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Exhibit 10.26
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT ("Amendment") is effective as
of June 1, 1997 by and between DELTA HP LIMITED, a Texas limited partnership
("Landlord"), and XETEL CORPORATION, a Delaware corporation ("Tenant").
RECITALS:
1. Landlord's predecessor in interest and Tenant entered into a
Lease Agreement ("Original Lease") dated September 22, 1992,
pursuant to which Tenant leased from Landlord and Landlord leased
to Tenant approximately 61,832 square feet of Useable Area in the
Buildings known as Brockton Business Center.
2. The Original Lease was amended pursuant to the terms of a
First Amendment to Lease Agreement ("First Amendment") effective
April 1, 1994 to, among other things, increase the square footage
leased to Tenant under the Lease to 103,988 square feet, extend
the term of the Lease to March 31, 2002, and modify the Base Rent
as provided therein (the Original Lease and the First Amendment
being hereinafter collectively referred to as the "Lease").
3. Landlord and Tenant desire to further amend the Lease to reduce
the square footage leased to Tenant under the Lease and modify
the Lease in certain other respects.
AGREEMENTS:
NOW, THEREFORE, for and in consideration of the agreements contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. The second grammatical paragraph on page 1 of the Lease is deleted in
its entirety and the following is substituted in lieu thereof:
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord
the following Premises (herein so called) as depicted on the floor plan
attached hereto as Exhibit "A" containing approximately 91,588 square
feet of Useable Area (hereinafter defined), being part of certain
buildings and other improvements (each, a "Building" and collectively,
the
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"Buildings") collectively known as "Brockton Business Center," located
at 2525 and 0000 Xxxxxxxx Xxxxx, respectively, in the City of Xxxxxx,
Xxxxxx County, Texas situated on the real property more fully described
on Exhibit "B" attached hereto (the "Land").
In connection with the foregoing modification of the Lease, the floor plan
attached as Exhibit "A" to the Lease is deleted in its entirety and the floor
plan attached to this Amendment as Exhibit "A" is substituted in lieu thereof.
2. Section 1.1 d. is deleted in its entirety and the following is
substituted in lieu thereof:
"Area of the Premises" shall mean (i) for the period from the
Lease Commencement Date through March 31, 1994, 61,832 square feet of
Useable Area contained in the Premises, as the same may be amended
pursuant to Section 3.2(g), (ii) for the period from April 1, 1994
through December 31, 1994, 65,832 square feet of Useable Area contained
in the Premises, as the same may be amended pursuant to Section 3.2(g),
(iii) for the period from January 1, 1995 through February 28, 1997,
103,988 square feet of Useable Area contained in the Premises, as the
same may be amended pursuant to Section 3.2(g) and (iv) commencing March
1, 1997, 91,588 square feet of Useable Area contained in the Premises,
as the same may be amended pursuant to Section 3.2(g); provided,
however, with respect to Sections 6.2, 12.1 and 13.2, Area of the
Premises shall mean from April 1, 1994 to February 28, 1997, 103,988
square feet of Useable Area contained in the Premises and from and after
March 1, 1997, 91,588 square feet of Useable Area contained in the
Premises.
3. The first sentence in Section 3.1 entitled "Base Rental" is deleted in
its entirety and the following is substituted in lieu thereof:
Commencing with the Rent Commencement Date, Tenant promises and
agrees to pay to Landlord, without offset or deduction (other than
pursuant to express, limited rental abatement, offset or credit
provisions contained in this Lease), in lawful money of the United
States of America, a base annual rental ("Base Rental") of the following
amounts for the following Lease Years, in monthly installments as
indicated for each such Lease Year:
LEASE YEAR BASE ANNUAL RENTAL MONTHLY INSTALLMENTS
Lease Year 0 -0- -0-
(Xxxxxxxxx 00 , 0000
through December 31,
1992)
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Lease Year 2 $445,190.40 $37,099.20
(January 1, 1993
through December 31, 1993)
Lease Year 3 $463,190.40 $37,099.20 (Jan 1.-
January 1, 1994 through Mar. 31)
December 31, 1994 $39,099.20 (Apr. 1-
Dec. 31)
Lease Year 4 $698,126.40 $58,177.20
(January 1, 1995 through
December 31, 1995)
Lease Year 5 $698,126.40 $58,177.20
(January 1, 1996 through
December 31, 1996
Lease Year 6 (Part I) $290,886.00 $58,177.20
(January 1, 1997 through
May 31, 1997)
Lease Year 6 (Part II) $358,680.00 $51,240.00
June 1, 1997 through
December 31, 1997
Lease Year 7 $659,436.00 $54,953.00
(January 1, 1998 through
December 31, 1998)
Lease Year 8 $681,420.00 $56,785.00
(January 1, 1999 through
December 31, 1999)
Lease Year 9 $703,392.00 $58,616.00
(January 1, 2000 through
December 31, 2000)
Lease Year 10 $725,856.00 $60,488.00
(January 1, 2001 through
December 31, 2001)
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Lease Year 1 $181,464.00 $60,488.00
(January 1, 2002 through
March 31, 2002)
4. The last paragraph of Section 3.1 shall be modified to read as follows:
If Tenant does not notify Landlord by March 31, 2001 that Tenant
has exercised the option to extend the term of the Lease as provided in
Rider 301, or if Landlord and Tenant have not otherwise agreed to an
extension of the term of the Lease in writing that releases Tenant from
the Deferred Rent by March 31, 2002; then on the expiration or earlier
termination of the Lease, Tenant shall pay to Landlord the sum of
$211,200.00. Landlord and Tenant acknowledge and agree that the
Deferred Rent represents all or a portion of the rent on the 38,156
square feet of Useable Area being rented to Tenant hereunder and for
which Tenant is not required to pay any rent from April 1, 1994 to
December 31, 1994.
5. Section 4.6 of the Lease is deleted in its entirety and the following is
substituted in lieu thereof:
4.6 Walkway. Tenant shall possess the Walkway on a
nonexclusive basis with any other tenants of the Project, if any, and
shall specifically permit such tenants' employees, agents, contractors
and invitees to enter and exit the exterior Walkway doors which provide
access to the Common Areas, if any, on each side of the Walkway. As of
the date hereof, there are no Common Areas within the Premises on either
side of the Walkway.
6. The first sentence of Section 7.1 c. is deleted in its entirety and the
following is substituted in lieu thereof:
Tenant shall not permit any mechanic's and materialmen's lien to be
placed on the Premises, Buildings or Land resulting from any work
performed, materials furnished, or obligation incurred by or at the
request of Tenant.
7. Sections 11.1 and 11.2 of the Lease are modified by deleting the phrase
"and the Project" after each occurrence of the word "Premises."
8. This Lease is amended by changing all occurrences of "Project" Sections
20.2f., 20.3d., 20.3e., 20.3f., 20.4 and 20.6 to "Premises".
Additionally, the use of "Project" in Section 20.3a is changed to
"Property."
9. Section 25.8 of the Lease is modified by deleting the phrase "the
Project or the
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Premises" at the end of the first sentence thereof, and substituting the
phrase "the Land, the Buildings or the Premises" in lieu thereof.
10. Landlord and Tenant acknowledge and agree that with respect to the
12,400 square feet relinquished by Tenant pursuant to this Amendment,
the Lease is terminated as to that 12,400 square feet and Tenant shall
have no further obligations, duties or liabilities to Landlord with
respect thereto. Further, such 12,400 square feet is delivered to
Landlord by Tenant AS IS, WHERE IS, AND WITH ALL FAULTS, AND TENANT
EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO SUCH SPACE. Landlord will use all reasonable efforts to
obtain the consent of any lenders of the Project to this Amendment.
Notwithstanding anything contained herein to the contrary, if such
lenders shall not so consent to this Amendment, then, nevertheless, the
provisions of this Amendment shall continue to be binding upon Landlord
and its successors and assigns (excluding such lenders), and Landlord
hereby covenants and agrees to notify any such successor, assign of this
provision.
11. Except as otherwise expressly provided in this Amendment to the
contrary, the Lease is not modified or amended in any respect and the
same shall remain enforceable as written.
12. Capitalized terms that are not defined herein have the meanings given to
them in the Lease unless the context clearly requires otherwise. Words
of any gender used in this Amendment include any other gender, and words
in the singular include the plural, unless the context otherwise
requires. This Amendment and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance with
the laws of Texas. This Amendment may not be changed or terminated
orally, but only in writing executed by Landlord and Tenant. THIS
AMENDMENT, INCLUDING ONLY THE ATTACHMENTS HERETO SPECIFIED HEREIN,
EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS, INCLUDING ANY LETTERS OF INTENT, IF
ANY, RELATING TO THE SUBJECT MATTER HEREOF. This Amendment may be
executed in multiple counterparts, all of which taken together shall
constitute one and the same agreement. It is not necessary for landlord
and tenant to execute the same counterparts.
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EXECUTED THIS 24 DAY OF March, 1997.
LANDLORD:
DELTA HP LIMITED, a Texas limited
partnership
BY: 1826, Inc., a Texas corporation,
General Partner
By: /s/ D. Xxxx Xxxxx, Xx.
--------------------------
D. Xxxx Xxxxx, Xx.
Vice President
TENANT:
XETEL CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx Xxxxxx, Xx.
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Xxxxxx Xxxxxx, Xx.
President/ceo
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