Exhibit 10.38
FOURTH AMENDMENT TO OFFICE LEASE
THIS FOURTH AMENDMENT TO OFFICE LEASE (this "Amendment") is entered
into between CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("LANDLORD"), and GREAT SPIRITS CORP., a Delaware
corporation ("TENANT"), successor by merger to Great Spirits Company LLC, with
reference to the following:
A. Landlord and Tenant entered into that certain Office Lease dated
effective as of February 24, 2000; that certain First Amendment to Office Lease
dated March 14, 2001; that certain Second Amendment to Office Lease dated
January 30, 2002; and that certain Third Amendment" to Office Lease dated March
28, 2003 (as amended, the "LEASE"), covering approximately 1,016 square feet of
Rentable Square Footage (the "PREMISES") on floor 11 of 4 Houston Center, 0000
Xxxxx, Xxxxxxx, Xxxxx 00000 (the "BUILDING").
B. Landlord and Tenant now desire to further amend the Lease as set
forth below. Unless otherwise expressly provided in this Amendment, capitalized
terms used in this Amendment shall have the same meanings as in the Lease.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. FOURTH EXTENSION PERIOD. The Term is extended for a period of
one (1) year (the "FOURTH EXTENSION PERIOD") commencing on April 1, 2004, and
expiring on March 31, 2005.
2. BASE RENT. Commencing on April 1, 2004, and continuing through
the Fourth Extension Period, Tenant shall, at the time and place and in the
manner provided in the Lease, pay to Landlord as Base Rent for the Premises the
amounts set forth in the following rent schedule, plus any applicable tax
thereon:
PREMISES
MONTHLY
FROM THROUGH RATE BASE RENT
------------- -------------- ------ ---------
April 1, 2004 March 31, 2005 $10.50 $889.00
3. OPERATING EXPENSES. Commencing on April 1, 2004, Tenant shall
continue to pay Tenant's Pro Rata Share of Operating Expenses payable under
ARTICLE 4 of the Lease. Tenant shall not be entitled to any free rent period,
construction allowance, tenant improvements or other work to the Premises, or
any other economic incentives that may have been provided to Tenant in
connection with entering into the Lease.
4. CONDITION OF PREMISES. Tenant accepts the Premises in its
"as-is" condition.
5. CONSENT. This Amendment is subject to, and conditioned upon,
any required consent or approval being unconditionally granted by Landlord's
mortgagee(s). If any such consent shall be denied, or granted subject to an
unacceptable condition, this Amendment shall be null and void and the Lease
shall remain unchanged and in full force and effect.
6. NO BROKER. Tenant represents and warrants that it has not been
represented by any broker or agent in connection with the execution of this
Amendment. Tenant shall indemnify and hold harmless Landlord and its designated
property management, construction and marketing firms, and their respective
partners, members, affiliates and subsidiaries, and all of their respective
officers, directors, shareholders, employees, servants, partners, members,
representatives, insurers and agents from and against all claims (including
costs of defense and investigation) of any broker or agent or similar party
claiming by, through or under Tenant in connection with this Amendment.
7. TIME OF THE ESSENCE. Time is of the essence with respect to
Tenant's execution and delivery to Landlord of this Amendment. If Tenant fails
to execute and deliver a signed copy of this Amendment to Landlord by 5:00 p.m.
(in the city in which the Premises is located) on March 31, 2004, this Amendment
shall be deemed null and void and shall have no force or effect, unless
otherwise agreed in writing by Landlord. Landlord's acceptance, execution and
return of this Amendment shall constitute Landlord's agreement to waive Tenant's
failure to meet such deadline.
8. MISCELLANEOUS. This Amendment shall become effective only upon
full execution and delivery of this Amendment by Landlord and Tenant. This
Amendment contains the parties' entire agreement regarding the subject matter
covered by this Amendment, and supersedes all prior correspondence,
negotiations, and agreements, if any, whether oral or written, between the
parties concerning such subject matter. There are no contemporaneous oral
agreements, and there are no representations or warranties between the parties
not contained in this Amendment. Except as modified by this Amendment, the terms
and provisions of the Lease shall remain in full force and effect, and the
Lease, as modified by this Amendment, shall be binding upon and shall inure to
the benefit of the parties hereto, their successors and permitted assigns.
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LANDLORD AND TENANT enter into this Amendment on March 23, 2004.
LANDLORD: CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.
a Delaware corporation, its
General Partner
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
Regional Vice President
Leasing & Marketing
Houston Region
TENANT: GREAT SPIRITS COMPANY L.L.C.
a Delaware limited liability company,
successor by merger to Great Spirits
Company LLC
By: /s/ Xxxxxxx X. XxxXxxxxxx
------------------------------------
Name: Xxxxxxx X. XxxXxxxxxx
Title: CFO
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