Exhibit 10.16
LEASE AGREEMENT
Between
SL-6 PARTNERS, LTD.
as Landlord,
and
Progressive System Technologies, Inc.,
as Tenant,
Covering approximately 40,000 gross square feet
of the Building known (or to be known) as
Stonelake #6
located at
North Mopac Expressway and Xxxxxxxxx Boulevard
Austin, Texas, 78759
STANDARD INDUSTRIAL LEASE AGREEMENT
XXXXXXXX XXXX COMPANY - (AUS/91)
Approximately 40,000 gross square feet
N. Mopac Expressway at Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
(Stonelake #6)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between. SL-6 Partners,
Ltd., hereinafter referred to as "Landlord," and Progressive System
Technologies, Inc., hereinafter referred to as "Tenant."
1. PREMISES AND TERM. In consideration of the mutual obligations of Landlord
and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes
from Landlord, certain leased premises situated within the County of Xxxxxx,
State of Texas, comprising approximately 40,000 square feet (the "Premises")
of the building known locally as Stonelake #6 ("Building") located at
___________ Xxxxxxxxx Xxxx., Xxxxxx, Xxxxx 00000 situated on land more fully
described on EXHIBIT "A" attached hereto and incorporated herein by reference,
together with all rights, privileges, easements, appurtenances and amenities
belonging to or in any way pertaining to the Premises, to have and to hold,
subject to the terms, covenants and conditions in this Lease. The term of this
Lease shall commence on the Commencement Date hereinafter set forth and shall
end on the last day of the month that is one hundred twenty (120) months after
the Commencement Date.
A. Building or Improvements to be Constructed. If the Premises or part
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thereof are to be constructed, the "Commencement Date" shall be deemed to be the
earliest of: (i) the date upon which the Premises and other improvements to be
erected in accordance with the plans and specifications described on EXHIBIT "B"
attached hereto and incorporated herein by reference or to be attached hereto
following completion of such plans and specifications (the "Plans") have been
substantially completed and the Premises are tendered to Tenant with a
Certificate of Occupancy; (ii) the date on which the Premises or such
improvements would have been substantially completed but for delays Caused by
Tenant, including Plan delays or change orders; or (iii) the date on which
Tenant occupies any part of the Premises. Landlord shall notify Tenant in
writing at any time Landlord claims any delay caused by Tenant. As used herein,
the term "substantially completed" shall mean that, in the opinion of the
architect or space planner that prepared the Plans, such improvements have been
completed in accordance with the Plans, and the Premises are in good and
satisfactory condition, with the exception of completion of minor punch list
items. As soon as such improvements have been substantially completed and a
Certificate of Occupancy has been obtained, Landlord shall, tender the premises
to Tenant by notifying Tenant in writing that the Commencement Date has
occurred. Should the Commencement Date not have occurred on or prior to May 1,
1996, provided such delay is not caused by Tenant, including plan delays or
change orders, Landlord shall pay liquidated damages equal to One Thousand and
No/100 Dollars ($1,000.00) for every calendar day after May 1, 1996 until the
Premises are substantially completed and delivered to Tenant with a Certificate
of Occupancy. Landlord shall pay such liquidated damage amount to Tenant in
cash or at Tenant's written election and instruction, offset such amounts
against rentals due hereunder. If the Premises have not been substantially
completed and tendered to Tenant along with a Certificate of Occupancy obtained
and tendered to Tenant by June 30, 1996, Landlord will provide temporary
alternative space to Tenant of a quality and location similar to the Premises
and at a total monthly cost to Tenant not exceeding the cost hereunder.
Landlord shall be responsible for all the costs incurred by Tenant to move into
such temporary alternative space. In addition, Tenant shall have a one-time
right to terminate this Lease only in the event that Landlord has not commenced
drilling foundation piers for the Building on or before December 19, 1995. This
December 19, 1995 date shall be extended on a day-for-day basis for each day of
rain encountered at the Building site between and including December 1, 1995 and
December 19, 1995. Should Tenant elect to exercise its termination right, Tenant
must notify Landlord in writing of such election no later than 6:00 p.m. CST,
December 20, 1995, at which point this Lease shall be null and void and of no
further force and effect and Tenant shall receive a full refund of the Security
Deposit. If the Premises have not been substantially completed and tendered to
Tenant along with a Certificate of Occupancy by September 30, 1996, Tenant may
at any time within 30 days thereafter terminate this Lease as a matter of right
and without further liability therefor, and receive a full refund of the
Security Deposit.
Initial_______ ______
Date _________ ______
1.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW DEPOSITS
A. Base Rent. Tenant agrees to pay Landlord rent for the Premises, in
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advance, without demand, deduction or set off, except as set forth herein, at
the rate set forth below:
Year Monthly Base Rental Rate PSF Total Monthly Base Rent
------------ ------------------------------ -------------------------
Years 1 - 5 $0.70 $28,000
Years 6 - 7 $0.74 $29,600
Year 8 $0.76 $30,400
Years 9 - 10 $0.78 $31,200
The first such monthly installment, plus the other monthly charges set forth in
Xxxxxxxxx 0X xxxxx, shall be .due and payable on the Commencement Date, and a
like monthly installment shall be due and payable on or before the first day of
each calendar month succeeding the Commencement. Date, except that all
payments due hereunder for any fractional calendar month shall be prorated.
B. Security Deposit. In addition; Tenant agrees to deposit with Landlord
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on the date hereof the xxxxx of twenty eight thousand and 00/100 Dollars
($28,000.00), which shall be held by Landlord in an interest bearing account, as
security for the performance of Tenant's obligations under this Lease (the
"Security Deposit"), it being expressly understood and agreed that the Security
Deposit is not an advance rental deposit or a measure of Landlord's damages in
case of Tenant's default. Upon occurrence, of an Event of Default, Landlord may
use all or part of the Security. Deposit to pay past due rent or other payments
due Landlord under this Lease or the cost of any other damage, injury, expense
or liability caused by such Event of Default, without prejudice to any other
remedy provided herein or provided by law. On demand, Tenant shall pay Landlord
the amount that will restore the Security Deposit to its original amount. The
Security Deposit shall be deemed the property of Landlord, but any remaining
balance of the Security Deposit shall be returned by Landlord to Tenant upon
termination or expiration of this Lease and when all of Tenant's obligations
under this Lease have been fulfilled.
C. Escrow Deposits. Without limiting in any way Tenant's other
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obligations under this Lease, Tenant agrees to pay to Landlord its Proportionate
Share (as defined in this Xxxxxxxxx 0X xxxxx) of (i) Taxes (hereinafter defined)
payable by Landlord pursuant to Xxxxxxxxx 0X xxxxx, (xx) the cost of utilities
payable by Landlord pursuant to Xxxxxxxxx 0 xxxxx, (xxx) Landlord's cost of
maintaining insurance pursuant to Paragraph 9A below, and (iv) Landlord's cost
of maintaining the Premises pursuant to Paragraph 5D below and any common area
charges payable by Tenant in accordance with Paragraph 4B below, which costs
shall exclude, however, any management fees charged by Landlord or its
affiliates or agents other than the fee contemplated in Paragraph 4B
(collectively, the "Tenant Costs"). During each month of the term of this
Lease, on the same day that base rent is due hereunder, Tenant shall deposit in
escrow with Landlord an amount equal to one-twelfth (1/12) of the estimated
amount of Tenant's Proportionate Share of the Tenant Costs. Tenant authorizes
Landlord to use the funds deposited with Landlord under this Xxxxxxxxx 0X to pay
such Tenant Costs. The initial monthly escrow payments will be $0.13 times the
number of square feet of the Premises based upon the estimated amounts for the
year in which this Lease commences and shall be increased or decreased annually
to reflect Landlord's reasonable projections of the actual amount of all Tenant
Costs. If the Tenant's total escrow deposits for any calendar year are less
than Tenant's actual Proportionate Share of the Tenant Costs for such calendar
year, Tenant shall pay the difference to Landlord within the later of thirty
(30) days after demand or ten (10) days after delivery to Tenant and approval
of the reconciliation referenced below. Upon request by Tenant, Landlord will
provide a written reconciliation of the Tenant Costs. If the total escrow
deposits of Tenant for any calendar year are more than Tenant's actual
Proportionate Share of the Tenant Costs for such calendar year, Landlord shall
give Tenant written notice of same supported by a written reconciliation and if
requested by Tenant, written evidence of Tenant Costs and retain the entire
excess and credit it against Tenant's escrow deposits next maturing after such
determination, or if such excess exceeds twenty percent (20%) of the escrowed
amount, refund the entire excess balance to Tenant within thirty (30) business
days of such notice. Tenant's "Proportionate Share" with respect to the
Building, as used in this Lease, shall mean a fraction, the numerator of which
is the gross rentable area contained in the Premises and the denominator of
which is the gross rentable area contained in the entire Building. For purposes
hereof, the gross rentable area of the Building shall be 108,000 square feet,
To the extent the entire square footage of the Building is not leased, Landlord
shall bear the pro rata expense allocable to the unleashed portion thereof. If
Tenant or any other particular tenant of the Building could be clearly
identified as (i) being responsible for causing any required maintenance or
repair to any of the Building Common area or facilities, (ii) using excessive
amounts of water (to the extent such usage is not separately metered), (iii)
causing the insurance premiums to increase or require additional coverage
because of such Tenant's use of the Building then such responsible tenant shall
pay the entire cost of such maintenance, repair, usage or premium and such
amount shall not be included as a Tenant Cost.
Initial_______ ______
Date _________ ______
2.
3. TAXES
A. Taxes and Assessments. Subject to reimbursement under Paragraph 2C
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herein, Landlord agrees to pay all taxes, assessments and governmental charges
of any kind and nature (collectively referred to herein as "Taxes") that accrue
against file Premises, the Building and/or the land of which the Premises or the
Building are a part. If at any time during the term of this Lease the present
method of ad valorem taxation should be changed so that in lieu of or in
addition to any taxes, assessments or governmental charges levied or imposed on
real estate or improvements thereon there shall be levied, assessed or imposed
on Landlord a capital levy or other tax directly on the rents received from the
Premises and/or the land and improvements of which the Premises are a part, then
the amount of such taxes, assessments, levies or charges, so measured or based
shall be deemed to be included within the term "Taxes" for the purposes hereof.
The Landlord shall have the right to employ a tax consulting firm to attempt to
assure a fair tax burden on the real property within the applicable taxing
jurisdiction. Tenant agrees to pay its Proportionate Share of the cost of such
consultant which proportionate share shall not exceed a maximum of $1,000.00
annually. Landlord shall be responsible to pay all capital recovery fees
trod/or special utility assessments rendered with respect to the Premises, and
Tenant shall have no responsibility to pay or reimburse Landlord therefor
provided that Tenant shall pay for all hook-up and meter fees necessitated by
the interior finish of the Premises.
B. Personal Property Taxes. Tenant shall be liable for all taxes levied
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or assessed against any personal property or fixtures placed in or on the
Premises. If any such taxes are levied or assessed against Landlord or
Landlord's property and (i) Landlord pays the same or (ii) the assessed value
of Landlord's property is increased by inclusion of such personal property and
fixtures and Landlord pays the increased taxes, then Tenant shall pay to
Landlord, upon demand, the amount of such taxes.
4. LANDLORD'S REPAIRS AND MAINTENANCE.
A. Structural Repairs. Landlord, at its own cost and expense, shall
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maintain the roof foundation and the structural soundness of the exterior walls
of the Building in good repair, reasonable wear and tear excluded. The term
"walls" as used herein shall not include windows, glass or plate glass, any
doors, special store fronts or office entities, and the term "foundation" as
used herein shall not include loading docks. Tenant shall immediately give
Landlord written notice of defect or need for repairs, after which Landlord
shall have reasonable opportunity to effect such repairs or cure such defect.
B. Tenant's Share of Common Area Charge. Tenant agrees to pay its
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Proportionate Share of the cost incurred by Landlord for Landlord's (i)
maintenance and/or landscaping (including both maintenance and replacement of
landscaping) of any property that is a part of the Building or immediately
adjacent to the Building and (ii) operating, maintaining and repairing any
property, facilities or services (including without limitation utilities and
insurance therefor) provided for the use or benefit of Tenant or the common use
or benefit, of Tenant and other lessees of the Building so long as such property
facility or service is otherwise contemplated in this Lease or hereafter
requested or agreed to by Tenant and (iii) an administrative fee of fifteen
percent (15%) of all common area maintenance charges described herein.
C. Audit of Tenant Costs. Tenant shall have the right, at Tenant's sole
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cost, to audit the Landlord's records of Tenant Costs provided that all of the
following criteria are met:
1. Before conducting any audit, Tenant must pay the full amount of
the escrow deposits then due for Tenant Costs under Xxxxxxxxx 0X and must not be
in default of any other lease provisions.
2. Tenant may review only those records of Landlord that are related
to Tenant Costs. Without limiting the foregoing, Tenant may not review any
other leases, or Landlord's tax returns or financial statements.
3. In conducting an audit, Tenant must utilize an independent
certified Public accountant experienced in auditing such records subject to
Landlord's reasonable prior approval.
4. Upon receipt thereof, Tenant will deliver to Landlord a copy of
the audit report and all accompanying data.
5. Tenant will keep confidential all agreements involving the rights
provided in this section and the results of any audits conducted hereunder.
Notwithstanding the foregoing, Tenant shall be permitted to furnish the
foregoing information to its attorneys, accountants and auditors to the extent
necessary to perform their respective services for Tenant or to any arbitrator,
mediator or court in which proceedings are pending related to such audit
information.
6. The audit shall be conducted in accordance with generally
accepted rules of auditing practices.
Initial_______ ______
Date _________ ______
3.
7. Tenant may not conduct an audit more often than once each
calendar year. Tenant may audit records with respect to each lease year only
one time. No audit shall cover a period of time in excess of the one calendar
year immediately preceding the audit.
8. The audit right set forth in this section is not transferable by
Tenant and shall be terminated if Tenant or a subsidiary or affiliate thereof is
not the Tenant under this lease.
9. If an audit by Tenant of the Tenant cost records pursuant to the
foregoing demonstrates an overstatement of costs by Landlord in excess of the
amount properly determined by the audit, Landlord shall pay Tenant the amount of
said overstatement of costs (to the extent Tenant has paid such amount to
Landlord). If said audit demonstrates an overstatement of costs by Landlord in
excess of ten percent (10%) of the amount properly determined by the audit,
Landlord shall also pay Tenant the reasonable costs incurred by Tenant in
connection with said audit. If said audit demonstrates an understatement of
costs by Landlord, Tenant shall reimburse Landlord's property management company
for its reasonable costs incurred in connection with said audit. If such audit
demonstrates an understatement, Tenant shall also pay Landlord the amount of
such understatement.
5. TENANT'S REPAIRS
A. Maintenance of Premises and Appurtenances. Tenant, at its own cost
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and expense, shall (i) maintain all parts of the Premises and promptly make all
necessary repairs and replacements to the Premises (except those for which
Landlord is expressly responsible hereunder), and (ii) keep the parking areas,
driveways and alleys surrounding the Premises free from trash and debris
generated by Tenant or its employees, agents or vendors. Tenant's obligation
to 'maintain, repair and make replacements to the Premises shall cover, but not
be limited in, pest control (including termites), trash removal and the
maintenance, repair and replacement of all HVAC, electrical, plumbing, sprinkler
and Other mechanical systems; provided, however, any maintenance, repair or
replacement of the Premises covered by a warranty or guaranty of any contractor
or materialman shall be coordinated through and enforced by Landlord pursuant to
terms of such warranty or guaranty and at the cost and expense of such
contractor or materialman as set forth therein.
B. Parking. Landlord, at its expense, will provide and designate as
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parking for Tenant one hundred sixty (160)parking spaces, of which eighty (80)
shall be reserved exclusively for Tenant. Such reserved spaces shall be located
in the areas identified on EXHIBIT "C" attached hereto and incorporated herein.
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For purposes hereof, a "parking space" shall mean a minimum eight-foot (8')
wide, eighteen and one-half foot (18 1/2") long space with a twenty-six foot
(26') foot wide swing aisle for entrance into the space. Tenant and its
employees, customers and licensees shall have thc right to use the eighty (80)
exclusive reserved parking spaces that have been designated for Tenant's use on
Exhibit "C" and the remaining eighty (80) unreserved, non-exclusive parking
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spaces subject to (1) ail rules and regulations promulgated by Landlord, and
(ii) rights of ingress and egress of other lessees. Landlord shall use
reasonable and diligent efforts to enforce Tenant's parking rights against any
third parties, and Tenant expressly does not have the right to tow or obstruct
improperly parked vehicles. Tenant agrees not to park on any public streets or
private roadways adjacent to or in the vicinity of the Premises.
C. System Maintenance. Tenant, at its own cost and expense, shall enter
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into a regularly scheduled preventive maintenance/service contract with a
maintenance contractor approved by Landlord for servicing all heating and air
conditioning systems and equipment within the Premises. The service contract
must include all services suggested by the equipment manufacturer in its
operations/maintenance manual and must become effective within thirty (30) days
of the date Tenant takes possession of the Premises.
D. Option to Maintain Premises. Should Tenant fail to perform any
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maintenance, repair or replacement to the Premises required hereunder, and
should such failure continue for a period of ten (10) business days following
receipt of written notice from Landlord, Landlord reserves the right to perform,
in whole or in part, any such maintenance, repairs and replacements to the
Premises, in which event, Tenant shall be liable for the Cost and expense of
such repair, replacement, maintenance and other such items. Landlord shall
provide, at the monthly expense of the Tenants of the Building, regular mowing
of any grass, trimming, weed removal, exterior painting, common sewage plumbing
and general landscape maintenance, including keeping the parking areas,
driveways, alleys, and the whole of the exterior of the Building and surrounding
property in good repair and in a neat, clean condition and such other services,
facilities, maintenance, and repair appropriate to the operation of research and
development/service center projects in Austin, Texas. Subject to the terms of
paragraph 9 below, Tenant shall not be obligated to repair any damage caused by
fire or other peril covered by the insurance to be maintained by Landlord
pursuant to paragraph 9 below.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written :consent of Landlord,
such consent not to be Unreasonably withheld, conditioned or delayed, however,
structural or exterior alterations, additions or improvements are subject to
Landlord's prior consent which may be given or withheld in its sole discretion.
Prior to beginning construction of any such improvements, Tenant shall submit
architectural drawings of the proposed improvements to Landlord and shall obtain
Landlord's written consent to begin construction. Tenant, at its own cost and
expense, may erect such shelves, bins, machinery and trade fixtures as it
desires,
Initial_______ ______
Date _________ ______
4.
provided that (i) such items do not alter the basic character of the Premises or
the Building, (ii)such items do not overload or damage same, (iii) such items
may be removed without injury to the Premises, and (iv) the construction,
erection or installation thereof complies with all applicable governmental laws,
ordinances, regulations and with Landlord's specifications and requirements
defined as Xxxxxxxx Xxxx Company's Standards and Specifications for Industrial
Tenant Finish Construction dated April 1991 and as modified thereafter. Tenant
shall be responsible for compliance with The Americans With Disabilities Act of
1990. Without implying any consent of Landlord thereto, all alterations,
additions, improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the term of this Lease. All shelves, bins, machinery
and trade fixtures installed by Tenant and other improvements installed after
Commencement Date shall be removed on or before the earlier to occur of the day
of termination or expiration of this Lease or vacating the Premises, at which
time Tenant shall restore the Premises to their original condition. All
alterations, installations, removals and restorations shall be performed in a
good and workmanlike manner so as not to damage or alter the primary structure
or structural qualities of the Building or other improvements situated on the
Premises or of which the Premises are a part.
7. SIGNS. Tenant shall be entitled to install signage on the exterior of the
Building in locations and of a type and design more particularly described on
EXHIBIT "D" attached hereto and incorporated herein. Any change to or
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additional signage Tenant desires for the Premises shall be subject to
Landlord's written approval, which shall not be unreasonably delayed, and shall
be submitted to Landlord prior to the installation of such signage. Tenant
shall repair, paint and/or replace the Building fascia surface to which its
signs are attached upon Tenant's vacating the Premises or the removal or
alteration of its signage. Tenant shall not, without Landlord's prior written
consent, (i) make any changes to the exterior of the Premises, such as painting;
(ii) install any exterior lights, decorations, balloons, flags, pennants or
banners; or (iii) erect or install any signs, windows or door lettering,
placards, decorations or advertising media of any type which can be viewed from
the exterior of the Premises: All signs, decorations, advertising media, blinds,
draperies and other window treatment or bars or other security installations
visible from outside the Premises shall conform in all respects to the criteria
established by Landlord or shall be Otherwise subject to Landlord's prior
written consent, which shall not be unreasonably delayed.
8. UTILITIES. Landlord agrees to provide, at no cost to Tenant, water and
wastewater connections to the Premises and electricity service connections into
the Building. Tenant shall have the right to connect the Premises to such
Building connections as a part of the tenant finish construction. Tenant shall
pay for all water, gas, heat, light, power, telephone, sewer, sprinkler charges
and other utilities and services used on or at the Premises, together with any
taxes, penalties, surcharges or the like pertaining to the Tenant's use of the
Premises (unless such penalties are due to Landlord's acts or omissions) and any
maintenance charges for utilities. Landlord shall have the right to cause any
of said services to be separately metered to Tenant, at Tenant's expense.
Tenant shall pay its pro rata share, as reasonably determined by Landlord, of
all charges for jointly metered utilities. In the event water is not separately
metered to Tenant, Tenant agrees that it will not use water and sewer capacity
for uses other than normal domestic restroom and kitchen usage, and Tenant
further agrees to reimburse Landlord for the cost of such additional water and
sewer use as determined by Landlord in its reasonable discretion, as additional
rental if, in fact, Tenant uses water or sewer capacity for uses other than
normal domestic restroom and kitchen uses without first obtaining Landlord's
written permission, including but not limited to the cost for acquiring
additional sewer capacity to service Tenant's excess sewer use. Furthermore,
Tenant agrees in such event to install at its own expense a submeter to
determine Tenant's usage. If Landlord determines that any other tenant or
tenants in the Building use water and sewer capacity in excess of normal
domestic restroom and kitchen uses, Landlord will require such tenant to
separately meter or submeter such tenant or tenants' premises in the Building.
Any material cessation of services for water, electric and wastewater that
causes Tenant to cease normal operations in the Premises and is caused by
Landlord or which may be covered under any insurance carried by Landlord
extending beyond fourteen (14) consecutive days or thirty (30) days in the
aggregate shall allow Tenant to xxxxx rental payments for so long thereafter as
services are not furnished and for each day thereafter services cease, following
the original period.
9. INSURANCE.
A. Landlord's Insurance. Subject to reimbursement under Paragraph 2C
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herein, Landlord shall maintain insurance covering the Building in an amount not
less than eighty percent (80%) of the "replacement cost" thereof, insuring
against the perils of fire and extended coverage, vandalism and malicious
mischief. Landlord shall procure and maintain throughout the term of this Lease
a policy or policies of insurance, at its sole cost and expense, insuring
Landlord and Tenant against all claims, demands or actions arising out of or in
connection with (i) the Premises and Building; (ii) the condition of the
Premises and Building; (iii) Landlord's operations in and maintenance and use of
the Premises and Building; and (iv) Landlord's liability assumed under this
Lease, the limits of such policy or policies to be in the amount of not less
than $500,000.00 per occurrence in respect of injury to persons (including
death), and in the amount of not less than $1,000,000 per occurrence in respect
of property damage or destruction, including the loss of use thereof. Copies of
the policies or certificates shall be delivered to Tenant upon request.
Initial_______ ______
Date _________ ______
5.
B. Tenant's Insurance. Tenant, at its own expense, shall maintain during
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the term of this Lease a policy or policies of workers' compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage and One Million
Dollars ($1,000,000.00) per occurrence and One Million Dollars ($1,000,000.00)
in the aggregate for personal injuries or deaths of persons occurring in or
about the Premises. Tenant, at its own expense, shall also maintain during the
term of this Lease, fire and extended coverage insurance covering the
replacement cost of (i) all alterations, additions, partitions and improvements
installed or placed on the Premises by Tenant or by Landlord on behalf of
Tenant; and (ii) all of Tenant's personal property contained within the
Premises. Said policies shall (i) name the Landlord and management company as
additional insured and insure Landlord's and management company's contingent
liability under or in connection with this Lease (except for the workers'
compensation policy, which instead shall include a Waiver of subrogation
endorsement in favor of Landlord); (ii) be issued by an insurance company which
is acceptable to Landlord; and (iii) provide that said insurance shall not be
cancelled unless thirty (30) days prior written notice has been given to
Landlord. Said policy or policies or certificates thereof Shall be delivered to
Landlord by Tenant on or before the Commencement Date and upon each renewal of
said insurance.
C. Prohibited Uses. Tenant will not permit the Premises to be used for
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any purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance risk or cost thereof, or (iii) cause the disallowance of
any sprinkler credits; including without limitation, use of the Premises for the
receipt, storage or handling of any product, material or merchandise that is
explosive or highly inflammable. If any increase in the cost of any insurance
on the Premises or the Building is caused by Tenant's use of the Premises or
because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord upon demand therefor. Any increase in the cost of
insurance on the Building caused by any other tenant's use of the Building shall
not be included as a Tenant Cost and shall be borne exclusively by such
tenant.
10. FIRE AND CASUALTY DAMAGE.
A. Total or Substantial, Damage and Destruction. If the Premises or the
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Building should be damaged or destroyed by fire or other casualty, Tenant shall
immediately give written notice to Landlord of such damage or destruction and
Landlord shall within thirty (30) days of receipt of such notice determine and
notify Tenant in Writing of its reasonable estimation of the time period
required for completion of rebuilding or repairs. If the Premises or the
Building should be totally destroyed by fire, or other casualty, or if they
should be so damaged thereby that, in Landlord's reasonable estimation,
rebuilding or repairs cannot be completed within one hundred twenty (120) days
after the date of such damage or after such Completion there would not be enough
time remaining under the terms of this Lease to fully amortize such rebuilding
or repairs, then this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective upon the date of the occurrence
of such damage.
B. Partial Damage or Destruction. If the Premises or the Building should
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be damaged by fire or other casualty and, in Landlord's reasonable estimation,
rebuilding or repairs can be substantially completed within one hundred twenty
(120)days after the date of such damage, then this Lease shall not terminate and
Landlord shall at its expense proceed with reasonable diligence to substantially
restore the Premises to its previous condition, except that Landlord shall not
be required to rebuild, repair or replace any part of the partitions, fixtures,
additions and other improvements that may have been constructed, erected or
installed in or about, the Premises for the benefit of, by or for Tenant. If
the Premises are untenable in whole or in part following such damage, the rent
payable hereunder during the period to which they are untenable shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such repairs
and rebuilding within one hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this Lease as to all of the Premises or the damaged portion of the
Premises by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, which termination shall be effective as of the date of the
notice of such damage provided pursuant to Paragraph 10(A) above, whereupon all
rights and obligations with respect to the terminated portion of the Premises
hereunder shall cease and terminate unless on or prior to the expiration of
thirty (30) days following Landlord's receipt of such termination notice such
repair or rebuilding is complete, in which event the Lease shall continue in
full force and effect.
C. Damage or Destruction Prior to Occupancy. Notwithstanding the
----------------------------------------
foregoing, if any substantial portion of the Premises is damaged or destroyed
prior to the date the Premises is initially occupied by Tenant by a casualty
described in Paragraph 10(A) above or due to any other cause not proximately
caused by the negligence or willful misconduct of Tenant or its employees, and
the rebuilding or repair thereof, in Tenant's reasonable estimation, will
extend beyond September 30, 1996 then Tenant may elect to terminate this Lease
as to all or the damaged portion of the building Premises as a matter of right
without liability therefor as of the date of the notice of such damage provided
pursuant to Paragraph 10(A) above (the "Damage Notice"), such termination to be
accomplished by delivering written notice of such termination to Landlord within
fifteen (15) calendar days of the Damage Notice, Whereupon all rights and
obligations with respect to the terminated portion of the Premises hereunder,
shall cease and terminate (other than Tenant's obligations under Paragraph 2(B)
with respect to Monthly
Initial_______ ______
Date _________ ______
6.
Escrows, if any, applicable to the period of time from the Commencement Date
through the effective date of such termination).
D. Alternative Space. If the Building is damaged or destroyed by a fire
-----------------
or other casualty described in Paragraph 10(A) above or due to any other cause
not proximately caused by the negligence or willful misconduct of Tenant or its
employees and if Tenant has not initially occupied the Building and the
rebuilding or repair will extend beyond July 31, 1996, then on or before five
(5) calendar days after request therefor by the Tenant, Landlord shall provide
to Tenant a list of all potential alternate locations in the existing inventory
of available sites of Landlord and its affiliates which are not Under lease for
alternative warehouse space with HVAC in the amount of 16,200 square feet, and
on or before forty-five (45) days (as such period may be extended for a
reasonable period of time to accomplish any non-standard tenant finish-out
requested by Tenant) after selection by Tenant of an alternate location from
such inventory (the "Alternate Location"), Landlord shall provide the Alternate
Location in a condition sufficient and with all requisite governmental permits
and approvals for occupancy and use as soon as possible for Tenant's intended
purposes at a total cost not greater than the base rental hereunder per square
foot. The Alternate Location will be located, if possible, in reasonable
proximity to the Premises and will contain in one structure, if possible,
contiguous space not less than the total number of square feet contained in the
Premises hereunder. Tenant may, but shall not be required to, occupy the
Alternate Location for a period of time extending up to two (2) weeks following
the restoration of the damaged or destroyed portion of the Premises and the
completion of all Tenant Finish-Out thereto sufficient to restore the condition
which existed immediately prior to such damage or destruction. In the event
Landlord fails to timely provide the Alternate Location in full and complete
accordance with this Paragraph 10(D), then Tenant may terminate this Lease as
to all of the Premises or the damaged portion of the Premises as a matter of
right and without liability therefor by delivering written notice thereof to
Landlord, whereupon all rights and obligations with respect to the terminated
portion of the Premises hereunder shall cease and terminate (other than
Tenant's obligations under Paragraph 2(B) with respect to Monthly Escrows, if
any, applicable to periods of time prior to such termination).
E. Lienholders' Rights in Proceeds. Notwithstanding anything herein to
-------------------------------
the contrary, in the event the holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made known to Landlord by any such holder,
whereupon all rights and obligations hereunder shall cease and terminate.
Landlord shall inquire of such holder as to the intended application of the
insurance proceeds if such holder has not instructed Landlord as to such
application within twenty (20) days of the casualty.
F. Waiver of Subrogation. Notwithstanding any provision of this Lease,
---------------------
each party hereto waives any cause of action it might have against the other
party on account of any loss or damage that is insured against under any
insurance policy carried or required to be carried hereunder (to the extent that
such loss or damage is recoverable under Such insurance policy) that covers the
Building, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements or business and which names Landlord or Tenant, as the
ease may be, as a party insured but only to the extent of the insurance proceeds
payable under such policies. Each party hereto agrees that it will cause its
insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of recovery
and causes of action that Landlord has released, or that are caused in whole or
in part by the gross negligence or willful misconduct of Landlord, Tenant Shall
hold Landlord harmless from and defend Landlord against any and all claims or
liability including without limitation reasonable attorneys' fees and court
costs raised against or suffered by Landlord for any injury or damage (i) to any
person or property whatsoever occurring in, on or about the Premises or any part
thereof, the Building and/or other common areas, the use of which Tenant may
have in accordance with this Lease, if (and only if) such injury or damage shall
be caused in whole or in part by the act, neglect, fault or omission of Tenant,
its agents, servants, employees or invitees; (ii) arising from the conduct or
management of any work done by the Tenant in or about the Premises; The
provisions of this Paragraph 11 shall survive the expiration or termination of
this Lease for a period of two (2) years. Landlord shall not be liable in any
event for personal injury or loss of Tenant's property caused by: fire, flood,
water leaks, rain, hail, ice, snow, smoke, lightning, wind, explosion,
interruption of utilities or other occurrences unless, in the case of a water
leak, such leak is a result of a failure by Landlord to repair a portion of the
Building or Premises required to be repaired hereunder by Landlord and Landlord
has received thirty (30) days prior written notice from Tenant of the necessity
of such repair. To the extent the damage arising from such leak is paid by
Tenant's insurance, Landlord shall reimburse Tenant upon demand for the amount
of any deductible paid by Tenant and the increase in any premiums arising solely
because of such claim. Landlord strongly recommends that Tenant secure Tenant's
own insurance in excess of the amounts required elsewhere in this Lease to
protect against the above occurrences if Tenant desires additional coverage for
such risks. Tenant shall give prompt notice to Landlord of any significant
accidents involving injury to persons or property. Furthermore, Landlord shall
not be responsible for lost or stolen personal property, equipment, money or
jewelry from the Premises or from the public areas of the Building or the
Project, regardless of whether such loss occurs when the area is locked against
entry. Landlord shall not be liable to Tenant or Tenant's
Initial_______ ______
Date _________ ______
7.
employees, customers or invitees for any damages or losses to persons or
property caused by any lessees in the Building or the Project, or for any
damages or losses caused by theft, burglary, assault, vandalism or other crimes.
Landlord strongly recommends that Tenant provide its own security systems and
services and secure Tenant's own insurance in excess of the amounts required
elsewhere, in this Lease to protect against the above occurrences if Tenant
desires additional protection or coverage for such risks. Tenant shall give
Landlord prompt notice of any criminal or suspicious conduct within or about the
Premises, the Building or the Project and/or any personal injury or property,
damage caused thereby. Landlord may, but is not obligated to, enter into
agreements with third parties for the provision, monitoring, maintenance and
repair of any courtesy patrols or similar services or fire protective systems
and equipment and, to the extent same is provided at Landlord's sole discretion,
Landlord shall not be liable to Tenant for any damages, costs or expenses which
occur for any reason in the event any such system or equipment is not properly
installed, monitored or maintained or any such services are not properly
provided. Landlord shall use reasonable diligence in the maintenance of existing
lighting, if any, in the parking garage or parking areas servicing the Premises,
and Landlord shall not be responsible for additional lighting or any security
measures in the Project, the Premises, the parking garage or other parking
areas.
12. USE. The Premises shall be used only for the purpose of conducting a
business, office, manufacturing, research and engineering facility with
attendant health, recreation and dining facilities, and for receiving, storing,
shipping and selling (other than retail)products, materials and merchandise made
and/or distributed by Tenant and for such other lawful purposes as may be
directly incidental thereto. Outside Storage, including without limitation
storage of trucks and other vehicles, is prohibited without Landlord's prior,
written consent Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Premises and shall promptly comply with
all governmental orders and directives for the correction, prevention and
abatement of nuisances in, upon or connected with the Premises, all at Tenant's
sole expense. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take
any other action that would constitute a nuisance or would disturb,
unreasonably interfere with or endanger Landlord or any other lessees of the
Building or the Project.
13. HAZARDOUS WASTE. The term "Hazardous Substances," as used in this Lease,
shall mean pollutants, contaminants, toxic or hazardous wastes, radioactive
materials or any other substances, the use and/or the removal of which is
required or the use of which is restricted, prohibited or penalized by any
"Environmental Law," which term. shall mean any federal, state or local
statute, ordinance, regulation or other law of a governmental or quasi-
governmental authority relating to pollution or protection of the environment or
the regulation of the storage or handling of Hazardous Substances Tenant hereby
agrees that: (i) no activity will be conducted on the Premises that will
produce any Hazardous Substances, except for such activities that are part of
the ordinary course of Tenant's business activities (the "Permitted
Activities"), provided said Permitted Activities are conducted in accordance
with all Environmental Laws and have been approved in advance in writing by
Landlord and, in connection therewith, Tenant shall be responsible for obtaining
any required permits or authorizations and paying any fees and providing any
testing required by any governmental agency; (ii) the Premises will not be used
in any manner for the storage of any Hazardous Substances, except for the
temporary storage of such materials that are used in the ordinary course Of
Tenant's business (the "Permitted Materials"), provided such Permitted Materials
are properly stored in a manner and location meeting all Environmental Laws and
have been approved in advance in writing by Landlord, and, in connection
therewith, Tenant shall be responsible for obtaining any required permits or
authorizations and paying any fees and providing any testing required by any
governmental agency; (iii) no portion of the Premises will be used as a landfill
or a dumping (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute, a public
or private nuisance; and (vi) Tenant will not permit any Hazardous Substances
to be brought Ohio the Premises, except for the Permitted Materials, and if so
brought or found located thereon, the same shall be immediately removed, with
proper disposal, and all required. clean-up procedures shall be diligently
Undertaken by Tenant at its sole cost pursuant to all Environmental Laws.
Landlord and Landlord's representatives shall have the right but not the
obligation to enter the Premises for the purpose of inspecting the storage, use
and disposal of any Permitted Materials to ensure compliance with all
Environmental Laws. Should it be determined, in Landlord's sole opinion, that
any Permitted Materials are being improperly stored, used or disposed of, then
Tenant shall immediately take such corrective action as requested by Landlord.
Should Tenant fail to take such corrective action within twenty-four (24) hours,
Landlord shall have the right to perform such work and Tenant shall reimburse
Landlord, on demand, for any and all costs associated with said Work. If at any
time during Or after the term of this Lease, the Premises is found to be
contaminated with Hazardous Substances and such contamination resulted from the
acts or omissions of Tenant or its agents, contractors, licensees or invitees,
Tenant shall diligently institute proper and thorough clean-up procedures, at
Tenant's sole Cost. Tenant agrees to indemnify and hold Landlord harmless from
all claims, demands, actions, liabilities, costs, expenses, damages, penalties
and obligations of any nature arising from or as a result of any contamination
of the Premises with Hazardous Substances, or otherwise arising from the use of
the Premises by Tenant. The foregoing indemnification and the responsibilities
of Tenant shall survive the termination or expiration of this Lease. Landlord
shall conduct a phase I environmental review of the Land on which the Building
sits to detect the existence of any Hazardous Substances or the violation of
any Environmental Laws on said land. Landlord shall provide Tenant with a copy
of such review and if Hazardous Materials are detected
Initial_______ ______
Date _________ ______
8.
in violation of Environmental Laws, Tenant may terminate this Lease within ten
(10) days after receipt of such report. Further, in the construction of the
Building and Premises, Landlord shall not use or install any Hazardous
Substances except that are part of the ordinary course of construction of the
Building and Premises and provided they are constructed in accordance with all
Environmental Laws.
14. INSPECTION. Landlord's agents and representatives shall have the right to
enter the Premises at any reasonable time during business hours (or at any time
in ease of emergency) (i) to inspect the Premises, (ii) to make such repairs as
may be required or permitted pursuant to this Lease, and/or (iii) during the
last six (6) months of the Lease term, for the purpose of showing the Premises.
In addition, Landlord shall have the right to erect a suitable sign on the
exterior of the Premises stating the Premises are available for lease. Landlord
shall only erect signage on the exterior of the Building advertising the
Building for sale or lease in the location or locations designated on EXHIBIT
-------
"D" attached hereto. Landlord shall not maintain for sale or lease signs On the
---
Building during periods the Building is fully occupied. Tenant shall notify
Landlord in writing at least thirty (30) days prior to vacating the Premises and
shall arrange to meet with Landlord for a joint inspection of the Premises prior
to vacating. If Tenant fails to give such notice or to arrange for such
inspection, then Landlord's inspection of the Premises shall be deemed correct
for the purpose of determining Tenant's responsibility for repairs and
restoration of the Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to sublet,
assign or otherwise transfer or encumber this Lease, or any interest therein,
without the prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed. Any attempted assignment, subletting,
transfer or encumbrance by Tenant in violation of the terms and covenants of
this paragraph shall be void. Any assignee, sublessee or transferee of Tenant's
interest in this Lease (all such assignees, sublessees and transferees being
hereinafter referred to as "Transferees"), by assuming Tenant's obligations
hereunder, shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such Transferees to which Landlord is entitled or is
otherwise in contravention of this Paragraph 15. No assignment, subletting or
other transfer, whether or not consented to by Landlord or permitted hereunder,
shall relieve Tenant of its liability under this Lease. If an Event of Default
occurs while the Premises or any part thereof are assigned or sublet, then
Landlord, in addition to any other remedies herein provided or provided by law,
may collect directly from such Transferee all rents payable to the Tenant and
apply such rent against any sums due Landlord hereunder. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant is obligations hereunder. If Landlord consents to
any subletting or assignment by Tenant as hereinabove provided and any category
of rent subsequently received by Tenant under any such sublease is in excess of
the same category of rent payable under this Lease, or any additional
consideration is paid to Tenant by the assignee under any such assignment, after
deducting from such excess rent or additional consideration, legal fees,
broker's fees, tenant finish out costs and other fees incurred by Tenant in
connection with such assignment or subletting, then Landlord may, at its option,
declare seventy-five percent (75%) of such net excess rents under any sublease
or such net additional consideration for any assignment to be due and payable by
Tenant to Landlord as additional rent hereunder. The following shall
additionally constitute an assignment of this Lease by Tenant for the purposes
of this Paragraph 15: (i) any merger or consolidation of Tenant when Tenant is
not the surviving corporation or its shareholders do not constitute at least
fifty percent (50%) of the ownership of the consolidated company or in the
alternative control the board of directors of the surviving corporation, (ii) a
transaction resulting in a change in control of Tenant when fifty percent (50%)
or more of Tenant's outstanding voting stock is sold and the board of directors
of Tenant prior to such transaction ceases to be at least a majority of the
board of directors after such transaction, and (iii) the sale, transfer,
exchange, liquidation or other distribution in excess of fifty percent (50%) of
Tenant's assets. Notwithstanding the foregoing, consent will not be required in
the event that Tenant transfers the owner, hip of its principal business
operation or in excess of fifty percent (50%) of its assets to or merges with a
public company or to another entity with a net worth equal to or greater than
that of Tenant.
16. CONDEMNATION. If any portion of the Building constituting the Premises or
twenty-five percent (25%) of the non-Building portion of the Premises are taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain or private purchase in lieu thereof,
and the taking prevents or materially interferes with the use of the Premises
for the purpose for which they were leased to Tenant, then this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than 25% of the non-
Building portion of the Premises are taken for any public or quasi-public rise
under any governmental law, ordinance or regulation, or by right of eminent
domain or private purchase in lieu thereof, which taking does not prevent or
materially interfere with the use of the Premises for the purpose for which they
were leased to Tenant, then this Lease shall not terminate, but the rent payable
hereunder during the unexpired portion of this Lease shall be reduced to such
extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings, other than relocation expenses due to Tenant, shall be the property
of Landlord, and Tenant hereby assigns any interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any such reward
made to Tenant for loss of business or goodwill or for the taking of Tenant's
trade fixtures and personal property, if a separate award for such items is made
to Tenant.
Initial_______ ______
Date _________ ______
9.
17. HOLDING OVER. At the termination of this' Lease by its expiration or
otherwise, Tenant shall immediately deliver possession of the Premises to
Landlord with all repairs and maintenance required herein to be performed by
Tenant completed. If, for any reason, Tenant retains possession of the Premises
after the expiration or termination of this Lease, unless the parties hereto
otherwise agree in writing, such possession shall be deemed to be a tenancy at
will only, and all of the other terms and provisions of this Lease shall be
applicable during such period, except that Tenant shall pay Landlord from time
to time, upon demand, as rental for the period of such possession, an amount
equal to one and one-half(1 1/2) times the base rent in effect on the date of
such termination of this Lease, computed on a daily basis for each day of such
period. No holding over by Tenant, whether with or without consent of Landlord,
Shall operate to extend this Lease except as otherwise expressly provided. The
preceding provisions of this Paragraph 17 shall not be construed as consent for
Xxxxx to retain possession of the Premises in the absence of written consent
thereto by Landlord."
18. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the Premises, good title to and/or a ground
lease of the Premises, free and clear of all liens and encumbrances, excepting
only the lien for current ad valorem taxes not yet due, any mortgage or
mortgages, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record which do not contain terms or
provisions which would at any time prohibit Tenant's permitted use of the
Premises under this Lease. Landlord represents that it has the authority to
enter into this Lease and that, so long as Tenant pays all amounts due hereunder
and performs all other covenants and agreements herein set forth, Tenant shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to
as an "Event of Default") each shall be deemed to be a default in or breach of
Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due; or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of five (5) business clays
following receipt by Tenant of written notice thereof from Landlord.
B. Tenant shall fail to discharge any lien placed upon the Premises in
Violation of Paragraph 22 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
C. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed above in this paragraph) and shall not
commence the curing of such failure within twenty (20) days after receipt of
written notice thereof from Landlord and prosecute the curing thereof to
completion with reasonable diligence.
20. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand:
(A) Terminate this Lease;
(B) Enter upon and take possession of the Premises without
terminating this Lease;
(C) Make such payments and/or take such action and pay and/or
perform whatever Tenant is obligated to pay or perform under the terms of this
Lease, and Tenant agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action unless caused by the gross negligence or
willful misconduct of Landlord; and/or
(D) Alter all locks and other security devices at the
Premises, with or without terminating this Lease, and pursue, at Landlord's
option, one or more remedies pursuant to this Lease, however, Tenant and
Landlord hereby expressly agree that Landlord shall be required to provide to
Tenant the new key to the Premises, regardless, of hour upon payment to Landlord
of all delinquent rental and other sums due to Landlord under this Lease by
cashier's check. Landlord, without waiving any other remedy it may have, may
enter upon and take possession of the Premises and expel or remove Tenant and
any other person who may be occupying such Premises or any part thereof, without
being liable for prosecution of any claim of damages therefore. In the event of
any violation of Section 93.002 of file Texas Property' Code by Landlord or by
any agent or employee of Landlord, Tenant hereby expressly waives any and all
rights Tenant may have under Paragraph (g) of such Section 93.002
A. Damages Upon Termination. If Landlord terminates this Lease at
------------------------
Landlord's option, Tenant shall be liable for and shall pay to Landlord the sum
of all rental and other payments owed to Landlord hereunder accrued to the date
of such termination, plus, as liquidated damages, an amount equal to (i) the
present value of the total rental and other payments owed hereunder for the
remaining portion of the Lease term, calculated as if such term expired on the
date set forth in Paragraph 1, less (ii) the present value of the then fair
market rental for the Premises for such period.
Initial______ ______
Date_________ ______
10.
B. Damages Upon Repossession. If Landlord repossesses the Premises
-------------------------
without terminating this Lease, Tenant, at Landlord's option, shall be liable
for and shall pay Landlord on demand all rental and other payments owed to
Landlord hereunder, accrued to the date of such repossession, plus all amounts
required to be paid by Tenant to Landlord until the date of expiration of the
term as stated in Paragraph 1, reduced by all amounts actually received by
Landlord through reletting the Premises, during such remaining term (but only
to the extent of the rent herein reserved). Actions to collect amounts due by
Tenant to Landlord under this paragraph may be brought from time to time, on one
or more occasions, without the necessity of Landlord's waiting until expiration
of the Lease term.
C. Costs of Reletting, Removing, Repairs and Enforcement. Upon an Event
-----------------------------------------------------
of Default, in addition to any sum provided to be paid under this Paragraph 20,
Tenant also shall be liable for and shall pay to Landlord (i) brokers' fees and
all other costs and expenses incurred by Landlord in connection with reletting
the whole or any part of the Premises; (ii) the costs of removing, storing or
disposing of Tenant's or any other occupant's property; (iii) the costs of
repairing, altering, remodeling or otherwise putting the Premises into condition
acceptable to a new tenant or tenants which are not expenses incurred by
Landlord specifically because of the requirements of the replacement tenant;
(iv) any and all reasonable costs and expenses incurred by Landlord in effecting
compliance with Tenant's obligations under this Lease; and (v) all reasonable
expenses incurred by Landlord in enforcing or defending Landlord's rights and/or
remedies hereunder, including without limitation all reasonable attorneys' fees
and all court costs incurred in connection with such enforcement or defense.
D. Late Charge. In the event Tenant fails to make any payment due
-----------
hereunder within five (5) business days after such payment is due, including
without limitation any rental or escrow payment, in order to help defray the
additional cost to Landlord for processing such late payments and not as
interest, Tenant shall pay to Landlord on demand a late charge in an amount
equal to one percent (1%) of the first two (2) late payments, and five percent
(5%) of each late payment thereafter during any twelve (12) calendar month
period. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law, and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
E. Interest on Past Due Amount. If Tenant fails to pay any s/ma which at
---------------------------
any time becomes due to Landlord under any provision of this Lease as and when
the same becomes due hereunder, and such failure continues for ten (10) days
after receipt by Tenant of notice of such payment being due, then Tenant shall
pay to Landlord interest on such overdue amounts from the date due until paid
at an annual rate which equals the lesser of (i) twelve percent (12%) or (ii)
the highest rate then permitted by law.
F. No Implied Acceptances or Waivers. Exercise by Landlord of any one or
---------------------------------
more remedies hereunder granted or otherwise available shall not be deemed to be
an acceptance by Landlord of Tenant's surrender of the Premises it being
understood that such surrender can be effected only by the written agreement of
Landlord. Tenant and Landlord further agree that forbearance by Landlord to
enforce any of its rights under this Lease or at law or inequity shall not be a
waiver of Landlord's right to enforce any one or more of its rights, including
any right previously forborne, in connection with any existing or subsequent
default. No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention is given to Tenant, and, notwithstanding any such
reletting or re-entry or taking possession of the Premises, Landlord may at any
time thereafter elect to terminate this Lease for a previously uncured default.
Pursuit of any remedies hereunder shall not preclude the pursuit of any other
remedy herein provided or any other remedies provided by law, nor shall pursuit
of any remedy herein provided constitute a forfeiture or waiver of any rent due
to Landlord hereunder or of any damages occurring to Landlord by reason of the
violation of any of the terms, provisions and covenants contained in this Lease.
Landlord's acceptance of any rent following an Event of Default hereunder shall
not be construed as Landlord's waiver of such Event of Default. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants of this Lease shall be deemed or construed to constitute a waiver of
any other violation or default.
G. Reletting of Premises. In the event of any termination of this Lease
---------------------
and/or repossession of the Premises for an Event of Default, Landlord shall use
reasonable efforts to relet the Premises and to collect rental after reletting,
with no obligation to accept any lessee that Landlord deems undesirable or to
expend any funds in connection with such reletting or collection of rents
therefrom. Tenant shall not be entitled to credit for or reimbursement of any
proceeds of such reletting in excess of the rental Owed hereunder for the period
of such reletting. Landlord may relet the whole or any portion of the Premises,
for any period, to any tenant and for any use or purpose.
H. Landlord's Default. If Landlord fails to perform any of its
------------------
obligations hereunder within thirty (30) days after written notice from Tenant
specifying such failure, Tenant's exclusive remedy shall be an action for
damages and the abatement of rent due hereunder if the default arises from
Landlord's violation of Paragraph 18 hereof and Tenant is prevented from using
the Premises for the uses permitted hereunder. Unless and until Landlord fails
to so cure any default after such notice, Tenant shall not have any remedy or
cause of action by reason thereof. All obligations of Landlord hereunder except
as expressly set forth in Paragraphs l, 4A and 18 will be construed as
covenants, not conditions; and all such obligations will be binding upon
Landlord only during the period of its possession of the premises and not
Initial______ ______
Date_________ ______
11.
thereafter. The term "Landlord" shall mean only the owner, for the time being,
of the Premises and, in the event of the transfer by such owner of its interest
in the Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, provided that
such covenants and obligations shall be binding during the Lease term upon each
new owner for the duration of such owner's ownership. Notwithstanding any other
provision of this Lease, Landlord shall not have any personal liability
hereunder. In the event of any breach or default by Landlord in any term or
provision of this Lease, Tenant agrees to look solely to the Premises and the
Building for satisfaction of any judgment obtained against Landlord following
execution against the building, Tenant will not seek any deficiency judgment
against Landlord for any unsatisfied portion of the judgment for use by Tenant
on or before September 30, 1996, Tenant may terminate this Lease by written
notice to Landlord and the Security Deposit shall be refunded to Tenant in full.
I. Tenant's Personal Property. If Landlord repossesses the Premises
--------------------------
pursuant to the authority herein granted, then, in addition to Landlord's rights
under Paragraph 27 hereof, Landlord shall have the right to (i) keep in place
and use, or (ii) remove and store, all of the furniture, fixtures and equipment
at the Premises, including that which is owned by or leased to Tenant, at all
times prior to any foreclosure thereon by Landlord or repossession thereof by
any lessor thereof or third party having a lien thereon. In addition to the
Landlord's other rights hereunder, Landlord may dispose of the stored property
if Tenant does not claim the property within twenty (20) days after the date the
property is stored. Landlord shall give Tenant at least ten (10) days prior
written notice of such intended disposition. Landlord shall also have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Landlord
a copy of any instrument represented by Claimant to have been executed by Tenant
(or any predecessor of Tenant) granting claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property. The rights of Landlord herein stated shall be in addition to any and
all other rights that Landlord has or may hereafter have at law or in equity,
and Tenant stipulates and agrees that the rights granted Landlord under this
paragraph are commercially reasonable.
J. Abandonment. Should Tenant vacate or abandon all or
-----------
substantially all of the Premises whether or not Tenant is in default of the
rental payments due under this Lease and shall fail to re-occupy same within
thirty (30) days of receipt by Tenant of written notice from Landlord, Landlord
shall have the right as its sole remedy for such abandonment to terminate this
Lease and Tenant shall pay to Landlord the unamortized balance of the Tenant
Finish Allowance and any leasing commissions paid in connection with this Lease
using a ten (10) year amortization period and an imputed rate of ten percent
(10%).
21. MORTGAGES. Conditioned upon receipt by Tenant of a Subordination,
Attornment and Non-Disturbance Agreement as described below, Tenant accepts this
Lease subject and subordinate to any mortgages and/or deeds of trust now or at
any time hereafter constituting a lien or charge upon the Premises or the
improvements situated thereon or the Building, provided, however, that if the
mortgagee, trustee or holder of any such mortgage or deed of trust elects to
have Tenant's interest in this Lease superior to any such instrument, then by
notice to Tenant from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. Tenant, at any time hereafter on demand, shall
execute any instruments, releases or other documents that may be required by any
mortgagee, trustee or holder for the purpose of subjecting and subordinating
this Lease to the lien of any such mortgage, so long as a Subordination, Non-
disturbance and Attornment Agreement has been executed by such mortgagee,
trustee or holder and provided to Tenant. Tenant shall not terminate this Lease
or pursue any other remedy available to Tenant hereunder for any default on the
part of Landlord without first giving written notice by certified or registered
mail, return receipt requested, to any mortgagee, trustee or holder of any such
mortgage or deed of trust, the name and post office address of which Tenant has
received written notice, specifying the default in reasonable detail and
affording such mortgagee, trustee or holder a reasonable opportunity (but in no
event less than thirty (30) days) to make performance, at its election, for and
on behalf of Landlord. Landlord agrees that Landlord shall use reasonable
diligence to obtain from each and every mortgagee or lessor that is on will be
superior to this Lease a Subordination, Non-Disturbance and Attornment
Agreement.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord or Tenant in the Premises. Tenant
will save and hold Landlord harmless from any and all loss, cost or expense,
including without limitation attorneys' fees, based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease arising from the actions or alleged actions of Tenant or its agents,
contractors, licensees or invitees.
23. XXXXXXXXX BOULEVARD CONSTRUCTION. Landlord agrees to construct at
Landlord's sole cost and expense, Xxxxxxxxx Boulevard being a minimum thirty-six
foot (36') wide two lane public roadway from the Mopac Expressway access road
west to the proposed Homestead Suite hotel site by May 22, 1996. Should
Landlord fail to have commenced and be diligently pursuing completion of such
construction by May 1, 1996, Tenant may terminate this Lease within two (2)
business days thereafter by written notice to Landlord and the Security Deposit
shall be immediately refunded to Tenant in full. Such termination right shall
cease, if not exercised upon completion of the roadway. If the roadway is not
completed and available
24. ACCESS ROAD TO XXXXXX XXXX. Landlord agrees to construct a private access
road to Xxxxxx Xxxx by December 31, 1996. Should Landlord fail to do so, ten
percent (10%) of the monthly base rent due hereunder shall xxxxx until such time
as the road is completed.
25. EXPANSION/RIGHT OF FIRST REFUSAL. Tenant shall have the right to lease as
much additional contiguous space (above and beyond the initial 40,000 square
feet) as Tenant desires prior to February 1, 1996 under the same lease rates and
finish allowance per square foot as provided for in this Lease. Tenant shall
notify Landlord in writing of its desire to increase the square footage of the
Premises lease hereunder and Landlord shall prepare or cause to be prepared,
and execute an amendment to this Lease modifying the definition of Premises and
the total monthly base rent to include such additional space.
At any time after February 1, 1996, Landlord shall have the right to lease
the Building other than the Premises and any other space then leased by Tenant,
beginning with the west end of the Building and then proceeding toward the east
end of the Building until the Building becomes fully leased. Prior to executing
any other lease, Landlord shall extend to Tenant an ongoing right of first
refusal to lease any space adjoining the Premises and any other space leased by
Tenant that becomes available in the Building, subject to existing tenants'
rights. Landlord hereby grants to Tenant the right of first refusal to lease the
space adjacent to the Premises from the Landlord subject to any existing leases
in place. In the event a prospective tenant desires to lease this space from
Landlord, Landlord shall notify Tenant thereof in the manner provided herein for
notice, whereupon Tenant shall have five (5) business days after receipt of such
notice in which to elect to exercise Tenant's right of first refusal. In the
event Tenant fails to give Landlord written notice of Tenant's election to
lease the adjacent space within said five (5) business day period, Tenant shall
have no further right, title or interest in the adjacent space until the tenant
leasing such space vacates the building. If, on the other hand, Tenant exercises
its right of first refusal in the manner provided, above, the lease of the
adjacent property shall be consummated at comparable rates and terms offered to
the prospective tenant for a lease of equal term and the same tenant improvement
allowances. Landlord agrees to use its reasonable diligence to secure the right
of substitution in any lease within the contiguous 20,000 Square feet to the
west of Tenant's original 40,000 Square feet of lease space. Any renewals on
such contiguous 20,000 square feet will be subject to Tenant's right, of first
refusal.
26. TENANT FINISH ALLOWANCE PROVIDED. Landlord will pay an allowance to Tenant
Of $12.00 per square foot for the initial 40,000 square feet and any additional
space leased prior to February 1, 1996 ("Tenant Finish Allowance") for the
construction of Tenant's Improvements to the Premises. All Tenant Improvements
shall be constructed by Landlord's contractors in accordance with the plans and
specifications approved by Tenant with no construction management fee payable to
Landlord. To the extent practical, Tenant Improvements construction shall
commence as early in the construction of the Building as possible. Landlord
shall pay for completion of the Tenant Improvements ("Tenant Finish Costs");
provided, however, Tenant shall reimburse Landlord for Tenant Finish Costs
exceeding $12.00 per square foot of space in the Premises, such reimbursement to
be paid fifty percent (50%) upon approval of the construction budget as provided
below and fifty percent (50%) upon substantial completion of the Tenant
Improvements. For purposes hereof, Tenant Finish Costs include but are not
limited to architectural and engineering fees, actual construction material and
labor. Should the actual Tenant Finish Costs incurred by Landlord be less than
the Tenant Finish Allowance, the balance of the Tenant Finish Allowance shall
at Landlord's election be credited against the first months' rental payments due
hereunder or shall reduce the per square foot rental rate for the balance of the
initial lease term by amortizing the unused portion over a period of ten (10)
years at 11% interest per annum.
27. OPTION TO RENEW. Tenant shall have the right and option to renew this
Lease for one (1) additional five (5) year term by delivering written notice
thereof to Landlord at least one hundred eighty
Initial______ ______
Date_________ ______
12.
(180) days prior to the expiration date of the original lease term, provided
that at the time of such notice and at the end of the lease term, Tenant is not
in default hereunder. Upon the delivery of said notice and subject to the
conditions set forth in the preceding sentence, this Lease shall be extended
upon the same terms, covenants and conditions as provided in this Lease, except
that the base rental payable during said extended term shall be the fair market
rental rate for space of comparable size, quality and location at the
commencement of such extended term. If a conflict arises in the determination of
such a fair market rental rate, a three-member committee, selected from brokers
licensed by the Texas Real Estate Commission and active in the Austin, Texas
industrial market shall determine the fair market rental rate. The first two
members of such committee shall be selected by Landlord and Tenant respectively,
which two members shall select the third.
28. NET PROFITS AGREEMENT. Landlord and Tenant have entered into that certain
Net Profits Agreement as a material inducement and in consideration for Tenants
entering into this Lease, a copy of which is attached hereto and incorporated
herein as EXHIBIT "F".
-----------
29. MISCELLANEOUS.
A. Interpretation. The captions inserted in this Lease are for
--------------
convenience only and in no way define, limit or otherwise describe the scope or
intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease. Any reference in this Lease to rentable area
shall mean the gross rentable area as determined by the roofline of the building
in question.
B. Binding Effect. Except as otherwise herein expressly provided, the
--------------
terms, provisions and covenants and conditions in this Lease shall apply to,
inure to the benefit of and be binding upon the parties hereto and upon their
respective heirs, executors, personal representatives, legal representatives,
successors and assigns. Landlord shall have the right to transfer and assign,
in whole or in part, its rights and obligations in the Premises and in the
Building and other property that are the subject of this Lease.
C. Evidence of Authority. Tenant agrees to furnish to Landlord, promptly
---------------------
upon demand, a corporate resolution, proof of due authorization by partners or
other appropriate documentation evidencing the due authorization of such party
to enter into this Lease.
D. Force Majeure. Landlord shall not be held responsible for delays in
-------------
the performance of its obligations hereunder when caused by material shortages,
acts of God, labor disputes or other events beyond the control of Landlord.
E. Payments Constitute Rent. Notwithstanding anything in this Lease to
------------------------
the contrary, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated as rent, shall constitute rent.
F. Estoppel Certificates. Tenant agrees, from time to time, within ten
---------------------
(10) business days after request of Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate stating, if true, that this Lease
is in full force and effect, the date to which rent has been paid, the unexpired
term of this Lease, any defaults existing under this Lease (or the absence
thereof) and such other factual or legal matters pertaining to this Lease as may
be requested by Landlord. It is understood and agreed that Tenant's obligation
to furnish such estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of this Lease.
G. Entire Agreement. This Lease constitutes the entire understanding and
----------------
agreement of Landlord and Tenant with respect to the subject matter of this
Lease, and contains all of the covenants and agreements of Landlord and Tenant
with respect thereto. Landlord and Tenant each acknowledge that no
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises, negotiations
or representations not expressly set forth in this Lease are of no force or
effect. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE, TENANT HEREBY WAIVES THE
BENEFIT OF ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE
FOR ANY PARTICULAR PURPOSE. Landlord's agents and employees do not and will not
have authority to make exceptions, changes or amendments to this Lease, or
factual representations not expressly contained in this Lease. Under no
circumstances shall Landlord or Tenant be considered an agent of the other.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
H. Survival of Obligations. So long as Tenant has at any point occupied
-----------------------
the Premises, all obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Tenant
Vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises in good condition and
repair, reasonable wear and tear excluded, including without limitation, the
cost of repairs to and, if required, replacements of all heating and air
conditioning systems and equipment therein. Tenant shall also, prior to
vacating the Premises,
Initial______ ______
Date_________ ______
13.
pay to Landlord the amount, as estimated by Landlord; of Tenant's obligation
hereunder for real estate taxes and insurance premiums for the year or portion
thereof in which the Lease expires or terminates. All such amounts shall be used
and held by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by Landlord,
or with any exceeds to be returned to Tenant after all such obligations have
been determined and satisfied, as the case may be. Any Security Deposit held by
Landlord may, at Landlord's option, be credited against any amounts due from
Tenant under this Paragraph 23H.
I. Severability of Terms. If any clause or provision of this Lease is
---------------------
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then, in such event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added, as a part of this Lease, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and be legal; valid and enforceable.
J. Effective Date. All references in this Lease to "the date hereof" or
--------------
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
K. Brokers' Commission. Tenant represents and warrants that it has dealt
-------------------
with and will deal with no broker, agent or other person other than Xxxxx Xxxxxx
of Commercial Industrial Properties Company ("CIP"), in connection with this
transaction or future related transactions and that no other broker, agent or
other person brought about this transaction, and Tenant agrees to indemnify and
hold Landlord harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction. An agreement
setting forth in greater detail the agreement between Tenant, CIP and Landlord
regarding commissions is attached hereto and incorporated herein as EXHIBIT "E".
-----------
L. Ambiguity. Landlord and Tenant hereby agree and acknowledge that this
---------
Lease has been fully reviewed and negotiated by both Landlord and Tenant, and
that Landlord and Tenant have each had the opportunity to have this Lease
reviewed by their respective legal counsel, and, accordingly, in the event of
any ambiguity herein, Tenant does hereby waive the rule of construction that
such ambiguity shall be resolved against the party who prepared this Lease.
M. Joint Several Liability. If there be more than one Tenant, the
-----------------------
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor, and Landlord need not first proceed against Tenant before proceeding
against such guarantor, nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including, without limitation, in ease of
any amendments hereto, waivers hereof or failure to give such guarantor any
notices hereunder.
N. Third Party Rights. Nothing herein expressed or implied is intended,
------------------
or shall be construed, to confer upon or give to any person or entity, other
than the parties hereto, any right or remedy under or by reason of this Lease.
O. Exhibits and Attachment. All exhibits, attachments, riders and
-----------------------
addenda referred to in this Lease, and the exhibits listed herein below and
attached hereto, are incorporated into this Lease and made a part hereof for all
intents and purposes, as if fully set out herein. All capitalized terms used in
such documents shall, unless otherwise defined therein, have the same meanings
as are set forth herein.
P. Applicable Law. This Lease has been executed in the State of Texas
--------------
and shall be governed in all respects by the laws of the State of Texas. It is
the intent of Landlord and Tenant to conform strictly to all applicable state
and federal usury laws. All agreements between Landlord and Tenant, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever shall the amount
contracted for, charged or received by Landlord for the use, forbearance or
retention of money hereunder or otherwise exceed the maximum amount which
Landlord is legally entitled to contract for, charge or collect under the
applicable state or federal law. If, from any circumstance whatsoever,
fulfillment of any provision hereof at the time performance of such provision
shall be due shall involve transcending the limit of validity prescribed by law,
then the obligation to be fulfilled shall be automatically reduced to the limit
of such validity, and if from any such circumstance Landlord shall ever receive
as interest or otherwise an amount in, excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied
to the reduction of rent hereunder, and if such amount which would be excessive
interest exceeds such rent, then such additional amount shall be refunded to
Tenant.
30. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken.
Initial______ ______
Date_________ ______
14.
(i) All rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at the address for
Landlord set forth below or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent and any other amounts to Landlord under the terms of this
Lease shall not be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
(ii) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth below, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(iii) Except as expressly provided herein, any written notice,
document or payment required or permitted to be delivered hereunder shall be
deemed to be delivered when received or, whether actually received or not, when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, return receipt requested, addressed to the parties hereto, at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
31. LANDLORD'S LIEN. In addition to any statutory lien for rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to Landlord a continuing
security interest in all rentals and other sums of money which may become due
under this Lease from Tenant, all goods, equipment, fixtures, furniture,
inventory, and other personal property of Tenant now or hereafter situated at,
on or within the real property described in EXHIBIT "A" attached hereto and
incorporated herein by reference, and such property shall not be removed
therefrom without the consent of Landlord, except in the ordinary course of
Tenant's business. In the event any of the foregoing described property is
removed from the Premises in violation of the covenant in the preceding
sentence, the security interest shall continue in such property and all proceeds
and products, regardless of location. Upon an Event of Default hereunder by
Tenant, in addition to all of Landlord's other rights and remedies, Landlord
shall have all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this paragraph at
public or private sale at any time after ten (10) days prior notice by Landlord.
Tenant hereby agrees to execute such Other instruments deemed by Landlord as
necessary or desirable under applicable law to Perfect more fully the security
interest hereby created. Landlord and Tenant agree that this Lease and security
agreement and EXHIBIT "A" attached hereto serves as a financing statement and
that a copy, photograph or other reproduction of this portion of this Lease may
be filed of record by Landlord and have the same force and effect as the
original. This security agreement and financing statement also covers fixtures
located at the Premises subject to this Lease and legally described in EXHIBIT
"A" attached hereto, and all rents or other consideration received by or on
behalf of Tenant in connection with any assignment of Tenant's interest in this
Lease or any sublease of the Premises or any part thereof, and, therefore, may
also be filed for record in the appropriate real estate records.
EXECUTED BY LANDLORD, this 20/th/ day of November, 1995.
SL-6 Partners, LTD.
By: Xxxxxxxx Xxxx Central Texas, Ltd.
a Texas limited partnership,
By: Xxxxxxxx Xxxx Central Texas, Inc.
a Texas corporation, its general partner
Attest/Witness By:__________________________________________
Title:_______________________________________
___________________________________
Title: Property Manager Address: x/x Xxxxxxxx Xxxx Xxxxxxx Xxxxx, Inc.
-----------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
EXECUTED BY TENANT, this 14/th/ day of November, 1995.
PROGRESSIVE SYSTEM TECHNOLOGIES, INC.:
Attest/Witness
_____________________________________________
By: Xxxxxx Xxxxxx
___________________________________
Title:Marketing Director - TCCT Title: Chief Financial Officer
-----------------------------
Address: 0000 Xxxxx XxXxxx, Xxxxx X-000
Xxxxxx, Xxxxx 00000
EXHIBIT "A" - Description of Premises
EXHIBIT "B" - Plans
EXHIBIT "C" - Parking Plan
EXHIBIT "D" - Signage Plan
EXHIBIT "E" - CIP Agreement
EXHIBIT "F" - Net Profits Agreement
Initial______ ______
Date_________ ______
15.
EXHIBIT A
DESCRIPTION OF PREMISES
TO BE INCLUDED AT A LATER DATE
Initial______ ______
Date_________ ______
1.
EXHIBIT B
CONSTRUCTION PLANS
TO BE INCLUDED AT A LATER DATE
Initial______ ______
Date_________ ______
1.
EXHIBIT C
PARKING PLAN
Initial______ ______
Date_________ ______
1.
EXHIBIT D
SIGNAGE PLAN
ATTACH
Initial______ ______
Date_________ ______
1.
EXHIBIT D
SIGNAGE PLAN
ATTACH
Initial______ ______
Date_________ ______
1.
EXHIBIT E
CIP AGREEMENT
ATTACH
Initial______ ______
Date_________ ______
1.
EXHIBIT F
NET PROFITS AGREEMENT
Initial______ ______
Date_________ ______
1.
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
SL-6 PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AS LANDLORD, AND
PROGRESSIVE SYSTEM TECHNOLOGIES, INC., AS TENANT
To be attached to and form a part of Lease made the
20/th/ day of November, 1995 (which together with any
amendments, modifications and extensions thereof, is
hereinafter called the Lease), between Landlord and
Tenant, covering a total of 40,000 square feet and
located at North Mopac Expressway and Xxxxxxxxx
Boulevard, Austin, Texas, known as Stonelake #6.
WITNESSETH, THAT:
WHEREAS, by Agreement of Lease dated November 20, 1995, Landlord leased to
Tenant certain space containing approximately 40,000 square feet in the building
located at North Mopac Expressway and Xxxxxxxxx Boulevard, Austin, Texas, for a
period of ten (10) years commencing May 1, 1996 and ending April 30, 2006; and
WHEREAS, Tenant needs additional space for its business purposes and
Landlord has available an area adjacent thereto.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Effective May 1, 1996, the demised premises shall contain, in addition
to the approximately 40,000. square feet originally demised, hereinafter called
the "original space", an additional area, hereinafter called the "new space",
containing approximately 12,566 square feet adjacent thereto, and effective
January 1, 1997, a second additional area, hereinafter called the "second new
space", containing approximately 6,834 square feet adjacent thereto thus making
the aggregate area of the demised premises approximately 59,400 square feet. The
new space and the second new space are hereinafter collectively called
"expansion space" (see Exhibit "A" attached hereto).
2. Effective May 1, 1996, the monthly base rental shall be as follows:
Square Monthly Square Monthly Base
Monthly Footage of Base Rental Footage of Rental of Total
Base Rental Original of Original Expansion Expansion Monthly
Term Rate PSF Space Space Space space Base Rental
------------------ ------------ -------------- ------------ ----------- ------------- ------------
5/1/96-12/31/96 $.70 40,000 $28,000.00 12,566 $ 9,479.60 $37,479.60
1/1/97-4/30/2001 $.70 40,000 $28,000.00 19,400 $13,871.00 $41,871.00
5/1/2001-4/30/2003 $.74 40,000 $29,600.00 19,400 $14,356.00 $43,956.00
5/1/2003-4/30/2004 $.76 40,000 $30,400.00 19,400 $14,744.00 $45,144.00
5/1/2004-4/30/2006 $.78 40,000 $31,200.00 19,400 $15,132.00 $46,332.00
These amounts shall be in addition to property taxes, common area maintenance,
and insurance as provided in the Lease, payable on the first day of each month
during the balance of the term.
3. Tenant Finish Allowance
Landlord shall provide a tenant finish allowance of $13.71 per square
foot ($266,023.39) to be applied toward interior improvements in the expansion
space.
Tenant shall bear the entire cost of any interior improvements to be installed
in the premises in connection with Tenant's occupancy of the premises, to the
extent that such improvements exceed the finish-out allowance of $266,023.39,
and shall pay for such excess over the allowance as hereinafter provided. In
the event the estimated cost for interior improvements exceeds the allowance,
Tenant shall pay into escrow at Heritage Title Company of Austin the following
percentages of such excess on the dates shown below:
Percentage
Date of Excess
---------------- ------------
March 13, 1996 50%
April 1, 1996 40%
May 1, 1996 10%
Up to 90% of the funds deposited into escrow by Tenant shall be released upon
approval by Landlord and Tenant of all appropriate receipts and lien waivers
pertaining to the improvements for which reimbursement is requested by tenant
improvement contractors. The remaining 10% shall be released to contractors
upon Tenant's clearance of construction punchlist items and Landlord's receipt
of final lien waivers and Certificate of Occupancy.
Initial______ ______
Date_________ ______
1.
Notwithstanding any provision contained herein to the contrary, it is understood
and agreed that Landlord shall have no obligation to allow commencement of any
interior improvements until (a) Tenant shall have furnished and/or approved and
forwarded to Landlord and Landlord shall have approved the final working
drawings as required by the provision hereof, Co)Tenant's first advance payment
(described above) for the percentage of the cost of improvements in excess of
the initial allowance shall have been deposited into escrow, and (c) Landlord
and Tenant shall have approved the total cost of the planned improvements. In
no event shall credit be given to Tenant for any allowance not utilized to the
extent that the allowance utilized is less than $232,800.00.
WITNESSETH FURTHER, THAT:
WHEREAS, by that same Lease Agreement dated November 20, 1995, Landlord and
Tenant agreed that Landlord would pay to Tenant liquidated damages equal to One
thousand and No/100 Dollars ($1,000.00) for every calendar day after May 1, 1996
until the Premises are substantially completed and delivered to Tenant with a
Certificate of Occupancy; and
WHEREAS, Tenant now desires to select an alternate contractor (Trimbuilt
Construction) for construction of the interior improvements rather than XX Xxxx,
the shell building contractor,
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Landlord shall not be held liable for any liquidated damages (as
provided for in the Lease) in the event that tenant improvements are not
completed and/or a Certificate of Occupancy is not obtained for Tenant by May 1,
1996; and
2. Should the shell Building not be substantially completed and a shell
completion certificate obtained by Landlord on or Prior to May 1, 1996, provided
such delay is not caused by Tenant, including plan delays or change orders,
Landlord shall pay liquidated damages equal to One Thousand and No/100 Dollars
($1,000.00) for every calendar day after May 1, 1996 until the shell Building is
substantially completed and a shell completion certificate is obtained.
3. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof are hereby ratified and confirmed.
EXECUTED BY LANDLORD, the 10/th/ day of April, 1996
SL-6 PARTNERS, LTD.
a Texas limited partnership:
By: TCCT Development, Inc.
a Delaware corporation
Its General Partner
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Attest/Witness By: Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
-------------------- ----------------------------------------
Address:c/o Xxxxxxxx Xxxx Central Texas, Inc.
-------------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
--------------------------------------------------
EXECUTED BY LANDLORD, the 20/th/ day of March, 1996
PROGRESSIVE SYSTEM TECHNOLOGIES, INC.
/s/ Xxxxxx Xxxxxx
---------------------------------------------
Attest/Witness By: Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxxx Title: Chief Financial Officer
-------------------- ---------------------------------------
Address: 0000 Xxxxx XxXxxx, Xxxxx X-000
-------------------------------------
Xxxxxx, Xxxxx 00000
---------------------------------------------
Initial______ ______
Date_________ ______
2.
EXHIBIT "A"
BUILDING: Stonelake #6
LEGAL DESCRIPTION: 8,865 acres tract of land situated in the City of
Xxxxxx, Xxxxxx County, Texas being a portion of Xxx 0
Xxxxx "X" Xxxxxxxxx Section 3.
ADDRESS: North Mopac Expressway and Xxxxxxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 00000
[DIAGRAM]
Initial______ ______
Date_________ ______
1.
SECOND AMENDMENT TO LEASE AGREEMENT BETWEEN
SL-6 PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AS LANDLORD, AND
PROGRESSIVE SYSTEM TECHNOLOGIES, INC., AS TENANT
To be attached to and form a part of Lease made the 20/th/ day
of November, 1995 (which together with any amendments,
modifications and extensions thereof, is hereinafter called the
Lease), between Landlord and Tenant, covering a total of 40,000
square feet and located at North Mopac Expressway and Xxxxxxxxx
Boulevard, Austin, Texas, known as Stonelake #6.
WITNESSETH, THAT:
WHEREAS, by Agreement of Lease dated November 20, 1995, Landlord leased to
Tenant certain space containing approximately 40,000 square feet in the building
located at North Mopac Expressway and Xxxxxxxxx Boulevard, Austin, Texas, for a
period of ten (10) years commencing May 1, 1996 and ending April 30, 2006, and
such lease was thereafter amended to add 19,400 square feet of space, making the
aggregate area of the demised premises approximately 59,400 square feet; and
WHEREAS, Tenant needs additional space for its business purposes and
Landlord has available an area adjacent thereto.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Effective October 1, 1996, the demised premises shall contain, in
addition to the approximately 59,400 square feet currently demised, hereinafter
called the "original space", an additional area, hereinafter called the
"expansion space", containing approximately 21,600 square feet adjacent thereto
thus making the aggregate area of the demised premises approximately 81,000
square feet (see Exhibit "A" attached hereto).
2. Effective October 1, 1996, the monthly base rental shall be as follows:
Expansion Monthly Base Square Monthly Base
Monthly Rental of Footage of Rental of Total
Base Rental Original Original Expansion Monthly
Term Rate PSF Space Space Space Base Rental
------------------ ------------ --------------- ------------ --------------- -------------
10/1/96-12/31/96 $.75 $37,479.60 21,600 $16,200.00 $53,679.60
1/1/97-4/30/2001 $.75 $41,871.00 21,600 $16,200.00 $58,071.00
5/1/2001-4/30/2003 $.79 $43,956.00 21,600 $17,064.00 $61,020.00
5/1/2003-4/30/2004 $.81 $45,144.00 21,600 $17,496.00 $62,640.00
5/1/2004-4/30/2006 $.82 $46,332.00 21,600 $17,712.00 $64,044.00
These amounts shall be in addition to property taxes, common area
maintenance, and insurance as provided in the Lease, payable on the first day of
each month during the balance of the term.
3. Tenant Finish Allowance
Landlord shall provide a tenant finish allowance (the "Allowance") of
$12.00 per square foot ($259,200.00) to be applied toward interior improvements
in the expansion space. Tenant shall bear the entire cost of any interior
improvements to be installed by Landlord in the premises in excess of the
Allowance of $259,200.00 and shall pay for such excess over the Allowance as
hereinafter provided. In the event Landlord is to construct the interior
improvements and the estimated cost for same exceeds the Allowance, Tenant shall
pay to Landlord (assuming Landlord's approval of the working drawings referred
to herein) prior to commencement of such construction, an advance payment equal
to one-half (1/2) of the mount of such excess over the Allowance as reasonably
estimated by Landlord. Notwithstanding any provision contained herein to the
contrary, it is understood and agreed that Landlord shall have no obligation to
commence installation of any interior improvements until (a) Tenant shall have
furnished to Landlord and Landlord shall have approved the final working
drawings as required by the provision hereof, (b) Landlord shall have received
Tenant's advance payment (described above) for the amount of the cost of
improvements in excess of the Allowance and (c) Landlord and Tenant shall have
approved the total cost of any change order. Upon Substantial Completion of the
installation of the interior improvements and prior to occupancy by Tenant,
Tenant shall pay Landlord the remainder of the actual amount of the excess cost
incurred over the Allowance. In no event shall credit be given to Tenant for
any Allowance not utilized.
All improvements must comply with Xxxxxxxx Xxxx Company's standard
specifications (see Standards and Specifications for Office/Warehouse Buildings)
-----------------------------------------------------------
and all applicable governmental regulations. Prior to beginning construction of
any such improvements, Tenant shall submit architectural drawings of the
proposed improvements to Landlord and shall obtain Landlord's written consent to
begin construction.
Initial______ ______
Date_________ ______
1.
4. Tenant's share of parking in the building for the 81,000 square feet
of lease space shall be increased from the one hundred sixty (160) total parking
spaces provided in paragraph 5.B. of the lease to a total of two hundred eighty
three (283) parking spaces.
5. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof are hereby ratified and confirmed.
EXECUTED BY LANDLORD, this 30/th/ day of July, 1996.
SL-6 PARTNERS, LTD.
a Texas limited partnership:
By: TCCT Development, Inc.
a Delaware corporation
Its General Partner
_______________________________________________
Attest/Witness By: Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
----------------------- -----------------------------------------
Address: x/x Xxxxxxxx Xxxx Xxxxxxx Xxxxx, Inc.
--------------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
--------------------------------------------------
EXECUTED BY LANDLORD, the 24/th/ day of July, 1996
PROGRESSIVE SYSTEM TECHNOLOGIES, INC.
_______________________________________________
Attest/Witness By: Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxxx Title: Chief Financial Officer
---------------------- ---------------------------------------
Address: 0000 Xxxxx XxXxxx, Xxxxx X-000
-------------------------------------
Xxxxxx, Xxxxx 00000
-----------------------------------------------
Initial______ ______
Date_________ ______
1.
EXHIBIT "A"
BUILDING: Stonelake #6
LEGAL DESCRIPTION: 8,865 acres tract of land situated in the City of
Xxxxxx, Xxxxxx County, Texas being a portion of Xxx 0
Xxxxx "X" Xxxxxxxxx Section 3.
ADDRESS: North Mopac Expressway and Xxxxxxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 00000
[DIAGRAM]
Initial______ ______
Date_________ ______
1.
THIRD AMENDMENT TO LEASE AGREEMENT BETWEEN
SL-.6 PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AS LANDLORD, AND
PROGRESSIVE SYSTEM TECHNOLOGIES, INC., AS TENANT
To be attached to and form a part of Lease made the 20th day of
November, 1995 (which together with any amendments,
modifications and extensions thereof, is hereinafter called the
Lease), between Landlord and Tenant, covering a total of 40,000
square feet and located at 00000 Xxxxx Xxxxx Xxxxxxxxxx,
Xxxxxx, Xxxxx, known as Stonelake #6.
WITNESSETH, THAT:
WHEREAS, by Agreement of Lease dated November 20, 1995, Landlord leased to
Tenant certain space containing approximately 40,000 square feet in the building
located at North Mopac Expressway and Xxxxxxxxx Boulevard, Austin, Texas, for a
period of ten (10) years commencing May 1, 1996 and ending April 30, 2006, and
such lease was thereafter amended to add a total of 41,000 square feet of space,
making the aggregate area of the demised premises approximately 81,000 square
feet; and
WHEREAS, Tenant intends to sublease approximately 21,600 square feet of its
space that it currently does not need for its business purposes (the "Sublease
Space"), which sublease is documented in the Sublease Agreement between Tenant,
as Sublessor, and Leasing Group, Inc., as Sublessee, dated of even date
herewith; and
WHEREAS, Landlord desires to lease the approximately 10,800 square feet of
space adjoining Tenant's current leased Premises, for which 10,800 square feet
Tenant has a right of first refusal in accordance with Paragraph 25 of the Lease
(the "Expansion Space").
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Tenant hereby declines to exercise its right of first refusal to lease
the Expansion Space (see Exhibit "A" attached hereto) and acknowledges that
Landlord shall have the right to lease the Expansion Space for a period of five
(5) years commencing in January 1997 and expiring January 31, 2002.
2. Tenant shall have, with written notice to Landlord delivered by July
30, 2001, the option to expand into the Expansion Space effective February 1,
2002 for a term to be coterminous with Tenant's Lease for the current demised
Premises and at a fair market rental rate to be determined in accordance with
Paragraph 27 of the Lease.
3. Landlord agrees to reimburse Tenant Five Thousand Dollars ($5,000.00)
for each Six Thousand Five Hundred Dollars ($6,500.00) that Tenant pays to
Sublessee for cancellation of the Sublease prior to expiration of the thirty-six
(36) month Sublease term, up to a total not to exceed Sixty Thousand Dollars
($60,000.00).
4. Landlord shall have, during the term of the Sublease, the right to:
(a) designate the location of any and all of the parking spaces
allocated to Tenant and Sublessee under the terms of the Lease and Sublease,
provided that the eighty (80) exclusive reserved spaces designated in Paragraph
5.B. and Exhibit "C" to the Lease shall remain reserved for Tenant's exclusive
use, and
(b) approve, in its sole discretion, the location, number, and
configuration of any parking spaces to be striped by Tenant or Sublessee in the
truck court area.
5. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof are hereby ratified and confirmed.
Intial______ ______
Date________ ______
1.
EXECUTED BY LANDLORD, this 12/th/ day of December, 1996.
SL-6 PARTNERS, LTD.
a Texas limited partnership:
By: TCCT Development, Inc.
a Delaware corporation
Its General Partner
/s/ Xxxxxx X. Xxxxxx
Attest/Witness -------------------------------------------
By: Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
---------------------- -------------------------------------------
Address: x/x Xxxxxxxx Xxxx Xxxxxxx Xxxxx, Inc.
-------------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
--------------------------------------------------
EXECUTED BY LANDLORD, the 6/th/ day of December, 1996
PROGRESSIVE SYSTEM TECHNOLOGIES, INC.
Attest/Witness By: /s/ Xxxxxx Xxxxxx
----------------------------------------------
Title: Chief Financial Officer
---------------------- -------------------------------------------
Address: 0000 Xxxxx XxXxxx, Xxxxx X-000
----------------------------------------
Xxxxxx, Xxxxx 00000
--------------------------------------------------
Initial______ ______
Date_________ ______
2.
EXHIBIT "A"
BUILDING: Stonelake #6
LEGAL DESCRIPTION: 8,865 acres tract of land situated in the City of
Xxxxxx, Xxxxxx County, Texas being a portion of Xxx 0
Xxxxx "X" Xxxxxxxxx Section 3.
ADDRESS: 00000 Xxxxx Xxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000
[DIAGRAM]
Initial______ ______
Date_________ ______
1.
