Fill and Sign the Lease Agreement Jackson Shawn Alpha Metro Limited Partnership and Efficient Networks Inc Form

OFFICE LEASE AGREEMENT ---------------------- Jackson-Shaw/Alpha Metro Limited Partnership, Landlord and Efficient Networks, Inc. Tenant TABLE OF CONTENTS 1. LANDLORD.............................................................. 1 2. TENANT................................................................ 1 3. LEASED PREMISES....................................................... 1 4. TERM:................................................................. 2 5. BASE RENT; ABATEMENT; SECURITY DEPOSIT................................ 2 6. ADDITIONAL RENT....................................................... 4 7. TENANT REPAIRS AND MAINTENANCE........................................ 8 8. LANDLORD'S REPAIRS AND MAINTENANCE RESPONSIBILITIES................... 9 9. UTILITY SERVICE....................................................... 13 10. SIGNS................................................................. 13 11. USAGE................................................................. 15 12. TENANT'S INSURANCE OBLIGATIONS........................................ 15 13. (INTENTIONALLY DELETED)............................................... 16 14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS........................... 16 15. ASSIGNMENT AND SUBLETTING............................................. 17 16. ALTERATIONS AND IMPROVEMENTS.......................................... 18 17. CONDEMNATION.......................................................... 19 18. FIRE AND CASUALTY..................................................... 20 19. LANDLORD'S INSURANCE OBLIGATION....................................... 21 20. WAIVER OF SUBROGATION................................................. 22 21. HOLD HARMLESS......................................................... 22 22. QUIET ENJOYMENT....................................................... 23 23. LANDLORD'S RIGHT OF ENTRY............................................. 23 24. ASSIGNMENT OF LANDLORD'S INTEREST IN LEASE............................ 23 25. LANDLORD'S LIEN:...................................................... 23 26. DEFAULT BY TENANT..................................................... 24 27. REMEDIES FOR TENANT'S DEFAULT......................................... 24 28. TERMINATION OF OPTIONS................................................ 26 29. WAIVER OF DEFAULT OR REMEDY........................................... 26 30. CHOICE OF LAW; VENUE; ATTORNEY'S FEES................................. 27 31. HOLDING OVER.......................................................... 27 32. RIGHTS OF MORTGAGEE................................................... 27 33. ESTOPPEL CERTIFICATES................................................. 28 34. SUCCESSORS............................................................ 28 35. REAL ESTATE COMMISSION................................................ 28 36. DEFAULT BY LANDLORD................................................... 29 37. MECHANIC'S LIENS...................................................... 29 38. HAZARDOUS MATERIALS................................................... 29 39. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES......................... 31 40. FINANCIAL STATEMENTS.................................................. 32 41. FORCE MAJEURE......................................................... 32 42. ROOF AND OTHER AREAS.................................................. 32 43. MISCELLANEOUS......................................................... 33 44. NOTICE................................................................ 35 45. LANDLORD'S REPRESENTATIONS............................................ 36 46. TENANT FINANCING...................................................... 36 47. TENANT'S CONDUCT...................................................... 36 48. PARKING............................................................... 37 49. (INTENTIONALLY DELETED)............................................... 37 50. ALLOWANCES............................................................ 37 51. IMPROVEMENTS.......................................................... 37 52. RENT ABATEMENT........................................................ 38 53. RENEWAL OPTION........................................................ 39 54. ADDITIONAL SPACE...................................................... 39 55. SPACE PLAN/DESIGN SERVICES ALLOWANCE.................................. 39 56. TENANT'S RIGHT OF FIRST REFUSAL....................................... 40 OFFICE LEASE AGREEMENT THIS LEASE AGREEMENT is entered into this ______ day of ______________, 1999 (the "Execution Date") by and between: -------------- 1. LANDLORD: Jackson-Shaw/Alpha Metro Limited Partnership ("Landlord"), and, -------- 2. TENANT: Efficient Networks, Inc., ("Tenant"). ------ 3. LEASED PREMISES: (a) In consideration of the rents, terms and covenants of this Office Lease Agreement (this "Lease"), Landlord hereby leases to Tenant the "Project" locally ----- known as the Alpha Metro building which includes and is defined as (i) those certain premises (the "Leased Premises" or "Premises") consisting of all of the --------------- -------- "rentable area" (as defined below) within the 125,538 square foot of "rentable area" building (the "Building") located at 4849 Alpha Road, Dallas, Texas, (ii) -------- the land upon which the Building is located as described in the attached Exhibit ------- "A" (of which Exhibit "A-1" is the "Site Plan"), and, (iii) all landscaping, - --- ------------- --------- parking and driveway areas, sidewalks, and other improvements thereon. (b) The rentable area in the Premises and Building has been calculated in accordance with BOMA standards for single occupancy buildings. Such rentable area is hereby stipulated for all purposes hereof to be as stated in Paragraph --------- 3(a) above, whether the same should be more or less as a result of a minor - ---- variation resulting from actual construction and completion of the Premises for occupancy so long as such work is done in substantial accordance with the Work Drawings (hereafter defined). (c) The term "Common Areas" as used herein shall mean and refer to the ------------ areas of the Project the repair and maintenance of which are the responsibility of Landlord under the terms hereof, such as the Building plumbing, elevators, fire protection alarm and sprinkler systems, access and parking areas, service roads, loading facilities, sidewalks, landscaping, and the like. The Common Areas shown on the Site Plan are a material consideration for Tenant entering into this Lease, and Landlord shall not voluntarily allow any change or alteration thereto (except as allowed by the Working Drawings), including but not limited to the parking areas, methods of ingress and egress, direction of traffic, or any change which would materially affect the operation of Tenant's business, without Tenant's prior written consent. Landlord shall not voluntarily permit any public telephones, newspaper machines, vending machines or signage to be affixed by or on behalf of Landlord on the exterior walls of the Building or placed in front, or surrounding, the Leased Premises. OFFICE LEASE AGREEMENT - Page - 1 - ---------------------- 4. TERM: The term of this Lease shall be One Hundred Twenty-Three (123) months (the "Primary Term") commencing on the Commencement Date (hereafter defined), ------------ and terminating on the last day of the 123/rd/ full calendar month following the Commencement Date (the "Termination Date") For purposes of this Lease, a "Lease ---------------- ----- Year" shall be defined as that twelve (12) month period during the Primary Term - ---- or any Extension Term (hereinafter defined) commencing on the Commencement Date or the annual anniversary thereof, as may be applicable; provided, however, that if the Commencement Date is a day other than the first day of a calendar month, then the first Lease Year shall include that period of time from the Commencement Date up to the first day of the next calendar month, and any subsequent Lease Year shall be the twelve (12) month period beginning on the first day of such month. For purposes of this Lease, a "Lease Month" shall be ----------- defined as those successive calendar month periods beginning with the Commencement Date and continuing through the Primary Term or any Extension Term of this Lease; provided, however, if the Commencement Date is a day other than the first day of a calendar month, then the first Lease Month shall include that period of time from the Commencement Date up to the first day of the next calendar month, and each subsequent Lease Month shall be a calendar month period beginning on the first day of such month. The Primary Term and any Extension Terms are sometimes collectively referred to herein as the "Term". For purposes ---- of this Lease, the "Commencement Date" shall be the earlier to occur of (i) ----------------- Substantial Completion (defined along with derivations thereof in Exhibit "B" ---------- attached hereto) or (ii) March 1, 2000; provided, however if Substantial Completion has not occurred by March 1, 2000, and such failure has not been caused by Tenant or Tenant's Representatives (below defined), Base Rent shall be abated until Substantial Completion has occurred (and the Rent Abatement Period, as hereinafter defined, shall likewise be extended), provided further that if Substantial Completion has not occurred by September 30, 2000, and such failure has not been caused by force majeure or Tenant or Tenant's Representatives, then Tenant may terminate this Lease by written notice to Landlord no later than October 15, 2000, such termination to be effective as of the date of said notice, and the Security Deposit (below defined) and any Rent deposit shall be returned to Tenant, and neither party shall have any further liability one to the other. 5. BASE RENT; ABATEMENT; SECURITY DEPOSIT: (a) Tenant's obligation to pay Rent (including Additional Rent (hereafter defined) shall commence on the Commencement Date. Commencing on the Commencement Date, Tenant agrees to pay to Landlord the following rental amounts (sometimes referred to in this Lease as the "Base Rent" or "Base Rental"): --------- ----------- LEASE RENTABLE ANNUAL RENT MONTHLY COST/SQ FT OF ----- -------- ----------- ------- ------------- MONTHS AREA RENT RENTABLE AREA IN ------ ---- ---- ---------------- LEASED PREMISES --------------- 1-9 104,435 sf. $ 2,088,700.00 $ 174,058.33 $ 20.00 10-62 125,538 sf. $ 2,510,760.00 $ 209,230.00 $ 20.00 63-123 125,538 sf. $ 2,855,989.50 $ 237,999.12 $ 22.75 OFFICE LEASE AGREEMENT - Page - 2 - ---------------------- However, no Base Rent shall be due for the Early Occupancy Period (hereafter defined) or for the first two full Lease Months thereafter (collectively, the "Rent Abatement Period"). Payment of Rent is subject to proration for partial --------------------- months and to adjustment for early or delayed occupancy under the terms hereof. If the Commencement Date is a day that is other than the first day of a calendar month, then (i) the Rental Abatement Period shall not include the first Lease Month and shall, instead, include the second, third and fourth full Lease Months, and (ii) the Base Rent for such partial first month (prorated as above provided) shall be due and payable within three (3) days of the Commencement Date and, subject to the credit for which provision is made in the first sentence of Paragraph 5(b) below, the next installment shall be due and payable -------------- on or before expiration of the Rent Abatement Period. If the Commencement Date is the first day of a calendar month, then, subject to the credit for which provision is made in the first sentence of Paragraph 5(b) below, the first -------------- installment of Base Rent shall be due and payable by Tenant on or before expiration of the Rent Abatement Period. All subsequent installments of Base Rent shall be due and payable on or before the first (1st) day of each calendar month during the Lease Term, except as otherwise provided herein. Base Rent shall be payable to Landlord monthly, in advance, without demand, deduction or offset, unless otherwise provided herein, in lawful money of the United States of America at the address stated below. All sums of money, other than Base Rent, which become due under this Lease are deemed to be "Additional Rent" (and are --------------- herein so called). The nonpayment of any Additional Rent shall afford Landlord all the rights and remedies as are herein provided in the case of nonpayment of any Base Rent. (b) On the Execution Date, Base Rent for the first full calendar month for which Base Rent is due under Paragraph 5(a) above shall be deposited with -------------- Landlord, and Landlord shall apply such deposit to the Base Rent for such first full calendar month for which Base Rent is due. Further, on the Execution Date, there shall be due and payable by Tenant a security deposit (the "Security Deposit") in the amount of $174,058.33. Such Security Deposit shall be held by Landlord (without any obligation to pay interest thereon or segregate such money from Landlord's general funds except as may be required by applicable law) as security for the performance of Tenant's obligations under this Lease. Tenant agrees to increase such Security Deposit from time to time so that it is at all times equal to one monthly Base Rental installment plus the average monthly Additional Rentals arising pursuant to Paragraph 6 below. Tenant shall deposit ----------- cash with Landlord in an amount sufficient so to increase the Security Deposit to such amount within ten (10) days after written demand by Landlord. It is expressly understood that the Security Deposit is not an advance payment of rental or a measure of Landlord's damages in the event of Tenant's default under this Lease. Upon the occurrence of any event of default by Tenant under this Lease, Landlord may, from time to time, without prejudice to any other remedy provided herein or provided by law and upon notice to Tenant, use, apply, or retain all or part of the Security Deposit for the payment of (i) Base Rent, (ii) Additional Rent, and (iii) other sums due hereunder, including without limitation any amount which Landlord may spend or become obligated to spend by reason of Tenant's default or to compensate Landlord for any damage, injury, expense or liability caused to Landlord by such default or breach. If any portion of the Security Deposit is so used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to the amount required by this Paragraph. Tenant's failure to do so shall be an event of default under this Lease. Unless Tenant receives a timely notice with respect to an event of default OFFICE LEASE AGREEMENT - Page - 3 - ---------------------- (below defined) and fails timely to cure same as herein provided, the balance of the Security Deposit shall be returned by Landlord to Tenant within fifteen (15) days after the termination of this Lease. (c) Other remedies for nonpayment of Rent notwithstanding, if the monthly Base Rental payment is not received by Landlord on or before the tenth (10th) day of the month for which such rent is due, or if any other Rent payment due Landlord by Tenant hereunder is not received by Landlord within ten (10) days of the due date, a service charge of Four hundred ($400.00) dollars shall be additionally due and payable by Tenant as an administrative charge for the extra efforts necessitated by such tardiness in payment. Such service charge shall be cumulative of any other remedies Landlord may have for nonpayment of Rent and other sums payable under this Lease. (d) If three (3) consecutive monthly Base Rental payments or any five (5) (in total, cumulative from the beginning of the Lease Term) monthly Base Rental payments during the Lease Term (or any renewal or extension thereof) are not received by Landlord within ten (10) days of the due date, upon written notice to Tenant the Base Rent hereunder shall thereafter be due and payable by Tenant in advance in quarterly installments equal to three (3) months' Base Rent each. The first of such quarterly Base Rent payments shall be due and payable on the first day of the next succeeding month and on the first day of every third (3rd) month thereafter. This remedy shall be cumulative of any other remedies of Landlord under this Lease for nonpayment of Rent. 6. ADDITIONAL RENT: (a) Operating Costs: (1) Landlord shall pay all Operating Costs (below defined) for the Project except that Tenant shall pay its proportionate share (below defined) of the amount equal to the difference between (x) the actual Operating Costs for the Project for the year in question, and (y) the actual Operating Costs for the calendar year 2000 (the "Base Year"). The Base Year calculation shall be --------- inclusive of a fully assessed building for tax purposes, such difference being referred to herein as the "Operating Costs Increase Expense." If the -------------------------------- Commencement Date is a date later an January 1, 2000, then "the actual Operating Costs for the calendar year 2000" shall be calculated as follows: The days elapsing from the Commencement Date through December 31,2000, shall be the "Actual Days". The actual Operating Costs for the Actual Days shall be the "Base ----------- ---- Operating Costs". Divide the Base Operating Costs by the number of Actual Days, - --------------- and multiply the result by 365. By April 15 of each year from and after the Base Year, Landlord shall deliver to Tenant a good faith estimate of the Operating Costs Increase Expense and any Additional Rent to be paid by Tenant for each calendar year following the Base Year during the Term, and Tenant shall pay to Landlord, along with the Base Rent each month, an amount equal to one-twelfth of its estimated proportionate share for such calendar year or part thereof. From time to time Landlord may estimate and re-estimate the Operating Costs to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Operating Costs Increase Expense payable by Tenant shall be appropriately adjusted in accordance with the estimation so that, by the end of the calendar year in question, Tenant shall have paid all of its proportionate share of the estimated Operating Costs Increase Expense. Any amounts paid based on such an estimate shall be subject to adjustment as OFFICE LEASE AGREEMENT - Page - 4 - ---------------------- herein provided based on the actual Operating Costs for each calendar year. The Operating Costs Increase Expense shall be "Additional Rent" hereunder. The failure of Landlord to exercise its rights hereunder to estimate the Operating Costs Increase Expense and require payment of same as Additional Rent shall not constitute a waiver of such rights which rights may be exercised from time to time at Landlord's discretion. (2) The term "Operating Costs" shall mean all expenses and --------------- disbursements (subject to the limitations set forth below) that Landlord incurs in connection with the ownership, operation, maintenance and repair of the Project (exclusive of such expenses and disbursements that are paid by Tenant or are Landlord's express responsibility hereunder), determined in accordance with sound accounting principles used in practice by accounting professionals consistently applied, including, but not limited to, the following costs: (A) wages and salaries (including management fees) of all employees engaged in the operation and maintenance of the Project, including taxes, insurance and benefits relating thereto which wages and salaries are prorated according to the percentage of time each employee spends in the operation and maintenance of the Project; (B) all supplies and materials used in the operation, maintenance, repair, and replacement of the Project; (C) costs for improvements made to the Project which, although capital in nature, are expected to reduce the normal operating costs of the Project, as well as 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; (D) insurance expenses; (E) repairs, replacements, and general maintenance of the Project; (F) service or maintenance contracts with independent contractors for the operation, maintenance, repair, or replacement of the Building (including without limitation, alarm service, card entry system, window cleaning, landscaping service, and elevator maintenance); (G) all provided utilities, other than electricity, telephone and other telecommunications the cost of which are the responsibility of Tenant; (H) janitorial services (subject to Paragraph 8(c)(3) below); and (I) Taxes (defined ----------------- below). Operating Costs shall not include costs for (i) capital improvements made to the Building, other than capital improvements described above and except for items which are generally considered maintenance and repair items, such as painting of common areas, replacement of carpet in elevator lobbies, and the like; (ii) repair, replacements and general maintenance paid by proceeds of insurance or by Tenant or by other third parties; (iii) interest, amortization or other payments on loans to Landlord; (iv) depreciation, (v) leasing commissions; (vi) legal expenses for services in negotiation of this Lease; (viii) federal income taxes imposed on or measured by the income of Landlord from the operation of the Building, (viii) janitorial services paid directly by Tenant if Tenant so elects to provide its own services, (ix) electric, telephone, and other telecommunications costs attributable to the Project, (x) Landlord's obligations under Exhibit "B" hereto, (xi) overhead and profit ----------- increment paid to subsidiaries or affiliates of Landlord or its partners for services on or to the Project, to the extent that the costs of such services exceed competitive costs for such services rendered by persons or entities of similar skill, competence and experience, other than a subsidiary or affiliate of Landlord or its partners; (xii) costs of Landlord's general overhead and general administrative expenses which would not be chargeable to operating expenses of the Project in accordance with sound accounting principles consistently applied; (xiii) rent, if any, incurred in OFFICE LEASE AGREEMENT - Page - 5 - ---------------------- leasing air conditioning systems, elevators or other equipment ordinarily considered to be of a capital nature, except equipment which is used in providing janitorial services and which is not affixed to the Project; (xiv) all items and services for which Tenant reimburses Landlord (other than through Tenant paying Operating Costs Increase Expense) or for which Tenant pays third persons; (xv) any expenses relating to the structural integrity of the foundation, exterior walls, or roof of the Project, except as specifically provided for in this Lease; and (xvi) any fines, penalties, legal judgments or settlements of causes of action by or against Landlord unless caused by Tenant or Tenant's Representatives. Tenant acknowledges and agrees that other than Landlord's installation of the door card entry system as part of the Work and maintenance thereof as an Operating Cost, Tenant shall be wholly and solely responsible for all other matters of security for the Project, and Landlord shall have no responsibility or liability of any kind therefor. (3) Landlord shall pay on or before the due dates thereof, including any extensions occasioned by Landlord's lawful rights of contest with respect thereto, all Taxes (other than the personal property taxes of Tenant). The term "Taxes" shall mean taxes, assessments, and governmental charges whether federal, ----- state, county, or municipal, and whether they be by taxing districts or authorities presently taxing or by others, subsequently created or otherwise, and any other taxes and assessments attributable to the Project (or its operation), excluding, however, penalties and interest thereon and federal and state taxes on income (if the present method of taxation changes so that in lieu of the whole or any part of any Taxes, there is levied on Landlord a capital tax directly on the rents received therefrom or a franchise tax, 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 purposes hereof), excluding ----- further any franchise, estate, inheritance, succession, transfer, income or excess profit tax or tax imposed on Landlord due to the change of ownership of the Project as defined in the law during the Term of this Lease under which reassessment or tax increase results from a transfer of all or a portion of Landlord's estate as opposed to an increase in Project valuation. Taxes shall include the reasonable costs of consultants retained by Landlord in an effort to lower taxes and all reasonable costs incurred by Landlord in disputing any taxes or in seeking to lower the tax valuation of the Project. Upon Tenant's written request, Landlord shall deliver to Tenant evidence of Landlord's payment of bills for Taxes. Tenant may, upon the receipt of prior written approval of Landlord, such approval not to be unreasonably withheld, contest any Taxes against the Premises and attempt to obtain a reduction in the assessed valuation of the Premises for the purpose of reducing any such tax assessment. In the event Landlord approves, and upon the request of Tenant, but without expense or liability to Landlord, Landlord shall cooperate with Tenant and execute any document which may be reasonably necessary and proper for any proceeding. In such event Tenant shall be solely responsible for all legal and related expenses relating to such documents; provided however, Tenant shall be authorized to collect from any tax refund received as a result of Tenant's proceedings (i) any Taxes that Tenant has paid which are reduced as a result of such proceedings and (ii) a refund of all costs and expenses incurred in connection with obtaining such refund. If a tax reduction is obtained, there shall be a subsequent reduction in Tenant's total Taxes for such year, and any excess payments by Tenant shall OFFICE LEASE AGREEMENT - Page 6 - ---------------------- be refunded by Landlord, without interest, when all refunds to which Landlord is entitled from the taxing authority with respect to such year have been received by Landlord. In the event Landlord desires to contest any Taxes, Tenant agrees to cooperate with Landlord and execute any document which may be reasonably necessary and proper for any proceeding. During the pendency of any contest by Landlord or Tenant, Tenant shall become and remain obligated to pay or to provide an appropriate bond or security for the payment of all Taxes at least ten (10) days prior to the date due, and otherwise follow the payment and notification obligations set forth in this Paragraph, provided, however, if the taxing authority forwards the tax notification letter to Landlord, Landlord shall forward same to Tenant and Tenant shall be obligated to pay Tenant's Proportionate Share of the increase in the Taxes as provided herein upon the later to occur of (i) thirty (30) days after receipt thereof, or (ii) five (5) days prior to the date such Taxes are due to be paid to the taxing authority. In any event, Tenant shall be responsible for insuring and paying all taxes upon Tenant's furniture, machinery, goods, supplies, fixtures, Alterations (below defined) or other improvements, and other property on the Premises. (b) Operating Costs Statement/Right to Audit: By April 15, 2001, and by April 15 of each calendar year thereafter, or as soon thereafter as practicable, Landlord shall furnish to Tenant a statement of the actual Operating Costs (the "Operating Costs Statement") for the previous year. If the Operating Costs ------------------------- Statement reveals that Tenant paid more for Operating Costs than the actual amount attributable to Tenant pursuant hereto for the year for which such statement was prepared, then Landlord shall promptly credit or reimburse Tenant for such excess; likewise, if Tenant paid less than Tenant's actual proportionate share of the Operating Costs Increase Expense, then Tenant shall promptly pay to Landlord such deficiency. Tenant shall have the right to cause a certified public accountant selected by Tenant to audit the books and records of Landlord, with respect to any cost or item which is passed through to Tenant ("Tenant's Audit"), upon thirty (30) days advance written notice by Tenant to Landlord which notice shall be given, if at all, within sixty (60) days of the date that Tenant receives the Operating Costs Statement. Landlord shall cooperate with Tenant in providing Tenant's accountant reasonable access to its books and records during normal business hours, at Landlord's business address or other place in Dallas, Texas, designated by Landlord, for this purpose. If the results of Tenant's Audit show an overcharge to Tenant of more than the actual amount owed by Tenant, Landlord may cause a certified public accountant to review such audit ("Landlord's Audit"), and the two accountants shall reconcile any differences. If the final result shall show an overpayment by Tenant of the amount owed, Landlord shall credit or refund to Tenant or offset against any Rents becoming due under the Lease any overcharge of such items within thirty (30) days of completion of such audits. In the event such audit discloses an undercharge of such items as billed to Tenant, Tenant shall pay Landlord the amount of such undercharge within thirty (30) days of completion of such audits. Tenant shall pay the costs of Tenant's Audit, and Landlord shall pay the costs of Landlord's Audit. For the calendar year in which this Lease terminates, Tenant's liability for Tenant's Proportionate Share of Operating Costs Increase Expense for such partial calendar year shall be subject to pro rata adjustment based upon the number of days of the Term elapsing during such OFFICE LEASE AGREEMENT - Page - 7 - ---------------------- partial year. If the applicable charges are not available prior to the end of the Term hereof, then the aforesaid adjustment shall be made between Landlord and Tenant after Landlord shall have received the charges for such period, it being specifically agreed that Landlord's and Tenant's obligations under this Paragraph shall survive the expiration of the term of this Lease. (c) Proportionate Share: As used in this Lease, the term "proportionate ------------- share" or "Tenant's Proportionate Share" is defined as follows: As of the - ----- ---------------------------- Commencement Date through and including the last day of the ninth full calendar month of the Term, Tenant's Proportionate Share shall be 83% [104,435 divided by 125,538], and from and after the last day of the ninth full calendar month of the Term, Tenant's Proportionate Share shall be 100%. (d) Cap on Certain Operating Costs: For the purpose of determining Additional Rent, Operating Costs (exclusive of the Non-Capped Operating Costs, as hereinafter defined) for any calendar year shall not be increased over the amount of Operating Costs (exclusive of Non-Capped Operating Costs) during the prior calendar year by more than five percent (5%). For example, if Operating Costs (exclusive of Non-Capped Operating Costs) during the second calendar year after the calendar year in which the term of this Lease commences were $100,000, the cap on Operating Costs (exclusive of Non-Capped Operating Costs) for the third full calendar year would be $105,000.00 ($100,000 times 1.05). It is understood and agreed that there shall be no cap on "Non-Capped Operating -------------------- Costs", which are hereby defined to mean all utilities, all Taxes and all - ----- Insurance Premiums. 7. TENANT REPAIRS AND MAINTENANCE: (a) Tenant, at its own expense, shall maintain all parts of the Leased Premises and their appurtenances (except those for which Landlord is expressly responsible to maintain under this Lease) in good, clean and sanitary condition and shall promptly make all necessary repairs and replacements to the Leased Premises including but not limited to electrical light lamps or tubes (other than lamps in Building standard ceiling mounted fixtures installed by Landlord), interior windows, interior glass and plate glass, interior doors, special office entries, interior walls and finish work, floors and floor coverings, the Generator, the equipment in the UPS Area, Tenant-installed heating and air conditioning systems, Tenant-installed fire sprinkler systems, and Tenant- installed plumbing work and fixtures. Replacement and repair parts, materials and equipment shall be of quality equivalent to those initially installed within the Leased Premises, and repair and maintenance work shall be done in a good and workmanlike manner and in accordance with existing laws, rules, regulations and ordinances. (b) Tenant shall not damage or disturb the structural integrity or support of any wall, roof, or foundation of the Building, without the prior written consent of Landlord pursuant to Paragraph 16. The costs and expenses of repair ------------ of any damage to these areas caused by Tenant or Tenant's Representatives (defined in Paragraph 7(e)) shall be paid within ten (10) days business days -------------- after written notice thereof to Tenant (including a description of the damage and itemized cost of repair of same). OFFICE LEASE AGREEMENT - Page - 8 - ---------------------- (c) Tenant shall at its own expense keep the Leased Premises pest-free and pay all charges for pest control and extermination within the Leased Premises. (d) On the Termination Date, Tenant shall deliver the Leased Premises to Landlord "broom clean" in the same good order and condition as existed at the Commencement Date of this Lease, ordinary wear, natural deterioration beyond the control of Tenant, and damage by fire, tornado or other casualty excepted. Tenant shall give written notice to Landlord at least thirty (30) days prior to vacating the Leased Premises and shall arrange to meet with Landlord for a joint inspection of the Leased Premises prior to vacating. In the event of Tenant's failure to give such notice or arrange such joint inspection, Landlord's inspection at or after Tenant's vacating the Leased Premises shall be conclusively deemed correct for purposes of determining Tenant's responsibility for repairs and restoration. (e) Tenant shall be responsible for all costs, expenses and liabilities caused by the willful or negligent acts or omissions of Tenant or Tenant's employees, officers, directors, partners, agents, invitees, guests, patrons, licensees, contractors, representatives, trespassers, or others for whom Tenant is legally responsible (all such persons and entities being herein collectively referred to as "Tenant's Representatives") or caused by Tenant's default ------------------------ hereunder. (f) If Landlord shall give Tenant written notice of defects or need for repairs for which Tenant is responsible under this Lease, and if Tenant shall fail to make same within thirty (30) days of Landlord's notification (subject to the provisions of Paragraph 41 below) or such shorter time as is reasonable if ------------ expedited repair is needed to avoid injury or damage, Landlord shall have the option to cure said defect or repair, and Tenant shall pay to Landlord all costs and expenses incurred within thirty (30) days after written notice to Tenant thereof (including a description of the damage and itemized costs of repair or same). 8. LANDLORD'S REPAIRS AND MAINTENANCE RESPONSIBILITIES: (a) Landlord has agreed, at its expense, to construct the structural and exterior portions of the Building, excluding for purposes of this Paragraph the Leased Premises which are dealt with in Paragraph 51 and Exhibit "B" below, ------------ ----------- ("Landlord's Construction")in accordance with the Landlord's Plans and ----------------------- Specifications more particularly described herein in Exhibit "E" attached hereto ----------- (the "Landlord's Plans and Specifications"). Landlord certifies that it has ----------------------------------- provided Tenant with a complete and accurate set of Landlord's Plans and Specifications and that they have not been materially amended or modified except as reflected in Exhibit "E". The plumbing, electrical, and other utilities ---------- contemplated by Landlord's Plans and Specifications are or will be on the Commencement Date in good working condition and order. As of the Commencement Date, to Landlord's actual knowledge, the Building shall be in compliance with all existing laws, codes, regulations and ordinances of any governmental authorities. Landlord's Construction shall be completed in accordance with all Applicable Laws in a good and workmanlike manner, utilizing first quality, new materials. Tenant has reviewed the Landlord's Plans and Specifications and OFFICE LEASE AGREEMENT - Page - 9 - ---------------------- acknowledges that, to the best of its knowledge, the Building has been constructed substantially in compliance therewith. Landlord agrees to correct or cause to be corrected any original latent defects in Landlord's Construction of which written notice is provided to Landlord within the applicable period of limitations. (b) Landlord shall be responsible, at its expense, for, but only for, the structural integrity of the roof, foundation and exterior walls of the Building and the repair, maintenance, and replacement needed with respect to the structural integrity thereof. The costs of any repair to the roof, foundation or exterior walls occasioned by the act of omission of Tenant or Tenant's Representatives shall be the responsibility of Tenant except to the extent that proceeds of any warranties or insurance shall be received by Landlord. Landlord's liability with respect to any defects, repairs or maintenance for which Landlord is responsible at its expense under this Lease shall be limited to the cost of such repairs or maintenance or the curing of such defect. Tenant shall promptly give Landlord written notice of defects or need for repairs, after which Landlord shall have thirty (30) days to commence to repair or cure such defect. To the extent required by Landlord's Plans and Specifications and the Working Drawings, Landlord, at its expense, has caused or will cause Landlord's Construction and the Work (as defined in Paragraph 51 below) ------------ initially to comply with all laws, orders, ordinances, rules and regulations applicable thereto including, without limitation, the Americans With Disabilities Act. Any changes to the Premises required thereby shall be the sole responsibility and expense of Tenant though, at Tenant's request and expense and in accordance with Paragraph 8(e) below, Landlord will assist in such efforts. -------------- Any subsequent changes in the Project outside the Premises required thereby shall be performed by Landlord as Operating Costs. (c) Landlord shall diligently perform the work which gives rise to Operating Costs in accordance with all Applicable Laws and in a good and workmanlike manner and shall furnish Tenant the following services, all being subject to payment therefor by Tenant pursuant to the provisions of Paragraph --------- 6(b) above. Any services performed by Landlord, to or affecting, the Leased - ---- Premises shall be done in such a manner as to limit as much as is practicable interference with Tenant's use and occupancy of the Premises, and only limited materials and tools used in connection with such services shall be stored in the Premises. The services that Landlord shall furnish include: (1) Air conditioning and heating as provided in Landlord's Plans and Specifications and the Working Drawings. Tenant acknowledges that such service and temperature may be subject to regulation by local, county, state or federal regulation. Whenever machines or equipment that generate abnormal heat are used in the Premises which affect the temperature otherwise maintained by the air conditioning system, Landlord shall have the right to install supplemental air conditioning in the Premises, and the reasonable cost thereof including the cost of installation, operation, use and maintenance, shall be paid by Tenant to Landlord as Additional Rental upon demand. (2) Water at those points of supply reflected in the Working Drawings for drinking, lavatory and toilet purposes. Landlord shall pay to the appropriate utility company, in time OFFICE LEASE AGREEMENT - Page - 10 - ---------------------- to avoid interruption of service for non payment and to avoid late charges, all charges for water use consumed on the Project during Tenant's occupancy and such costs shall be included in Operating Costs. (3) Janitorial service in and about the Building and the Premises, as may in the judgment of Landlord be reasonably required; however, Tenant shall pay all additional costs attributable to the cleaning of improvements within the Premises. If Tenant elects to provide its own janitorial service (subject to Landlord's reasonable approval of the insurance carried by the contractor), the Base Rent shall be reduced by $0.90 per square foot of rentable area per year. (4) Elevators as shown in Landlord's Plans and Specifications for ingress to the egress from the second floor of the Building - 24 hours per day, 7 days per week. (5) Electricity at those points of supply reflected in the Working Drawings, Tenant shall pay to the appropriate public utility company all charges for electric current consumed on the Project during the Term of this Lease, as extended, and such costs shall not be included in Operating Costs. (6) Replacement of lighting fixture lamps in Building ceiling mounted fixtures. (7) The secured card entry system at all entrances and exits, except for those additional entrances or exits, including overhead doors added by Tenant, as provided in the Working Drawings. Landlord shall allow Tenant access to the Premises seven (7) days a week, twenty-four (24) hours a day. (8) Landlord shall provide a Building directory and the in-ceiling florescent lighting throughout the Building shown in the Working Drawings or Landlord's Plans and Specifications. (9) Maintenance of the Project outside the Leased Premises in good operating condition and repair, clean and free from rubbish and debris, maintenance of the landscaping, and adequate illumination and draining of the Project. (d) Tenant shall promptly give Landlord written notice of defects or need for repairs for which Landlord is responsible hereunder after which Landlord shall have thirty (30) days to commence to repair or cure such defect. If not caused by the interference of Tenant or Tenant's Representatives, if Landlord fails to make repairs that materially interfere with Tenant's use and enjoyment of the Leased Premises after notice of same, Tenant may make such repairs and offset the actual, necessary cost thereof against Base Rent. No interruption or malfunction of any such services shall constitute an eviction or disturbance of Tenant's use and possession of the Premises or the Building or a breach by Landlord or any of Landlord's obligations hereunder or render Landlord liable for damages or entitle Tenant to be relieved from any of Tenant's obligations hereunder (including the obligation to pay rental unless, and to the extent, Landlord receives rental interruption OFFICE LEASE AGREEMENT - Page - 11 - ---------------------- insurance proceeds therefor) or grant Tenant any right of set off or recoupment except as expressly set forth herein. In the event of any such interruption, however, Landlord shall use reasonable diligence during the business hours set forth herein promptly to restore such service or cause same to be restored in any circumstances in which such restoration is within the reasonable control of Landlord and the interruption was not caused solely by Tenant or Tenant's Representatives. (e) Should Tenant desire any additional services (other than Project security which shall be Tenant's exclusive responsibility) beyond those described in this Paragraph 8 or rendition of any services outside the normal ----------- time established by Landlord for providing any services, Landlord may (at Landlord's option), upon reasonable advance notice from Tenant to Landlord, furnish such services, and unless otherwise provided herein, Tenant shall pay directly for such services or shall agree to pay Landlord such reasonable charges as may be agreed upon between Landlord and Tenant, but in no event at a charge less than Landlord's reasonable actual cost plus reasonable overhead for the additional services provided. (f) Landlord shall furnish and install window coverings on all exterior windows to maintain a uniform exterior appearance. Tenant shall not remove or replace such window coverings or install any other window covering which would affect the exterior appearance of the Building or the Premises. Tenant may install lined or unlined over-draperies on the interior side of the Landlord furnished window coverings for interior appearance or to reduce light transmission, provided such over-draperies do not affect the exterior appearance of the Building or the Premises. (g) Tenant acknowledges that, except as expressly set forth in this Lease or any exhibit hereto, no representations or promises regarding construction, repairs, alterations, remodeling, or improvements to the Leased Premises have been made by Landlord, its agents, employees, or other representatives. (h) Landlord has provided Tenant with a true copy of Landlord's Owner Policy of Title Insurance (Policy No. 44 0298 100 9812) issued by Chicago Title Insurance Company, dated November 4, 1998 (the "Title Policy") and a current ------------ survey of the Project. Landlord represents that, except as shown in the Title Policy, to Landlord's current actual knowledge, there are no other restrictions in the deed records affecting the Project. Based upon its review of the Title Policy and the documents referred to therein, Tenant has satisfied itself as to any restrictions of record. Tenant will satisfy itself as to all zoning and other governmental restrictions and regulations with respect to all uses of the Premises prior to commencement of any construction of the Premises. Failure of Tenant to provide written notice of any limitations on such use that are unacceptable to Tenant prior to commencement of construction shall be deemed acceptance by Tenant. Tenant's taking possession of the Leased Premises shall conclusively establish that, subject to any express representation or obligation of Landlord in this Lease, the improvements to be made by Landlord under the terms of this Lease have been completed in accordance with the Working Drawings and Landlord's Plans and Specifications and that the Leased Premises are in good and satisfactory condition as of the date of Tenant's possession subject only to Paragraph 8 of Exhibit "B" to this Lease. In conjunction with, or at any time ----------- after, the Commencement Date, Tenant shall, upon OFFICE LEASE AGREEMENT - Page - 12 - ---------------------- Landlord's request, execute and deliver to Landlord an estoppel certificate (as referred to in Paragraph 33 of this Lease) to acknowledge the Commencement Date. ------------ 9. UTILITY SERVICE: (a) Subject to availability from the utility provider, Landlord shall provide utility services of the type and quality reflected in the Working Drawings and/or Landlord's Plans and Specifications which the parties acknowledge are at least in accordance with standards typical of first-class commercial office/flex buildings in the submarket area of the Project in Dallas, Texas. Such services include water, sewer, telephone and electric current. Subject to availability from the utility provider, such services shall be provided to Tenant on a 24-hour a day, 7 day a week basis. (b) Tenant shall pay the cost of all telephone or other telecommunications service used on the Leased Premises and the cost of electric service attributable to the Project as provided for hereinabove. (c) Tenant shall pay all costs caused by Tenant introducing excessive pollutants into the sanitary or storm sewer system, including permits, fees, assessments, and charges levied by any governmental subdivision, for any pollutants or solids other than ordinary human waste. (d) Landlord acknowledges that there shall be no start-up charge, minimum usage requirements or other surcharges or impositions imposed upon Tenant. (e) Defined holidays shall be: New Year's Day, Labor Day, Memorial Day, Fourth of July, Thanksgiving Day and Christmas Day. 10. SIGNS: (a) Tenant may place signage as desired by Tenant within the interior areas of the Premises. Such signs shall be placed by a contractor reasonably approved by Landlord and paid for by Tenant. Tenant shall remove all such signs at the termination of this Lease. Such installations and removals shall be made in such manner as to avoid injury or defacement of the Premises, and Tenant, at its sole expense, shall repair any material injury or defacement in removing such signs; provided however, Tenant shall not be responsible for any discoloration caused by ordinary wear and tear. (b) Exterior Signage. Tenant shall not inscribe, paint, affix or display any signs, door plaques, advertisements or notices on or around the exterior of the Building or areas of the Project outside the Building except as provided below: (1) Subject to Paragraph 28 below, Tenant and only Tenant, but no ------------ subtenant or assignee of any rights hereunder, shall have the right, at its sole cost and expense, to install its corporate identification or logo upon the top spandrel panel of the Building between Pod C & W, (the OFFICE LEASE AGREEMENT - Page - 13 - ---------------------- "Building Sign"), provided that (i) Tenant obtains all necessary approvals from ------------- the City of Farmers Branch and all other governmental authorities having jurisdiction over Tenant, the Project and the Building Sign, (ii) the Building Sign conforms to all applicable laws, rules and regulations of any governmental authorities having jurisdiction over the Building Sign or the Project, and (iii) Landlord and Tenant shall mutually agree upon the design, color, character, style, material, installation method and size of the Building Sign, which approval shall not be unreasonably withheld or delayed. (2) Tenant shall also have the right, at Tenant's expense, to install a Building Monument Sign (the "Building Monument Sign") at the center entrance ----------------------- of the Building adjacent to Alpha Road, provided that (i) Tenant obtains all necessary approvals from the City of Farmers Branch and all other governmental authorities having jurisdiction over Tenant, the Project and the Building Monument Sign, (ii) the Building Monument Sign conforms to all applicable laws, rules and regulations of any governmental authorities having jurisdiction over the Building Monument Sign or the Project, and (iii) Landlord and Tenant shall mutually agree upon the location, design and size of such sign, which approval shall not be unreasonably withheld or delayed. (3) Landlord agrees that Tenant's signs shall be displayed in a prominent (or top) position and no other tenant(s)' signs shall be larger than Tenant's without Tenant's consent. Landlord agrees that if Landlord makes available to any other tenant any signage located in the Common Areas or on the Project, including the Building, then such signage shall also include Tenant's identification sign in the top position and at least as large as the largest sign made available to such other tenant(s). Tenant shall have the right, without Landlord's approval, to change its sign from time to time so long as such new signs are no larger than the sign it replaces and complies with Subparagraphs (1) and (2) immediately preceding. At Tenant's sole cost and expense, Landlord will fully cooperate with Tenant in Tenant's filing any required signage application, permit and/or variance for said signage. (c) Prior to commencement of any sign construction, Tenant shall deliver to Landlord certificates of insurance evidencing that Tenant's contractors, agents, workmen, engineers or other persons installing the Building Sign and/or Building Monument Sign have in effect valid workmen's compensation, public liability and builder's risk insurance in amounts, with such companies and in such forms as Landlord may consider reasonably necessary or appropriate for its protection. Except for the gross negligence or wilful misconduct of Landlord or Landlord's Representatives, during the Term of this Lease, Tenant shall indemnify and hold Landlord harmless from and against any and all claims, demands, fines, liabilities, costs, expenses, damages, actions and causes of action accruing from or related to the Building Sign and/or Building Monument Sign. The indemnity set out in the preceding sentence will be limited only by the gross negligence or wilful misconduct of Landlord or anyone acting for Landlord. Tenant agrees that Landlord shall have the right, at its expense, temporarily to remove and replace the Building Sign and/or Building Monument Sign in connection with and during the course of any repairs, changes, alterations. modifications, renovations or additions to the Building in which case Landlord shall replace the signage upon completion of the work. OFFICE LEASE AGREEMENT - Page - 14 - ---------------------- (d) Tenant shall maintain the Building Sign and the Building Monument Sign, at Tenants sole cost and expense. If Tenant is in default under this Lease, Tenant's rights to signage shall terminate and Landlord shall have the option to remove such signage at Tenant's sole cost and expense. Tenant shall, at its sole cost and expense, remove all such signs at the termination of this Lease. Such installations and removals shall be made in such manner as to avoid injury or defacement of the Project and other improvements. Tenant shall repair any damage or defacement, including, without limitation, any discoloration, caused by the removal of such signs. (e) Landlord shall at all times maintain all pylons, monuments, and spendrals in good order and repair and the cost of maintenance of such pylons, monuments and spendrals, and the cost of any electricity to illuminate them shall be included as an Operating Cost. (f) Landlord may erect a sign or signs on the Leased Premises at a location reasonably acceptable to Tenant indicating that the Project are for lease during the six (6) month period prior to the expiration of this Lease. (g) The right to signage is not assignable by Tenant except in conjunction with the assignment of this Lease as elsewhere herein provided. 11. USAGE: (a) Tenant warrants and represents to Landlord that the Leased Premises shall be used and occupied only for general office uses, which may include product distribution from the Premises as well as research and development of computer related telecommunication products. Tenant shall occupy the Leased Premises and conduct its business, and Tenant's Representatives shall conduct themselves, in compliance with all laws, rules and regulations and in a lawful, quiet, and reputable way and as not to create any nuisance. Tenant shall not commit, or allow to be committed, any waste on the Leased Premises or the Project. Tenant may not use the Leased Premises for the use, storage, or distribution of hazardous or environmentally offensive substances, or for underground storage, or for any unlawful purposes. (b) Tenant shall have the right after written notice to Landlord to contest by appropriate legal proceedings the validity or application of any law, ordinance or other legal requirement affecting Tenant, the Premises, or the operation of Tenant's business on the Premises and to delay compliance therewith pending the prosecution of such proceedings, provided that no civil or criminal penalty is or could be incurred by Landlord and no lien or charge is or could be imposed upon the Premises or any other part of the Project. 12. TENANT'S INSURANCE OBLIGATIONS: (a) Tenant shall not permit the Leased Premises to be used in any way which would violate laws, rules, or regulations governing hazardous substances or which would in any way increase the cost of or render void any insurance on the improvements, and Tenant shall OFFICE LEASE AGREEMENT - Page - 15 - ---------------------- immediately, on demand, cease any use which violates the foregoing or to which Landlord's insurer or any governmental or regulatory authority objects. If at any time during the term of this Lease Tenant's use of the Premises shall cause an increase in premiums, and in particular, but without limitation, if the State Board of Insurance or other insurance authority disallows any of Landlord's sprinkler credits or imposes an additional penalty or surcharge in Landlord's insurance premiums because of any act solely attributable to or arising from the direct acts of Tenant, Tenant agrees to pay as Additional Rent the commercially reasonable increase in Landlord's insurance premiums. (b) Tenant, at its sole cost and expense, shall procure and maintain throughout the term of this Lease a policy or policies of insurance insuring Landlord, Landlord's management company and lender, and Tenant against all claims for property damages, personal injury or death of others occurring on or in connection with: (i) the Leased Premises and all personal property therein; (ii) the condition of the Leased Premises; (iii) Tenant's operations in and maintenance and use of the Leased Premises; (iv) Tenant's and Tenant's Representatives' use of the Common Areas of the Project, and (v) Tenant's liability assumed under this Lease. The limits of such policy or policies shall be not less than $ 2,000,000.00 combined single limit coverage per occurrence for injury to persons (including death) and/or property damage or destruction, including loss of use. (c) All such policies shall be procured by Tenant from insurance companies reasonably satisfactory to Landlord naming the following as co-insureds: (i) Landlord; (ii) Landlord's management company, Jackson-Shaw Company or its successor; and, (iii) Landlord's mortgage holder, as changed from time to time. Certified copies of such policies, together with receipt for payment of premiums, shall be delivered to Landlord prior to the Commencement Date. Not less than fifteen (15) days prior to the expiration date of any such policies, certified copies of renewal policies and evidence of the payment of renewal premiums shall be delivered to Landlord. All such original and renewal policies shall provide for at least thirty (30) days written notice to Landlord before such policy may be canceled or changed to reduce insurance coverage provided thereby. Copies of such policies and duly executed certificates evidencing insurance coverage, together with copies of receipts for payment of premiums, shall be delivered to Landlord prior to the Commencement Date. Not less than fifteen (15) days prior to the expiration date of any such policies, copies of renewal policies and duly executed certificates evidencing insurance coverage and evidence of the payment of renewal premiums shall be delivered to Landlord. If required of Landlord by its insurance carrier, Tenant shall, within fifteen (15) days after request therefor provide reasonable information concerning use of and insurance coverages for the Lease Premises. 13. (INTENTIONALLY DELETED) 14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Except as provided in Paragraph 8(b) above and subject to the limitations thereof, and unless - -------------- otherwise herein expressly stated to be the responsibility of Landlord, Tenant shall comply with all applicable laws, ordinances, orders, rules and regulations of state, federal, municipal, or other agencies or bodies relating to the use, condition and occupancy of and business conducted on the Project and the Leased Premises, respectively, including without limitation, the Americans with Disabilities Act, the Resource OFFICE LEASE AGREEMENT - Page - 16 - ---------------------- Conservation and Recovery Act, the Comprehensive Environmental Response Act, and the rules, regulations and directives of the United States Environmental Protection Agency and/or the Texas Natural Resource Conservation Commission. 15. ASSIGNMENT AND SUBLETTING: Tenant agrees not to assign, transfer, or mortgage this Lease or any right or interest therein or sublet the Leased Premises or any part thereof, without the prior written consent of Landlord which shall not be unreasonably withheld or delayed, except that Tenant shall have the right to mortgage its interest in this Lease to a bona fide lender in an arms-length loan transaction and to sublease, assign or otherwise transfer its interest in the Lease, upon assumption of all obligations with respect thereto, to any parent, subsidiary, or affiliate of Tenant, or to a corporation with which Tenant may merge or consolidate, without Landlord's approval. Landlord shall, however, be notified in writing of any such assignment, sublease, transfer or mortgage. No assignment, subletting, transfer, or mortgaging shall relieve Tenant of its obligations hereunder, and Tenant shall continue to be liable as a principal (and not as a guarantor or-surety) to the same extent as though no assignment, subletting, transfer, or mortgaging sh