\n Each Accident $500,000
\n Disease–Policy Limit $500,000
\n Disease–Each Employee $500,000
\n<\/c><\/s><\/table>\n Such insurance shall contain a waiver of subrogation provision
\n in favor of Landlord and its employees and agents.<\/p>\n
Tenant’s contractor’s insurance shall be primary and not contributory to
\nthat carried by Tenant, Landlord, their agents or mortgagees. Tenant and
\nLandlord, and if any, Landlord’s building manager or agent, mortgagee or ground
\nlessor shall be named as additional insured on Tenant’s contractor’s insurance
\npolicies.<\/p>\n
D. Insurance Certificates. Tenant shall deliver to Landlord certificates
\nevidencing all required insurance no later than five (5) days prior to the
\nCommencement Date and each renewal date. Each certificate will provide for
\nthirty (30) days prior written notice of cancellation to Landlord and Tenant.<\/p>\n
E. Landlord’s Insurance. Landlord shall maintain “All-Risk” property
\ninsurance at replacement cost, including loss of rents, on the Building, and
\nCommercial General Liability insurance policies covering the common areas of the
\nBuilding and the Project, each with such terms, coverages and conditions as are
\nnormally carried by reasonably prudent owners of properties similar to the
\nProject. With respect to property insurance, Landlord and Tenant mutually waive
\nall rights of subrogation, and the respective “All-Risk” coverage property
\ninsurance policies carried by Landlord and Tenant shall contain enforceable
\nwaiver of subrogation endorsements.<\/p>\n
13
\n 22<\/p>\n
9. FIRE AND OTHER CASUALTY.<\/p>\n
A. Termination. If a fire or other casualty causes substantial damage to
\nthe Building or the Premises, Landlord shall engage a registered architect to
\ncertify within one (1) month of the casualty to both Landlord and Tenant the
\namount of time needed to restore the Building and the Premises to tenantability,
\nusing standard working methods. If the time needed exceeds nine (9) months from
\nthe beginning of the restoration, or two (2) months therefrom if the restoration
\nwould begin during the last twelve (12) months of the Lease, then in the case of
\nthe Premises, either Landlord or Tenant may terminate this Lease, and in the
\ncase of the Building, Landlord may terminate this Lease, by notice to the other
\nparty within ten (10) days after the notifying party’s receipt of the
\narchitect’s certificate. The termination shall be effective thirty (30) days
\nfrom the date of the notice and Rent shall be paid by Tenant to that date, with
\nan abatement for any portion of the Premises which has been untenantable after
\nthe casualty.<\/p>\n
B. Restoration. If a casualty causes damage to the Building or the
\nPremises but this Lease is not terminated for any reason, then subject to the
\nrights of any mortgagees or ground lessors, Landlord shall obtain the applicable
\ninsurance proceeds and diligently restore the Building and the Premises subject
\nto current Governmental Requirements. Tenant shall replace its damaged
\nimprovements, personal property and fixtures. Rent shall be abated on a per them
\nbasis during the restoration for any portion of the Premises which is
\nuntenantable, except to the extent that Tenant’s negligence caused the casualty.<\/p>\n
10. EMINENT DOMAIN. If a part of the Project is taken by eminent domain
\nor deed in lieu thereof which is so substantial that the Premises cannot
\nreasonably be used by Tenant for the operation of its business, then either
\nparty may terminate this Lease effective as of the date of the taking. If any
\nsubstantial portion of the Project is taken without affecting the Premises, then
\nLandlord may terminate this Lease as of the date of such taking. Rent shall
\nabate from the date of the taking in proportion to any part of the Premises
\ntaken. The entire award for a taking of any kind shall be paid to Landlord.
\nTenant may pursue a separate award for its trade fixtures and moving expenses in
\nconnection with the taking, but only if such recovery does not reduce the award
\npayable to Landlord. All obligations accrued to the date of the taking shall be
\nperformed by the party liable to perform said obligations, as set forth herein.<\/p>\n
11. RIGHTS RESERVED TO LANDLORD. Landlord may exercise at any time any
\nof the following rights respecting the operation of the Project without
\nliability to the Tenant of any kind:<\/p>\n
A. Name. To change the name or street address of the Project or the
\nBuilding or the suite number(s) of the Premises.<\/p>\n
B. Signs. To install and maintain any signs within the Project and on
\nthe exterior and in the interior of the Building, and to approve at its sole
\ndiscretion, prior to installation, any of Tenant’s signs in the Premises visible
\nfrom the common areas or the exterior of the Building.<\/p>\n
C. Window Treatments. To approve, at its discretion, prior to
\ninstallation, any shades, blinds, ventilators or window treatments of any kind,
\nas well as any lighting within the Premises that may be visible from the
\nexterior of the Building or any interior common area.<\/p>\n
14
\n 23<\/p>\n
D. Keys. To retain and use at any time passkeys to enter the Premises or
\nany door within the Premises. Tenant shall not alter or add any lock or bolt.<\/p>\n
E. Access. To have access to inspect the Premises, and to perform its
\nobligations, or make repairs, alterations, additions or improvements, as
\npermitted by this Lease.<\/p>\n
F. Preparation for Reoccupancy. To decorate, remodel, repair, alter or
\notherwise prepare the Premises for reoccupancy at any time after Tenant abandons
\nthe Premises, without relieving Tenant of any obligation to pay Rent.<\/p>\n
G. Heavy Articles. To approve the weight, size, placement and time and
\nmanner of movement within the Building of any safe, central filing system or
\nother heavy article of Tenant’s property. Tenant shall move its property
\nentirely at its own risk.<\/p>\n
H. Show Premises. To show the Premises to prospective purchasers,
\ntenants, brokers, lenders, investors, rating agencies or others at any
\nreasonable time, provided that Landlord gives prior notice to Tenant and does
\nnot materially interfere with Tenant’s use of the Premises.<\/p>\n
I. Relocation of Tenant. To relocate the Tenant, upon thirty days’ prior
\nwritten notice, from all or part of the Premises (the “Old Premises”) to another
\narea in the Project (the “new premises”), provided that:<\/p>\n
(1) the size of the new premises is at least equal to the size
\n of the Old Premises and (i) in the event of a partial relocation,
\n contiguous space within the Old Premises on any single floor must remain
\n intact; and (ii) if the Rentable Square Feet within the new premises is
\n greater than the Old Premises, Base Rent and Tenant’s Proportionate
\n Share shall be increased proportionately;<\/p>\n
(2) Landlord pays the cost of moving the Tenant and improving
\n the new premises to the standard of the Old Premises, including all
\n costs of wiring, cabling and other costs necessary for the relocation of
\n Tenant’s telephones, data transmission and other business communications
\n equipment. Tenant shall cooperate with Landlord in all reasonable ways
\n to facilitate the move, including supervising the movement of files or
\n fragile equipment, designating new locations for furniture, equipment
\n and new telephone and electrical outlets, and determining the color of
\n paint in the new premises.<\/p>\n
J. Use of Lockbox. To designate a lockbox. collection agent for
\ncollections of amounts due Landlord. In that case, the date of payment of Rent
\nor other sums shall be the date of the agent’s receipt of such payment or the
\ndate of actual collection if payment is made in the form of a negotiable
\ninstrument thereafter dishonored upon presentment. However, Landlord may reject
\nany payment for all purposes as of the date of receipt or actual collection by
\nmailing to Tenant within 21 days after such receipt or collection a check equal
\nto the amount sent by Tenant.<\/p>\n
K. Repairs and Alterations. To make repairs or alterations to the
\nProject or the Building and in doing so transport any required material through
\nthe Premises, to close entrances, doors, corridors, elevators and other
\nfacilities in the Project or the Building, to open<\/p>\n
15
\n 24<\/p>\n
any ceiling in the Premises, or to temporarily suspend services or use of common
\nareas in the Project or the Building. Landlord may perform any such repairs or
\nalterations during ordinary business hours, except that Tenant may require any
\nWork in the Premises to be done after business hours if Tenant pays Landlord for
\novertime and any other expenses incurred. Landlord may do or permit any work on
\nany nearby building, land, street, alley or way.<\/p>\n
L. Landlord’s Agents. If Tenant is in default under this Lease,
\npossession of Tenant’s funds or negotiation of Tenant’s negotiable instrument by
\nany of Landlord’s agents shall not waive any breach by Tenant or any remedies of
\nLandlord under this Lease.<\/p>\n
M. Building Services. To install, use and maintain through the Premises,
\npipes, conduits, wires and ducts serving the Building, provided that such
\ninstallation, use and maintenance does not unreasonably interfere with Tenant’s
\nuse of the Premises.<\/p>\n
N. Other Actions. To take any other action which Landlord deems
\nreasonable in connection with the operation, maintenance or preservation of the
\nProject or the Building.<\/p>\n
12. TENANT’S DEFAULT. Any of the following shall constitute a default by
\nTenant:<\/p>\n
A. Rent Default. Tenant fails to pay any Rent when due;<\/p>\n
B. Assignment\/Sublease or Hazardous Substances Default. Tenant defaults
\nin its obligations under Section 17 Assignment and Sublease or Section 28
\nHazardous Substances;<\/p>\n
C. Other Performance Default. Tenant fails to perform any other
\nobligation to Landlord under this Lease, and, in the case of only the first five
\n(5) such failures during the Term of this Lease, this failure continues for ten
\n(10) days after written notice from Landlord, except that if Tenant begins to
\ncure its failure within the ten (10) day period but cannot reasonably complete
\nits cure within such period, then, so long as Tenant continues to diligently
\nattempt to cure its failure, the ten (10) day period shall be extended to thirty
\n(30) days, or such lesser period as is reasonably necessary to complete the
\ncure;<\/p>\n
D. Credit Default. One of the following credit defaults occurs:<\/p>\n
(1) Tenant commences any proceeding under any law relating to
\n bankruptcy, insolvency, reorganization or relief of debts, or seeks
\n appointment of a receiver, trustee, custodian or other similar official
\n for the Tenant or for any substantial part of its property, or any such
\n proceeding is commenced against Tenant and either remains undismissed
\n for a period of thirty days or results in the entry of an order for
\n relief against Tenant which is not fully stayed within seven days after
\n entry;<\/p>\n
(2) Tenant becomes insolvent or bankrupt, does not generally pay
\n its debts as they become due, or admits in writing its inability to pay
\n its debts, or makes a general assignment for the benefit of creditors;<\/p>\n
(3) Any third party obtains a levy or attachment under process
\n of law against Tenant’s leasehold interest.<\/p>\n
16
\n 25<\/p>\n
E. Vacation or Abandonment Default. Tenant vacates or abandons the
\nPremises for more than sixty (60) consecutive days.<\/p>\n
13. LANDLORD REMEDIES.<\/p>\n
A. Termination of Lease or Possession. If Tenant defaults, Landlord may
\nelect by notice to Tenant either to terminate this Lease or to terminate
\nTenant’s possession of the Premises without terminating this Lease. In either
\ncase, Tenant shall immediately vacate the Premises and deliver possession to
\nLandlord, and Landlord may repossess the Premises and may, at Tenant’s sole
\ncost, remove any of Tenant’s signs and any of its other property, without
\nrelinquishing its right to receive Rent or any other right against Tenant.<\/p>\n
B. Lease Termination Damages. If Landlord terminates the Lease, Tenant
\nshall pay to Landlord all Rent due on or before the date of termination, plus
\nLandlord’s reasonable estimate of the aggregate Rent that would have been
\npayable from the date of termination through the Termination Date, reduced by
\nthe rental value of the Premises calculated as of the date of termination for
\nthe same period, taking into account anticipated vacancy prior to reletting,
\nreletting expenses and market concessions, both discounted to present value at
\nthe rate of five percent (5 %) per annum. If Landlord shall relet any part of
\nthe Premises for any part of such period before such present value amount shall
\nhave been paid by Tenant or finally determined by a court, then the amount of
\nRent payable pursuant to such reletting (taking into account vacancy prior to
\nreletting and any reletting expenses or concessions) shall be deemed to be the
\nreasonable rental value for that portion of the Premises relet during the period
\nof the reletting.<\/p>\n
C. Possession Termination Damages. If Landlord terminates Tenant’s right
\nto possession without terminating the Lease and Landlord takes possession of the
\nPremises itself, Landlord may relet any part of the Premises for such Rent, for
\nsuch time, and upon such terms as Landlord in its sole discretion shall
\ndetermine, without any obligation to do so prior to renting other vacant areas
\nin the Project. Any proceeds from reletting the Premises shall first be applied
\nto the expenses of reletting, including redecoration, repair, alteration,
\nadvertising, brokerage, legal, and other reasonably necessary expenses. If the
\nreletting: proceeds after payment of expenses are insufficient to pay the full
\namount of Rent under this Lease, Tenant shall pay such deficiency to Landlord
\nmonthly upon demand as it becomes due. Any excess proceeds shall be retained by
\nLandlord.<\/p>\n
D. Landlord’s Remedies Cumulative. All of Landlord’s remedies under this
\nLease shall be in addition to all other remedies Landlord may have at law or in
\nequity. Waiver by Landlord of any breach of any obligation by Tenant shall be
\neffective only if it is in writing, and shall not be deemed a waiver of any
\nother breach, or any subsequent breach of the same obligation. Landlord’s
\nacceptance of payment by Tenant shall not constitute a waiver of any breach by
\nTenant, and if the acceptance occurs after Landlord’s notice to Tenant, or
\ntermination of the Lease or of Tenant’s right to possession, the acceptance
\nshall not affect such notice or termination. Acceptance of payment by Landlord
\nafter commencement of a legal proceeding or final judgment shall not affect such
\nproceeding or judgment. Landlord may advance such monies and take such other
\nactions for Tenant’s account as reasonably may be required to cure or mitigate
\nany default by Tenant. Tenant shall immediately reimburse Landlord for any such<\/p>\n
17
\n 26<\/p>\n
advance, and such sums shall bear interest at the default interest rate under
\nSection 2D(2) above until paid.<\/p>\n
E. Waiver of Trial by Jury. EACH PARTY WAIVES TRIAL BY JURY IN THE EVENT
\nOF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER IN CONNECTION WITH THIS LEASE. EACH
\nPARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH THIS LEASE IN
\nA FEDERAL OR STATE COURT LOCATED IN TRAVIS COUNTY, TEXAS, CONSENTS TO THE
\nJURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING
\nTRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT
\nFORUM.<\/p>\n
F. Litigation Costs. The non-prevailing party shall pay the prevailing
\nparty’s reasonable attorneys’ fees and other costs in enforcing this Lease,
\nwhether or not suit is filed.<\/p>\n
14. SURRENDER. Upon termination of this Lease or Tenant’s right to
\npossession, Tenant shall return the Premises to Landlord in good order and
\ncondition, ordinary wear and casualty damage excepted. If Landlord requires
\nTenant to remove any alterations, then Tenant shall remove the alterations in a
\ngood and workmanlike manner and restore the Premises to its condition prior to
\ntheir installation.<\/p>\n
15. HOLDOVER. Tenant shall have no right to holdover possession of the
\nPremises after the expiration or termination of this Lease without Landlord’s
\nprior written consent, which consent may be withheld in Landlord’s sole and
\nabsolute discretion. If, however, Tenant retains possession of any part of the
\nPremises after the Term, Tenant shall become a month-to-month tenant for the
\nentire Premises upon all of the terms of this Lease as might be applicable to
\nsuch month-to-month tenancy, except that Tenant shall pay all of Base Rent and
\nOperating Cost Share Rent at 150% of the rate in effect immediately prior to
\nsuch holdover, computed on a monthly basis for each full or partial month Tenant
\nremains in possession. Tenant shall also pay Landlord all of Landlord’s direct
\nand consequential damages resulting from Tenant’s holdover. No acceptance of
\nRent or other payments by Landlord under these holdover provisions shall operate
\nas a waiver of Landlord’s right to regain possession upon demand, or any other
\nof Landlord’s remedies.<\/p>\n
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.<\/p>\n
A. Subordination. This Lease shall be subordinate to any present or
\nfuture ground lease or mortgage respecting the Building or any other portion of
\nthe Project, and any amendments to such ground lease or mortgage, at the
\nelection of the ground lessor or mortgagee as the case may be, effected by
\nnotice to Tenant in the manner provided in this Lease. The subordination shall
\nbe effective upon such notice, but at the request of Landlord or ground lessor
\nor mortgagee, Tenant shall within ten (10) days of the request, execute and
\ndeliver to the requesting party any reasonable documents provided to evidence
\nthe subordination. Any mortgagee has the right, at its option, to subordinate
\nits mortgage to the terms of this lease, without notice to, nor the consent of,
\nTenant.<\/p>\n
18
\n 27<\/p>\n
B. Termination of Ground Lease or Foreclosure of Mortgage. If any ground
\nlease is terminated or mortgage foreclosed or deed in lieu of foreclosure given
\nand the ground lessor, mortgagee, or purchaser at a foreclosure sale shall
\nthereby become the owner of the Building, at the option of such ground lessor,
\nmortgagee or purchaser, Tenant shall attorn to such ground lessor or mortgagee
\nor purchaser without any deduction or setoff by Tenant, and this Lease shall
\ncontinue in effect as a direct lease between Tenant and such ground lessor,
\nmortgagee or purchaser. The ground lessor or mortgagee or purchaser shall be
\nliable as Landlord only during the time such ground lessor or mortgagee or
\npurchaser is the owner of the Building. At the request of Landlord, ground
\nlessor or mortgagee, Tenant shall execute and deliver within ten (10) days of
\nthe request any document furnished by the requesting party to evidence Tenant’s
\nagreement to attorn.<\/p>\n
C. Security Deposit. Any ground lessor or mortgagee shall be responsible
\nfor the return of any security deposit by Tenant only to the extent the security
\ndeposit is received by such ground lessor or mortgagee.<\/p>\n
D. Notice and Right to Cure. The Building is subject to any ground lease
\nand mortgage identified with name and address of ground lessor or mortgagee in
\nAppendix D to this Lease (as the same may be amended from time to time by
\nwritten notice to Tenant). Tenant agrees to send by registered or certified mail
\nto any ground lessor or mortgagee identified either in such Appendix or in any
\nlater notice from Landlord to Tenant a copy of any notice of default sent by
\nTenant to Landlord. If Landlord fails to cure such default within the required
\ntime period under this Lease, but ground lessor or mortgagee begins to cure
\nwithin ten (10) days after such period and proceeds diligently to complete such
\ncure, then ground lessor or mortgagee shall have such additional time as is
\nnecessary to complete such cure, including any time necessary to obtain
\npossession if possession is necessary to cure, and Tenant shall not begin to
\nenforce its remedies so long as the cure is being diligently pursued.<\/p>\n
E. Definitions. As used in this Section 16, “mortgage” shall include
\n“deed of trust” and “mortgagee” shall include “beneficiary” under such deed of
\ntrust, “mortgagee” shall include the mortgagee of any ground lessee, and “ground
\nlessor”, “mortgagee”, and “purchaser at a foreclosure sale” shall include, in
\neach case, all of its successors and assigns, however remote.<\/p>\n
17. ASSIGNMENT AND SUBLEASE.<\/p>\n
A. In General. Tenant shall not, without the prior consent of Landlord
\nin each case, (i) make or allow any assignment or transfer, by operation of law
\nor otherwise, of any part of Tenant’s interest in this Lease, (ii) grant or
\nallow any lien or encumbrance, by operation of law or otherwise, upon any part
\nof Tenant’s interest in this Lease, (iii) sublet any part of the Premises, or
\n(iv) permit anyone other than Tenant and its employees to occupy any part of the
\nPremises. Tenant shall remain primarily liable for all of its obligations under
\nthis Lease, notwithstanding any assignment or transfer. No consent granted by
\nLandlord shall be deemed to be a consent to any subsequent assignment or
\ntransfer, lien or encumbrance, sublease or occupancy. Tenant shall pay all of
\nLandlord’s attorneys’ fees and other expenses incurred in connection with any
\nconsent requested by Tenant or in reviewing any proposed assignment or
\nsubletting. Any assignment or transfer, grant of lien or encumbrance, or
\nsublease or occupancy without Landlord’s prior written consent shall be void. If
\nTenant shall assign this Lease or sublet the<\/p>\n
19
\n 28<\/p>\n
Premises in its entirety any rights of Tenant to renew this Lease, extend the
\nTerm or to lease additional space in the Project shall be extinguished thereby
\nand will not be transferred to the assignee or subtenant, all such rights being
\npersonal to the Tenant named herein.<\/p>\n
B. Landlord’s Consent. Landlord will not unreasonably withhold its
\nconsent to any proposed assignment or subletting. It shall be reasonable for
\nLandlord to withhold its consent to any assignment or sublease if (i) Tenant is
\nin default under this Lease, (ii) the proposed assignee or sublessee is a tenant
\nin the Project or an affiliate of such a tenant or a party that Landlord has
\nidentified as a prospective tenant in the Project, (iii) the financial
\nresponsibility, nature of business, and character of the proposed assignee or
\nsubtenant are not all reasonably satisfactory to Landlord, (iv) in the
\nreasonable judgment of Landlord the purpose for which the assignee or subtenant
\nintends to use the Premises (or a portion thereof) is not in keeping with
\nLandlord’s standards for the Project or the Building or are in violation of the
\nterms of this Lease or any other leases in the Project, (v) the proposed
\nassignee or subtenant is a government entity, or (vi) the proposed assignment is
\nfor less than the entire Premises or for less than the remaining Term of the
\nLease. The foregoing shall not exclude any other reasonable basis for Landlord
\nto withhold its consent.<\/p>\n
C. Procedure. Tenant shall notify Landlord of any proposed assignment or
\nsublease at least thirty (30) days prior to its proposed effective date. The
\nnotice shall include the name and address of the proposed assignee or subtenant,
\nits corporate affiliates in the case of a corporation and its partners in a case
\nof a partnership, an execution copy of the proposed assignment or sublease, and
\nsufficient information to permit Landlord to determine the financial
\nresponsibility and character of the proposed assignee or subtenant. As a
\ncondition to any effective assignment of this Lease, the assignee shall execute
\nand deliver in form satisfactory to Landlord at least fifteen (15) days prior to
\nthe effective date of the assignment, an assumption of all of the obligations of
\nTenant under this Lease. As a condition to any effective sublease, subtenant
\nshall execute and deliver in form satisfactory to Landlord at least fifteen (15)
\ndays prior to the effective date of the sublease, an agreement to comply with
\nall of Tenant’s obligations under this Lease, and at Landlord’s option, an
\nagreement (except for the economic obligations which subtenant will undertake
\ndirectly to Tenant) to attorn to Landlord under the terms of the sublease in the
\nevent this Lease terminates before the sublease expires.<\/p>\n
D. Transfers to Affiliates. Notwithstanding any provision to the
\ncontrary in this Lease, Tenant may assign this Lease or sublet all or any
\nportion of the Premises to an Affiliate without the prior written consent of
\nLandlord, provided that (i) Tenant notifies Landlord at least thirty (30) days
\nin advance of such transfer, which notice shall include the identity of the
\ntransferee, (ii) such transferee agrees in writing to assume and fully perform
\nand observe all of the obligations of Tenant under this Lease, (iii) Tenant is
\nnot then in default under this Lease, and (iv) Tenant remains liable for the
\nperformance of Tenant’s obligations under this Lease. As used herein,
\n“Affiliate” means any person or entity controlling, controlled by or under
\ncommon control with Tenant. “Control” as used herein means the power, directly
\nor indirectly, to direct or cause the direction of the management and policies
\nof the controlled person or entity.<\/p>\n
E. Excess Payments. If Tenant shall assign this Lease or sublet any part
\nof the Premises for consideration in excess of the pro-rata portion of Rent
\napplicable to the space<\/p>\n
20
\n 29<\/p>\n
subject to the assignment or sublet, then Tenant shall pay to Landlord as
\nAdditional Rent 50% of any such excess immediately upon receipt.<\/p>\n
F. Recapture. Landlord may, by giving written notice to Tenant within
\nthirty (30) days after receipt of Tenant’s notice of assignment or subletting,
\nterminate this Lease with respect to the space described in Tenant’s notice, as
\nof the effective date of the proposed assignment or sublease and all obligations
\nunder this Lease as to such space shall expire except as to any obligations that
\nexpressly survive any termination of this Lease.<\/p>\n
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
\ninterest in the Building or this Lease, Landlord shall be released of any
\nobligations occurring after such transfer, except the obligation to return to
\nTenant any security deposit not delivered to its transferee, and Tenant shall
\nlook solely to Landlord’s successors for performance of such obligations. This
\nLease shall not be affected by any such transfer.<\/p>\n
19. ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) days of
\nreceiving a request from Landlord, execute, acknowledge in recordable form, and
\ndeliver to Landlord or its designee a certificate stating, subject to a specific
\nstatement of any applicable exceptions, that the Lease as amended to date is in
\nfull force and effect, that the Tenant is paying Rent and other charges on a
\ncurrent basis, and that to the best of the knowledge of Tenant, Landlord has
\ncommitted no uncured defaults and Tenant has no offsets or claims. Tenant may
\nalso be required to state the date of commencement of payment of Rent, the
\nCommencement Date, the Termination Date, the Base Rent, the current Operating
\nCost Share Rent estimate, the status of any improvements required to be
\ncompleted by Landlord, the amount of any security deposit, and such other
\nmatters as may be reasonably requested. Failure to deliver such certificate and
\nstatement within the time required shall be conclusive evidence against Tenant
\nthat this Lease, with any amendments identified by Landlord, is in full force
\nand effect, that there are no uncured defaults by Landlord, that not more than
\none month’s Rent has been paid in advance, that Tenant has not paid any security
\ndeposit, and that Tenant has no claims or offsets against Landlord.<\/p>\n
20. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the date of
\nthis Lease security (the “Security Deposit”) for the performance of all of its
\nobligations in the amount of $175,000.00, which security shall be in the form of
\nan unconditional and irrevocable letter of credit (the “Letter of Credit”) (i)
\nin the form attached hereto as Appendix G, (ii) naming Landlord as beneficiary,
\n(iii) expressly allowing Landlord to draw upon it at any time from time to time
\nby delivering to the issuer notice that Landlord is entitled to draw thereunder,
\n(iv) drawable on an FDIC-insured financial institution satisfactory to Landlord,
\nand (v) redeemable in Austin, Texas. If Tenant does not provide Landlord with a
\nsubstitute Letter of Credit complying with all of the requirements hereof at
\nleast ten (10) days before the stated expiration date of the current Letter of
\nCredit then Landlord shall have the right to draw upon the current Utter of
\nCredit and hold the funds drawn as the Security Deposit. Provided that no
\ndefault by Tenant shall then exist under this Lease and no event shall exist
\nwhich, with the giving of notice or the passage of time or both, would
\nconstitute a default by Tenant under this Lease, at the end of each of the first
\nfour (4) years of the Term of this Lease, Landlord shall accept a replacement
\nLetter of Credit or an amendment to the Letter of Credit pursuant to which the
\nUtter of Credit is reduced by $35,000.00. If Tenant defaults under this Lease,
\nLandlord may use any part of the Security Deposit to make any defaulted payment,
\nto pay for Landlord’s cure of any defaulted<\/p>\n
21
\n 30<\/p>\n
obligation, or to compensate Landlord for any loss or damage resulting from any
\ndefault. To the extent any portion of the Security Deposit is used, Tenant shall
\nwithin five (5) business days after demand from Landlord restore the Security
\nDeposit to its full amount. If Tenant shall perform all of its obligations under
\nthis Lease and return the Premises to Landlord at the end of the Term, Landlord
\nshall cause the Letter of Credit to terminate according to its terms and return
\nany remaining Security Deposit to Tenant within thirty (30) days after the end
\nof the Term. The Security Deposit shall not serve as a measure of Landlord’s
\ndamages for any default under this Lease.<\/p>\n
21. FORCE MAJEURE. Landlord shall not be in default under this Lease to
\nthe extent Landlord is unable to perform any of its obligations on account of
\nany strike or labor problem, energy shortage, governmental pre-emption or
\nprescription, national emergency, or any other cause of any kind beyond the
\nreasonable control of Landlord (“Force Majeure”).<\/p>\n
22. NOTICES. All notices, consents, approvals and similar communications
\nto be given by one party to the other under this Lease, shall be given in
\nwriting, mailed or personally delivered as follows:<\/p>\n
A. Landlord. To Landlord as follows:<\/p>\n
CarrAmerica Realty, L.P.
\n t\/a Riata Corporate Park
\n 8240 N. MoPac, Suite 105
\n Austin, Texas 78759
\n Attn: Market Officer<\/p>\n
with a copy to:<\/p>\n
CarrAmerica Realty Corporation
\n 1850 K Street, N.W., Suite 500
\n Washington, D.C. 20006
\n Attn: Lease Administration<\/p>\n
or to such other person at such other address as Landlord may designate by
\nnotice to Tenant.<\/p>\n
B. Tenant. To Tenant as follows:<\/p>\n
3DFX Interactive, Inc.
\n 4435 Fortran Drive
\n San Jose, California 95134
\n Attn: Gerald Ruckman<\/p>\n
or to such other person at such other address as Tenant may designate by notice
\nto Landlord.<\/p>\n
Mailed notices shall be sent by United States certified or registered
\nmail, or by a reputable national overnight courier service, postage prepaid.
\nMailed notices shall be deemed to have been given on the earlier of actual
\ndelivery or three (3) business days after posting in the<\/p>\n
22
\n 31<\/p>\n
United States mail in the case of registered or certified mail, and one business
\nday in the case of overnight courier.<\/p>\n
23. QUIET POSSESSION. So long as Tenant shall perform all of its
\nobligations under this Lease, Tenant shall enjoy peaceful and quiet possession
\nof the Premises against any party claiming through the Landlord.<\/p>\n
24. REAL ESTATE BROKER. Tenant represents to Landlord that Tenant has
\nnot dealt with any real estate broker with respect to this Lease except for any
\nbroker(s) listed in the Schedule, and no other broker is in any way entitled to
\nany broker’s fee or other payment in connection with this Lease. Tenant shall
\nindemnify and defend Landlord against any claims by any other broker or third
\nparty for any payment of any kind in connection with this Lease. Landlord shall
\nbe responsible for all commissions owing to Landlord’s Real Estate Broker and
\nTenant’s Real Estate Broker in connection with the Lease pursuant to separate
\nwritten agreements with such brokers.<\/p>\n
25. MISCELLANEOUS.<\/p>\n
A. Successors and Assigns. Subject to the limits on Tenant’s assignment
\ncontained in Section 17, the provisions of this Lease shall be binding upon and
\ninure to the benefit of all successors and assigns of Landlord and Tenant.<\/p>\n
B. Date Payments Are Due. Except for payments to be made by Tenant under
\nthis Lease which are due upon demand or are due in advance (such as Base Rent),
\nTenant shall pay to Landlord any amount for which Landlord renders a statement
\nof account within ten days of Tenant’s receipt of Landlord’s statement.<\/p>\n
C. Meaning of “Landlord,” “Re-Entry,” “including” and “Affiliate.” The
\nterm “Landlord” means only the owner of the Project and the lessor’s interest in
\nthis Lease from time to time. The words “re-entry” and “re-enter” are not
\nrestricted to their technical legal meaning. The words “including” and similar
\nwords shall mean “without limitation.” The word “affiliate” shall mean a person
\nor entity controlling, controlled by or under common control with the applicable
\nentity. “Control” shall mean the power directly or indirectly, by contract or
\notherwise, to direct the management and policies of the applicable entity.<\/p>\n
D. Time of the Essence. Time is of the essence of each provision of this
\nLease.<\/p>\n
E. No Option. This document shall not be effective for any purpose until
\nit has been executed and delivered by both parties; execution and delivery by
\none party shall not create any option or other right in the other party.<\/p>\n
F. Severability. The unenforceability of any provision of this Lease
\nshall not affect any other provision.<\/p>\n
G. Governing Law. This Lease shall be governed in all respects by the
\nlaws of the state in which the Project is located, without regard to the
\nprinciples of conflicts of laws.<\/p>\n
23
\n 32<\/p>\n
H. Lease Modification. Tenant agrees to modify this Lease in any way
\nrequested by a mortgagee which does not cause increased expense to Tenant or
\notherwise materially adversely affect Tenant’s interests under this Lease.<\/p>\n
I. No Oral Modification. No modification of this Lease shall be
\neffective unless it is a written modification signed by both parties.<\/p>\n
J. Landlord’s Right to Cure. If Landlord breaches any of its obligations
\nunder this Lease, Tenant shall notify Landlord in writing and shall take no
\naction respecting such breach so long as Landlord promptly begins to cure the
\nbreach and diligently pursues such cure to its completion. Landlord may cure any
\ndefault by Tenant; any expenses incurred shall become Additional Rent due from
\nTenant on demand by Landlord.<\/p>\n
K. Captions. The captions used in this Lease shall have no effect on the
\nconstruction of this Lease.<\/p>\n
L. Authority. Landlord and Tenant each represents to the other that it
\nhas full power and authority to execute and perform this Lease.<\/p>\n
M. Landlord’s Enforcement of Remedies. Landlord may enforce any of its
\nremedies under this Lease either in its own name or through an agent.<\/p>\n
N. Entire Agreement. This Lease, together with all Appendices,
\nconstitutes the entire agreement between the parties. No representations or
\nagreements of any kind have been made by either party which are not contained in
\nthis Lease.<\/p>\n
O. Landlord’s Title. Landlord’s title shall always be paramount to the
\ninterest of the Tenant, and nothing in this Lease shall empower Tenant to do
\nanything which might in any way impair Landlord’s title.<\/p>\n
P. Light and Air Rights. Landlord does not grant in this Lease any
\nrights to light and air in connection with the Building or the Project. Landlord
\nreserves to itself, all land within the Project, the Building below the improved
\nfloor of each floor of the Premises, the Building above the ceiling of each
\nfloor of the Premises, the exterior of the Premises and the areas on the same
\nfloor outside the Premises, along with the areas within the Premises required
\nfor the installation and repair of utility lines and other items required to
\nserve other tenants of the Building.<\/p>\n
Q. Singular and Plural. Wherever appropriate in this Lease, a singular
\nterm shall be construed to mean the plural where necessary, and a plural term
\nthe singular. For example, if at any time two parties shall constitute Landlord
\nor Tenant, then the relevant term shall refer to both parties together.<\/p>\n
R. No Recording by Tenant. Tenant shall not record in any public records
\nany memorandum or any portion of this Lease.<\/p>\n
S. Exclusivity. Landlord does not grant to Tenant in this Lease any
\nexclusive right except the right to occupy its Premises.<\/p>\n
24
\n 33<\/p>\n
T. No Construction Against Drafting Party. The rule of construction that
\nambiguities are resolved against the drafting party shall not apply to this
\nLease.<\/p>\n
U. Survival. All obligations of Landlord and Tenant under this Lease
\nshall survive the termination of this Lease.<\/p>\n
V. Rent Not Based on Income. No rent or other payment in respect of the
\nPremises shall be based in any way upon net income or profits from the Premises.
\nTenant may not enter into or permit any sublease or license or other agreement
\nin connection with the Premises which provides for a rental or other payment
\nbased on net income or profit.<\/p>\n
W. Building Manager and Service Providers. Landlord may perform any of
\nits obligations under this Lease through its employees or third parties hired by
\nthe Landlord.<\/p>\n
X. Late Charge and Interest on Late Payments. Without limiting the
\nprovisions of Section 12A, if Tenant fails to pay any installment of Rent or
\nother charge to be paid by Tenant pursuant to this Lease within five (5)
\nbusiness days after the same becomes due and payable, then Tenant shall pay a
\nlate charge equal to the greater of five percent (5%) of the amount of such
\npayment or $250. In addition, interest shall be paid by Tenant to Landlord on
\nany late payments of Rent from the date due until paid at the rate provided in
\nSection 2D(2). Such late charge and interest shall constitute Additional Rent
\ndue and payable by Tenant to Landlord upon the date of payment of the delinquent
\npayment referenced above.<\/p>\n
Y. Tenant’s Financial Statements. Within ten (10) days after Landlord’s
\nwritten request therefor, Tenant shall deliver to Landlord the current audited
\nannual and quarterly financial statements of Tenant, and annual audited
\nfinancial statements of the two (2) years prior to the current year’s financial
\nstatements, each with an opinion of a certified public accountant and including
\na balance sheet and profit and loss statement, all prepared in accordance with
\ngenerally accepted accounting principles consistently applied.<\/p>\n
Z. Usury Savings. All agreements between Landlord and Tenant, whether
\nnow existing or hereafter arising and whether written or oral, are hereby
\nexpressly limited so that in no contingency or event whatsoever shall the amount
\ncontracted for, charged or received by Landlord for the use, forbearance or
\nretention of money hereunder or otherwise exceed the maximum amount which
\nLandlord is legally entitled to contract for, charge or collect under the
\napplicable state or federal law. If, from any circumstance whatsoever,
\nfulfillment of any provision hereof at the time performance of such provision
\nshall be due shall involve transcending the limit of validity prescribed by law,
\nthen the obligation to be fulfilled shall be automatically reduced to the limit
\nof such validity, and if from any such circumstance Landlord shall ever receive
\nas interest or otherwise an amount in excess of the maximum that can be legally
\ncollected, then such amount which would be excessive interest shall be applied
\nto the reduction of rent hereunder, and if such amount which would be excessive
\ninterest exceeds such rent, then such additional amount shall be refunded to
\nTenant.<\/p>\n
AA. Waiver of Warranties. TENANT HEREBY WAIVES THE BENEFIT OF ALL
\nWARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PREMISES INCLUDING,
\nWITHOUT LIMITATION, ANY IMPLIED WARRANTY<\/p>\n
25
\n 34<\/p>\n
THAT THE PREMISES ARE SUITABLE FOR ANY COMMERCIAL OR OTHER PARTICULAR PURPOSE.<\/p>\n
26. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at
\nany time that any part of the payments by Tenant to Landlord under this Lease
\nmay be characterized as unrelated business income under the United States
\nInternal Revenue Code and its regulations, then Tenant shall enter into any
\namendment proposed by Landlord to avoid such income, so long as the amendment
\ndoes not require Tenant to make more payments or accept fewer services from
\nLandlord, than this Lease provides.<\/p>\n
27. HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any Hazardous
\nSubstances to be brought upon, produced, stored, used, discharged or disposed of
\nin or near the Project unless Landlord has consented to such storage or use in
\nits sole discretion. “Hazardous Substances” include those hazardous substances
\ndescribed in the Comprehensive Environmental Response, Compensation and
\nLiability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
\nConservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any
\nother applicable federal, state or local law, and the regulations adopted under
\nthese laws (collectively, “Environmental Law”). If any lender or governmental
\nagency shall require testing for Hazardous Substances in the Premises, Tenant
\nshall pay for such testing. Tenant agrees to indemnify and hold Landlord
\nharmless from all claims, demands, actions, liabilities, costs, expenses,
\ndamages and obligations of any nature arising from the contamination of the
\nProject with Hazardous Substances as a result of or arising out of the use or
\noccupancy of the Premises by Tenant. The foregoing indemnification shall survive
\nthe termination or expiration of this Lease. To the best of Landlord’s actual
\nknowledge, no Hazardous Substances are present within the Project as of the date
\nhereof in violation of Environmental Law, and Landlord does not intend to
\nutilize Hazardous Substances during construction activities within the Project
\nexcept in compliance with Environmental Law.<\/p>\n
28. EXCULPATION. Landlord shall have no personal liability under this
\nLease; its liability shall be limited to its interest in the Building, and shall
\nnot extend to any other property or assets of the Landlord. In no event shall
\nany officer, director, employee, agent, shareholder, partner, member or
\nbeneficiary of Landlord be personally liable for any of Landlord’s obligations
\nhereunder.<\/p>\n
29. LANDLORD’S LIEN. LANDLORD SHALL HAVE AND TENANT HEREBY GRANTS TO
\nLANDLORD A CONTINUING SECURITY INTEREST FOR ALL RENT AND OTHER SUMS OF MONEY
\nBECOMING DUE HEREUNDER FROM TENANT, UPON ALL GOODS, WARES, EQUIPMENT, FIXTURES,
\nFURNITURE, INVENTORY, ACCOUNTS, CONTRACT RIGHTS, CHATTEL PAPER AND OTHER
\nPERSONAL PROPERTY OF TENANT SITUATED ON THE PREMISES, WHICH IS LOCATED AT 12357
\nRIATA TRACE PARKWAY, AUSTIN, TEXAS, AND SUCH PROPERTY SHALL NOT BE REMOVED
\nTHEREFROM WITHOUT THE CONSENT OF LANDLORD UNTIL ALL ARREARAGES IN RENT AS WELL
\nAS ANY AND ALL OTHER SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER SHALL FIRST
\nHAVE BEEN PAID AND DISCHARGED. PRODUCTS OF COLLATERAL ARE ALSO COVERED. IN THE
\nEVENT OF A DEFAULT UNDER THIS LEASE, LANDLORD SHALL HAVE, IN ADDITION TO ANY
\nOTHER REMEDIES PROVIDED HEREIN OR BY LAW, ALL RIGHTS AND<\/p>\n
26
\n 35<\/p>\n
REMEDIES UNDER THE UNIFORM COMMERCIAL CODE, INCLUDING WITHOUT LIMITATION THE
\nRIGHT TO SELL THE PROPERTY DESCRIBED IN THIS PARAGRAPH AT PUBLIC OR PRIVATE SALE
\nUPON FIVE (5) DAYS NOTICE TO TENANT. TENANT HEREBY AGREES TO EXECUTE SUCH OTHER
\nINSTRUMENTS NECESSARY OR DESIRABLE IN LANDLORD’S DISCRETION TO PERFECT THE
\nSECURITY INTEREST HEREBY CREATED. ANY STATUTORY LIEN FOR RENT IS NOT HEREBY
\nWAIVED, THE EXPRESS CONTRACTUAL LIEN HEREIN GRANTED BEING IN ADDITION AND
\nSUPPLEMENTARY THERETO. LANDLORD AND TENANT AGREE THAT THIS LEASE AND SECURITY
\nAGREEMENT SERVES AS A FINANCING STATEMENT AND THAT A COPY OR PHOTOGRAPHIC OR
\nOTHER REPRODUCTION OF THIS PORTION OF THIS LEASE MAY BE FILED OF RECORD BY
\nLANDLORD AND HAVE THE SAME FORCE AND EFFECT AS THE ORIGINAL. THIS SECURITY
\nAGREEMENT AND FINANCING STATEMENT ALSO COVERS FIXTURES LOCATED AT THE PREMISES,
\nAND MAY BE FILED FOR RECORD IN THE REAL ESTATE RECORDS. TENANT WARRANT THAT THE
\nCOLLATERAL SUBJECT TO THE SECURITY INTEREST GRANTED HEREIN IS NOT PURCHASED OR
\nUSED BY TENANT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.<\/p>\n
30. TENANT’S EQUIPMENT. Tenant may, at its sole cost, install, maintain,
\nand from time to time replace telecommunication devices on the roof of the
\nBuilding (“Tenant’s Equipment”). Tenant shall obtain Landlord’s prior approval
\nof the proposed size, weight and location of Tenant’s Equipment, method for
\nfastening Tenant’s Equipment to the roof, and method for connecting Tenant’s
\nEquipment to the Premises, and Tenant will at its sole cost comply with all
\nGovernmental Requirements and the conditions of any bond or warranty maintained
\nby Landlord on the roof in connection therewith. Landlord may supervise any roof
\npenetration. Tenant shall repair any damage to the Building caused by Tenant’s
\ninstallation, maintenance, replacement, use or removal of Tenant’s Equipment.
\nTenant’s Equipment shall remain the property of Tenant, and Tenant may remove
\nTenant’s Equipment at its cost at any time during the Term. Tenant shall
\nprotect, defend, indemnify and hold harmless Landlord from and against claims,
\ndamages, liabilities, costs and expenses of every kind and nature, including
\nattorneys’ fees, incurred by or asserted against Landlord arising out of
\nTenant’s installation, maintenance, replacement, use or removal of Tenant’s
\nEquipment. Tenant shall not owe Rent to Landlord solely for use of the Building
\nroof for Tenant’s Equipment in compliance with this Section 30.<\/p>\n
27
\n 36<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Lease.<\/p>\n
LANDLORD:<\/p>\n
CARRAMERICA REALTY, L.P., a Delaware limited
\n partnership, t\/a Riata Corporate Park<\/p>\n
By: CarrAmerica Realty GP Holdings, Inc., a
\n Delaware corporation, General Partner<\/p>\n
By: \/s\/ PHILIP L. HAWKINS
\n ————————————-
\n Name: Philip L. Hawkins
\n ———————————–
\n Title: Managing Director
\n ———————————-<\/p>\n
TENANT:<\/p>\n
3DFX INTERACTIVE, INC., a California
\n corporation<\/p>\n
By: \/s\/ DAVID ZACARIAS
\n —————————————–
\n Name: David Zacarias
\n —————————————
\n Title: V.P. Admin.\/CFO
\n ————————————–<\/p>\n
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