lease is terminated by The Wall Street Journal,
Southwest Edition, in its listing of "Money Rates", minus
(B) the then present fair rental value of the Premises for
such period, similarly discounted; or
(b) Landlord may terminate Tenant's right to
possession of the Premises without terminating this Lease
by giving written notice thereof to Tenant, in which event
Tenant shall pay to Landlord (i) all Rent and other amounts
accrued hereunder to the date of termination of possession,
(ii) all amounts due from time to time under Section
19.(a), and (iii) all Rent and other sums required
hereunder to be paid by Tenant during the remainder of the
Term, diminished by any net sums thereafter received by
Landlord through reletting the Premises during such period.
Landlord shall use reasonable efforts to relet the Premises
on such terms and conditions as Landlord in its sole
discretion may determine (including a term different from
the Term, rental concessions, and alterations to, and
improvement of, the Premises); however, Landlord shall not
be obligated to relet the Premises before leasing other
portions of the Building. Landlord shall not be liable for,
nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or to
collect rent due for such reletting. Tenant shall not be
entitled to the excess of any consideration obtained by
reletting over the Rent due hereunder. Reentry by Landlord
in the Premises shall not affect Tenant's obligations
hereunder for the unexpired Term; rather, Landlord may,
from time to time, bring action against Tenant to collect
amounts due by Tenant, without the necessity of Landlord's
waiting until the expiration of the Term. Unless Landlord
delivers written notice to Tenant expressly stating that it
has elected to terminate this Lease, all actions taken by
Landlord to exclude or dispossess Tenant of the Premises
shall be deemed to be taken under this Section 18.(b), or
18.(c). If Landlord elects to proceed under this Section
18.(b) or 18.(c), it may at any time elect to terminate
this Lease under Section 18.(a).
(c) Landlord may draw upon the Letter of Credit (as
hereinafter defined) as outlined in Section 27(g).
Additionally, without notice, Landlord may alter locks or
other security devices at the Premises to deprive Tenant of
access thereto, and Landlord shall not be required to
provide a new key or right of access to Tenant.
PAYMENT BY 19. (a) PAYMENT BY TENANT. Upon any Event of
TENANT; NON- Default, Tenant shall pay to Landlord all costs incurred by
WAIVER Landlord (including court costs and reasonable attorneys'
fees and expenses) in (i) obtaining possession of the
Premises, (ii) removing and storing Tenant's or any other
occupant's property, (iii) repairing, restoring, altering,
9
remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (iv) if Tenant is
dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises
(including brokerage commissions, cost of tenant finish
work, and other costs incidental to such reletting), (v)
performing Tenant's obligations which Tenant failed to
perform, and (vi) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the Event of
Default. Tenant's obligations under this Section 19 shall
survive the expiration of the Term or earlier termination
of this Lease.
(b) NO WAIVER. Landlord's acceptance of Rent
following an Event of Default shall not waive Landlord's
rights regarding such Event of Default. No waiver by
Landlord of any violation or breach of any of the terms
contained herein shall waive Landlord's rights regarding
any future violation of such term or violation of any other
term.
20. INTENTIONALLY DELETED.
SURRENDER OF 21. No act by Landlord shall be deemed an acceptance
PREMISES of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless the same
is made in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall
deliver to Landlord the Premises with all improvements
located thereon in good repair and condition, reasonable
wear and tear (and condemnation and fire or other casualty
damage not caused by Tenant, as to which Sections 14 and 15
shall control) excepted, and shall deliver to Landlord all
keys to the Premises. Provided that Tenant has performed
all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property
placed in the Premises by Tenant (but Tenant shall not
remove any such item which was paid for, in whole or in
part, by Landlord). Additionally, Tenant shall remove such
alterations, additions, improvements, trade fixtures,
equipment, wiring, and furniture as Landlord may request.
Tenant shall repair all damage caused by such removal. All
items not so removed shall be deemed to have been abandoned
by Tenant and may be appropriated, sold, stored, destroyed,
or otherwise disposed of by Landlord without notice to
Tenant and without any obligation to account for such
items. The provisions of this Section 21 shall survive the
end of the Term.
HOLDING OVER 22. If Tenant fails to vacate the Premises at the
end of the Term, then Tenant shall be a tenant at will and,
in addition to all other damages and remedies to which
Landlord may be entitled for such holding over, Tenant
shall pay, in addition to the other Rent, a daily Basic
Rental equal to the greater of (i) 150% of the daily Basic
Rental payable during the last month of the Term, or (ii)
the prevailing rental rate in the Building for similar
space. The provisions of this Section 22 shall survive the
end of the Term.
CERTAIN RIGHTS 23. Provided that the exercise of such rights does
RESERVED BY not unreasonably interfere with Tenant's occupancy of the
LANDLORD Premises, Landlord, its agents, employees, and contractors
shall have the following rights:
(i) to decorate or to make inspections, repairs,
alterations, additions, changes, or improvements, whether
structural or otherwise, in and about the Building, or any
part thereof as Landlord may deem necessary or desirable;
for such purposes, to enter upon the Premises and, during
the continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend Building
services and facilities; and to change the arrangement and
location of entrances or passageways, doors, and doorways,
corridors, elevators, stairs, restrooms, or other public
parts of the Building;
(ii) to take such reasonable measures as Landlord
deems advisable for the security of the Building and its
occupants, including without limitation searching all
persons entering or leaving the Building; evacuating the
Building for cause, suspected cause, or for drill purposes;
temporarily denying access to the Building; and closing the
Building after normal business hours and on Saturdays,
Sundays, and holidays, subject, however, to Tenant's right
to enter when the Building is closed after normal business
hours under such reasonable regulations as Landlord may
prescribe from time to time which may include by way of
example, but not of limitation, that persons
10
entering or leaving the Building, whether or not during
normal business hours, identify themselves to a security
officer by registration or otherwise and that such persons
establish their right to enter or leave the Building;
(iii) to change the name by which the Building is
designated; and
(iv) to enter the Premises at all reasonable hours,
upon reasonable verbal notice, to show the Premises to
prospective purchasers or lenders, or, during the last 12
months of the Term, to prospective tenants.
24. Intentionally Deleted.
HAZARDOUS 25. (a) HAZARDOUS SUBSTANCES. The term "HAZARDOUS
SUBSTANCES SUBSTANCES," as used in this Lease, shall include, without
limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCB'S), chemicals
known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous wastes, toxic substances or related
materials, petroleum and petroleum products, and substances
declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any
governmental authority. To the best of Landlord's
knowledge, the Building does not contain any Hazardous
Substances.
(b) TENANT'S RESTRICTIONS. Tenant shall not cause or
permit to occur (i) any violation of any federal, state, or
local law, ordinance, or regulation now or hereafter
enacted, without limitation, related to environmental
conditions on, under, or about the Premises, or arising
from Tenant's release of Hazardous Substances, including,
but not limited to, soil and ground water conditions; or
(ii) the use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any
Hazardous Substance on, under, or about the Premises, or
the transportation to or from the Premises of any Hazardous
Substance, except for normal cleaning and office supplies
in reasonable quantities.
(c) ENVIRONMENTAL CLEAN-UP. Tenant shall, at
Tenant's own expense, comply with all laws regulating the
use, generation, storage, transportation, or disposal of
Hazardous Substances (the "LAWS"). Tenant shall, at
Tenant's own expense, make all submissions to, provide all
information required by, and comply with, all requirements
of all governmental authorities (the "AUTHORITIES") under
the Laws. Should any authority or any third party demand
that a clean-up plan be prepared and that a clean-up be
undertaken because of any deposit, spill, discharge, or
other release of Hazardous Substances that occurs during
the Term, at or from the Premises, or which arises at any
time from Tenant's use or occupancy of the Premises, then
Tenant shall, at Tenant's own expense, prepare and submit
the required plans and all related bonds and other
financial assurances, and Tenant shall carry out such
clean-up plan. Tenant shall promptly provide all
information regarding the use, generation, storage,
transportation, or disposal by Tenant of Hazardous
Substances that is requested by Landlord. If Tenant fails
to fulfill any duty imposed under this Section 25 within a
reasonable time, Landlord may do so; and in such case,
Tenant shall cooperate with Landlord in order to prepare
all documents Landlord deems necessary or appropriate to
determine the applicability of the Laws to the Premises and
Tenant's use thereof, and for compliance therewith, and
Tenant shall execute all documents upon Landlord's request.
No such action by Landlord and no attempt made by Landlord
to mitigate damages under any Law shall constitute a waiver
of any of Tenant's obligations under this Section 25.
Tenant's obligations and liabilities under this Section 25
shall survive the expiration of the Term or earlier
termination of this Lease.
(d) TENANT'S INDEMNITY. Tenant shall indemnify,
defend, and save and hold harmless Landlord, the manager of
the Building, and their respective officers, directors,
beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, claims, and actions of
every, kind, and all costs associated therewith (including
attorneys' fees and expenses and consulting fees and
expenses) arising out of or in any way connected with any
deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the Term, at or from the
Premises, or which arises at any time from Tenant's use or
occupancy of the Premises, or from Tenant's failure to
provide all information, make all submissions, and take all
steps required by all Authorities under the Laws and
11
all other environmental laws. Tenants obligations and
liabilities under this Section 25 shall survive the
expiration of the Term or earlier termination of this
Lease.
PARKING 26. Tenant shall have the right to use parking
spaces as provided in Exhibit E.
MISCELLANEOUS 27. (a) LANDLORD TRANSFER. Landlord may transfer, in
whole or in part, the Building and any of its rights under
this Lease. If Landlord assigns its rights under this
Lease, then, upon the transferee's written assumption of
Landlord's obligations under this Lease, Landlord shall
thereby be released from any further obligations hereunder.
(b) LANDLORD'S LIABILITY. The liability of
Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to Tenant's actual
direct, but not consequential, damages therefor and shall
be recoverable from the interest of Landlord in the
Building and the Land, and Landlord shall not be personally
Liable for any deficiency. This section shall not be deemed
To limit or deny any remedies which Tenant may have in the
event of default by Landlord hereunder which do not involve
the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's
monetary obligations under this Lease and obligations which
can be cured by the payment of money (e.g., maintaining
insurance), whenever a period of time is herein prescribed
for action to be taken by either party hereto, such party
shall not be liable or responsible for, and there shall be
excluded from the computation for any such period of time,
any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind whatsoever
which are beyond the control of such party.
(d) BROKERAGE. Landlord and Tenant each warrant
to the other that it has not dealt with any broker or agent
in connection with the negotiation or execution of this
Lease, other than The Staubach Company and Stream Realty
Partners, L.P. (collectively "Broker"). Tenant and Landlord
Shall each defend, indemnify, hold the other harmless
against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by
any broker or agent, other than Broker, claiming the same
by, through, or under the indemnifying party. The agreement
for commissions payable to The Staubach Company with
respect to the Premises is attached hereto as Exhibit H.
(e) ESTOPPEL CERTIFICATES. From time to time,
Tenant shall furnish to any party designated by Landlord,
Within 10 days after Landlord has made a request therefor,
a certificate signed by Tenant confirming and containing
such factual certifications and representations as to this
Lease as Landlord may reasonably request.
(f) NOTICES. All notices and other communications
given pursuant to this Lease shall be in writing and shall
be (i) mailed by first class, United States Mail, postage
prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in
the Basic Lease Information, (ii) hand delivered to the
intended address, or (iii) sent by facsimile transmission
followed by a confirmatory letter. Notice sent by certified
mail, postage prepaid, shall be effective 3 business days
after being deposited in the United States Mail; all other
notices shall be effective upon delivery to the address of
the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in
conformity with this provision.
(g) SEPARABILITY. If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present
or future laws, then the remainder of this Lease shall not
be affected thereby and in lieu of such clause or
provision, there shall 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.
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may
not be amended except by instrument in writing signed by
Landlord and Tenant. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver
is in writing signed by Landlord, and no custom or practice
which may evolve between the
12
parties in the administration of the terms hereof shall
waive or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms
hereof. The terms and conditions contained in this Lease
shall 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
herein expressly provided. This Lease is for the sole
benefit of Landlord and Tenant, and, other than Landlord's
Mortgagee, no third party shall be deemed a third party
beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed
all of the terms and conditions of this Lease to be
performed by Tenant, Tenant shall peaceably and quietly
hold and enjoy the Premises for the Term, without hindrance
from Landlord or any party claiming by, through, or under
Landlord, subject to the terms and conditions of this
Lease.
(j) JOINT AND SEVERAL LIABILITY. If there is more
than one Tenant, then the obligations hereunder imposed
upon Tenant shall be joint and several. If there is a
guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the
joint and several obligations of Tenant and such guarantor,
and Landlord need not first proceed against Tenant before
proceeding against such guarantor nor shall any such
guarantor be released from its guaranty for any reason
whatsoever.
(k) CAPTIONS. The captions contained in this Lease
are for convenience of reference only, and do not limit or
enlarge the terms and conditions of this Lease.
(1) NO MERGER. There shall be no merger of the
leasehold estate hereby created with the fee estate in the
Premises or any part thereof if the same person acquires or
holds, directly or indirectly, this Lease or any interest
in this Lease and the fee estate in the leasehold Premises
or any interest in such fee estate.
(m) NO OFFER. The submission of this Lease to Tenant
shall not be construed as an offer, nor shall Tenant have
any rights under this Lease unless Landlord executes a copy
of this Lease and delivers it to Tenant.
(n) EXHIBITS. All exhibits and attachments attached
hereto are incorporated herein by this reference.
Exhibit A - Legal Description of the Land
Exhibit B - Building Rules and Regulations
Exhibit C - Operating Expense Escalator
Exhibit D - Tenant Finish-Work: Allowance
Exhibit E - Parking
Exhibit F - Extension Option
Exhibit G - Subordination Non-Disturbance and
Attornment Agreement
Exhibit H - Commission Agreement
(o) ENTIRE AGREEMENT. This Lease constitutes the
entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements
and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or
agreements have been made by Landlord or Tenant to the
other with respect to this Lease or the obligations of
Landlord or Tenant in connection therewith.
(p) CREDIT ENHANCEMENT
(i) Within 10 days from the date hereof,
Tenant shall deliver, or cause to be delivered, to
Landlord a letter of credit ("LETTER OF CREDIT") for
the benefit of Landlord. The Letter of Credit shall
be an irrevocable standby letter of credit in the
amount of $1,250,000.00 and shall have a term of not
less than one (1) year. If Tenant fails to provide
the Letter of Credit to Landlord within such 10 day
period, Landlord may terminate this Lease upon
notice to Tenant, and upon such termination, the
parties shall thereafter have no further obligations
hereunder. Ten (10) days prior to the expiration of
the Letter of Credit, Tenant shall re-issue or
replace
13
the Letter of Credit with an identical letter of
credit in the amount of $1,250,000 for Lease Years
2-5, $1,000,000 for Lease Year 6, $750,000 for Lease
Year 7, $500,000 for Lease Year 8, and $250,000 for
Lease Year 9, it being the intention of the parties
that Tenant shall maintain the Letter of Credit from
the date of this Lease until the expiration of Lease
Year 9 and no notice shall be required from Landlord
for such replacement. No further Letters of Credit
shall be required after the completion of Lease Year
9 or during any portion of the renewal term provided
for in Exhibit F of this Lease.
(ii) The Letter of Credit, and any
replacements thereof, shall be with a bank and
contain such terms and conditions as shall be
acceptable to Landlord in its sole discretion,
including, but not limited to, a provision that
obligates such bank to deliver the amount of the
Letter of Credit upon notice from Landlord that an
Event of Default has occurred and, further, that no
signature or other authorization by Tenant shall be
required prior to disbursement to Landlord of
proceeds from the Letter of Credit.
(iii) Landlord shall have the right to draw
the full amount of the Letter of Credit upon an
Event of Default. No drawings under the Letter of
Credit shall be deemed or construed to be liquidated
damages or otherwise prejudice any rights Landlord
may have against Tenant at law or inequity. If
Landlord draws the Letter of Credit as a result of
Tenant's failure to provide a replacement Letter of
Credit as provided in Section 27.(p)(i), Tenant may,
subsequent to such draw, provide such required
replacement Letter of Credit and Landlord shall
return the amount drawn to Tenant, less amounts
applied to cure Events of Default, if any.
(iv) If Tenant's average net income per
quarter for any 6 consecutive quarters after the 3rd
Lease Year exceeds $6,250,000, Tenant shall
thereafter no longer be required to provide a Letter
of Credit to Landlord in accordance with this
Section 27.(p), so long as Tenant has provided
notice thereof to Landlord together with audited
financial statements prepared in accordance with
generally accepted accounting principles by a
nationally or regionally recognized accounting firm
reasonably acceptable to Landlord.
SPECIAL 28. DISCLAIMER. LANDLORD AND TENANT EXPRESSLY
PROVISIONS DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE
SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE, AND
TENANTS OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT
UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY
LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE
TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR
OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
14
DATED as of the date first written above.
LANDLORD:
CFH REALTY II/GLENVILLE, L.P.,
a Texas limited partnership
By: CH Realty Investors II GP, LLC,
a Delaware limited liability
company,
General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability
company,
Manager
By: /s/ CAROL KREDITOR
-----------------------------
Name: Carol Kreditor
------------------------
Title: Vice President
-----------------------
TENANT:
AVANEX CORPORATION,
a Delaware corporation
By: /s/ JESSY CHAO
-------------------------------------
Name: Jessy Chao
-----------------------------------
Title: CFO
----------------------------------
EXHIBIT "A"
TRACT I
BEING all that certain lot, tract or parcel of land of the JESSE N. EVERETT
SURVEY, and being known as Lot 30A, Block D of the Replat of CENTRAL PARK
ADDITION PHASE II, an addition to the City of Richardson, DALLAS County, Texas,
according to the Revised Map or Plat thereof recorded in Volume 98055, Page
00077, Plat Records, DALLAS County, Texas and being more particularly described
as follows:
BEGINNING at a 1/2 inch iron rod found in the West right-of-way line of North
Glenville Drive, and being the Southeast corner of Lot 31, Block D, as recorded
in Volume 84217, Page 2898, Map Records, DALLAS County, Texas;
THENCE Sough 01 degrees 17 minutes 29 seconds West, along the West line of said
North Glenville Drive, a distance of 303.59 feet to a 1/2 inch iron rod found
for corner;
THENCE South 48 degrees 15 minutes 15 minutes 21 seconds West, a distance of
20.44 feet to a 5/8 inch iron rod set in the North line of International Parkway
(60' R.O.W.);
THENCE North 89 degrees 52 minutes 00 seconds West, along said North line of
International Parkway a distance of 34.92 feet to a 5/8 inch iron rod set for
the beginning of a curve to the left having a radius of 185.00 feet, a central
angle of 43 degrees 02 minutes 40 seconds, and a chord bearing and distance of
South 68 Degrees 57 minutes 07 seconds West, 135.74 feet;
THENCE in a Southwesterly direction, along said curve to the left, a distance
of 138.98 feet to a 1/2 inch iron rod found for the Northeast corner of Lot 29,
Block D, as recorded in Volume 83213, Page 2489, Deed Records, DALLAS County,
Texas;
THENCE North 42 degrees 35 minutes 59 seconds West along the Northeast line of
said Lot 29, a distance of 29.99 feet to a 1/2 inch iron rod found for corner;
THENCE North 60 degrees 27 minutes 38 seconds West, along the Northeast line of
said Lot 29, a distance of 250.00 feet to a 1/2 inch iron rod found in the
Southeast line of Lot 14, block D, as recorded in Volume 79213, Page 4023, Deed
Records, DALLAS County, Texas and lying in a curve to the left having a radius
of 2525.00 feet, a central angle of 06 degrees 16 minutes 03 seconds and a
chord bearing and distance of North 26 degrees 19 minutes 20 seconds East
276.07 feet;
THENCE in a Northeasterly direction along said curve to the left, and passing
at 3.40 feet the Southeast corner of Lot 12, Block D, as recorded in Volume
80176, Page 1980, Deed Records, DALLAS County, Texas, and continuing in all a
distance of 276.21 feet to an "X" set on a telephone pedestal, for the
Southeast corner of Lot 1, Block D, as recorded in Volume 83157, Page 1954,
Deed Records, DALLAS County, Texas, and being the southwest corner of said Lot
31;
THENCE South 66 degrees 28 minutes 20 seconds East, along the South line of said
Lot 31, a distance of 64.85 feet to an "X" set for corner;
THENCE South 39 degrees 44 minutes 15 seconds East, along the South line of said
Lot 31, a distance of 239.63 feet to the POINT OF BEGINNING and CONTAINING
118.970 sq. ft. or 2.73 acres, more or less.
A-1
Tract II
EASEMENT ESTATE as created under that certain Mutual Access Agreement executed
by and between MPI #1, LTD., a Texas limited partnership, and MPI #4, LTD., a
Texas limited partnership, dated February 27, 1986, recorded in Volume 86046,
Page 551, Real Property Records, DALLAS County, Texas, in, on, over and across
the following described lot, tract or parcel of land:
LOT 31, in Block D of CENTRAL PARK, an Addition to the City of Richardson,
DALLAS County, Texas, according to the REVISED Map or Plat thereof recorded in
Volume 84217, Page 2898, Plat Records, DALLAS County, Texas, and being more
particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod set in the West right-of-way line of North
Glenville Drive (80' R.O.W.) at the Southeast corner of Lot 8, Block D, of
CENTRAL PARK, an Addition to the City of Richardson, Texas, recorded in Volume
81084, Page 2113, Deed Records, DALLAS County, Texas;
THENCE South 00 degrees 11 minutes 47 seconds West, along the West right-of-way
line of said North Glenville Drive, a distance of 369.68 feet to a 5/8 inch
iron rod set for corner;
THENCE South 01 degrees 17 minutes 29 seconds West, continuing along the West
right-of-way line of said North Glenville Drive, a distance of 81.10 feet to a
1/2 inch iron rod found for the Northeast corner of Lot 30A, Block D of CENTRAL
PARK ADDITION PHASE II as recorded in Volume 98055, Page 00077, Plat Records,
DALLAS County, Texas;
THENCE North 89 degrees 44 minutes 15 seconds West, along the North Line of
said Lot 30A, a distance of 239.63 feet to an "X" set for corner;
THENCE North 66 degrees 28 minutes 20 seconds West, along the North line of
said Lot 30A, a distance of 64.85 feet to an "X" set on a telephone pedestal,
in a curve to the left having a radius of 2525.00 feet, a central angle of 10
degrees 16 minutes 52 seconds, an a chord bearing and distance of North 18
degrees 06 minutes 38 seconds East, 452.48 feet, said point being the Southeast
corner of Lot 1, Block D, as recorded in Volume 83157, Page 1954, Deed
Records, DALLAS County, Texas, and being the Northeast corner of Lot 12, Block
D, as recorded in Volume 80176, Page 1980, Deed Records, DALLAS County, Texas,
and also being the Northwest corner of said Lot 30A;
THENCE in a Northeasterly direction along said curve to the left, an arc
distance of 453.08 feet to a 1/2 inch iron rod set in the South line of said
Lot 8;
THENCE South 177 degrees 14 minutes 42 seconds East, along the South line of
said Lot 8, a distance of 20.11 feet to a 5/8 inch iron rod set for corner;
THENCE South 89 degrees 15 minutes 00 seconds East, along the South line of
said Lot 8, a distance of 141.92 feet to the POINT OF BEGINNING and CONTAINING
101,923 sq. ft. or 2.34 acres of land, more or less.
A-2
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, the Land and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or its agents, employees or invitees, shall
be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws shall be driven or inserted in
any part of the Building except by Building maintenance personnel. No curtains
or other window treatments shall be placed between the glass and the Building
standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all 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 such tenant.
7. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
B-1
11. Tenant 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.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be maintained in
any leased premises without the prior written permission of Landlord.
15. All mail chutes located in the Building shall be available for use
by Landlord and all tenants of the Building according to the rules of the United
States Postal Service.
B-2
EXHIBIT C
OPERATING EXPENSE ESCALATOR
1. Tenant shall pay an amount (per each rentable square foot in the
Premises) equal to the excess ("EXCESS") from time to time of the actual Basic
Cost per rentable square foot in the Building over the Basic Cost per rentable
square foot in the Building that exceeds $4.23 (the "EXPENSE STOP"). Landlord
may collect such amount in a lump sum, to be due within 30 days after Landlord
furnishes to Tenant the annual cost statement, a statement of Landlord's actual
costs furnished to Tenant by Landlord by April l of each calendar year or as
soon thereafter as practicable ("ANNUAL COST STATEMENT"). Alternatively,
Landlord may make a good faith estimate of the Excess to be due by Tenant for
any calendar year or part thereof during the Term, and, unless Landlord delivers
to Tenant a revision of the estimated Excess, Tenant shall pay to Landlord, on
the Commencement Date and on the first day of each calendar month thereafter, an
amount equal to the estimated Excess for such calendar year or part thereof
divided by the number of months in such calendar year during the Term. From time
to time during any calendar year, Landlord may estimate and re-estimate the
Excess to be due by Tenant for that calendar year and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments of
Excess payable by Tenant shall be appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in question, Tenant shall
have paid all of the Excess as estimated by Landlord. Any amounts paid based on
such an estimate shall be subject to adjustment pursuant to paragraph 3 of this
Exhibit when actual Basic Cost is available for each calendar year.
2. For the purposes of this Exhibit, the term "BASIC COST" shall mean
all expenses and disbursements of every kind (subject to the limitations set
forth below) which Landlord incurs, pays or becomes obligated to pay in
connection with the ownership, operation, and maintenance of the Building
(including the associated parking facilities), determined in accordance with
generally accepted federal income tax basis accounting principles consistently
applied, including but not limited to the following:
(a) Wages and salaries (including management fees) at market
rates of all employees engaged in the operation, repair, replacement,
maintenance, and security of the Building, including taxes, insurance and
benefits relating thereto;
(b) All supplies and materials used in the operation,
maintenance, repair, replacement, and security of the Building;
(c) Annual cost of all capital improvements made to the Building
which although capital in nature can reasonably be expected to reduce the normal
operating costs of the Building to the extent of such reduction, as well as all
capital improvements made in order to comply with any law hereafter promulgated
by any governmental authority, as amortized over the useful economic life of
such improvements as determined by Landlord in its reasonable discretion
(without regard to the period over which such improvements may be depreciated or
amortized for federal income tax purposes);
(d) Cost of all utilities, other than the cost of utilities
actually reimbursed to Landlord by the Building's tenants;
(e) Cost of any insurance or insurance related expense
applicable to the Building and Landlord's personal property used in connection
therewith;
(f) All taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by taxing or management
districts or authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments attributable to the Building (or
its operation), and the grounds, parking areas, driveways, and alleys around the
Building, excluding, however, federal and state taxes on income (collectively,
"TAXES"); if the present method of taxation changes so that in lieu of the whole
or any part of any Taxes levied on the Land or Building, there is levied on
Landlord a capital tax directly on the rents received therefrom or a franchise
tax,
C-1
assessment, or charge based, in whole or in part, upon such rents for the
Building, then all such taxes, assessments, or charges, or the part thereof so
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof;
(g) Cost of repairs, replacements, and general maintenance of
the Building, other than replacement of the roof; and
(h) Cost of service or maintenance contracts with independent
contractors for the operation, maintenance, repair, replacement, or security of
the Building (including, without limitation, alarm service, window cleaning, and
elevator maintenance).
There are specifically excluded from the definition of the term "Basic Cost"
costs and expenses (1) for capital improvements made to the Building, other than
capital improvements described in subparagraph 2.(c) of this Exhibit and except
for items which, though capital for accounting purposes, are properly considered
maintenance and repair items, such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (2) for repair, replacements and
general maintenance paid by proceeds of insurance or by Tenant or other third
parties, and alterations attributable solely to tenants of the Building other
than Tenant; (3) for interest, amortization or other payments on loans to
Landlord; (4) for legal expenses, other than those incurred for the general
benefit of the Building's tenants (e.g., tax disputes); (5) for renovating or
otherwise improving space for occupants of the Building or vacant space in the
Building; (6) for overtime or other expenses of Landlord in curing defaults or
performing work expressly provided in this Lease to be borne at Landlord's
expense; (7) for federal income taxes imposed on or measured by the income of
Landlord from the operation of the Building; (8) for repair or replacement or
other work occasioned by exercise of the right of eminent domain (to the extent
of the costs and expenses for which Landlord actually receives a cash award);
(9) for leasing commissions, advertising and other promotional costs and
expenses, attorneys' fees, costs and disbursements and other expenses incurred
in negotiating or executing leases or in resolving disputes with other tenants,
other occupants, or other prospective tenants or occupants of the Building,
collecting rents or otherwise enforcing leases of other tenants of the Building;
(10) for special services rendered to particular tenants of the Building or that
exclusively benefit another tenant or tenants of the Building, including,
without limitation, cost of tenant installations, decorating expenses,
redecorating expenses, or constructing improvements or alterations to any tenant
space, the costs of any janitorial cleaning service or security services
provided to other tenants which exceed the standard of that provided to Tenant
and costs in connection with services (including electricity), items or other
benefits of a type which are not standard for the Building and which are not
available to Tenant without specific charge therefor, but which are provided to
another tenant or occupant of the Building, whether or not such other tenant or
occupant is actually charged therefor by Landlord; (11) for depreciation of the
Building; (12) incurred by Landlord for which Landlord is actually reimbursed by
parties other than tenants of the Building, including, without limitation,
insurance proceeds; (13) for the initial construction of the Building, including
the correction of any structural construction defects; (14) except for the
management fee, of any overhead or profit increment to any subsidiary or
affiliate of Landlord for services on or to the Building, parking garage or
related facilities and/or the Land on which the Building is situated, to the
extent of any portion of the cost of such services which exceeds the reasonable
costs for such services rendered by persons or entities of similar skill,
competence and experience other than a subsidiary of affiliate of Landlord; (15)
of rental under any ground or underlying lease or leases for the Land; (16) of
Landlord's general overhead except as it directly relates to the operation,
management, maintenance, repair and security of the Building; (17) of any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord, other than with respect to the parking garage;
(18) for items and services for which Tenant directly reimburses Landlord or
pays to third persons with Landlord's consent, to the extent of such
reimbursement or payment; (19) of fines, penalties, and legal fees incurred due
to violations by Landlord, its employees, agents, contractors or assigns, or any
other tenant or occupant of the Building, of building codes, any other
governmental rule or requirement or the terms and conditions of any lease
pertaining to the Building; (20) of management fees to the extent of any portion
of such fees which are unreasonable; (21) of acquiring sculptures, paintings,
wall hangings or other objects of art; (22) of wages, salaries, or other
compensation paid to any executive employees of Landlord above the level of
property manager; provided, further, if any employee of Landlord works on
several buildings within the area, including the Building, the costs and
expenses connected with such employee shall
C-2
be allocated among such buildings by Landlord in accordance with reasonable and
consistent criteria; (23) incurred in leasing air-conditioning systems,
elevators, or other equipment ordinarily considered to be of a capital nature
(other than on a temporary basis); (24) associated with the removal or
encapsulation of asbestos or other hazardous or toxic substances; (25) for
repairs or maintenance which are covered by warranties and service contracts, to
the extent such maintenance and repairs are made at no cost to Landlord; (26)
representing any amount paid for services and materials to an affiliate of
Landlord (i.e., persons or entities controlled by, under common control with, or
which control, Landlord) to the extent such amount exceeds the amount that would
reasonably be paid for such services or materials were they rendered by an
unaffiliated person, firm or corporation; (27) for amounts payable by Landlord
by way of indemnity or for damages or which constitutes a fine or penalty,
including interest or penalties for any late payment; (28) for repairs
necessitated by violations of law in effect as of the date of the Lease; (29)
for property taxes and assessments which are not properly allocable to the
Building; without limiting the generality of the foregoing, property taxes and
assessments which are properly allocable to undeveloped land shall be excluded
from Basic Cost; (30) of interest and penalties due to the late payment of
taxes, utility bills or other such costs except any interest or penalties
arising from late payments beyond Landlord's control; and (31) bad debt expenses
and charitable contributions and donations.
3. The Annual Cost Statement shall include a statement of Landlord's
actual Basic Cost for the previous year adjusted as provided in paragraph 4 of
this Exhibit. If the Annual Cost Statement reveals that Tenant paid more for
Basic Cost than the actual Excess in the year for which such statement was
prepared, then Landlord shall credit or reimburse Tenant for such excess within
30 days after delivery of the Annual Cost Statement; likewise, if Tenant paid
less than the actual Excess, then Tenant shall pay Landlord such deficiency
within 30 days after delivery of the Annual Cost Statement.
4. With respect to any calendar year or partial calendar year in which
the Building is not occupied to the extent of 95% of the rentable area thereof,
the Basic cost for such period shall, for the purposes hereof, be increased to
the amount which would have been incurred had the Building been occupied to the
extent of 95% of the rentable area thereof.
C-3
EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
1. On or about September 1, 2000, Landlord shall deliver the Premises to
Tenant with the following items completed, at Landlord's expense, (i) the floor
of the 2nd floor of the Building installed that has a loading bearing capacity
of 150 lbs. per square foot and no more than 1/8 slope per 10 feet, (ii)
mechanically suspended lay-in acoustical tile ceiling grid installed on the 1st
floor of the Building and stacked for the 2nd floor of the Building and 2x4
fissure lay-in tile inventory stored in the Premises, (iii) 2x4 prismatic light
fixtures installed on the 1st floor of the Building and stacked for the 2nd
floor of the Building at a ratio of 1 fixture per 100 rentable square feet
contained within the Premises and light bulbs stored in the Premises, (iv)
plumbing stubbed to the restrooms on the 2nd floor of the Building, (v)
equipment to provide heating, ventilating and air-conditioning ("HVAC") to the
Premises with main, high-pressure ducting installed having a capacity of 1 ton
per 290 rentable square feet in the Premises, (vi) 3,000 amps, 277/480 volt
3-phase 4-wire electrical capacity provided to the Building, (vii) 1 Montgomery
Kone 3000# elevator with standard cab finish installed in compliance with the
ADA and 2 stairwells, (viii) 3 doors installed on the loading dock, (ix) fire
suppression system in compliance with applicable governmental regulations with
exposed sprinkler heads, and (x) the restroom on the 1st floor of the Building
and the exterior of the Building shall comply with the ADA (items (i)-(x) are
collectively referred to as the "BASE BUILDING"). Additionally, Landlord shall,
at its expense, cause asphalt to be installed to extend the existing parking lot
to accommodate a total of 176 parking spaces. If such extension is not completed
by the Commencement Date, Basic Rental shall be abated until such extension is
completed.
2. Within 45 days from the date hereof, Tenant shall provide to
Landlord, or its designated agent, for its approval final working drawings,
prepared by an architect that has been approved by Landlord, or Landlord's
designated agent (which approval shall not be unreasonably withheld), of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the improvements called for under this
Exhibit in accordance with all applicable governmental laws, codes, rules, and
regulations. Landlord's approval of such working drawings shall not be
unreasonably withheld, provided that (i) they comply with all applicable
governmental laws, codes, rules, and regulations, (ii) such working drawings are
sufficiently detailed to allow construction of the improvements in a good and
workmanlike manner, and (iii) the improvements depicted thereon conform to the
rules and regulations promulgated from time to time by Landlord for the
construction of tenant improvements (a copy of which has been delivered to
Tenant). As used herein, "Working Drawings" shall mean the final working
drawings approved by Landlord, as amended from time to time by any approved
changes thereto, and "WORK" shall mean all improvements to be constructed in
accordance with and as indicated on the Working Drawings. Approval by Landlord
of the Working Drawings shall not be a representation or warranty of Landlord
that such drawings are adequate for any use, purpose, or condition, or that such
drawings comply with any applicable law or code, but shall merely be the consent
of Landlord to the performance of the Work. Landlord and Tenant shall sign the
Working Drawings to evidence their review and approval thereof. All changes in
the Work must receive the prior written approval of Landlord, and in the event
of any such approved change Tenant shall, upon completion of the Work, furnish
Landlord with an accurate, reproducible "as-built" plan (e.g., sepia) of the
improvements as constructed, which plan shall be incorporated into this Lease by
this reference for all purposes.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, or Landlord's designated agent, which approval
shall not be unreasonably withheld. All contractors and subcontractors shall be
required to procure and maintain (a) insurance against such risks, in such
amounts, and with such companies as Landlord may reasonably require and (b)
payment and performance bonds covering the cost of the Work and otherwise
reasonably satisfactory to Landlord. Certificates of such insurance, with paid
receipts therefor, and copies of such bonds must be received by Landlord before
the Work is commenced. The Work shall be performed in a good
D-1
and workmanlike manner that is free of defects and is in strict conformance with
the Working Drawings, and shall be performed in such a manner and at such times
as to maintain harmonious labor relations and not to interfere with or delay
Landlord's other contractors, the operation of the Building, and the occupancy
thereof by other tenants. All contractors and subcontractors shall contact
Landlord and schedule time periods during which they may use Building facilities
in connection with the Work (e.g., elevators, excess electricity, etc.).
4. Tenant shall bear the entire cost of performing the Work (including,
without limitation, design of the Work and preparation of the Working Drawings,
costs of construction labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "TOTAL
CONSTRUCTION COSTS") in excess of the Construction Allowance (hereinafter
defined). Upon approval of the Working Drawings and selection of a contractor,
Tenant shall promptly (a) execute a work order agreement prepared by Landlord
which identifies such drawings, itemizes the Total Construction Costs and sets
forth the Construction Allowance (hereinafter defined).
5. Subject to Tenant's compliance with the terms and conditions of this
Exhibit D, Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") equal to the lesser of (i) $12.00 per rentable square
foot in the Premises, plus up to an additional $40,000.00 for the construction
of the 2nd floor restrooms, or (ii) the Total Construction Costs, as adjusted
for any approved changes to the Work; however, Tenant shall not become entitled
to full credit for the Construction Allowance until the Work has been
substantially completed and Tenant has caused to be delivered to Landlord (1)
all invoices from contractors, subcontractors, and suppliers evidencing the cost
of performing the Work, together with unconditional lien waivers from such
parties, and a consent of the surety to the finished Work (if applicable) and
(2) a certificate of occupancy from the appropriate governmental authority, if
applicable to the Work, or evidence of governmental inspection and approval of
the Work. On or before the 3rd of each month, Tenant shall be entitled to
request monthly draws against the Construction Allowance in accordance with the
following: (1) Tenant's draw requests shall be limited to one draw per calendar
month; (2) all draw requests must be made on AIA Form G702, and must include all
documentation supporting the matters reflected in the draw request; (3) Landlord
shall be entitled to independently verify the information set forth in such
application and related documentation, and may require additional information or
documentation from Tenant to the extent reasonable; (4) Landlord shall make
payment to Tenant pursuant to any draw request approved by Landlord, which
payment shall be made no later than ten (10) days after Landlord's receipt of
the fully completed draw request and all supporting documentation; and (5)
Landlord shall be entitled to a ten percent (10%) retainage holdback in
connection with any amounts of the Construction Allowance paid to Tenant prior
to the substantial completion of the Work.
6. The phrases "SUBSTANTIAL COMPLETION" or "SUBSTANTIALLY COMPLETE"
shall mean that, (i) the Work has been completed in accordance with the Working
Drawings (ii) all construction debris has been removed from the Premises and the
Premises are clean, (iii) the Premises may reasonably be used and occupied for
the Permitted Use, (iv) the progress of the construction of the Work to date is
such that final completion of the Work can occur within a reasonable period of
time and without undue interference to Tenant's use of the Premises, and (v) a
certificate of occupancy shall have been issued for the Premises.
7. Landlord or its affiliate shall supervise the Work, make
disbursements required to be made to the contractor, and act as a liaison
between the contractor and Tenant and coordinate the relationship between the
Work, the Building, and the Building's systems. In consideration for Landlord's
construction supervision services, Tenant shall pay to Stream Realty Partners,
L.P. a construction management fee of $26,250.00 paid for out the Construction
Allowance.
8. To the extent not inconsistent with this Exhibit D, Section 8.(a) of
this Lease shall govern the performance of the Work and Landlord's and Tenant's
respective rights and obligations regarding the improvements installed pursuant
thereto.
D-2
EXHIBIT E
PARKING
Tenant shall have the use of 176 undesignated vehicular parking spaces
in the surface parking lot associated with the Building (the "PARKING
FACILITIES") during the initial Term at no charge and subject to such terms,
conditions and regulations as are from time to time charged or applicable to
patrons of the Parking Facilities.
E-1
EXHIBIT F
EXTENSION OPTION
Provided no Event of Default exists and Tenant is occupying the entire
Premises at the time of such election, Tenant may renew this Lease for 2
additional periods of 5 years each on the same terms provided in this Lease
(except as set forth below), by delivering written notice of the exercise
thereof to Landlord not later than 12 months before the expiration of the Term.
On or before the commencement date of the extended Term in question, Landlord
and Tenant shall execute an amendment to this Lease extending the Term on the
same terms provided in this Lease, except as follows:
(i) The Basic Rental payable for each month during each such
extended Term shall be the greater of (A) the prevailing market rental
rate for lease renewal transactions, at the commencement of such
extended Term, for space of equivalent age, quality, size, utility and
location, with the length of the extended Term and the credit standing
of Tenant to be taken into account, or (B) the Basic Rental which would
otherwise be payable hereunder for the first full calendar month of
such extended Term, as adjusted in the manner provided in this Lease;
(ii) Tenant shall have no further renewal options unless
expressly granted by Landlord in writing; and
(iii) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to Tenant any
allowances (e.g., moving allowance, construction allowance, and the
like) or other tenant inducements.
Tenant's rights under this Exhibit F shall terminate if (i) this Lease
or Tenant's right to possession of the Premises is terminated, (ii) Tenant
assigns its interest in this Lease or sublets more than 50% of the Premises, or
(iii) Tenant fails to timely exercise its option under this Exhibit F, time
being of the essence with respect to Tenant's exercise thereof.
F-1
EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
PREMISES: 1801 N. GLENVILLE AVE., RICHARDSON, TEXAS (THE "PREMISES")
LANDLORD/BORROWER: CFH REALTY II/GLENVILLE, L.P., A TEXAS LIMITED PARTNERSHIP
("LANDLORD")
TENANT: AVANEX CORPORATION, A DELAWARE CORPORATION ("TENANT")
LEASE DATED: _________,2000 (THE "LEASE")
TENANT'S NOTICE
ADDRESS: 1801 N. GLENVILLE AVE.
RICHARDSON, TEXAS 75081
DATE: ___________, 2000
__________________________ ("LENDER") has made a loan (the "LOAN") to
Landlord which is secured by a mortgage or deed of trust and security agreement
(the "DEED OF TRUST"), covering the real property described on EXHIBIT "A" and
the buildings and improvements located thereon (collectively, the "PROPERTY").
In connection with the making of the Loan, Lender has requested that Tenant
complete this Agreement with the appropriate information as it pertains to Lease
and to agree to the requirements set forth herein.
Tenant hereby certifies to and agrees with Lender, as to the following:
ACKNOWLEDGMENT OF LEASE
1. Tenant has accepted possession of the Premises, which contains
approximately 43,655 square feet of rentable area, pursuant to the
Lease. The term of the Lease shall commence 60 days after delivery of
the Base Building (as defined in the Lease) and is scheduled to
terminate 120 months thereafter.
2. The minimum monthly rent payable under the Lease is $67,301.46 for
months 1 through 60; $71,848.85 for months 61 through 120.
3. No rent or other sum which is payable under the Lease has been paid by
or on behalf of Tenant more than one (1) month in advance.
4. The Lease is valid and in full force and effect, and, to the best of
Tenant's knowledge, neither Landlord nor Tenant is in default
thereunder.
5. The Lease has not been assigned, modified, supplemented or amended in
any way. Tenant shall not enter into any assignment, modification,
supplement or amendment to the Lease without the prior written consent
of Lender, which consent will not be unreasonably withheld. The Lease
constitutes the entire agreement between the parties and there are no
other agreements (including any letter agreements) between Landlord and
Tenant concerning the Premises. Tenant shall not, without obtaining the
prior written consent of Lender, which consent will not be unreasonably
withheld, (a) prepay any of the rents, additional rents or other sums
due under the Lease or more than
G-1
one (1) month in advance of the due dates thereof, (b) voluntarily
surrender the Premises or terminate the Lease without cause, or (c)
assign the Lease or sublet the Premises other than pursuant to the
provisions of the Lease.
SUBORDINATION
6. The Lease (including, without limitation, all rights to insurance
proceeds and condemnation awards, any rights of first refusal, options
to purchase, and any other rights granted to Tenant pursuant to the
Lease) is, and shall at all times continue to be, subject and
subordinate in each and every respect, to (a) the Deed of Trust and to
any and all liens, security interests, rights and any other interest
created thereby and to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the
Deed of Trust and the Loan, and (b) any additional financing of the
Property or portions thereof provided by Lender and the liens and
security interests under the documents evidencing and securing such
additional financing, and to any increase therein or supplements
thereto.
NON-DISTURBANCE
7. So long as the Lease is in full force and effect and Tenant is not in
default in the payment of rent, additional rent, taxes, utility charges
or other sums payable by Tenant under the terms of the Lease, or under
any of the other terms, covenants or conditions of the Lease on Tenant's
part to be performed (beyond the period, if any, specified in the Lease)
within which Tenant may cure such default (a) Tenant's possession of the
Premises under the Lease shall not be disturbed or interfered with by
Lender in the exercise of any of its rights under the Deed of Trust,
including any foreclosure (or any person, or such person's successors or
assigns, who acquire the interest of the Landlord under the Lease
through foreclosure action of the Deed of Trust, or upon a transfer of
the Property by conveyance in lieu of foreclosure, or otherwise), and
(b) Lender will not join Tenant as a party defendant for the purpose of
terminating Tenant's interest and estate under the Lease in any
proceeding for foreclosure of the Deed of Trust.
ATTORNMENT
8. If, at any time Lender (or any person, or such person's successors or
assigns, who acquire the interest of the Landlord under the Lease
through foreclosure action of the Deed of Trust, or upon a transfer of
the Property by conveyance in lieu of foreclosure, or otherwise) shall
succeed to the rights of the Landlord under the Lease as a result of a
default under the Lease (beyond the time permitted therein, of any, to
cure such default), then (a) the Lease shall not terminate, (b) upon
receipt by Tenant of written notice of such succession, Tenant shall
attorn to and recognize such person as succeeding to the rights of the
Landlord under the Lease (herein sometimes called "Successor Landlord",
upon the terms and conditions of the Lease, and (c) Successor Landlord
shall accept such attornment and recognize Tenant as the Successor
Landlord's tenant under the Lease. Upon such attornment and recognition,
the Lease shall continue in full force and effect as, or as if it were,
a direct lease between the Successor Landlord and Tenant upon all of the
terms, conditions and covenants (including any right under the Lease on
the part of the Tenant to extend the term of the Lease) as are set forth
in the Lease and which shall be applicable after such attornment and
recognition. Notwithstanding anything to the contrary set forth herein,
Lender or such Successor Landlord shall not be (i) liable for any act or
omission of any previous landlord, including the Landlord, (ii) subject
to any offset, defense or counterclaim which Tenant might be entitled to
assert against any previous landlord, including the Landlord, (iii)
bound by any payment of rent or additional rent made by the Tenant to
any previous landlord (including the Landlord) for more than one (1)
month in advance, unless the same was paid to and received by Successor
Landlord (iv) bound by and amendment or modification of the Lease
hereafter made without the written consent of Lender, or (v) liable for
any deposit that Tenant may have given to any previous landlord
(including the Landlord) which has not been transferred to the Successor
Landlord. Further, notwithstanding anything to the contrary set forth
herein, the liability of Lender for any obligations under the Lease
shall be limited to Lender's interest in the Property. Lender shall not
have any liability or responsibility under or pursuant to the terms of
the Lease after it ceases to own an interest in or to the Property.
G-2
9. The provisions of this Agreement regarding attornment by Tenant shall be
self-operative and effective without the necessity of execution of any
new lease or other document on the part of any party hereto or the
respective heirs, legal representatives, successors or assigns of any
such party. Tenant agrees, however, to execute and deliver at any time
and from time to time, upon the request of Lender or any Successor
Landlord, any instrument or certificate which, in the reasonable
judgment of Lender or such Successor Landlord may be necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence
such attornment, including, if requested, a new lease of the Premises on
the same terms and conditions as the Lease.
HAZARDOUS MATERIALS
10. Except for common office chemicals in reasonable quantities, Tenant
shall neither suffer nor itself manufacture, store, handle, transport,
dispose of, spill, leak or dump any toxic or hazardous waste, waste
product or substance (as they may be defined in any federal or state
statute, rule or regulation pertaining to or governing such wastes,
waste products or substances) on the Premises or on any property in the
vicinity of the Premises at any time during the term (including any
renewal term) of the Lease and during Tenant's occupancy of the
Premises.
NOTICE
11. Tenant hereby acknowledges and agrees that: (a) from and after the date
hereof, in the event of any act or omission of Landlord which would give
Tenant the right, either immediately or after the lapse of time, to
terminate the Lease or to claim a partial or total eviction, Tenant will
not exercise any such right (i) until it has given written notice of
such act or omission to Lender and (ii) until the expiration of thirty
(30) days following such giving of notice to Lender in which time period
Lender shall be entitled to cure any such act or omissions of Landlord;
(b) Tenant shall send to Lender all copies of any such default, notice
or statement under the Lease at the same time such notice is sent to
Landlord; and (c) if Lender notifies Tenant of a default under the Deed
of Trust and demands that Tenant pay its rent and all other sums due
under the Lease to Lender, Tenant shall honor such demand and pay its
rent and all of the sums due under the Lease directly to Lender or as
otherwise required pursuant to such notice.
All notices and other communications from Tenant to Lender shall be in
writing and shall be delivered or mailed by registered mail, postage
paid, return receipt requested, or delivered by an overnight courier,
addressed to Lender at:
-------------------------------
-------------------------------
-------------------------------
Attention:
---------------------
or at such other address as Lender, any successor, purchaser or
transferee shall furnish to the Tenant in writing.
This Agreement is being executed and delivered by Tenant to induce
Lender to make the Loan which is to be secured in part by an assignment to
Lender of Landlord's interest in the Lease and with the intent and understanding
that the above statements will be relied upon by Lender. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, their successors
and permitted assigns, and any purchaser or purchasers at foreclosure of the
Property, and their respective heirs, personal representatives, successor and
assigns.
G-3
TENANT:
AVANEX CORPORATION,
a Delaware corporation
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
LENDER:
----------------------------------------
a
---------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
Landlord is executing this Agreement only for purposes of acknowledging the
provisions of paragraph 11.
LANDLORD:
CFH REALTY II/GLENVILLE, L.P.,
a Texas limited partnership
By: CH Realty Investors II GP, LLC,
a Delaware limited liability
company,
General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability
company,
Manager
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
G-4
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on __________________, 2000
by ____________________, of Avanex Corporation, a Delaware corporation.
[SEAL]
------------------------------------
Notary Public, State of Texas
STATE OF _______ )
)
COUNTY OF _______ )
This instrument was acknowledged before me on _______________________,
2000 by ______________________, ____________________ of ______________________,
a _________________________.
[SEAL]
------------------------------------
Notary Public, State of Texas
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on _________________________,
2000 by _____________________, _____________________ of _____________________,
Crow Holdings Managers, L.L.C.,a Texas limited liability company, Manager of CH
Realty Investors II, GP, LLC, a Delaware limited liability company, General
Partner of CFH Realty II/Glenville, L.P., a Texas limited partnership, in the
capacity herein stated.
[SEAL]
------------------------------------
Notary Public, State of Texas
G-5
EXHIBIT A
to SNDA
Tract I
BEING all that certain lot, tract or parcel of land out of the JESSE N. EVERETT
SURVEY, and being known as lot 30A, Block D of the Replat of CENTRAL PARK
ADDITION PHASE II, an addition to the City of Richardson, DALLAS County, Texas,
according to the Revised Map or Plat thereof recorded in Volume 98055, Page
00077, Plat Records, DALLAS County, Texas and being more particularly described
as follows:
BEGINNING at a 1/2 inch iron rod found in the West right-of-way line of North
Glenville Drive, and being the Southeast corner of Lot 31, Block D, as recorded
in Volume 84217, Page 2898, Map Records, DALLAS County, Texas;
THENCE South 01 degrees 17 minutes 29 seconds West, along the West line of said
North Glenville Drive, a distance of 303.59 feet to a 1/2 inch iron rod found
for corner;
THENCE South 48 degrees 15 minutes 21 seconds West, a distance of 20.44 feet to
a 5/8 inch iron rod set in the North line of International Parkway (60' R.O.W.);
THENCE North 89 degrees 52 minutes 00 seconds West, along said North line of
International Parkway a distance of 34.92 feet to a 5/8 inch iron rod set for
the beginning of a curve to the left having a radius of 185.00 feet, a central
angle of 43 degrees 02 minutes 40 seconds, and a chord bearing and distance of
South 68 degrees 57 minutes 07 seconds West, 135.74 feet;
THENCE in a Southwesterly direction, along said curve to the left, a distance
of 138.98 feet to a 1/2 inch iron rod found for the Northeast corner of Lot 29,
Block D, as recorded in Volume 83213, Page 2489, Deed Records, DALLAS County,
Texas;
THENCE North 42 degrees 35 minutes 59 seconds West along the Northeast line of
said Lot 29, a distance of 29.99 feet to a 1/2 inch iron rod found for corner;
THENCE North 60 degrees 27 minutes 38 seconds West, along the Northeast line of
said Lot 29, a distance of 250.00 feet to a 1/2 inch iron rod found in the
Southeast line of Lot 14, Block D, as recorded in Volume 79213, Page 4023, Deed
Records, DALLAS County, Texas and lying in a curve to the left having a radius
of 2525.00 feet, a central angle of 06 degrees 16 minutes 03 seconds and a
chord bearing and distance of North 26 degrees 19 minutes 20 seconds East
276.07 feet;
THENCE in a Northeasterly direction along said curve to the left, and passing
at 3.40 feet the Southeast corner of Lot 12, Block D, as recorded in Volume
80176, Page 1980 Deed Records, DALLAS County, Texas, and continuing in all a
distance of 276.21 feet to an "X" set on a telephone pedestal, for the
Southeast corner of Lot 1, Block D, as recorded in Volume 83157, Page 1954,
Deed Records, DALLAS County, Texas, and being the Southwest corner of said Lot
31;
THENCE South 66 degrees 28 minutes 20 seconds East, along the South line of
said Lot 31, a distance of 64.85 feet to an "X" set for corner;
THENCE South 39 degrees 44 minutes 15 seconds East, along the South line of
said Lot 31, a distance of 239.63 feet to the POINT OF BEGINNING and CONTAINING
118.970 sq. ft. 2.73 acres, more or less.
G-6
Tract II
EASEMENT ESTATE as created under that certain Mutual Access Agreement executed
by and between MPI #1, LTD., a Texas limited partnership, and MPI #4, LTD., a
Texas limited partnership, dated February 27, 1986, recorded in Volume 86046,
Page 551, Real Property Records, DALLAS County, Texas, in, on, over and across
the following described lot, tract or parcel of land:
LOT 31, in Block D of CENTRAL PARK, an Addition to the City of Richardson,
DALLAS County, Texas, according to the REVISED Map or Plat thereof recorded in
Volume 84217, Page 2898, Plat Records, Dallas County, Texas, and being more
particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod set in the West right-of-way line of North
Glenville Drive (80' R.O.W.) at the Southeast corner of Lot 8, Block D, of
CENTRAL PARK, an Addition to the City of Richardson, Texas, recorded in Volume
81084, Page 2113, Deed Records, DALLAS County, Texas;
THENCE South 00 degrees 11 minutes 47 seconds West, along the West right-of-way
line of said North Glenville Drive, a distance of 369.68 feet to a 5/8 inch
iron rod set for corner;
THENCE South 01 degrees 17 minutes 29 seconds West, continuing along the West
right-of-way line of said North Glenville Drive, a distance of 81.10 feet to a
1/2 inch iron rod found for the Northeast corner of Lot 30A, Block D of CENTRAL
PARK ADDITION PHASE II as recorded in Volume 98055, Page 00077, Plat Records,
DALLAS County, Texas;
THENCE North 89 degrees 44 minutes 15 seconds West, along the North Line of
said Lot 30A, a distance of 239.63 feet to an "X" set for corner;
THENCE North 66 degrees 28 minutes 20 seconds West, along the North line of said
Lot 30A, a distance of 64.85 feet to an "X" set on a telephone pedestal, in a
curve to the left having a radius of 2525.00 feet, a central angle of 10 degrees
16 minutes 52 seconds, and a chord bearing and distance of North 18 degrees 06
minutes 38 seconds East, 452.48 feet, said point being the Southeast corner of
Lot 1, Block D, as recorded in Volume 83157, Page 1954, Deed Records, DALLAS
County, Texas, and being the Northeast corner of Lot 12, Block D, as recorded in
Volume 80176, Page 1980, Deed Records, DALLAS County, Texas, and also being the
Northwest corner of said Lot 30A;
THENCE in a Northeasterly direction along said curve to the left, an arc
distance of 453.08 feet to a 1/2 inch iron rod set in the South line of said
Lot 8;
THENCE South 77 degrees 14 minutes 42 seconds East, along the South line of
said Lot 8, a distance of 20.11 feet to a 5/8 inch iron rod set for corner;
THENCE South 89 degrees 15 minutes 00 seconds East, along the South line of
said Lot 8, a distance of 141.92 feet to the POINT OF BEGINNING and CONTAINING
101.923 sq. ft. or 2.34 acres of land, more or less.
G-7
EXHIBIT H
COMMISSION AGREEMENT
This Commission Agreement (this "Agreement") is entered into effective as of
___________, ____ between CFH REALTY II/GLENVILLE, L.P. ("Owner") the Owner of
1801 N. GLENVILLE DRIVE (the "Project") and THE STAUBACH COMPANY ("Broker") with
reference to Broker's efforts in representing AVANEX CORPORATION ("Tenant") for
a lease in the Project.
1. PAYMENT OF COMMISSIONS.
a. COMMISSION STRUCTURE. If Owner executes a lease for space in the
Project with Tenant, registered by Broker as herein provided, then subject to
the terms of this Agreement, Owner shall pay a commission to Broker equal to
four and one-half percent (4-1/2%) of the Base Rent (hereafter defined) payable
under such lease during its initial term, payable as follows: one-half (1/2)
upon execution of the lease, payment by Tenant of any required security deposit
(and the like) and approval of the lease by the party holding the first lien
mortgage indebtedness secured by the Project and one-half (1/2) upon
commencement of the term of the lease, occupancy by Tenant of any portion of
the leased premises, and upon commencement of payment of Base Rent under the
lease.
b. BASE RENT. For the purposes of this Agreement, "Base Rent" shall
mean the aggregate basic rental provided for in the lease in question, but
excluding the following: escalations in excess of the initial basic rental;
amortization of or lump sum payment for special leasehold improvements or
improvements above building standard finish; additional rentals or expense
billings for special tenant services; cancellation or penalty payments for
termination rights contained in the lease; late payment charges; utility
charges, operating expense charges and other sums designated as "additional
rent" under the lease; percentage rentals; parking rentals; rentals for radio,
television, or other antennae systems, and for locations for transmitters,
receivers, and other communication equipment; security deposits; rentals for
services or facilities made available to Tenant at locations other than the
premises covered by the lease; rentals credited to Tenant by reason of a lease
assumption and rent abatements (for the purposes of this exclusion, there shall
also be deducted in determining Base Rent any amount paid by Owner in respect
of a lease assumption other than by way of credit against Tenant's obligation
under the lease); and rentals payable upon continuation of a tenancy on a
month-to-month basis after expiration or termination of the lease-term.
Further, if the value of all concessions granted to Tenant exceeds $20.00 per
rentable square foot of the area so leased, then such excess, together with
interest thereon at ten (10%) percent per annum during the time such
concessions are amortized by Owner, shall be deducted in determining the Base
Rent hereunder.
c. TERMINATION RIGHTS. In determining the length of the initial term
of any lease hereunder, there shall be excluded any portion of the lease term
as to which Tenant has a cancellation right until such time as such right has
lapsed or expired, unless the Lease provides for Tenant to pay unamortized
costs upon cancellation.
d. BROKER EXPENSES. Broker shall be solely responsible for paying all
expenses incurred by it in performing its activities with regard to leasing
space in the Project.
H-1
2. LEASE CONDITIONS.
a. TERM. All leases with respect to which a commission is to be
payable under this Agreement shall have a term of not less than three (3) nor
more than fifteen (15) years.
b. FORM. All leases shall be on Owner's standard form of lease with
reasonable modifications thereto.
3. REGISTRATION PROCEDURE.
a. INITIAL REGISTRATION. Broker has registered Tenant with Owner.
b. EFFECTIVENESS OF REGISTRATION. Registrations hereunder shall
remain in effect only so long as there is active and substantial progress
towards consummating a lease as evidenced by meetings and exchange of
substantive correspondence between Owner, Broker and Tenant. If a period of
thirty (30) days elapses within which no meetings or lease negotiations occur, a
registration shall automatically terminate. Notwithstanding the foregoing,
Tenant may cancel the registration at any time by notifying Owner. Broker
undertakes responsibility for the status of negotiations and of registration
hereunder, and agrees that Owner shall have no obligation to inform Broker of
the termination of any registration or the registration of Tenant by another
broker.
c. DUPLICATE REGISTRATIONS. If for any reason whatsoever more than
one registration is alleged to be in effect for Tenant, Owner shall nevertheless
be obligated to pay only a single commission in respect of a lease with Tenant,
and Owner's obligation shall not exceed that payable if only one registration
were in effect.
4. GENERAL MATTERS.
a. NATURE OF OBLIGATIONS. The obligations of Owner and Broker
hereunder are contractual obligations between them only, and Broker acknowledges
and agrees that it has no rights, liens, or claims of any nature against the
Project or any other party having an interest in or lien secured by the Project.
Recourse against Owner hereunder shall be limited to proceeding against Owner's
interest in the Project or the proceeds of disposition of the Project.
b. SUCCESSORS AND ASSIGNS. Broker may not assign its rights
hereunder without the express written consent of Owner. Should Owner sell the
Project to a third party (a "Project Buyer"), then Owner shall be relieved of
any further obligations hereunder, so long as the Project Buyer or assignee
assumes payment to Broker of all Commissions which are now or hereafter earned
hereunder but not yet paid, or the Owner shall remain liable for all terms and
conditions of this Agreement unless and until the purchaser or assignee(s)
assumes all obligations contained herein.
c. APPLICATION OF PAYMENTS. Broker represents that no portion of
any commission payable hereunder shall be directly or indirectly remitted or
paid to Tenant. Any breach of the provisions of this Section 4.c. shall relieve
Owner of all obligations under this Agreement, and Broker shall repay to Owner
all commissions theretofore paid to Broker by Owner hereunder.
d. PAYMENT FROM OTHER SOURCES. Broker represents that it will not
contract for or receive any payment from any space planner, interior decorator,
contractor, or other party with reference to any lease in the Project unless the
same is disclosed in writing to Owner and Tenant.
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Any breach of the provisions of this Section 4.d. shall relieve Owner of all
obligations under this Agreement, and Broker shall repay to Owner all
commissions theretofore paid to Broker by Owner hereunder.
e. BROKER REPRESENTATION. Broker represents that is duly licensed as a
real estate broker under the laws of the State of Texas.
f. Owner's Interest. Broker shall look solely to Owner's interest in the
Project for the recovery of any judgement against Owner for failure to perform
under this Agreement, and Owner (and its partners, shareholders and agents)
shall not be personally liable for any such judgement therefore.
g. CONFIDENTIALITY. Broker shall not, at any time either during or
subsequent to the negotiations of a lease between Owner and Tenant, disclose to
any person or entity (including any other prospective tenant or client of
Broker) any of the contents of the negotiations between Owner and Tenant or, if
a lease is entered into between Owner and Tenant, any terms of the lease.
OWNER: BROKER:
CFH REALTY II/GLENVILLE L.P. THE STAUBACH COMPANY
By:
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By: /s/ CAROL KREDITOR By:
-------------------------- --------------------------
By: Carol Kreditor Its: Sr. Vice President
VICE PRESIDENT --------------------------
--------------------------
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EXHIBIT A
This Exhibit "A" is attached to and made a part of, and supplements, the
Commission Agreement (the "Agreement") dated ____________ , _____ between as
Owner and as Broker.
SECTION 1. PAYMENT OF COMMISSIONS ON RENEWALS OR EXPANSIONS. Commissions
shall be payable to Broker in connection with renewals of lease terms or leasing
of additional space (expansions) in accordance with the terms of this Agreement.
If an additional commission is earned as herein provided, the commission
structure shall be as follows:
a. RENEWALS. Four and one-half percent (4-1/2%) of the aggregate Base
Rent payable during the renewal term, payable when Tenant accepts occupancy of
the space covered by the renewal and Owner receives the initial payment of Base
Rent as to the renewal term:
b. EXPANSIONS. Four and one-half percent (4-1/2%) of the aggregate
Base Rent payable to Owner in respect of the additional space leased, payable
when Tenant accepts the space in question and Owner receives the initial payment
of Base Rent with regard thereto.
SECTION 2. CONDITIONS PRECEDENT TO PAYMENT OF ADDITIONAL COMMISSIONS.
Broker shall be entitled to receive a commission as to renewals or expansions as
herein provided if (i) Broker is actively involved in representing Tenant in
connection with the negotiation of the renewal or expansion in question (whether
or not there are options or rights therefor in the original lease agreement with
Tenant), and (ii) Tenant provides Owner with a letter (prior to the exchange of
any proposals or similar correspondence between Owner and Tenant) specifically
stating that it has authorized Broker as its representative and acknowledging
payment by Owner of a commission to Broker in accordance with the terms hereof.
Owner shall in good faith determine whether or not Broker is so involved, based
upon attendance at meetings and active substantial participation in
negotiations. If Tenant directly negotiates a renewal or expansion right or
exercises an option provided for in its lease without the involvement of Broker,
then no additional commissions shall be payable.
SECTION 3. LIMITATION ON TOTAL COMMISSION. Notwithstanding anything herein
or in the Agreement to the contrary, no commission shall be due as to the
portion of any lease term that exceeds fifteen (15) years, including the initial
primary term and any and all renewal terms.
INITIALED FOR IDENTIFICATION
OWNER /s/ [INITIALS]
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BROKER /s/ [INITIALS]
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