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LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF XXXXXX
This Lease, made and entered into on the third day of November, 1994, by
and between SALITEX II, LIMITED (Landlord), and CYBERONICS, INC., as (Tenant):
WITNESSETH:
1. LEASED PREMISES.
In consideration of the mutual covenants and agreements set forth
herein, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for the rental and on the terms and conditions hereinafter set
forth, those certain premises outlined on the floor plan attached hereto as
Exhibit "A" and made a part hereof (the "Leased Premises"), on the first
floor, in the building known as CLEAR LAKE ONE (the "Building") located at
00000 Xxxxxxx Xxxxx xx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx. The Building is located
on that certain land (the "Land") conveyed by that certain deed recorded
under Film Code Number 000-00-0000 of the Official Public Records of Real
Property of Xxxxxx County, Texas, and more specifically described on the
attached exhibit "A-1".
The term "Net Rentable Area" as used herein, shall refer to (i), in the case
of a single tenancy floor, all floor area measured from the inside surface of
the outer glass line of the Building to the inside surface of the opposite
outer glass line, excluding only the areas ("service areas") within the
outside walls used for Building stairs, fire towers, elevator shafts, flues,
vents, stacks, pipe shafts and vertical ducts, but including any such service
areas which are for the specific use of the particular tenant, such as
special stairs or elevators, plus an allocation of the square footage of the
Building's elevator machine rooms, mechanical and electrical rooms and public
lobbies, and (ii), in the case of a floor to be occupied by more than one
tenant, all floor areas within the inside surface of the outer glass walls
enclosing the Leased Premises and measured to the mid-point of the walls
separating areas leased by or held for lease to other tenants or from areas
devoted to corridors, elevator foyers, restrooms, mechanical rooms, janitor
closets, vending areas and other similar facilities for the use of all
tenants (hereinafter sometimes called "common areas"), but including a
proportionate part of the common areas located on such floor based upon the
ratio which the tenant's Net Rentable Area (excluding common areas) on such
floor bears to the aggregate Net Rentable Area (excluding common areas) on such
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floor, plus an allocation of the square footage of the Building's elevator
machine rooms, mechanical and electrical rooms, and public lobbies. For the
purposes of this Lease the common area factor is fifteen (15%) percent
("add-on factor"). No deductions from Net Rentable Area shall be made for
columns or projections necessary to the Building. The Net Rentable Area in
the Leased Premises has been calculated on the basis of the foregoing
definition and is hereby stipulated for all purposes hereof to be 16,591
square feet.
2. USE.
Tenant shall have the right to occupy and use the Leased Premises for
office, laboratory, clean room, light machine shop, light assembly in
connection with implantable medical devices.
3. TERM.
Subject to the terms and conditions set forth herein, this Lease shall
be in force for a term (the "Term") of Thirty six (36) months, beginning on
November 1, 1994, (the "Commencement Date") and expiring on October 31, 1997,
(the "Expiration Date").
4. BASE RENTAL; RENT.
A. Subject to the provisions for adjustment hereinafter set forth,
Tenant hereby agrees to pay, without deduction or offset, a base annual
rental (the "Base Rental") in the amount of One hundred ninety nine thousand
ninety two and 00/100 ($199,092.00) dollars throughout the Term of this
Lease. The Base Rental shall be due and payable in twelve (12) equal monthly
installments of Sixteen thousand five hundred ninety one and 00/100
($16,591.00) dollars in advance, without demand, on the first day of each
calendar month during each year of the Term hereof. If the Term commences or
terminates on any day other than the first or last day of a calendar month,
the Base Rental and any other sums due hereunder shall be prorated for such
fractional calendar month.
B. The term "Rent" as used in this Lease shall mean the Base Rental,
the Additional Rental, and all other amounts provided for in this Lease to be
paid by Tenant, all of which shall constitute rental in consideration for
this Lease and the leasing of the Leased Premises. All past due installments
of Rent shall bear interest at four (4) percentage points over the current
prime rate, of the average of the three (3) largest banks located in Houston,
Texas, of per annum from the date due until paid. All payments of Rent shall
be paid to Landlord in lawful money of the United States of America at the
address of Landlord shown herein in Xxxxxx County, Texas, or to such other
party or at such other place as Landlord may designate from time to time in a
written notice to Tenant.
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5. SECURITY DEPOSIT.
Tenant has deposited prior to execution of this Lease with Landlord the
sum of Thirteen thousand six hundred six and 26/100 ($13,606.26), which upon
execution of this Lease, Six thousand eight hundred fifty four and 17/100
($6,803.13) dollars will be returned to Tenant making the security deposit
held by Landlord Six thousand eight hundred fifty four and 17/100
($6,803.13), as a security deposit (the "Security Deposit") for the faithful
performance and observance by Tenant of the terms, provisions and conditions
of this Lease. It is agreed that in the event Tenant defaults in respect of
any of the terms, provisions or conditions of this Lease, including, but not
limited to, the payment of Base Rental, or Additional Rental, Landlord may,
at Landlord's option, use, apply or retain the whole or any part of the
Security Deposit to the extent required for the payment of any Rent or any
other sum as to which Tenant is in default, or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, covenants or conditions of this Lease, including, but
not limited to, any damages or deficiency in the re-letting of the Leased
Premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. In the event that Tenant shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the Security Deposit shall be returned to Tenant
within thirty (30) days after termination of this Lease (provided such
termination is not the result of a default by Tenant hereunder) and after
delivery of entire possession of the Leased Premises to Landlord and payment
of all sums due to Landlord. In the event of a sale of the Land or the
Building of which the Leased Premises form a part, Landlord shall have the
right to transfer the Security Deposit to the vendee and upon the express
assumption of such obligation by such vendee Landlord shall thereupon be
released by Tenant from all liability for the return of the Security Deposit;
and Tenant agrees to look solely to the new Landlord for the return of the
Security Deposit; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the Security Deposit to a new Landlord.
6. ADDITIONAL RENTAL.
In addition to the Base Rental payable by Tenant during each year of the
Term, Tenant shall also pay Additional Rental in accordance with this
paragraph.
A. Definitions
(1) The term "Taxes" shall mean all taxes, assessments and all
other governmental charges, if any, which are levied, assessed or imposed
upon, or become due and payable in connection
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with, or a lien upon, the Land, the Building, Garage, or facilities used in
connection therewith, or the operation thereof, (excepting federal and state
taxes on income) including taxes levied by present or future taxing
authorities and all taxes of whatsoever nature that are imposed in
substitution for or in lieu of any of the taxes, impositions, assessments or
other charges included in this definition of Taxes; provided, however, Taxes
shall not include the portion, if any, of ad valorem taxes against the Leased
Premises that is paid by tenants as a separate charge pursuant to paragraph 7
of this Lease.
(2) The term "Operating Cost" shall mean all operating expenses of the
Building which shall be computed on the accrual basis and which shall include
all expenses, costs and disbursements of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the
ownership and operation of the Land and the Building, including, but not
limited to, the following:
(a) Wages and salaries of all employees engaged in the operation
and maintenance of the Land and the Building, including taxes, insurance and
benefits relating thereto and prorated to reflect time actually spent at the
building;
(b) All supplies and materials used in the operation and
maintenance of the Building;
(c) Cost of water, sewage, power, heating, lighting, air
conditioning, ventilating, and other utilities furnished in connection with
the operation of the Building (excluding any such cost billed to specific
tenants);
(d) Costs of all maintenance and service agreements on
equipment, including, but not limited to, security services, alarm services,
window cleaning, janitorial service, and elevator maintenance;
(e) Costs of casualty, rentals and liability insurance
applicable to the Building and Landlord's personal property used in
connection therewith;
(f) Costs of repairs and general maintenance of the interior,
parking areas, and landscaping of the Land and the Building, excluding
repairs and general maintenance paid by proceeds of insurance or paid
directly by any tenant or other third parties and alterations attributable
solely to tenants of the Building other than Tenant;
(g) Management fees not to exceed a sum equal to five percent
(5%) of the Base Rentals derived from tenants of the Building; and
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(h) A reasonable amortization charge on account of any capital
expenditures incurred to effect a reduction in operating expenses of the
Building.
Expressly excluded from the definition of the term Operating Cost are:
(i) Replacement of capital investment items, excepting those set
forth above in paragraph 6A(2)(h);
(ii) Rental and similar commissions, other than those set forth in
paragraph 6A(2)(g) above, advertising, and legal expenses;
(iii) Specific costs billed to and paid by specific tenants;
(iv) Depreciation; and,
(v) Principal, interest, and other costs directly related to
financing.
For the purpose herein the term "Basic Operating Cost" shall be deemed to be
the 1994 operating expenses for the Building per square foot of total Net
Rentable Area of the Building.
(3) The term "Tenant's Share" shall mean the proportion that the Net
Rentable Area of the Leased Premises bears to the total Net Rentable Area of
the Building, which shall be deemed to be 49,890 square feet. For the
purposes of this Lease, Tenant's Share shall be deemed to be 33.25%.
(4) The term "Operating Year" shall mean any calendar year ending
December 31st after the Commencement Date, including the calendar year in
which the Term commences.
(5) Within 120 days from the end of each Operating Year, Landlord
shall deliver to Tenant an operating statement setting forth Taxes and
Operating Cost for such year and comparing such cost with the Basic Taxes and
Basic Operating Cost defined herein. In the event that the sum of Taxes and
Operating Cost for any Operating Year as reflected on the operating statement
exceeds the sum of the Basic Taxes and Basic Operating Cost, Tenant shall pay
to Landlord, within the time and in the manner as provided below, without
reduction or set-off, as Additional Rental over and above the Base Rental,
Tenant's Share of such excess in accordance with the following:
(a) Within 30 days of its receipt of the operating statement,
Tenant shall pay Landlord such Additional Rental due for the preceding
Operating Year plus an amount necessary so that the Tenant shall have paid
1/12 of such Additional Rental for each month that has past in the then
current Operating Year.
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(b) Tenant shall also pay to Landlord, beginning on the first
day of the first month after Tenant receives the operating statement and on
the first day of each month thereafter during the Term, unless subsequently
adjusted pursuant hereto, one-twelfth of such Additional Rental due for the
preceding Operating Year.
(c) Tenant shall pay to Landlord the Additional Rental due, as
disclosed by the operating statement furnished after the expiration or
earlier termination of this Lease, within 10 days of Tenant's receipt of such
operating statement.
(6) Tenant shall be entitled to a credit on the Additional Rental due
for the Operating Year preceding the year in which each operating statement
is delivered, which credit shall be equal to the amount of Additional Rental
already paid by Tenant to Landlord for such Operating Year pursuant to the
operating statement delivered during such Operating Year.
(7) Anything herein to the contrary notwithstanding, in no event shall
the Base Rental provided herein ever be reduced.
(8) Within one hundred and twenty (120) days of its receipt of each
annual operating statement, Tenant at its sole cost and expense shall have
the right to review in Landlord's offices and during normal business hours
Landlord's records of Taxes and Operating Cost. If within such thirty-day
period, Tenant does not give written notice stating in reasonable detail any
objections to such operating statement, Tenant shall be deemed to have given
approval of such statement.
(9) Anything herein to the contrary notwithstanding, it is agreed
that, in the event the Building is not fully occupied during any Operating
Year, an adjustment shall be made in accordance with generally accepted
accounting principles in computing the Operating Costs and Taxes for such
Operating Year so that such computation would be as though the Building had
been fully occupied during such Operating Year.
7. TAXES ON PERSONALTY AND TENANT IMPROVEMENTS.
Tenant shall pay all ad valorem and similar taxes or assessments levied
upon or applicable to all equipment, fixtures, furniture, and other property
placed by Tenant in the Leased Premises in excess of standard Tenant
Improvements, and all license and other fees or charges imposed on the
business conducted by Tenant on the Leased Premises.
8. IMPROVEMENTS.
A. Subject to Landlord's prior written approval of Tenant's plans and
specifications, general contractor(s), and all subcontractors, which approval
shall not be unreasonably withheld or
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delayed, in compliance with all the applicable ordinances, rules, and
regulations applicable thereto, at Tenant's sole risk, cost, and expense.
Tenant shall construct, in a good and workmanlike manner, improvements in the
Leased Premises, and upon completion of such construction by Tenant and
compliance by Tenant with the following requirements, Landlord shall
reimburse Tenant for the actual cost of such construction (including
architectural fees) or $33,182.00, whichever is less; provided, tenant must
furnish Landlord each and all of the following:
1. Copy of contractor's contract and all amendments.
2. Tenant's affidavit that construction is completed and lien waiver and
releases from all contractors and subcontractors.
3. Evidence of all contractors insurance.
4. One (1) set of as built plans and specifications.
5. Any contractor guarantee's.
6. All work performed by Tenant or Tenant's contractor shall be in
compliance with all laws, ordinances, rules, regulations and the like.
Payment by Landlord shall be made within fifteen (15) days after Tenant has
delivered to Landlord the documents and items set forth above.
9. MAINTENANCE AND REPAIRS OF BUILDING AND LEASED PREMISES.
A. Landlord shall provide all normal and customary routine maintenance and
repairs of the exterior and the structural portions of the Building and
common areas such as lobbies, stairs, corridors, restrooms, roof, and
elevators in keeping with the usual standards for first class office
buildings in Clear Lake, Texas. Except to the extent covered by warranties by
Landlord, suppliers, or contractors, if any, in connection with the Leased
Premises, Landlord shall not have any obligation to maintain, repair, or
replace any improvements within the Leased Premises, except for damages
caused by the acts or omissions of Landlord or tenants contiguous to the
Leased Premises in the building. Except to the extent that Landlord is
obligated to repair damage by fire or other casualty pursuant to paragraph
16, or damage resulting from condemnation pursuant to paragraph 29, or
tenants contiguous to the Leased Premises in the building, Tenant, at its
sole cost, shall maintain and repair the Leased Premises and otherwise keep
the Leased Premises in good order and repair. Landlord shall furnish all
standard light fixture fluorescent bulb replacements in all areas of the
Building. Landlord shall not be liable in damages or otherwise by reason of
inconvenience, annoyance or injury to business arising from the making or
failure to make any repairs,
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alterations, additions or improvements to the Building or the Leased
Premises, nor shall same be construed as an eviction of Tenant, work an
abatement of Rent, or relieve Tenant from any covenant or agreement hereof,
except to the extent provided by law and not waivable by Tenant. If such an
event materially disrupts Tenants use or occupancy for more than ten (10)
consecutive days, than Landlord and Tenant will negotiate an abatement of
rent for such portion of space that is affected.
B. Tenant covenants and agrees that it will make no improvement, change
or alteration in the Leased Premises without the prior written consent of
Landlord which shall not be unreasonably withheld or delayed. Tenant further
covenants not to commit or allow any waste or damage to be committed on any
portion of the Leased Premises or the Building, and to repair or replace any
damage or injury done to the Building or any part thereof caused by Tenant or
Tenant's agents, employees, invitees or visitors; provided, however, if
Tenant fails to make such repairs or replacements promptly, Landlord may, at
its option, make such repairs or replacements, and Tenant shall repay all
cost thereof to Landlord on demand.
10. LANDLORD'S SERVICES TO BE PROVIDED BY LANDLORD.
A. Landlord agrees to furnish Tenant, while occupying the Leased
Premises, with electricity for ordinary office uses and all equipment
presently in place in Tenant premises as of the date of this Lease; (not to
include, any additional, duplicating and data processing machines, including
air conditioning costs therefor, large business machines, special lighting in
excess of building standard, and any other equipment requiring high
electrical consumption characteristics), Landlord shall also provide elevator
service, security service and week - daily janitorial service, in keeping
with the usual standard for first class office buildings in Clear Lake,
Texas. During the periods and hours as such services are normally furnished
to all tenants of the Building (except holidays), Landlord agrees to furnish
Tenant with hot, cold, and refrigerated water at those points of supply
provided for general use of other tenants in the Building; heated and
refrigerated air conditioning in season) at temperatures and in amounts
considered standard for first class office buildings in Clear Lake, Texas.
Such services beyond the normal periods and hours will be provided upon
written request from Tenant at an hourly rate to be billed to Tenant.
Landlord shall not be liable in damages or otherwise for failure, stoppage, or
interruption of any such service, including providing parking spaces as
described in paragraph 10C below, nor shall the same be construed as an
eviction of Tenant, work an abatement of Rent, or relieve Tenant from any
covenant or agreement hereof, except to the extent provided by law and not
waivable by Tenant, but in the event of any failure, stoppage or interruption
thereof, Landlord shall use reasonable diligence to resume service promptly.
Landlord shall not be liable in damages or otherwise for
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a curtailment of any such service covered by federal, state or municipal
regulation, and such curtailment shall not be construed as an eviction of
Tenant, work an abatement of Rent or relieve Tenant from any covenant or
agreement hereof. If such an event materially disrupts Tenants use or
occupancy for more than ten (10) consecutive days, than Landlord and Tenant
will negotiate an abatement of rent for such portion of space that is
affected.
B. The work of the Building janitor shall not be unreasonably hindered
after 6:00 p.m.
C. Vehicles shall be towed away at their owner's expense for the
following violations: parking vehicle in the designated Visitor Parking areas
in or around the Building, in the delivery zones or any other areas other
than that area specifically designated by Landlord. Landlord may make, modify
or enforce rules and regulations relating to the parking of vehicles around
the Building, and Tenant shall abide by such rules and regulations. Landlord
shall not be liable for any property damage or bodily injury arising from the
use of the parking lot by the tenants of the Building or their agents,
employees or invitees.
11. RULES AND REGULATIONS OF BUILDING.
Tenant shall perform and comply with reasonable Rules and Regulations
of the Building with respect to safety, care, cleanliness, parking and
preservation of good order in the Building that may be established from time
to time by Landlord for tenants of the Building. Such rules and regulations
and any changes shall apply equally to all tenants. Landlord shall not be
liable to Tenant for any failure of any other tenants of the Building to
comply with such Rules and Regulations, attached hereto as Exhibit "C",
except in the event of an unreasonable refusal to enforce such rule after
written notice from Tenant.
12. LAWFUL USE.
Tenant shall comply with all laws, ordinances, orders, rules and
regulations, whether promulgated by federal, state, municipal or any other
agency or body having any jurisdiction thereof, and whether in effect now or
in the future, relating to the use, condition or occupancy of the Leased
Premises and shall correct any violation thereof promptly after becoming
aware of such violation. Tenant shall not occupy or use, or permit any
portion of the Leased Premises to be occupied or used, for any business or
purpose which is contrary to the use described in paragraph 2 hereof,
unlawful, or deemed to be extrahazardous on account of fire, or permit
anything to be done which will in any way increase the rate of fire insurance
coverage on the Building and/or its contents.
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13. EXTRAORDINARY EQUIPMENT.
Landlord has approved all current equipment presently used by tenant in
the Leased Premises. However, without the specific prior written consent
of Landlord and Tenant's written agreement to pay additional costs, Tenant
shall not install or maintain any additional apparatus or devices within the
Leased Premises which will increase the usage of electrical power, water or
gas for the Leased Premises to an amount greater than would be normally
required for general office use for space of comparable size in Houston,
Texas. Upon execution of this Lease, Landlord consents that Tenant may
install the following equipment based upon the attached list at no extra
charge.
14. LANDLORD'S ACCESS.
Landlord and Landlord's mortgagee shall have the right, unless in case of
emergency, upon reasonable notice, at all reasonable times during the Term to
enter the Leased Premises to inspect the condition thereof, and during the
final six (6) months of the Term to show the Leased Premises to prospective
new tenants, to determine if Tenant is performing its obligations under this
Lease, and to perform the services or to make the repairs and restoration
that Landlord is obligated to perform or furnish under this Lease, to make
repairs to adjoining space, to cure any defaults of Tenant hereunder that
Landlord elects to cure, and to remove from the Leased Premises any
improvements thereto or property placed therein in violation of this Lease.
15. INSURANCE.
Landlord shall maintain during the Term of this Lease fire and extended
coverage insurance insuring the Building and Leased Premises against damage
or loss from fire or other casualty normally insured against under the terms
of standard policies of fire and extended coverage insurance. Tenant shall be
responsible for providing, at Tenant's own expense, (a) all insurance
coverage necessary for the protection against loss or damage from fire, theft
or other casualty for Tenant's goods, furniture or other property placed in
the Leased Premises, and (b) liability insurance covering the Leased Premises
which insurance coverage and amount shall be in amount not less than
$2,000,000.00 and Landlord shall be a named loss payee.
16. FIRE OR OTHER CASUALTY.
A. If the Leased Premises shall be partially damaged by fire or other
casualty without the fault or neglect of Tenant or Tenant's agents,
employees, servants, representatives, guests, invitees or contractors, the
damages shall be repaired by and at the expense of Landlord, and the Rent
until such repairs are made shall be abated according to the part of the
Leased Premises which
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is usable by Tenant or Tenant's agents, employees, servants, representatives,
guests, invitees or contractors. If such partial damage is due to the fault
or neglect of Tenant, then repairs shall be at Tenant's expense and there
shall be no abatement of Rent.
B. If the Leased Premises or the Building shall be totally or
substantially damaged or rendered wholly or substantially untenantable by
fire or other casualty without the fault or neglect of Tenant, and if same
cannot be reasonably expected to be restored or repaired by Landlord within
six (6) months after such fire or casualty, then Landlord, within sixty (60)
days after such fire or casualty, shall have the election, upon notifying
Tenant of its intentions, to terminate this Lease or to repair or reconstruct
the Leased Premises and Building to substantially the same condition in which
they existed immediately prior to such damage or destruction. If Landlord
elects to terminate the Lease as herein permitted, Landlord shall refund to
Tenant any prepaid rent (unaccrued to the date of the fire or other
casualty), less any sum then owing Landlord by Tenant. If the Lease is not
terminated, then this Lease shall continue in full force and effect, Landlord
shall repair the damage within such six (6) month period, subject to delays
arising from shortages of labor or material, acts of God, or other conditions
beyond Landlord's reasonable control (However, Landlords inability to have
necessary funds available to perform required action shall not be deemed a
condition of Landlords reasonable control, provided insurance proceeds are
utilized for the repair and reconstruction of the Leased Premises and
Building), and the Rent until such repairs are made shall be abated as
provided in subparagraph A above.
17. WAIVER OF SUBROGATION.
Anything in this Lease to the contrary notwithstanding, each party
hereto hereby releases and waives all claims, rights of recovery, and causes
of action that either such party or any party claiming by, through, or under
such party by subrogation or otherwise may now or hereafter have against the
other party or any of the other party's directors, officers, employees or
agents for any loss or damage that may occur to the Building, the Leased
Premises, Tenant Improvements or any of the contents of any of the foregoing
by reason of fire, Act of God, the elements or any other cause, including
negligence of the parties hereto or their directors, officers, employees, or
agents that could have been insured against under the terms of standard fire
and extended coverage insurance policies; provided, however, that this waiver
shall be ineffective against any insurer of Landlord or Tenant to the extent
that such waiver (i) is prohibited by the laws and insurance regulations of
the State of Texas, or (ii) would invalidate any insurance coverage of
Landlord or Tenant. Landlord shall not be liable to Tenant for any
inconvenience or loss to Tenant in connection with any of the repair,
maintenance, damage, destruction, restoration or replacement referred to in
this Lease.
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18. MUTUAL INDEMNITY.
Except for the claims, rights of recovery and causes of action that
Landlord has released and waived pursuant to Paragraph 17 hereof, Tenant
shall indemnify and hold harmless Landlord and Landlord's agents, directors,
officers, employees, invitees, and contractors from all claims, losses,
costs, damages or expenses (including, but not limited to, attorney's fees)
resulting or arising from any and all injuries or death of any person or
damage to any property caused by any act, omission or neglect of Tenant or
Tenant's directors, officers, employees, agents, invitees or guests, or any
parties contracting with Tenant relating to the Leased Premises. Except for
the claims, rights of recovery and causes of action that Tenant has released
and waived pursuant to Paragraph 17 hereof, Landlord shall indemnify and hold
harmless Tenant and Tenant's agents, directors, officers, employees,
invitees, and contractors from all claims, losses, costs, damages or expenses
(including, but not limited to, attorney's fees) resulting or arising from
any and all injuries or death of any person or damage to any property caused
by any act, omission or neglect of Landlord or Landlord's directors,
officers, employees, agents, invitees or guests, or any parties contracting
with Landlord relating to the Leased Premises.
19. NON-WAIVER.
No consent or waiver, express or implied, by Landlord to or of any
breach in the performance or observance by the other party of any of its
obligations under this Lease shall be construed as or constitute a consent or
waiver to or of any other breach in the performance or observance by such
party of such obligation or any other obligation of Landlord or Tenant.
Neither the acceptance by Landlord of any Rent or other payment hereunder,
whether or not any default hereunder by Tenant is then known to Landlord, nor
any custom or practice followed in connection with this Lease shall
constitute a waiver of any of Tenant's obligations under this Lease. Time is
of the essence with respect to the performance of every obligation of
Landlord or Tenant under this Lease in which time of performance is a factor.
20. QUIET POSSESSION.
Provided Tenant has performed all of its obligations under this Lease,
including but not limited to the payment of Rent and all other sums due
hereunder, Tenant shall peaceably and quietly hold and enjoy the Leased
Premises for the Term, subject to the provisions and conditions set forth in
this Lease and all reservations and restrictions affecting the Building and
the Land of record as of the date hereof, and in those that may hereafter be
created.
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21. NOTICES.
Each notice required or permitted to be given hereunder by one party to
the other shall be in writing with a statement therein to the effect that
notice is given pursuant to this Lease and the same shall be given and shall
be deemed to have been delivered, served and given if delivered in person or
placed in the United States Mail, postage prepaid, by United States
registered or certified mail, addressed to such party at the address provided
for such party herein. Any notices to Landlord shall be addressed and given
to Landlord as follows:
INVESTAR REAL ESTATE SERVICES
00000 XXXXXXXXX XXXXXXX, XXXXX 000X
XXXXXXX, XX 00000
ATTN: XXXX XXXXXXX
With a copy to:
Salitex II, Limited
00000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Leasing Office
The address for Tenant shall be:
CYBERONICS, INC.
00000 XXXXXXX XXXXX
XXXXX 000
XXXXXXX, XX 00000
ATTN: XXXX X. XXXXXXXX
The address stated above shall be effective for all notices to the respective
parties until written notice of a change in address is given pursuant to the
provisions hereof.
22. LANDLORD'S FAILURE TO PERFORM.
If Landlord fails to perform any of its obligations under this Lease,
Landlord shall not be in default hereunder and Tenant shall not have any
rights or remedies growing out of such failure unless Tenant gives Landlord
written notice thereof setting forth in reasonable detail the nature and
extent of such failure and such failure by Landlord is not cured within the
thirty (30) day period following delivery of such notice or such longer
period therefor provided elsewhere in this Lease. If such failure cannot
reasonably be cured within such thirty (30) day period, the length of such
period shall be extended for the period reasonably required therefor (not to
exceed an additional thirty (30) day), if Landlord commences curing such
failure within such thirty (30) day period and continues the curing thereof
with reasonable diligence and continuity.
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23. LIMITATION OF LANDLORD'S PERSONAL LIABILITY.
In no event shall Landlord, including any successor or assignee of all
or any portion of Landlord's interest in the Land and Building, be personally
liable or accountable with respect to any provision of this Lease. If Landlord
shall be in breach or default with respect to any obligation hereunder or
otherwise, Tenant agrees to look for satisfaction solely to Landlord's
interest in the Land and the Building. In the event Landlord transfers this
Lease, other than as security for a mortgage, Landlord (and, in case of any
subsequent transfers or conveyances, the then Grantor) shall, upon such
transfer, upon such transfer and assumption of the obligations hereunder by
the transferee, be relieved from all liability and obligations hereunder
arising after such transfer.
24. LANDLORD'S LIEN AND REMEDIES.
Landlord waives all liens applicable under Texas law, whether statutory, at
common law, or otherwise arising, including without limitation its statutory
Landlords lien under the Texas Property Code.
B. Each of the following acts or omissions of Tenant or occurrence
shall constitute an "Event of Default":
(1) Failure or refusal by Tenant to timely pay the Rent or any other
sum due hereunder within five (5) days of the due date thereof;
(2) Failure to perform or observe any other covenant or condition of
this Lease by Tenant to be performed or observed upon the expiration of a
period of thirty (30) days following written notice to Tenant of such failure;
(3) Abandonment of the Leased Premises or any significant portion
thereof;
(4) The filing on execution or occurrence of: a petition in bankruptcy
or other insolvency proceeding by or against Tenant; or, petition or answer
seeking relief under any provision of the Bankruptcy Act; or, an assignment
for the benefit of creditors or composition; or, a petition or other
proceeding by or against the Tenant for the appointment of a trustee,
receiver or liquidator of Tenant or any such guarantor or any property of
Tenant or a proceeding by any governmental authority for the dissolution or
liquidation of Tenant. Provided Tenant has ninety (90) days to seek the
dismissal of any involuntary bankruptcy proceedings.
C. Upon the occurrence of any Event of Default, as enumerated above,
Landlord may, at Landlord's option, in addition
14
to any other remedy or right given hereunder or by law or equity do any one
or more of the following:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord;
(2) Enter upon and take possession of the Leased Premises and expel or
remove Tenant and any other occupant therefrom, with or without having
terminated this Lease.
D. Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Leased Premises by Tenant, whether by agreement or by operation of law,
it being understood that such surrender can be effected only by the written
agreement of Landlord and Tenant. No removal or other exercise of dominion by
Landlord over the property of Tenant or others at the Leased Premises shall be
deemed unauthorized or constitute a conversion, Tenant hereby consenting,
after any Event of Default, to the aforesaid exercise of dominion over
Tenant's property within the Leased Premises. All claims for damages by
reason of such reentry and/or repossession are hereby waived except the
liability arising by virtue of Landlords gross negligence or willful
misconduct, as are all claims for damages by reason of any forcible detainer
proceedings, sequestration proceedings or other legal process, except if such
actions are unlawful. Tenant agrees that any reentry by Landlord may be
pursuant to judgment obtained in forcible detainer proceedings or other legal
proceedings, as Landlord may elect.
E. In the event Landlord elects to terminate this Lease by reason of an
Event of Default, then, notwithstanding such termination, Tenant shall be
liable for and shall pay to Landlord at Houston, Xxxxxx County, Texas, the
sum of all Rent and other indebtedness accrued to the date of such
termination, plus, as damages, an amount equal to the difference between (1)
the Rent plus all other payments due by Tenant hereunder for the remaining
portion of the Term (had such Term not been terminated by Landlord prior to
the Expiration Date), and (2) the then present fair rental value of the
Leased Premises for such period.
F. In the event that Landlord elects to repossess the Leased Premises
without terminating this Lease, then Tenant shall be liable for and shall pay
to Landlord at Houston, Xxxxxx County, Texas, all Rent and other indebtedness
accrued to the date of such repossession, plus Rent required to be paid by
Tenant to Landlord during the remainder of the Term until the Expiration
Date, diminished by any net sums thereafter received by Landlord through
reletting the Leased Premises during said period (after deducting expenses
incurred by Landlord). In no event shall Tenant be entitled to any excess of
any rent obtained by reletting over and
15
above the Rent. Actions to collect amounts due by Tenant as provided in 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 Term.
G. In case of an Event of Default, Tenant shall also be liable for and
shall pay to Landlord, at Houston, Xxxxxx County, Texas, in addition to any
sum provided to be paid above: broker's fees incurred by Landlord in
connection with reletting the whole or any part of the Leased Premises to the
extent applicable to the unexpired term hereof; the costs of removing and
storing Tenant's or other occupant's property; the costs of repairing,
altering, remodeling or otherwise putting the Leased Premises into condition
acceptable to a new tenant or tenants at a building standard level, and all
reasonable expenses incurred by Landlord in enforcing Landlord's remedies
hereunder, including reasonable attorneys' fees. Past due Rent and other past
due payments shall bear interest from maturity at four (4%) percentage points
over prime rate, of the average of the three (3) largest banks located in
Houston, per annum rate until paid.
H. In the event of termination or repossession of the Leased Premises
for an Event of Default, except to the extent required by law, and not
waivable by Tenant, Landlord shall not have any obligation to relet or
attempt to relet the premises, or any portion thereof, or to collect rental
after reletting; and in the event of reletting, Landlord may relet the whole
or any portion of the Leased Premises for any period, to any tenant, and for
any use and purpose. If Landlord is required by law, which is not waivable
by Tenant, to attempt to mitigate its damages by reletting the Leased
Premises resulting from an Event of Default by Tenant, Tenant agrees that
said duty shall be discharged by Landlord's engaging a manager or leasing
agent to attempt to relet the Leased Premises, which manager or leasing agent
will show the Leased Premises and attempt to lease same on the same basis as
it does with other space in the Building, and Tenant agrees that there shall
be no duty to give any priority or preference to the Leased Premises over
other available space in the Building.
I. If Tenant shall fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Leased Premises for such purpose), and thereupon Tenant shall be
obligated to, and hereby agrees, to pay Landlord upon demand, all costs,
expenses and disbursements (including reasonable attorney's fees) incurred by
Landlord in taking such remedial action.
J. In addition to the above described remedies, Landlord will also have
all other remedies provided by law in the event of any default hereunder by
Tenant. Tenant will pay Landlord's
16
expenses incurred in enforcing remedies for any default by Tenant, including
reasonable attorneys' fees.
25. SURRENDER.
On the last day of the Term, or upon the earlier termination of this
Lease, Tenant shall peaceably and quietly surrender the Leased Premises to
Landlord in good order, repair and condition at least equal to the condition
of same when delivered to Tenant, excepting only reasonable wear and tear
resulting from normal use and damage by fire or other casualty covered by the
insurance carried by Landlord. Tenant may remove its trade furniture, office
supplies and movable office furniture and equipment attached to the Building
provided: (1) such removal is made prior to the termination of the Term; (2)
Tenant is not in default of any obligation or covenant under this Lease at
the time of such removal; and (3) Tenant promptly repairs all damage caused
by such removal to Landlords reasonable satisfaction except for normal wear
and tear. All other building standard property at the Leased Premises
(including wall-to-wall carpeting, paneling or other wall covering) and any
other article attached or affixed to the floor, wall or ceiling of the Leased
Premises shall become the property of Landlord and shall remain in and be
surrendered with the Leased Premises as a part thereof at the termination of
this Lease by lapse of time or otherwise, Tenant hereby waiving all rights to
any payment or compensation therefor. If, however, Landlord so requests in
writing, Tenant will, prior to termination of this Lease, remove any and all
alterations, additions, fixtures, equipment and property placed or installed
by it in the Leased Premises and will repair any damage caused by such
removal. Notwithstanding anything herein to the contrary, Tenant's surrender
of the Leased Premises shall in no way affect Tenant's obligations under the
Additional Rental provisions of this Lease to the Expiration Date, whether or
not the amount of such obligation has been ascertained either as of the date
Tenant surrenders the Leased Premises or as of the Expiration Date.
26. HOLDING OVER.
If Tenant does not surrender possession of the Leased Premises at the
end of the Term or upon earlier termination of this Lease, at the election of
the Landlord, Tenant shall be a tenant-at-sufferance of Landlord and the Rent
and other payments due during the period of such holdover shall be one and a
half times the amount set forth above in effect immediately prior to the end
of the Term or termination of this Lease. No holding over by Tenant after the
Term shall operate to extend the Term hereof and, in the event of such
holding over, Tenant shall indemnify Landlord against any and all claims for
damages or loss resulting therefrom, including, but not limited to, claims by
any other tenant to whom Landlord may have leased all or any part of the
Leased Premises as of the termination of this Lease.
17
26A. APPROVED HOLD OVER SPACE.
Notwithstanding the foregoing, Tenant shall have the right to hold over
pursuant to the terms of this Lease as to approximately 5,000 square feet
identified as Exhibit "B" ("Approved Hold Over Space"). Such right shall
arise upon's Tenant's written notice to Landlord prior to termination of this
Lease that Tenant is exercising this right. Upon the giving of such notice
Tenant shall be obligated for all obligations hereunder as to such Approved
Hold Over Space and shall continue to have all rights hereunder as to such
Approved Hold Over Space until Tenant gives six (6) months written notice or
Landlord gives twelve (12) months written notice of its election to cancel.
The Approved Hold Over Space rental rate will be the current market rate
(which shall not be less than the rental rate described in paragraph 4, nor
more than a 150% of the rental rate described in paragraph 4) of the building
of which shall be mutually agreed upon prior to the commencement of the
Approved Hold Over Space commencement or Section 26. Holding Over will
govern. If Tenant elects to retain Approved Holdover Space, it shall be
subject to all terms and conditions of this Lease.
27. LIENS.
Tenant shall not permit any mechanics', materialmen's or other liens to
be fixed or placed against the Leased Premises, the Building or the Land and
agrees immediately to discharge (either by payment or by filing of the
necessary bond, or otherwise) any mechanics', materialmen's or other lien
which is allegedly fixed or placed against any of the foregoing.
28. ASSIGNMENT AND SUBLETTING.
A. Neither Tenant nor Tenant's legal representatives or successors in
interest by operation of law or otherwise shall assign this Lease or sublease
the Leased Premises or any part thereof or mortgage, pledge or hypothecate
its leasehold interest therein without the prior express written permission
of Landlord, which shall not be unreasonably withheld, and any attempt to do
any of the foregoing without prior express written permission of the Landlord
shall be void ab initio and of no effect. This prohibition against any
assignment or subletting shall be construed to include a prohibition against
assignment or subletting by operation of law, provide that any transfer of
this Lease from Tenant by merger or consolidation or any change in ownership
of power to vote a majority of the voting stock in Tenant outstanding at the
time of execution of this Lease shall not constitute an assignment for the
purpose of this Lease.
B. If Tenant should desire to assign this Lease or sublet the Leased
Premises or any portion thereof, Tenant shall give Landlord written notice of
such desire at least thirty (30) days in
18
advance of the date on which Tenant desires to make such assignment or
sublease. Landlord shall then have a period of thirty (30) days following
receipt of such notice within which to notify Tenant in writing that Landlord
elects either (1) to terminate this Lease as to the space so affected as of
the date so specified by Tenant, in which event Tenant will be relieved of
all further obligation hereunder as to such space after paying all Base
Rental, Additional Rental and other sums due as of such date, or (2) to
permit Tenant to assign or sublet such space, subject, however, to subsequent
written approval of the proposed assignee or sublessee by Landlord, or (3)
to refuse to consent to Tenant's assignment or subleasing of such space and
to continue this Lease in full force and effect as to the entire Leased
Premises. If Landlord shall fail to notify Tenant of such election within
said thirty (30) day period, Landlord shall be deemed to have elected option
(3) above, however such consent shall not be unreasonably withheld. Landlord
and Tenant specifically agree that, in the event of any approved assignment
or subletting the rights of any such assignee or subtenant of Tenant herein
to the use and occupancy of the Leased Premises shall be subject to all of
the terms, conditions and provisions of this Lease, including, without
limitation, restrictions on use and the covenant to pay Base Rental and
Additional Rental. Landlord may collect Base Rental and Additional Rental
directly from such assignee or subtenant and apply the amount so collected to
the Rent. No such consent to or recognition of any such assignment or
subletting shall constitute a release of Tenant, from further performance by
Tenant of covenants undertaken to be performed by Tenant herein, and Tenant
will remain liable and responsible for all Rent and other obligations herein
imposed upon Tenant.
C. Consent by Landlord to a particular assignment or sublease or other
transaction shall not be deemed a consent to any other or subsequent
transaction. If this Lease be assigned or if the Leased Premises be subleased
(whether in whole or in part) or in the event of the mortgage, pledge or
hypothecation of the leasehold interest without the prior express written
permission of Landlord, or if the Leased Premises be occupied in whole or in
part by anyone other than Tenant without the prior written permission of
Landlord, Landlord may nevertheless collect Rent from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, or other occupant and apply the net amount collected to the
Rent payable hereunder, but no such transaction or collection of Rent or
application thereof by Landlord shall be deemed a waiver of these provisions
or a release of Tenant from the further performance by Tenant of its
covenants, duties and obligations hereunder. In any case where Landlord
consents to any such assignment, sublease or other transaction, Landlord may
require that Tenant pay Landlord a reasonable sum as attorneys' fees arising
incident to such transaction. Any rental or other consideration payable to
Tenant under any permitted assignment or sublease, in excess of the Base
Rental set forth in this Lease, and
19
any additional rental payable to Tenant in excess of the Additional Rental
set forth in this Lease, shall be payable to Landlord.
29. CONDEMNATION.
If all or any part of or interest in the Leased Premises shall be taken
as a result of the exercise of the power of eminent domain or conveyance in
lieu thereof, this Lease shall terminate as to the part so taken as of the
date of taking. If only a part of or interest in the Leased Premises or if a
substantial portion of the Building is so taken, either Landlord or Tenant
shall have the right to terminate this Lease as to the balance of the Leased
Premises by written notice to the other within thirty (30) days after the
date of taking; provided, however, that a condition to the exercise by Tenant
of such right to terminate shall be that the portion of the Leased Premises
or Building taken shall be of such extent and nature as to substantially
handicap, impede or impair Tenant's use of the Leased Premises or the balance
of the Leased Premises remaining. In the event of any taking, Landlord shall
be entitled to any and all compensation, damages, income, rent, and awards
with respect thereto except for an award, if any, specified by the condemning
authority for any property that Tenant has the right to remove upon
termination of this Lease. Tenant shall have no claim against Landlord for
the value of any unexpired portion of the Term. In the event of a partial
taking of the Leased Premises which does not result in a termination of this
Lease, the Rent thereafter to be paid shall be proportionally reduced.
30. RIGHT TO RELOCATE.
DELETED
31. SUBORDINATION.
A. At the option of the holder of any Security Documents, as hereinafter
defined, the rights and interests of Tenant under this Lease and in and to
the Leased Premises shall be subject and subordinate to all deeds of trust,
mortgages, and other security instruments and to all renewals, modifications,
consolidations, replacements and extensions thereof (the "Security
Documents") heretofore or hereafter executed by Landlord covering the Leased
Premises, the Building or the Land or any part thereof, to the same extent as
if the Security Documents had been executed, delivered, and recorded prior to
the execution of this Lease. Subject to the foregoing provisions of this
paragraph 31, Landlord reserves the right, without notice to or consent of
Tenant, to assign this Lease and/or any and all Rent hereunder as security
for the payment of any mortgage loan, deed of trust loan or other method of
financing or refinancing. In the event of foreclosure by the holder of any
Security Document, at the option of said holder, Tenant shall attorn to said
holder as Landlord.
20
B. After the delivery to Tenant of a notice from Landlord that it has
entered into one or more Security Documents, then, during the term of such
Security Documents, Tenant shall grant to such holder or holders the right to
cure all defaults, if any, of Landlord hereunder within the same time period
provided in this Lease for curing such defaults by Landlord. At any time and
from time to time upon not less than ten (10) days prior notice by Landlord,
Tenant shall execute, acknowledge, and deliver to Landlord a statement of
Tenant in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications, if any), and
stating whether or not to the best knowledge of Tenant, Landlord is in
default in the keeping, observance or performance of any covenant, agreement,
term, provision or condition contained in this Lease and, if so, specifying
each such default of which Tenant may have knowledge, it being intended that
any such statement may be relied upon by any prospective purchaser, tenant,
mortgagee or assignee of any mortgage of the Building or the Land or of
Landlord's interest therein. The failure of Tenant to execute and deliver to
Landlord a statement in accordance with the provisions hereof shall
constitute an acknowledgement by Tenant which may be relied upon by any such
purchaser, tenant, mortgagee or assignee of any such mortgage that this Lease
is unmodified and in full force and effect, that the Rent has been duly and
fully paid to and including the respective due dates immediately preceding
the date of such notice, and that Landlord is not in default. Failure by
Tenant to deliver timely such statement shall constitute, as to any person
entitled to rely upon such statement, a waiver of any defaults which may
exist prior to the date of such notice.
32. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed and enforced in accordance with the laws of
the State of Texas. The determination that one or more provisions of this
Lease is invalid, void, illegal or unenforceable shall not affect or
invalidate the remainder. If the rights of the Tenant hereunder are owned by
two or more parties or two or more parties are designated herein as Tenant,
then all such parties shall be jointly and severally liable for the
obligations of Tenant hereunder, and any notice required or permitted by the
terms of this Lease may be given by or to any one thereof and shall have the
same force and effect as if given by or to all thereof. Titles are for
convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this Lease. In all instances where Tenant or
Landlord is required hereunder to pay any sum or to do any act at a
particular indicated time or within an indicated period, it is understood
that time is of the essence. To the full extent permitted by law, the
obligation of Tenant to pay all Rent and other sums hereunder provided to be
paid by Tenant and the obligation of Tenant to perform Tenant's other
covenants
21
and duties hereunder constitute independent, unconditional obligations to be
performed at all times provided for hereunder, save and except only when an
abatement thereof or reduction thereof is hereinabove expressly provided for
and not otherwise. The use of the neuter singular pronoun to refer to
Landlord or Tenant shall be deemed a proper reference, even though Landlord
or Tenant may be an individual, a partnership, a corporation, or group of two
or more individuals, partnerships, or corporations.
B. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and shall be binding upon and inure to
the benefit of Tenant, its successors, and, to the extent assignment may be
approved by Landlord or is otherwise permissible hereunder, Tenant's assigns.
No payment made by Tenant or received by Landlord in an amount less than the
monthly Base Rental, Base Parking or Additional Rental herein stipulated
shall be deemed to be other than on account of the earliest stipulated unpaid
Base Rental or Additional Rental, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment of such Rent be
deemed an accord and satisfaction, and Landlord may accept any such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or to pursue any other remedy in this Lease or by law provided to
Landlord. All payments due hereunder shall be deemed made on the date
postmarked for delivery by the United States Post Office.
C. Landlord does not become a partner of Tenant in the conduct of its
business or otherwise, or a joint venturer or a member of a joint enterprise
with Tenant by virtue of this Lease. Any representation, warranty, covenant
or agreement contained herein which contemplates performance after the
expiration or termination of this Lease shall be deemed to survive such
expiration or termination.
D. Tenant and its counsel have had full opportunity to review and
negotiate the terms and provisions of this Lease. Accordingly,
notwithstanding that this Lease was drafted by Landlord, in the event of any
ambiguous provision hereof, there shall be no presumption in favor of either
Landlord or Tenant in the interpretation or construction of any provision of
this Lease.
E. No oral statements or prior written material not specifically
incorporated herein shall be of any force or effect. Tenant agrees that in
entering into and taking this Lease, it relies solely upon the
representations and agreements contained in this Lease and not elsewhere.
This Lease, including the exhibits which are attached hereto and made a part
hereof, constitutes the entire agreement of the parties hereto and shall in
no way be conditioned, modified, or supplemented except by a written
agreement executed by both parties.
22
F. Except to the extent expressly set out in this Lease, to the full
extent allowed by law, Landlord disclaims all representations or warranties
to Tenant of any kind, whether express or implied, including without
limitation as to condition of the Leased Premises or Building (including
without limitation suitability for particular purpose or commercial use), and
provision of services.
G. From time to time as promptly requested by Landlord, Tenant shall
deliver to Landlord a written statement stating that this Lease is in full
force and effect, that Landlord is not in default (or specifically setting
out any defaults), the Commencement Date, the Expiration Date and that all
obligations of Landlord to build-out the Leased Premises have been completed
(or stating any work yet to be done), the date through which Rent is paid,
and the amount of any Security Deposit held by Landlord, if any. If Tenant
fails to respond to Landlord's request for such a written request to Tenant,
it shall be deemed that the facts are as set out in the statement prepared by
Landlord and submitted to Tenant at the time Landlord makes the request to
Tenant, and Landlord and any prospective purchaser of or lender regarding the
Building may rely on same.
H. At all times during the term of this Lease, Tenant covenants and
agrees that Tenant shall not cause or permit any Hazardous Materials to be
brought upon, kept, or used in or about the Leased Premises by Tenant,
Tenant's agents, employees, customers, clients, invitees, licensees, or
contractors without prior written notice to Landlord. Upon request of
Landlord, Tenant must demonstrate to Landlord's reasonable satisfaction that
such Hazardous Material is necessary or useful to Tenant's business and it
will be used, kept, and stored in a manner that complies with all laws
regulating any such Hazardous Material so brought upon or used or kept in or
about the Leased Premises. As used herein, the term "Hazardous Material"
means any pollutant, toxic substance, hazardous waste, hazardous material,
hazardous substance, or oil as defined in or pursuant to the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, the Federal Clean
Water Act, as amended, the Emergency Planning and Community Right to Know Act
of 1986, as amended, the Toxic Substantial Control Act as amended; all rules
and regulations promulgated with respect thereto; and all other federal,
state and local laws, regulations ordinances, rules and bylaws, whether now
existing, previously in force, or subsequently enacted.
I. Brokers: Tenant and Landlord represents that they have dealt only
with his exclusive broker representative, ESSEX Realty Services, Inc., and
the Landlord's representative REALSOURCE SERVICES for this transaction, and
shall hold each party harmless from any outside claims for brokerage
commission.
23
J. Confidential Disclosure Agreement: Tenant, Tenant's employees and
agents specifically agree that they will not at any time, in any fashion,
form or manner, either directly or indirectly, divulge, disclose, or
communicate to any person, firm, or corporation that is not an agent or
consultant of Tenant in any manner whatsoever any information of any kind,
nature, or description concerning any matters affecting or relating to the
business and legal terms of this Lease. The parties stipulate that, between
them, the matters of this Lease are important, material, and confidential and
gravely affect the effective and successful conduct of the business of the
Landlord, and that any breach of the terms of this section is a breach of
this agreement.
IN WITNESS WHEREOF, this Lease is hereby executed as of the date first above
set forth.
"LANDLORD" SALITEX II, LTD.
/s/ XXXXXXXX XXXXX
------------------------------------
By Xxxxxxxx Xxxxx
-----------------------------------
Title V.P., Salitex Corp.,
General Partner
--------------------------------
"TENANT" CYBERONICS, INC.
/s/ XXXXX X. XXXX
--------------------------------------
By Xxxxx X. Xxxx
-----------------------------------
Title President & CEO
--------------------------------
24
EXHIBIT "A"
FIRST FLOOR
[FLOOR PLAN]
A-1
EXHIBIT "A-1"
LEGAL DESCRIPTION
RESERVE C, Abstract 88 Xxxxxx Xxxxxx League
Medical Center Plaza
2.1420 Acres
A-2
EXHIBIT "B"
1 FIRST FLOOR
[FLOOR PLAN]
B-1
EXHIBIT "B-1"
SITE PLAN
[MAP]
B-2
EXHIBIT "C"
RULES AND REGULATIONS
Tenant agrees for itself, its employees, agents, clients, customers,
invitee, guests and licensees, to comply fully with the following rules and
regulations and with such reasonable modifications thereof and additions
there to as Landlord may make for the Building.
1. Sidewalks, doorways, vestibules, halls, stairways and similar
areas shall not be obstructed by tenants or their officers, ingress and egress
to and from the Premises and for going from one part of the Building to
another part of the Building. Tenants shall not place objects against glass
partitions, doors or windows which would be unsightly from the Building's
corridors, or from the exterior of the Building. Tenant shall have the right
to black-out windows in offices along front area.
2. No dust, rubbish, or litter shall be swept from any room into any
of the corridors, except under the direction of the janitor nor shall the
same, or anything else, be thrown or emptied from the windows, or down
skylights or elevator shafts of the Building, and no slops, ashes, coffee
grinds, dirt or other rubbish shall be emptied into the water closets. Tenant
shall provide adequate waste and rubbish receptacles, such as plastic bags,
to be placed in their own waste and rubbish receptacle to accommodate the
disposal of slops, ashes and coffee grinds. Cigarette butts or wrappers will
be disposed of in containers provided by the Tenant in the Premises or placed
in trash receptacles provided by the Landlord in public areas.
3. The Building toilet rooms, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever, shall be thrown
therein and the expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose
employees or invitee, shall have caused it.
4. Tenant will not introduce or place any foreign substance of any
kind such as photographic fluids, lead substances (i.e., barium), or other
chemicals and fluids that Tenant may use in its course of business into the
plumbing and/or waste disposal or the Building which results in surcharge
which may be charged the Landlord by any city, state, federal or other
governmental agency for the presence of these substances in the waste
disposal. Landlord acknowledges that Tenant will be using photographic fluids
and Tenant shall comply with all City requirements for disposal of fluids.
C-1
5. Except as set forth in the Agreement, tenants shall not paint,
display, inscribe, maintain, or affix any sign, picture, advertisement,
notice, lettering or direction on any part of the outside or inside of the
Building, or on any part of the inside or the Premises which can be seen from
the exterior, unless Landlord gives specific written approval. Landlord
reserves, without liability, but after twenty-four (24) hours notice to
tenants, the right to remove at tenant's expense all matter which violates
this rule. Landlord approves of signage presently in use by Tenant.
6. Tenant shall not use the name of the Building, without Landlords
consent which shall not be unreasonably withheld, for any purpose other than
that of the business address of the tenant, and shall not use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence.
7. Directories may be placed by Landlord in the Building and Tenant's
name shall be included at no initial charge to Tenant. No other directories
will be permitted. Changes, additions and deletions to directory listings
requested by Tenant shall be at Tenant's expense.
8. The Premises shall not be used for conducting any barter, trade,
or exchange of goods or sale through promotional give-away, gimmicks or any
business involving the sale of secondhand goods, insurance salvage stock, or
fire sale stock and shall not be used for any auction or pawnshop business,
any fire sale, bankruptcy sale, going-out-of-business sale, moving sale, bulk
sale, or any other business which, because of merchandising methods or
otherwise, would tend to lower the first-class character of the Building.
9. Canvassing, soliciting, and peddling in the Building is prohibited
without the written permission of Landlord and Tenant shall cooperate to
prevent same.
10. If any governmental license or permit shall be required for the
proper and lawful conduct of tenant's business, such tenant, before occupying
the Premises, shall procure and maintain such license or permit and submit it
for Landlord's inspection and shall at all times comply with the terms of any
such license or permit.
11. Tenants shall not do anything, or permit anything to be done, in
or about the Building, or bring or keep anything therein, that will in any
way increase the possibility of fire or other casualty or obstruct or
interfere with the rights of, otherwise injure or annoy, other tenants, or do
anything in conflict with valid pertinent laws, rules or regulations or any
governmental authority having jurisdiction or authority over such instances.
Landlord acknowledges that Tenant will have oxygen and other gases in
premises, but Tenant still responsible as stated above.
C-2
Landlord approves of present use of facilities by Tenant.
12. Tenant shall not place, install or operate on the Premises or in
any part of the Building, any engine, stove, appliance or machinery, or
conduct mechanical operations or xxxx thereon or therein, or place or use in
or about the Premises any explosives, gasoline, kerosene, oil, acids,
caustics, or any other flammable, explosive, or hazardous material without
prior written consent of Landlord unless used in the normal operation of
Tenant's business. Tenant may have microwave in premises.
13. Tenants shall not place a load upon any floor of the Premises
which exceeds the floor load per square foot which is allowed by applicable
building code. Tenant shall not instal any heavy objects, safes, business
machines, files or other equipment without having received Landlord's prior
written consent as to size, maximum weight, routine and location thereof.
All damage done to the building by the improper placing of heavy items which
over stresses the floor will be repaired at the sole expense of Tenant.
Safes, furniture, equipment, machines and other large or bulky articles shall
be brought through the building and into the out of the Premises at such
times and in such manner as the Landlord shall direct (including the
designation of elevator) and at Tenant's sole risk and responsibility. Prior
to Tenant's removal of any such articles from the building, Tenant shall
obtain written authorization therefor at the office of the Building and shall
present such writing to a designated employee of Landlord.
14. All deliveries must be made via the service entrance and
designated service elevators (if available) during normal business hours.
Prior approval must be obtained from Landlord for any deliveries that must be
received after normal business hours.
15. Tenant shall use only the elevator so designated by Landlord as a
"freight elevator" (whether such designation is physically located on or near
said elevator is in the Rules and Regulations promulgated by Landlord for
this Building or is given to Tenant directly by Landlord for the
transportation of freight, furniture, inventory, equipment or other items
which would interfere in any way with the public use of the non-freight
elevators because of either the size or frequency of the items being
transported or delivered to the Premises.
16. Movement in or out of the Building of furniture of office
equipment, telegraphic, telephonic, or any other communication service, or
receipt by Tenant of any merchandise or materials which requires the use of
elevators or stairways, or movement through the Building entrances or lobby
shall be restricted to the hours designated by Landlord from time to time.
All such movement shall be as directed by Landlord and in a manner to be
agreed upon
C-3
between Tenant and Landlord by prearrangement before performance. Such
prearrangement initiated by Tenant shall be include reasonable determination
by Landlord as to time, method, and routine of movement, and limitations
imposed by safety or other concerns which may prohibit any article, equipment
or any other item from being brought into the Building. Tenant expressly
assumes all risk of damage to any all articles moved by Tenant, as well as
injury to any person or persons or the public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord, if
carrying out this service for Tenant from the time of entering property to
completion of the work; and Landlord shall not be liable for the act or
acts of any person or persons so engaged in, or any damage or loss to any
property of persons resulting directly or indirectly from any act in
connection with such service performed by or for Tenant.
17. The removal of furniture and office machines except in the normal
course of business from the Building will require the presentation of a
permit or written authorization by an authorized representative of the
Landlord. Security Guards will have the right to challenge all persons
leaving the Building with articles.
18. Tenant is cautioned in purchasing furniture that the size is
limited to such as can be placed on the elevator and will pass through the
doors of the offices. The Landlord reserves the right to refuse to allow to
be placed in the Building any furniture or fittings of any description which
do not comply with such conditions.
19. On Sundays, legal holidays (defined as Christmas Day, New Year's
Day, President's Day, Memorial Day, Independence Day, Labor Day and
Thanksgiving Day), and on other days after normal working hours, persons will
not be allowed access to the Building, or to the halls, corridors, elevators,
or stairways in the Building, or to the Premises unless the persons seeking
access are known to the security guard on duty or present satisfactory
identification to such security guard. Persons permitted to enter the
Building on Sundays, holidays, and after normal working hours on other days
will be requested to sign the log book on entering and also when leaving the
Building. Landlord shall in no case be liable for damages for any error with
regard to the admission to or exclusion from the Building of any person. In
case of invasion, mob, riot, public excitement, or other commotion, Landlord
reserves the right to prevent access to the Building during the continuance
of the same by closing the doors or otherwise for the safety of the tenants,
and protection of the Building and property in the Building.
20. Landlord has the right to evacuate the Building in event of
emergency or catastrophe.
21. Landlord reserves the right to exclude or expel from the
C-4
Building any person who, in the judgement of Landlord, is intoxicated or
under the influence of liquor or drugs, or is or may be disruptive or cause
an inconvenience to Landlord or other tenants, or who shall in any manner do
any act in violation of any of the rules of the Building.
22. Tenant will refer all contractors, contractor's representatives
and installation technicians rendering any service for Tenant, to Landlord
for Landlord's supervision and/or approval before performance of any such
contractual services. This requirement shall apply to all work performed in
the Building including, but not limited to, installation of telephones,
telegraph equipment, electrical devices and attachments, and installations of
any and every nature affecting floors, walls, woodwork, trim, window,
ceilings, electrical wiring, equipment or any other physical portion of the
Building. None of this work will be done by Tenant without Landlord's prior
written approval.
23. Tenant shall not make or permit any excessive noises cause
disturbance or vibrations, or use or operate any musical, electrical or
electronic devices that emit loud sounds or airwaves which may disturb, annoy
or otherwise interfere in any way with other tenants, or persons having
businesses with them.
24. No equipment of any kind shall be operated on the Premises that
could in any way annoy other tenant in the Building.
25. Business machines and mechanical equipment belonging to any
tenant which cause noise and/or vibration that may be transmitted to the
structure of the Building or to any leased space so as to be objectionable to
Landlord or any other tenants in the Building shall be placed and maintained
by such tenants, as such tenant's expense, in settings of cork, rubber, or
spring type noise and/or vibration eliminators sufficient to eliminate
vibration and/or noise.
26. Tenant shall not create any odors which may be offensive to other
tenants or occupants of the Building.
27. Landlord has provided electrical outlets for use by the Tenant in
the operation of Tenant's typewriters, adding machines, and such other office
machines requiring 110 voltage and all other uses of electricity are
prohibited unless otherwise authorized by Landlord, and Tenant shall be
responsible for any and all damage caused by the prohibited use of
electricity. Any use of electrical extension cords will comply with
requirements of the City in which the Building is situated and other
applicable Building Code Regulations with respect to length and type of
service. Power demand from any one Building Standard duplex outlet
receptacles will not exceed 20 amps.
28. Tenant shall not waste electricity, water or air-
C-5
conditioning, and shall cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-conditioning. Tenant
shall not adjust any control other than room thermostats installed for
Tenant's use.
29. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electric wiring in the Building and the Premises
and the needs of other tenants, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric equipment shall
not relieve Tenant from the obligation not to use more electricity than such
safe capacity.
30. The exterior of windows may be cleaned at any time. Tenant shall
provide adequate waste and rubbish receptacles, cabinets, bookcases, etc.,
necessary to prevent unreasonable hardship to Landlord in discharging its
obligation regarding cleaning service.
31. No Tenant or occupant shall employ any janitor or other person to
take care of premises occupied by them other than the regular cleaning
personnel of the Building, except by prior notification of the Landlord or
its authorized agents.
32. Tenant will be responsible for any damage to carpeting and
flooring as a result of negligence or acts of Tenant of rust or corrosion of
Tenant's file cabinets, potholders, roller chairs and other metal objects.
33. Tenant shall not in any manner deface or damage the Building.
34. DELETED
35. Each tenant shall cooperate with Building employees in keeping
the Premises neat and clean and operating efficiently.
36. Where applicable, Tenant, Tenant's agent or employees must
observe strict care not to leave windows open when it rains or snows; and
from any default or carelessness in these respects, or any of them, shall
make good all injury sustained by other tenants, and to the Landlord for
damage to paint, plastering or other parts of the Building, resulting from
such default or carelessness.
37. All entrance doors to the Premises shall be left locked and all
windows shall be left closed by Tenant when the Premises are not in use.
Corridor doors shall not be left open at any time.
38. Tenant assumes full responsibility for protecting the Premises
from theft, robbery and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all doors to the Premises locked and other means of
entry to the Premises closed and secured.
C-6
Landlord will not be responsible for any lost or stolen personal property,
equipment, money, or jewelry from Tenant's Premises or public rooms
regardless of whether such loss occurs when the area is locked against entry
or not.
39. Personal property left on the Premises at the expiration of the
Agreement may be stored or removed from the Premises by Landlord at the full
risk, cost and expense of the Tenant. The Landlord shall in no event be
responsible for the value preservation or safekeeping thereof. Any time after
ten (10) days from their termination of this Agreement, the Landlord may
dispose of such personal property in any way that it deems proper. If the
Landlord shall sell any such personal property, it shall be entitled to
retain from the proceeds the amount of rent due, together with cost of
storage and the expense of the sale.
40. No additional locks or similar devices shall be attached to any
door and no locks shall be changed except by Landlord. Upon termination of
this Agreement or of Tenant's possession of the Premises, Tenant shall
surrender all keys for door locks and other locks in or about the Premises
and shall make known to Landlord the combination of all locks, safes,
cabinets and vaults which are not removed by Tenant.
41. No birds, animals (except those for the handicap), bicycles or
motorized vehicles shall be brought into or kept in or about the Building.
42. Except for Tenant's private vending machines, no food, soft drink
or other vending machines will be installed within the Premises without first
obtaining the written consent of Landlord, which consent Landlord may
withhold or grant, in its sole and arbitrary discretion.
43. No food shall be prepared or cooked in the Premises, and the
Premises shall not be used for housing, lodging, sleeping, or for any immoral
or illegal purpose. Nothing contained in this clause, however, shall be
constructed to prohibit to Tenant's operation of an employee coffee lounge
facilities in the Premises.
44. The requirements of the tenants will attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless under
special instructions from Landlord.
45. Landlord reserves the right to rescind any of these rules and make
other and further rules and regulations as in the judgement of Landlord shall
from time to time be needed for the safety, protection, care and cleanliness of
the Building, the operation thereof, the preservation of good order therein,
and the protection and comfort of its tenants, their agents, employees and
invitee, which rules when made and notice thereof given to a Tenant
C-7
shall be binding upon him in a like manner as if originally herein
prescribed. In the event of any conflict, inconsistency, or other difference
between the terms and provisions of these Rules and Regulations, as now or
hereafter in effect and the terms and provisions of any lease now or
hereafter in effect between Landlord and any tenant in the Building, Landlord
shall have the right to rely on the term or provision in either such lease of
such Rules and Regulations which is most restrictive on such tenant and most
favorable to Landlord. All changes to rules and regulations will apply to all
tenants equally, except parking issues.
CAVEAT: Any failure by Landlord to enforce any of the aforesaid Rules and
Regulations now or hereafter in effect, either against Tenant or any other
tenant in the building, shall not constitute a waiver of any such Rules and
Regulations, and Landlord shall not be responsible to Tenant for the failure
or refusal by any other tenant, guest, invitee, visitor, licensee or
occupancy of the building to observe or comply with any of the Rules and
Regulations.
PARKING REGULATIONS
1. There will be no parking in any area of the property other than those
areas clearly marked and defined for parking.
2. Parking for authorized employees will be on the basis of
first-come-first served.
3. Tenant, its employees, agents, customers and guests will be expected to
park their cars in an orderly manner within the marked stalls provided.
4. It is recommended that cars be left in a "brakes on, doors locked"
condition at all times.
5. No car will be allowed to park in any driveway area or in any manner
which will interfere with the normal flow of traffic.
6. Cars parked illegally will be towed at the car owner's expense.
7. Tenant agrees that all its servants, clients, customers, employees,
agents, visitors, invitee and licensees have been or will be fully
informed as to the content of these regulations.
8. Landlord or Landlord's officers, agents and employees shall not be
liable for and Tenant waives all claims for damage to person or
property sustained by Tenant or any person claiming through Tenant
resulting from any accident or occurrence in
C-8
and upon the parking areas.
9. Tenant shall have four (4) designated parking spaces reserved
exclusively for Tenant adjacent to their manufacturing area, more
precisely described as Exhibit "B-2".
CAVEAT: Any failure by Landlord to enforce any of the aforesaid parking
regulations now or hereafter in effect, either against Tenant or
any other tenant in the Building, shall not constitute a waiver of
any such regulations, and Landlord shall not be responsible to Tenant
for the failure or refusal by any other tenant, guest, invitee,
visitor, licensee or occupant of the Building to observe or comply
with any of the regulations.
C-9
EXHIBIT "D"
SPECIAL PROVISIONS
1. BUILDOUT RENT
Tenant agrees to pay through August 27, 1995, the buildout rent in the
amount of $856.43 per month as Additional Rent. This charge was for the
original amortization of the clean room and began on the Original
Commencement Date to amortize $38,500.00 of special Tenant buildout over the
Lease Term at 12% per annum in equal monthly installments of principal and
interest.
2. REFUSAL RIGHT
Subject to the conditions set forth in this Exhibit, and provided Tenant
is not in default under this lease either at the time Tenant exercises the
Refusal Right or at the time the Refusal Space is delivered to Tenant,
Landlord hereby grants to Tenant a right of first refusal on all space in the
building excluding the rights of existing tenants and renewals of existing
tenants.
EXERCISE OF REFUSAL RIGHT. In the event all or any portion of (the
"Refusal Space") becomes available for lease, and Landlord has received a
bona fide offer to lease all or any portion of such Refusal Space from an
independent third party ("Third Party") which Landlord desires to accept,
Landlord or Landlord's agent shall notify in writing Tenant of the
availability for lease of such Refusal Space and shall include in such notice
Base Rent and Additional Rent (and expense stop, or base year) for such
Refusal Space, and any concessions (in the nature of "free" rent, buildout
allowance, moving allowance, or the like) with respect to the lease of such
Refusal Space which Landlord would agree to grant to a third party. Tenant
shall have ten (10) days after the receipt of Landlord's notice of the
availability of any Refusal Space for lease in which to notify Landlord or
Landlord's agent in writing of the exercise by Tenant of Tenant's acceptance
of the Refusal Right with respect to the Refusal Space described in
Landlord's notice to Tenant. In the event that Tenant fails to notify
Landlord within such ten (10) day period that Tenant elects to exercise
Tenant's Refusal Right with respect to the Refusal Space, Tenant shall be
deemed to have waived Tenant's Refusal Right with respect to such Refusal
Space only; and Landlord shall have the right to enter into a lease with any
party, including Third Party, with respect to that Refusal Space on
substantially the same terms and conditions specified in Landlord's notice to
Tenant of the availability for lease of such Refusal Space for a period of
sixty (60) days after Tenant has waived their Refusal Right.
D-1
FIRST ADDENDUM TO LEASE AGREEMENT
This First Addendum to Lease Agreement ("First Addendum") is entered into as
of April 18, 1996 (the "Effective Date") between Salitex II, LTD ("Landlord")
and Cyberonics, Inc. ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement
dated as of the 3rd Day of November, 1994 (the "Lease"), covering
approximately 16,591 square feet of net rentable square feet on the first
floor of the building known as the Clear Lake One office building located at
00000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx.
B. Landlord and Tenant desire to amend the Lease to add and
additional 2,555 square feet of net rentable area to the Premises and as
otherwise hereinafter provided.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual obligations
hereinafter set forth and other food and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and confessed, Landlord and
Tenant hereby agree as follows:
1. DEFINITIONS. The capitalized terms used in this First Addendum
that are not defined herein shall be the same meaning ascribed thereto in the
Lease.
2. ADDITIONAL SPACE. Subject to and upon the terms, provisions and
conditions set forth in the Lease, as amended by this First Addendum,
Landlord hereby leases and demises to Tenant and Tenant hereby leases from
Landlord approximately 2,555 square feet of net rentable area (as defined in
the Lease) on the first floor of the Clear Lake One office building, as shown
on Exhibit "A-1" hereto (the "Additional Space").
3. COMMENCEMENT DATE. The Commencement date for the additional
space will be May 1, 1996. (referred to hereafter in this First Addendum as
the "Commencement Date").
4. ADDITIONAL BASE RENT. Subject to and upon the term, provisions
and conditions set forth in the Lease, as amended by this First Addendum,
Tenant hereby agrees to pay in additional Minimum Rent the amount of
$2,555.00 per month commencing on the Commencement Date through the end of
the Term of Lease (October 31, 1997). Total Minimum Monthly Rent shall be
$19,146.00.
page 1 of 2
5. ADDITIONAL RENT CHARGES. In addition to the new additional base
Rent, Tenant will pay commencing on the Commencement Date based on the
additional premises, 2,555 net rentable square feet, Additional Charges as
set forth in the body of the Lease, under section 6, Additional Rental.
6. CONSTRUCTION RIDER, EXHIBIT "B". Subject to the conditions set
forth in the original Lease and the attached construction rider (Exhibit "B")
Landlord will provide $5,110.00 to buildout the "Additional Space".
Tenant and Landlord represent that they have dealt only with the Landlord's
representative, Realsource Services, for this First Addendum, and shall hold
each party harmless from any outside claims for brokerage commissions.
This Amendment is intended to amend the provisions of the Lease only to the
extent expressly set forth herein. All of the terms, covenants and provisions
set forth in the Lease are hereby ratified and confirmed except as expressly
amended hereby, and Landlord and Tenant hereby agree that the Lease shall
continue in full force and effect in accordance with its terms, as amended
hereby. Landlord and Tenant further agree that the termination date of the
additional space shall be the same as the Lease Agreement dated November 3,
1994 and shall be subject to the same obligations and privileges of the
original Lease Agreement.
Executed effective as the date first set forth above although actually
executed on the dates set forth opposite the name of the signature of the
parties.
DATE: 4/23/96 LANDLORD:
---------------------- SALITEX II, LTD.
by: /s/ XXXXXXXX XXXXX
------------------------------------
name: Xxxxxxxx Xxxxx
----------------------------------
Title: V.P.
---------------------------------
DATE: 4/18/96 TENANT:
----------------------- CYBERONICS, INC.
by: /s/ XXXX XXXXXXXX
------------------------------------
name: Xxxx Xxxxxxxx
----------------------------------
Title: VP, Finance & Administration/CFO
---------------------------------
page 2 of 2
EXHIBIT "A"
FIRST FLOOR
[FLOOR PLAN]
A-1
EXHIBIT "B"
CONSTRUCTION RIDER
TENANT: CYBERONICS, INC.
LANDLORD: SALITEX II, LTD.
LOCATION: 00000 XXXXXXX 0, XXXXXXX, Xxxxx 00000
DATE: April 15, 1996
Subject to Landlord's prior written approval of Tenant's plans and
specifications, general contractor(s), and all sub-contractors, which
approval shall not be unreasonably withheld or delayed, in compliance with
all applicable ordinances, rules and regulations applicable thereto, at
Tenant's sole risk, cost, and expense, Tenant shall construct, in a good and
workmanlike manner, improvements in the Leased Premises, and upon completion
of such construction be Tenant and compliance by Tenant with the following
requirements, Landlord shall reimburse Tenant for the actual cost of such
construction (including architectural fees) or $5,110.00, whichever is less;
provided, Tenant must furnish Landlord each and all of the following:
1. Copy of contractor's contract and all amendments and change orders,
2. Evidence of contractor insurance including fire and extended
coverage, public liability and fire legal,
3. Notice to Landlord that Tenant has actually opened for business
stating date opened and execution of lease commencement letter.
(Lease acceptance letter)
4. Certificate of Occupancy or other evidence of final inspection city
and fire authorities that the Leased Premises is ready for occupancy,
and
Payment by Landlord shall be made within fifteen (15) days after Tenant has
delivered to Landlord the documents and items set forth above.
Landlord and Tenant agree that during all phases of construction of the
Lease Premises, Tenant and Tenant's contractors shall have reasonable use of
the utilities and shall use the rear door and rear stairways to the second
floor, and Landlord agrees to otherwise accommodate Tenant and Tenant's
contractors as may be necessary in Landlord's position as Landlord, to permit
the orderly and timely completion of Tenant's Work, however, Tenant shall not
EXHIBIT "B"
Page 1 of 3 pages
interfere with other tenant's use of the Building during construction. Tenant
and Tenant's contractors will be permitted access to the elevator through
the lobby and elevator in such a way to minimize interference and disruption
of other tenants in the Building.
Landlord shall deliver to Tenant such information and building plans as
are required to enable Tenant to prepare the Tenant Working Drawings (defined
below) for any and all leasehold improvements (the "Leasehold Improvements")
desired by Tenant in the Leased Premises (said plan and other information and
instructions being called the "Landlord Building Plan" and "Site Plan").
Tenant shall cause drawings (hereinafter called "Tenant Working
Drawings") of the Leasehold Improvements to be prepared at Tenant's expense.
The Tenant Working Drawings shall consist of the complete sets of plans and
specifications in the form of working drawings or construction drawings, for
all the Leasehold Improvements. In addition, Landlord will provide HVAC
services to the Leased Premises based upon Tenant's Working Drawings.
Tenant may use its own contractor and architect in completing its Leasehold
Improvements. Landlord hereby approves _______________________ as the
architect and _______________________ as the general contractor for such
work. Any other architect or general contractor must be approved by Landlord
which approval will not be unreasonably withheld. Landlord agrees to provide
Tenant with $2.00 per square foot of net rentable area of the Leased Premises
as an improvement allowance such amount being $5,110.00 to be used by Tenant
toward the cost of such work payable within fifteen (15) business days of
receipt of appropriate evidence and certificates of completion as well as
waivers and releases from all contractors and materialmen.
Upon Landlord's approval of the Tenant Working Drawings, Tenant agrees
to commence construction of the Leasehold Improvements and diligently and in
good faith pursue such construction to its conclusion.
The phrases "substantial completion" or "substantially complete" shall
mean the construction of the Leasehold Improvements has been completed in
accordance with the Tenant Working Drawings except as noted on any Punch List
of items remaining incomplete, all construction debris has been removed from
the Leased Premises and the Leased Premises are clean, the Leased Premises
may reasonably be used and occupied for he purposes intended by the Tenant
and the progress of the construction of the Leasehold
EXHIBIT "B"
Page 2 of 3 pages
Improvements to date is such that final completion of the Leasehold
Improvements can occur within a reasonable period of time and without undue
interference to the Tenant's use of the Leased Premises and all required
certificates of occupancy have been issued.
EXECUTED in multiple counterparts, each of which shall have the force
and effect of an original, on the 24th day of April, 1996.
SALITEX II, LTD
BY:
By: /s/ XXXXXXXX XXXXX
---------------------------------
Name: Xxxxxxxx Xxxxx
---------------------------
Title: V.P.
--------------------------
"Landlord"
CYBERONICS, INC.
ATTEST:
By: /s/ XXXX XXXXXXXX
----------------------------- ---------------------------------
Name: Xxxx Xxxxxxxx
Title: VP, Finance &
Administration/CFO
--------------------------
"Tenant"
EXHIBIT "B"
Page 3 of 3 pages
SECOND ADDENDUM TO LEASE AGREEMENT
This Second Addendum to Lease Agreement ("Second Addendum") is entered into
as of April 30, 1997 (the "Effective Date") between Salitex II, LTD as
("Landlord") and Cyberonics, Inc. as ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated as
of the 3rd day of November, 1994 (the "Lease"), and then modified under
the First Addendum on April 18, 1996 covering approximately 19,146 square
feet of net rentable square feet on the first floor of the building known
as Clear Lake One office building located at 00000 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx.
B. Landlord and Tenant desire to amend the Lease to add an additional 5,889
square feet of net rentable area to the Premises and as otherwise
hereinafter provided.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual obligations
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which hereby acknowledged and confessed, Landlord and
Tenant hereby agree as follows:
1. DEFINITIONS. The capitalized terms used in this Second
Addendum that are not defined herein shall be the same meaning
ascribed thereto in the Lease.
2. ADDITIONAL SPACE. Subject to and upon the terms, provisions
and conditions set forth in the Lease, as amended by this Second
Addendum, Landlord hereby leases and demises to Tenant and Tenant
hereby leases from Landlord approximately 2,439 square feet of net
rentable area (as defined in the Lease) on the first floor (Exhibit
A-1, A-2) and approximately 3,450 square feet of net rentable area
(as defined in the Lease) on the second floor (Exhibit B-1, B-2) of
the Clear Lake One office building, as shown on the exhibits hereto
("Additional Space")
3. COMMENCEMENT DATE. The Commencement date for the additional
space will be May 1, 1997. (referred to hereafter in this Second
Addendum as the "Commencement Date")
4. ADDITIONAL BASE RENT. Subject to and upon the terms, provisions
and conditions set forth in the Lease, as amended by this Second
Addendum, Tenant hereby agrees to pay in Additional Minimum Rent
the amount of $5,889.00 per month commencing on the Commencement
Date through the end of the Term of the Lease (November 3, 1997).
Total Minimum Monthly Rent shall be $25,035.00.
5. ADDITIONAL RENT CHARGE. In addition to the new additional base
rent, Tenant will pay commencing on the Commencement Date based on
the additional premises, 5,889 net rentable square feet, Additional
Charges as set forth in the body of the Lease, under section 6,
Additional Rental.
6. CONSTRUCTION. Tenant leases additional space in its present and
AS-IS condition and Landlord will provide no funds for Tenant
modifications.
Tenant and Landlord represent that they have dealt only with the Landlord's
representative, Realsource Services, for the Second Addendum, and shall hold
each party harmless from any outside claims for brokerage commissions.
This Addendum is intended to amend provisions of the Lease only to the extent
expressly set forth herein. All of the terms, covenants and provisions set
forth in the Lease are hereby ratified and confirmed except as expressly
amended hereby, and Landlord and Tenant hereby agree that the Lease shall
continue in full force and effect in accordance with its terms, as amended
hereby. Landlord and Tenant further agree that the termination date of the
additional space shall be the same as the Lease Agreement dated November 3,
1997 and shall be subject to the same obligations and privileges of the
original Lease Agreement.
Executed effective as the date first set forth above although actually
executed on the dates set forth opposite the name of the signature of the
parties.
DATE: LANDLORD:
------------------- SALITEX II, LTD
By: /s/ XXXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxx
-----------------------------------
Title: V.P., Salitex Corp., G.P.
----------------------------------
DATE: 5/1/97 TENANT:
------------------- CYBERONICS, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------
Title: VP, Finance & Administration/CFO
----------------------------------
EXHIBIT "A-1"
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EXHIBIT "A-2"
[MAP]
A-2
EXHIBIT "B-1"
[MAP]
B-1
EXHIBIT "B-2"
[MAP]
B-2
