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EXHIBIT 10.37
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Agreement") made and entered into as of this
_____ day of ___________ , 1996, by and between TRANSCONTINENTAL GAS PIPE LINE
COMPANY, a _________ corporation ("Sublessor"), and XXXXXXXX TELECOMMUNICATIONS
SYSTEMS, INC. a Delaware corporation ("Sublessee");
W I T N E S S E T H:
WHEREAS, by Lease dated as of the 5th day of October, 1981 (the "Lease"),
Sublessor leased from Post Oak Alabama Partnership, a Texas general
partnership, as Landlord, certain premises (the "Premises") comprising a
portion of that certain high rise office building known as Transco Xxxxx
Xxxxxxxx, Xxxxxxx, Xxxxx; and
WHEREAS, Sublessor desires to sublease a portion of said Premises to
Sublessee; and
WHEREAS, Sublessee desires to sublease a portion of said Premises from
Sublessor;
WHEREAS, Sublessor and Sublessee are Affiliates as that term is defined in
the Lease in that Sublessee is under common control with Sublessor.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the parties hereto do hereby agree as follows:
1. Premises. Sublessor hereby subleases to Sublessee, and Sublessee hereby
subleases from Sublessor the total of 127,439 square feet of Net Rentable Area
of the Building as shown on Exhibit "A" attached hereto and made a part hereof
(collectively the "Subleased Premises"). The Subleased Premises will also
include any expansion space leased by Sublessee if and when the Sublessee
exercises its expansion option as set forth in Section 6 hereof.
2. Term. Unless earlier terminated as hereinafter provided, this Agreement
shall become effective as of the dates first written above and unless sooner
terminated in accordance with the Lease terms, this Agreement shall expire on
March 29, 2004.
3. Rent. For and during the term of this Agreement and while Sublessee and
Sublessor are Affiliates as that term is defined in the Lease, Sublessee shall
pay to Sublessor a rental rate or amount (the "Rental" or "Rent") which shall
include a Base Rent component, and an Additional Rent component. Sublessee shall
pay to Sublessor as Base Rent for the Subleased Premises a Rental of $9.50 per
square foot of Net Rentable Area for an annual total of $1,210,670.00 or
$100,899.00 monthly payable in advance on the 1st day of each month of the term
hereof, which Sublessee agrees to pay in lawful money of the United States to
Sublessor at the Premises, or at such other place designated in writing by
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Sublessor, without any setoff or deduction. Included in this Base Rent is a
tenant improvement allowance equal to $10.00 per square foot of Net Rentable
Area. Notwithstanding, Sublessee shall not be required to pay Base Rent for
12,000 square feet of Net Rentable Area for the first five years of this
sublease term. The monthly abatement will be $9,500.00 for a total abatement of
$570,000 during such time.
4. Additional Rent. Sublessee further agrees to pay, as "Additional
Rent", Sublessor's pro rata share of operating expense and tax expense and any
other additional rentals or pass-throughs above the 1995 actual expenses,
estimates or actuals, owing with respect to and attributable to the Subleased
Premises under the terms and conditions of the Lease.
5. Amortization of Leasehold Expenses. Sublessee shall have the right to
amortize additions and Sublessee improvements on a dollar for dollar basis over
the remaining term of the Lease. Such allowance will be limited to actual costs
incurred with the construction of the premises and shall not include
Sublessee's cost associated with furniture, telecommunications equipment and
trade fixtures. The amortization of these costs will be included as Additional
Rent. Further, in the event that Sublessee in [sic] sold or acquired by another
corporation or business entity so that it is no longer an Affiliate of
Sublessor, these amounts will not constitute Rental but rather they will be
deemed to be a payback of unamortized improvements.
6. Expansion Option. Should Sublessee desire to expand the Net Rentable
Area subleased hereunder, Sublessee shall notify Sublessor in writing of its
request for expansion. Sublessor will approve such expansion provided that
additional space is available to Sublessor, may be subleased under the Lease
and Sublessee agrees to pay for such expansion space a Base Rent of $9.50 plus
its then current Additional Rent for the Subleased Premises. However if
Sublessor has a bona fide third party offer for the expansion space requested,
Sublessee agrees to meet that offer or release such space.
7. Services. As it relates to services provided by the Landlord, it is
understood and agreed that Sublessor will not directly provide any services to
Sublessee, but rather that Sublessor will make available to Sublessee on the
same basis as to Sublessor all services provided by Landlord to Sublessor.
Sublessee may communicate with Landlord for the provision of such services.
Sublessee shall also have the use of Sublessor's cafeteria, executive
dining rooms, lounges, fitness center, and meeting rooms located on floor 5 of
the Building, together with the 200 seat auditorium located on floor 2. Use of
these facilities will be provided on an "as available" basis at no cost to
Sublessee except for Sublessee's variable cost so long as such additional
facilities are under the control of Sublessor.
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8. Shared Services. It is anticipated as part of this Agreement that
the parties will enter into a separate Shared Services Agreement to set forth
their understanding of services to be provided by Sublessor to Sublessee as to
the Security system, Print/Copy center, Mail Room/Distribution, and UPS and
Redundant HVAC System.
9. Parking. Sublessor agrees to furnish Sublessee ten (10) executive or
reserved Parking Spaces located in the TGPL Parking Area of the Garage and
unreserved parking spaces as available for Sublessee's employees for the
parking of automobiles in the Garage pursuant to the terms of the Lease at no
charge to Sublessee's employees. Parking space will be provided to Sublessee's
employees at no charge for as long as Sublessor provides parking at no charge
to its own employees.
10. Compliance With Lease. A conformed copy of the Lease and any
amendments thereto are attached hereto as Exhibit "B" and Sublessee agrees to
comply with the terms thereof the same as if it were the "Tenant" thereunder,
insofar as the terms of the Lease are not inconsistent herewith. Terms used
herein which are defined in the Lease, unless otherwise defined herein or
unless the context otherwise requires, shall have the same meaning and such
terms are incorporated herein by reference.
11. Repairs. To the extent that the same are not the responsibility of
the Landlord, repairs are to be made at the Sublessee's expense. Sublessee
agrees to keep the Subleased Premises in good repair, ordinary wear and tear
excepted, and, at the expiration of the term, to remove its goods and effects
and peaceably yield up the Subleased Premises to the Sublessor in as good
condition as when delivered to the Sublessee, ordinary wear and tear, damage by
fire, the elements, act of the public enemy, or casualty excepted. All notices
to quit or vacate are hereby expressly waived, any law, usage or custom to the
contrary notwithstanding.
12. Improvements. Except for the initial improvements for the Subleased
Premises which are detailed in the Build-Out Plan attached as Exhibit C, and
non-structural, non-mechanical day-to-day improvements such as moving work
stations and subject to the terms of the Lease, no alteration, addition or
improvement to the Subleased Premises shall be made by the Sublessee without
the written consent of Sublessor and Landlord. Sublessor will make reasonable
efforts to assist and cooperate with Sublessee in its efforts to obtain
Landlord's consent. Except for trade fixtures, alterations, additions or
improvements related to the Sublessee's Technical Assistance Center which may
be removed at Sublessee's sole cost and expense, any alteration, addition or
improvement made by the Sublessee after such consent shall have been given, and
any fixtures installed as part thereof, shall, at the Sublessor's option,
become the property of the Sublessor upon the expiration or other sooner
termination of this Agreement; provided, however, that the Sublessor shall
have the right to require the Sublessee to
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remove such fixtures, at the Sublessee's Cost, upon such termination of this
Agreement. Notwithstanding the above, if Landlord does not require the removal
of such fixtures, Sublessor will not require the removal of such fixtures.
13. Sale of Sublessee. It is understood and agreed that if fifty percent or
more of Sublessee is sold to or acquired by another corporation or business
entity so that it is no longer an Affiliate of Sublessor, Sublessee agrees to
comply with the Lease including full payment of Rental, Additional Rent,
expenses and any other amounts due as required by the Lease as if Sublessee were
"Tenant" under the Lease for that portion of said premises subleased to
Sublessee.
14. Sublessee Indemnity. The Sublessor shall not be responsible for any
defect or change of condition in said Subleased Premises, nor for any damage
thereto, nor to any person, nor to goods or things contained therein due to any
cause whatsoever, and the Sublessee will defend, indemnify and hold harmless the
Sublessor from any claims, demands and actions arising in connection with
Sublessee's use of or activities in connection with the Subleased Premises, or
the use by any person occupying said Subleased Premises during the term hereof,
or by reason of any breach or non-performance of any covenant herein, or the
violation of any law or regulation by the Sublessee.
15. Sublessor Indemnity. Sublessor will defend, indemnify and hold harmless
the Sublessee from any claims, demands and actions arising in connection with
Sublessor's use of, or arising out of any activities by Sublessor in the
Subleased Premises, or by reason of any breach or nonperformance by Sublessor of
any covenant herein, or the violation of any law or regulation by the Sublessor.
16. Entire Agreement. This Agreement, together with any Exhibits attached
hereto and made a part hereof, contain and embody the entire agreement of the
parties hereto and no representations, inducements or other agreements, or
otherwise between the parties not contained and embodied in said Agreement and
exhibits, shall be of any force and effect, and the same may not be modified,
changed Or terminated in whole or in part in any manner other than by an
agreement in writing duly signed by all parties hereto. Sublessor will use its
best efforts to cause the Landlord under the Lease to perform its obligations
under the Lease. Where Sublessor is obligated to perform under the Lease as
Tenant, Sublessee under this Agreement shall so perform. Additionally, Sublessee
shall be bound to comply with all terms of the Lease which Sublessor is
obligated to comply with as Tenant under the Lease. Sublessee acknowledges that
it has no right or interest greater than that possessed by Sublessor as Tenant
under the Lease.
17. Default and Assignment. The parties hereto agree that any event of
default by Sublessee under the Lease shall be an event of default hereunder
entitling Sublessor to terminate this Agreement. Sublessee covenants and agrees
that it will not assign
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this Agreement or any interest in it or sublet the premises or any part of them
or allow any person to occupy or use the premises without the written consent
of the Sublessor, and the written consent of the Landlord. No assignment or
subletting shall relieve Sublessee from its duty to perform fully all of the
covenants and conditions set forth in this Agreement.
18. Insurance. Sublessee hereby agrees, at its sole cost and expense,
during the term of this Agreement to maintain in full force and effect
insurance coverages in form and substance as required of Tenant pursuant to the
terms and conditions contained in the Lease. A satisfactory certificate(s) of
insurance shall be delivered to Sublessor and Landlord.
19. Headings. The headings in this Agreement are for reference only and do
not expand or limit the terms agreed to by the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and sealed by their respective representatives, thereunto duly
authorized, as of the day and year first above written.
"SUBLESSOR"
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
A ____________________________ Corporation
ATTEST:
By: /s/ CUBA WADDLINGTON, JR.
--------------------------------- -----------------------------------
_______________________ Secretary Senior Vice President and General
Manager
"SUBLESSEE"
XXXXXXXX TELECOMMUNICATIONS SYSTEMS,
INC.
A Delaware Corporation
ATTEST:
By: [ILLEGIBLE]
_________________________________ ______________________________________
_______________________ Secretary President
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STATE OF _______________ )
) ss.
County of ______________ )
Before me a Notary Public in and for said County and State, on this
_____ day of _____________, 199__, personally appeared ____________________,
to me known to be the identical person who subscribed the name of
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, a _____________ corporation,
thereof to the foregoing instrument as its ______ President, and acknowledged
to me that he/she executed the same as his/her free and voluntary act and deed
and as the free and voluntary act and deed of such corporation, for the uses
and purposes therein set forth.
____________________________
Notary Public
My Commission expires:
_____________________
STATE OF _______________ )
) ss.
County of ______________ )
Before me a Notary Public in and for said County and State, on this
_____ day of _____________, 199__, personally appeared ____________________,
to me known to be the identical person who subscribed the name of
XXXXXXXX TELECOMMUNICATIONS SYSTEMS, INC., a Delaware corporation,
thereof to the foregoing instrument as its ______ President, and acknowledged
to me that he/she executed the same as his/her free and voluntary act and deed
and as the free and voluntary act and deed of such corporation, for the uses
and purposes therein set forth.
____________________________
Notary Public
My Commission expires:
_____________________
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"EXHIBIT A"
PREMISES
24th Floor 21,849 N.R.A.
25th Floor 22,784 N.R.A.
26th Floor 22,682 N.R.A.
27th Floor 22,682 N.R.A.
0xx Xxxxx 0,000 X.X.X.
0xx Xxxxx 28,293 N.R.A.
TOTAL 127,439 N.R.A.
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FIRST AMENDMENT TO SUBLEASE AGREEMENT
THIS FIRST AMENDMENT TO SUBLEASE AGREEMENT (this "First Amendment") is made
effective this 1st day of March, 1998 (the "Effective Date"), by and between
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, a Delaware corporation ("Landlord")
and XXXXXXXX COMMUNICATIONS SOLUTIONS, LLC., a Delaware limited liability
company (formerly XXXXXXXX TELECOMMUNICATIONS SYSTEMS, INC., a Delaware
corporation), ("Tenant").
W I T N E S S E T H:
WHEREAS, Post Oak/Alabama Partnership, as landlord ("Post Oak" and Landlord,
as Tenant, entered into that certain Lease Agreement dated August 5, 1981 (as
amended the "Prime Lease"), whereby Landlord leased certain space in the
Building (as defined in the Prime Lease) from Post Oak, all as more particularly
described in the Prime Lease; and
WHEREAS, Landlord and Tenant entered into that certain Sublease Agreement
(the "Sublease") whereby Landlord subleased to Tenant approximately 127,439
square feet of Net Rentable Area in the Building, as more fully described in the
Sublease;
WHEREAS, Tenant has leased an additional 3,645 square feet of Net Rentable
Area located on Xxxxx 00 and Landlord and Tenant desire to amend the Sublease
effective as of June 1, 1997 to reflect an increase in (i) the Demised Premises,
and (ii) the Annual Basic Rent and Monthly Base Rent; and
WHEREAS, Tenant has leased an additional 22,682 square feet of Net Rentable
Area located on Xxxxx 00 and Landlord and Tenant desire to amend the Sublease
effective as of September 1, 1997 to reflect an increase in (i) the Demised
Premises, and (ii) the Annual Basic Rent and Monthly Base Rent;
WHEREAS, Tenant has requested to lease an additional 22,658 square feet of
Net Rentable Area located on Xxxxx 00 and Landlord and Tenant desire to amend
the Sublease effective as of March 1, 1998 to reflect an increase in (i) the
Demised Premises, and (ii) the Annual Rent and Monthly Base Rent; and
WHEREAS, Tenant has requested to lease an additional 22,298 square feet of
Net Rentable Area located on Xxxxx 00 and Landlord and Tenant desire to amend
the Sublease effective March 1, 1998 to reflect an increase in (i) the Demised
Premises, and (ii) the Annual Basic Rent and Monthly Base Rent;
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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1. The above recitals are incorporated herein by reference.
2. As defined in Paragraph 1 of the Sublease, the Demised Premises shall
increase from 127,439 square feet of Net Rentable Area to (a) 131,084 square
feet of Net Rentable Area as of Xxxx 0, 0000 (Xxxxx 00), (x) 153,766 square Feet
of Net Rentable Area as of September 1, 1997 (addition of Level 28), (c) 176,424
square feet of Net Rentable Area as of March 1, 1998 (addition of Xxxxx 00
space), and (d) 198,722 square feet of Net Rentable Area as of March 1, 1998
(addition of Xxxxx 00 space).
3. As defined in Paragraph 3 of the Sublease, Sublessee agrees to pay Rent
as follows:
(a) 127,439 square feet of Net Rentable Area @ $9.50 per square foot less an
abatement for 12,000 square feet of Net Rentable Area @ $9.50 per square foot
which equals an annual Rent of $1,096,670.5 or $91,389.21 per month. This Rent
shall continue for the first five (5) lease years.
(b) Effective June 1, 1997, for an additional 3,645 square feet of Net
Rentable Area located on Xxxxx 00 @ $15.00 per square foot which equals an
additional annual Rent of $54,675 or $4,556.25 per month.
(c) Effective September 1, 1997, for an additional 22,682 square feet of net
Rentable Area located on Xxxxx 00 @ $9.50 per square foot which equals an
additional annual Rent of $215,479 or $17,956.58 per month.
(d) Effective March 1, 1998, for an additional 22,658 square feet of Net
Rentable Area located on Xxxxx 00 @ $15.00 per square foot which equals an
additional annual Rent of $339,870 or $28,322.50 per month
(e) At such time as beneficial occupancy of the space occurs, for an
additional 22,298 square feet of Net Rentable Area located on Xxxxx 00 @
$15.00 per square foot which equals an additional annual Rent of $334,470 or
$27,872.50 per month.
4. As defined in Paragraph 4 of the Sublease, Sublessee agrees to pay
Additional Rent for all additional Net Rentable Areas in the Demised Premises.
5. The total square feet of Net Rentable Area in the Demised Premises shall
increase from 127,439 square feet of Net Rentable Area to 198,722 square feet of
Net Rentable Area.
6. Except as expressly amended hereby, all other items and provisions of the
Sublease remain unchanged and continue to be in full force and effect and are
hereby ratified and confirmed by Landlord and Tenant and the execution of this
amendment shall in no event be deemed to constitute a waiver of any right or
claim of either Landlord or Tenant under or by virtue of the Sublease.
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7. This First Amendment may be executed in multiple counterparts, and by
the parties hereto on separate counterparts, each of which shall be deemed to
be an original, and all of which together shall constitute but one agreement.
8. The terms of this First Amendment shall control over any conflicts
between the terms of the Sublease and this First Amendment.
9. This First Amendment sets forth all covenants, agreements and
understandings between Landlord and Tenant with respect to the subject matter
hereof and there are no other covenants, conditions or understandings, either
written or oral, between the parties hereto except as set forth in the Sublease
and this First Amendment.
10. Tenant warrants and represents unto Landlord that (i) Tenant is a
duly organized and existing legal entity, in good standing in the State of
Texas, (ii) Tenant has full right and authority to execute, deliver and perform
this Second Amendment; (iii) the person executing this Second Amendment was
authorized to do so; and (iv) upon request of Landlord, such person will
deliver to Landlord satisfactory evidence of his or her authority to execute
this First Amendment on behalf of Tenant.
11. This Second Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have duly caused this Amendment to
be executed by their respective representatives, thereunto duly authorized, as
of the day and year first above written.
"Landlord"
ATTEST: TRANSCONTINENTAL GAS PIPE LINE CORPORATION,
a Delaware corporation
---------------------------- By: /s/ CUBA WADLINGTON JR.
Secretary ------------------------------------------
------------------ Printed: CUBA WADLINGTON JR.
-------------------------------------
Title: Senior Vice President & General Manager
---------------------------------------
Date: 3-13-98
---------------------------------------
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"Tenant"
XXXXXXXX COMMUNICATIONS SOLUTIONS, LLC
ATTEST: A Delaware limited liability company
XXXXXX X. XXXXXXXXX By: /s/ X. X. XXXXXXXXX
------------------------------- -------------------------------------
Secretary Printed: X. X. Xxxxxxxxx
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Title: V.P. and Chief Financial Officer
-----------------------------------
Date: March 13, 1998
-----------------------------------
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STATE OF TEXAS }
} ss.
COUNTY OF XXXXXX }
Before me, a Notary Public in and for said County and State, on this 13th
day of March, 1998, personally appeared Cuba Xxxxxxxxxx, Jr., to me known to be
the identical person who subscribed the name of TRANSCONTINENTAL GAS PIPELINE
CORPORATION, a Delaware corporation, thereof to the foregoing instrument as its
______ President and acknowledged to me that he/she executed the same as his/her
free and voluntary act and deed and as the free and voluntary act and deed of
such corporation, for the uses and purposes therein set forth.
/s/ XXXXX X. XXXXXXX
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Notary Public
[SEAL]
My Commission Expires:
03-24-02
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STATE OF TEXAS }
} ss.
COUNTY OF XXXXXX }
Before me, a Notary Public in and for said County and State, on this 13th
day of March, 1998, personally appeared X. X. Xxxxxxxxx, to me known to be the
identical person who subscribed the name of Xxxxxxxx Communications Solutions,
LLC, a Delaware limited liability company, thereof to the foregoing instrument
as its ______ President, and acknowledged to me that he/she executed the same as
his/her free and voluntary act and deed and as the free and voluntary act and
deed of such corporation, for the uses and purposes therein set forth.
[ILLEGIBLE SIGNATURE]
--------------------------------------
Notary Public
My Commission Expires:
07-20-99
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