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EXHIBIT 10.2.6
LEASE AGREEMENT
VENTURE TECHNOLOGY CENTER III BUILDING
0000 XXX XXXXXX XXXXX, XXXXX X
XXX XXXXXXXXX, XXXXXXXXXX XXXXXX, XXXXX
THIS LEASE AGREEMENT (the "Lease"), effective January 20th, 2000, is,
between WOODLANDS OFFICE EQUITIES-'95 LIMITED, a Texas limited partnership
("Lessor"), and TELXON CORPORATION, a Delaware corporation ("Lessee").
l. PREMISES. Lessor hereby leases to Lessee and Lessee hereby takes
from Lessor, 25,857 net rentable square feet of floor space ("Premises"),
together with all appurtenances thereto, in a building known and referred to as
Venture Technology Center III Building ("Building"), located at 0000 Xxx Xxxxxx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx. The Building is located on that
certain 7.8500 acre tract of land, being all of Restricted Reserve "B", The
Woodlands Medical Research Park Section 3, according to the map or plat thereof
recorded in Cabinet F, Sheet 110-B of the Map Records of Xxxxxxxxxx County,
Texas, ("Land"). The Premises is shown on the floor plan attached hereto as
Exhibit "A". Lessor reserves the right to change the name of the Building
whenever it desires without any liability or consent of Lessee.
2. LOADING DOCK AND PARKING. In addition to the Premises, Lessee and
its invitees are hereby granted the non-exclusive right to use the loading dock
for the Building. Lessee shall also have the right to park 52 automobiles in the
parking areas provided by Lessor on the Land. Lessor shall keep in good
condition throughout the Term described below the parking areas for and
vehicular access ways to the Premises. The use of such loading dock and parking
and access areas shall at all times be subject to such reasonable rules and
regulations as Lessor may promulgate.
3. TERM. The term of this Lease ("Term") shall commence on the date
("Commencement Date") which is the earlier of (a) February 15, 2000, or (b) the
day upon which Lessee takes occupancy of the Premises, and shall expire on the
last day of the 18th full calendar month following the Commencement Date,
subject to earlier termination as hereinafter provided. Lessee accepts the
Premises on the terms of Exhibit "B" attached hereto. Lessor shall not be liable
or responsible for any claims, damages or liabilities of any nature whatsoever
in connection with or by reason of any delayed occupancy. Within 15 days
following Lessee's receipt from Lessor of a memorandum of this Lease specifying
the Commencement Date and date of expiration of the Term, Lessee agrees to
execute the memorandum.
4. USE. Lessee shall use the entire Premises solely for office use and
for no other use.
5. ACCEPTANCE OF THE PREMISES. Upon taking possession of all or any
portion of the Premises, Lessee shall be deemed to have accepted the Premises,
to have acknowledged that the same are in the condition called for hereunder and
to have agreed that the obligations of the Lessor imposed by Exhibit "B"
attached hereto have been fully performed. Lessee hereby waives any implied
warranty of Lessor that the Premises are suitable for their intended commercial
purpose and acknowledges and agrees that all of Lessee's obligations hereunder
(including without limitation, the obligation to pay rent) are independent of
any such implied warranty and agrees to perform all such
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obligations and pay rent notwithstanding any breach or allegation of breach by
Lessor of any such implied warranty (which implied warranty as aforesaid is
hereby waived by Lessee).
6. SECURITY DEPOSIT. INTENTIONALLY DELETED
7. BASE RENT. The Base Rent, which Lessee hereby agrees to pay to
Lessor monthly, in advance, at Lessor's address stated above, shall be the sum
per month set forth below, due and payable on the first day of each calendar
month during the Term hereof, without offset or deduction, with a pro rata
portion being due and payable in advance for any partial month occurring at the
beginning of the Term:
Months of Term Base Rent Amount
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1 - 18 $18,854.06
A late charge of l0% shall be added to any payment of Base Rent or
Additional Rent which is more than l0 days past due, except that the first 2
times during the Term that a payment is past due by more than 10 days, Lessor
shall give Lessee written notice thereof and the late charge will not be imposed
provided Lessee pays the sum due within 5 days after receipt of said notice.
8. ADDITIONAL RENT. Lessee agrees to pay its pro-rata share of
Operating Expenses (as defined in Section 10 below) (which includes the
Management Fee described in Section 10) each Fiscal Year. The term "Fiscal
Year", as used herein, shall mean Lessor's fiscal year for accounting purposes
which currently is the 12-month period beginning January 1 and ending December
31. Lessor shall have the right to change the Fiscal Year, from time to time,
and, in such event, Lessor shall notify Lessee in writing of such change.
Lessee's pro rata share shall be determined by multiplying the Operating
Expenses by a fraction, the numerator of which shall be the number of net
rentable square feet in the Premises, and the denominator of which shall be the
net rentable square footage in the Building, which may change from time to time
utilizing BOMA (Building Owners and Managers Association) standards. Within 90
days following the completion of each Fiscal Year, Lessor will provide to Lessee
a statement showing in reasonable detail the Operating Expenses for the
preceding Fiscal Year, the Additional Rent due with regard to Lessee's share of
the Operating Expenses, and Lessor's reasonable estimate of Operating Expenses
for the then current Fiscal Year. Lessee shall, on or before 30 days following
receipt of said statement, pay to Lessor the amount of Additional Rent due as
provided herein, less the amount of Additional Rent paid in advance (if any)
during the preceding Fiscal Year. Any overpayment will be credited by Lessor to
Lessee's next Base Rent payment(s). Lessee agrees to pay Additional Rent each
month thereafter, in addition to Base Rent, in an amount necessary to amortize
the estimated Operating Expenses for the then current Fiscal Year (or the pro
rata portion thereof, if applicable) over a period equal to the lesser of (i)
the number of months remaining in the Term or (ii) the number of months
remaining in the current Fiscal Year. Notwithstanding that the Term has expired
or been terminated, Lessee shall remain liable for and agrees to pay to Lessor
within 30 days following receipt of an invoice therefor, its pro rata portion of
Operating Expenses for the Fiscal Year (or portion thereof) during which the
Term expired or was terminated. Lessee shall have the right, at its expense and
at a reasonable time, to audit Lessor's books relevant to the Additional Rent
due under this Section.
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Within 90 days (the "Audit Election Period") after Lessor furnishes its
statement for any Fiscal Year, Lessee may, at its expense during Lessor"s normal
business hours, elect to audit Lessor"s Operating Expenses for such Fiscal Year
only, subject to the following conditions: (i) the audit shall be prepared by a
certified public accounting firm of reputable standing; (ii) in no event shall
any audit be performed by a firm retained on a "contingency fee" basis; (iii)
the audit shall commence within 30 days after Lessor makes Lessor"s books and
records available to Lessee"s auditor and thereafter proceed reasonably to
conclusion within 60 additional days; (iv) the audit shall be conducted where
Lessor maintains its books and records and shall not unreasonably interfere with
the conduct of Lessor"s business; (v) Lessee and its accounting firm shall treat
any audit in a confidential manner and shall each execute a confidentiality
agreement for Lessor"s benefit prior to commencing the audit; and (vi) the
accounting firms audit report shall, at no charge to Lessor, be submitted in
draft form for Lessor"s review and approval before the final approved audit
report is delivered to Lessor. This subsection shall not be construed to limit
or xxxxx Lessee"s obligation to pay Additional Rent when due. Lessor shall
credit any overpayment determined by the approved audit against the next sums
due and owing by Lessee or refund said overpayment to Lessee, upon Lessee"s
request, or, if no further Additional Rent is due, refund such overpayment
directly to Lessee. Likewise, Lessee shall pay Lessor any underpayment
determined by the approved audit within 30 days of determination. The foregoing
obligations shall survive the termination date of the Lease. If Lessee does not
give written notice of its election to audit Lessor"s Operating Expenses during
the Audit Election Period, Lessor"s Operating Expenses for the applicable Fiscal
Year shall be deemed approved for all purposes, and Lessee shall have no further
right to review or contest the same. If Lessee"s audit determines a discrepancy
of 5% or more, Lessor shall also pay to Lessee the costs of the audit not to
exceed $2,000.00.
9. PAYMENT OF RENTALS. Lessee covenants to promptly pay all rentals
when due and payable. A late charge of 10% per cent shall be added to any
payment of Base Rent or Additional Rent which is more than 10 days past due in
order to compensate Lessor for the extra administrative expenses incurred. If
Lessor shall pay any monies or incur any expenses in correction of violations of
the covenants herein set forth, the amounts so paid or incurred shall, on notice
to Lessee, be considered additional rent payable by Lessee with the first
installment of Base Rent thereafter to become due and payable, and may be
collected or enforced as by law provided in respect of rentals
10. OPERATING EXPENSES. The term "Operating Expenses" means all of
Lessor's costs, expenses and disbursements (but not acquisition of capital
investment items, except as hereinafter expressly provided or specific costs
billed to specific lessees) to operate and maintain the Land, the Building, and
all improvements on the Land from time to time (to the extent and only to the
extent same are Lessor's obligation to pay or furnish under the other provisions
of this Lease), including, but not limited to, Lessor's costs of providing
utilities, including, but not limited to lighting; xxxxxx services and supplies;
refuse removal (if Lessor elects to furnish this service); landscaping,
including irrigation; and general maintenance and repairs, including, but not
limited to, repairs to roof surface and preventive maintenance, parking area
restriping, exterior painting and other activities. Operating Expenses shall
also include a reasonable amortization charge on account of any capital
expenditure incurred to effect a reduction of Operating Expenses and a
reasonable charge for amortization of all capital items Lessor installs (a) to
reduce Operating Expenses, or (b) to promote safety, or (c) which
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Lessor is required to install on or for the benefit of the Building by any
governmental law, code or regulation passed or enacted on or after the
Commencement Date, or (d) which is a replacement (as opposed to additions or new
improvements) of items located in the common areas adjacent to the Building, the
parking area and other facilities used in connection with the Building, or
involving the exterior of the Building, including, but not limited to, the roof
and structural elements. Additionally, Operating Expenses shall include all ad
valorem taxes or assessments, and Annual Assessments of The Woodlands Community
Association, Inc. and The Woodlands Commercial Owners Association, whichever is
applicable, which accrue against the Building or the Land during the Term,
together with all insurance premiums which Lessor is required to pay or deems
necessary to pay with respect to the Building or the Land, including, but not
limited to, casualty insurance and liability insurance, and a management fee
("Management Fee") of 5% of Lessee"s annual Base Rent. It is understood and
agreed that the Management Fee will not change during the initial Lease Term.
Notwithstanding anything contained herein to the contrary, it is agreed that in
the event not more than 95% of the rentable area in the Building is occupied
during any Fiscal Year or in the event not more than 95% of the rentable area in
the Building is provided with building standard services during any Fiscal Year,
an adjustment shall be made in computing the Operating Expenses for such year so
that the Operating Expenses shall be computed for such year as though the
Building had been 95% occupied during such year and as though 95% of the
Building had been provided with building standard services during such year.
Notwithstanding anything contained herein to the contrary, it is understood and
agreed that Operating Expenses shall not include those items set forth on
Exhibit "D" attached hereto.
Further, Notwithstanding anything contained herein to the contrary, if
at the end of the Fiscal Year, the Land, WITH the Building thereon, has not yet
been placed on the tax rolls, the Fiscal Year ad valorem taxes and assessment
shall be adapted and increased as if it had been.
11. UTILITIES. Lessor shall make available to the Building gas,
electricity, water and sewer facilities. Lessee agrees to assume all costs and
expenses for water and sewer, except as herein provided, gas, electricity,
telephone, and any other service needed for its use at the Premises, including
any license or deposit required to establish or maintain such services, and the
costs of installation, hook-up and metering. Lessor agrees to pay all costs and
expenses for water and sewer service. The cost of these services shall be
included with Operating Expenses as defined in Section 10 hereof. Lessor,
however, reserves the right to submeter, at Lessee's cost and expense, Lessee's
water and sewer usage, charging Lessee at cost plus 10% overhead. Lessee shall
promptly pay for all utility services furnished to the Premises during the term
of this Lease. Lessor shall under no circumstances be liable to Lessee in damage
or otherwise for any interruption in service of water, electricity, heating, air
conditioning or other utilities or services caused by governmental regulation,
emergencies, Acts of God, by the making of any necessary repairs or
improvements, or by any cause beyond Lessor's reasonable control. Lessor shall
endeavor in good faith to give at least 24 hours notice to Lessee when any
necessary interruption in service will be made by Lessor.
12. PEACEFUL ENJOYMENT. Lessee shall and may peacefully have, hold and
enjoy the Premises for the Term, subject to the terms and conditions of this
Lease, provided that Lessee pays the rentals and other sums herein recited and
performs all of its covenants and agreements herein contained. It is understood
and agreed that this covenant and any and all other covenants of Lessor
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contained in this Lease shall be binding upon Lessor and its successors and
assigns, but only with respect to breaches occurring during its and their
respective ownership of Lessor's interest hereunder.
13. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Lessee shall not make or
allow to be made any alterations or physical additions in or to the Premises
without first obtaining the written consent of Lessor, which consent shall not
be unreasonably withheld or delayed, except that Lessee may make alterations or
improvements under $5,000.00 without Lessor consent provided said alterations or
improvements (i) do not affect the structural integrity or exterior appearance
of the Building or its mechanical systems, (ii) do not interfere with
construction in progress or other lessees in the Building, and (iii) are not
visible from the exterior of the Premises or the Building and there is no
uncured default by Lessee in any of the terms and conditions of the Lease.
Lessor shall not be liable as a result of any such consent for completeness,
design sufficiency, or compliance with any law, ordinance, order, rule, or
regulation and Lessee shall indemnify, defend and hold Lessor harmless from all
claims, demands, damages, causes of action or litigation, arising out of or
resulting from such consent. Any and all alterations, additions or improvements,
other than that portion of the initial Tenant improvements which are to be
provided by Lessor pursuant to the terms of Exhibit "B" hereto, shall be made at
Lessee's sole expense. All such alterations, additions or improvements upon the
earlier to occur of (i) the termination date of the Lease or (ii) Lessor"s
termination of Lessee"s right of possession of the Premises pursuant to Section
29 of the Lease, shall become the property of Lessor and shall be surrendered to
Lessor upon the termination of this Lease by lapse of time or otherwise;
provided, however this clause shall not apply to removable equipment or
furniture owned by Lessee and which can be removed without damage to the
Building or the Premises, provided there is no default by Lessee in any of the
terms and conditions of the Lease. Unless Lessee has made prior arrangements
with Lessor and Lessor has agreed in writing to permit Lessee to leave such
equipment, furniture and supplies prior to such termination, then, in addition
to its other remedies at law or in equity, Lessor shall have the right to have
such items removed and stored at Lessee"s expense and all damage to the Premises
or Building resulting therefrom repaired at the cost of Lessee or the right to
elect that such movable equipment, furniture and supplies automatically become
the property of Lessor upon termination of this Lease, and Lessee shall not have
any further right with respect thereto or reimbursement therefor. Lessor shall
notify Lessee of its requirement to remove such alterations, additions, and
improvements prior to the time of Lessor"s approval.
14. EXTERIOR REPAIRS. Lessor will keep the exterior of the Building,
including any doors, windows, or glass, in repair, provided Lessee shall give
Lessor written notice of the necessity for such repairs, and provided that the
damage thereto shall not have been caused by the negligence of Lessee, its
agents, employees, licensees or invitees, in which event Lessee shall be
responsible therefor for the cost. Lessor shall be under no liability for
repair, maintenance, alteration or any other action with reference to any
plumbing, electrical or other mechanical installation within or serving the
Premises or any part thereof, except for the service lines leading to the
Premises.
15. OPERATION BY LESSEE. Lessee agrees to (a) keep the inside of all
glass in the doors and windows of the Premises clean; (b) keep all interior
surfaces of the Premises clean; (c) replace promptly, at its expense, any
cracked or broken window glass inside the Premises with glass of like kind and
quality; (d) maintain the Premises in a clean, orderly and sanitary condition
and free of
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insects, rodents, vermin and other pests; (e) keep any garbage, trash, rubbish
or refuse in rat-proof containers within the interior of the Premises until
removed from the area; (f) have such garbage, trash, rubbish and refuse removed
at its expense on a regular basis from location points and at such times as
designated by Lessor, if said service is not provided by Lessor; (g) keep all
mechanical apparatus free of vibration, noise or pollution which may be
transmitted beyond the Premises; (h) comply with all laws, ordinances, rules and
regulations of the Fire Underwriters Rating Bureau now or hereafter in affect;
and (i) conduct its business in all respects in a dignified manner in accordance
with high standards of business operation.
In addition, Lessee shall not (a) place or maintain any merchandise or
other articles in any vestibule or entry of the Premises, on the footwalks
adjacent thereto or elsewhere on the exterior of the Premises or Building
without the written consent of Lessor; (b) permit undue accumulation of garbage,
trash, rubbish or other refuse within or without the Premises; (c) cause or
permit objectionable odors to emanate or be dispelled from the Premises; (d)
cause or permit the parking of vehicles so as to interfere with the use of any
driveway, walk, parking area, dock or other common facility in the area; (e)
occupy, use or permit the use or occupancy of any portion of the Premises for
any business or purpose which is immoral, disreputable or in violation of any
legal direction of any public officer; or (f) occupy, use or permit the use or
occupancy of any portion of the Premises for any business or purpose which, in
the opinion of Lessor, reasonably formed, constitutes a public or private
nuisance or unduly disturbs the business of other tenants in the Building.
Lessor shall have the right, upon written notice to Lessee, to provide
for rubbish and refuse removal services as required of Lessee above, and Lessee
agrees to reimburse Lessor for the cost incurred in providing such service
within 30 days after receipt of a statement setting forth the cost of such
service.
Lessee agrees to discharge all waste materials from the Premises in
compliance with the rules and regulations as set forth in The Woodlands Metro
Center Municipal Utility District Policy Manual - Industrial Waste Discharges -
Permits and Charges - No. R&S-50, issued July 12, 1979, with an effective date
of July 12, 1979, as it may be amended from time to time. Lessee shall haul away
for disposal at its own expense, any waste material not meeting the standards
for discharge set forth in the above-referenced manual.
Lessee shall comply, at Lessee's cost and expense, with all private
restrictions encumbering the Land and all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state, and municipal
governments, including all municipal and road utility districts and municipal
utility districts, and all departments, commissions, boards and officers
thereof, and any other body exercising similar functions, which now or hereafter
may be applicable to the Premises, the improvements in the Premises, or to the
use or manner of use of the Premises or the improvements, including but not
limited to, all environmental laws and the Americans With Disabilities Act
("Applicable Law"). In the event of a violation of any environmental law by
Lessee and cleanup of contamination is required, in addition to all other
remedies of Lessor under this Lease or at law or in equity, Lessee shall conduct
a Standard 1 cleanup so that there is a total and complete removal of all
contaminates from the Premises. Lessee agrees that no such cleanup shall be
subject to a risk reduction standard and no deed recordation notice shall be
recorded against the Premises.
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Lessee shall not be deemed responsible for any environmental contamination
occurring prior to the Commencement Date or subsequent to the Commencement Date
if caused by Lessor or its agents. Lessor, as part of Operating Expenses shall
comply with all Applicable Laws.
Lessee also agrees to comply with the Rules and Regulations of the
Building, a copy of which is attached as Exhibit "C". Lessor may amend said
Rules and Regulations, from time to time, if reasonably necessary for the
safety, care, or cleanliness of the Building, provided that no amendment shall
alter any covenant or provision contained in this Lease. Lessee agrees to comply
with any amendment which is made to said rules and Regulations in compliance
with the terms of this subsection.
Lessee shall promptly pay directly to the taxing authority all sales
and/or ad valorem taxes now or hereafter levied by separate xxxx on Lessee"s
personal property and leasehold improvements. Lessee waives all rights under
applicable law to protest appraised values or receive notice of reappraisal
regarding the Land and Building (including Lessor"s personality), irrespective
of whether Lessor contests same. To the extent such waiver is prohibited, Lessee
appoints Lessor as Lessee"s attorney-in-fact, coupled with an interest, to
appear and take all actions which Lessee would otherwise be entitled to take
under applicable law.
16. INTERIOR REPAIRS AND MAINTENANCE. Lessee will, at Lessee's cost and
expense, keep the interior of the Premises, together with all electrical,
plumbing and other mechanical installations therein, all heating and air
conditioning equipment, and all interior windows or doors serving the Premises,
in good order and repair, and will make all replacements thereto as its expense.
Lessee will surrender the Premises at the expiration or earlier termination of
this Lease, in as good condition as when received, excepting depreciation caused
by ordinary wear and tear. Lessee will not overload the electrical wiring
serving the Premises or within the Premises, and will install at its expense,
but only after obtaining Lessor's written approval, any additional electrical
service which may be required in connection with Lessee's use or occupancy.
Notwithstanding anything herein to the contrary, Lessor, and not Lessee, shall
be liable for any and all interior repairs which may result from any structural
failure of the Building, unless caused by Lessee, its agents, employees or
invitees. Lessee will repair promptly, at its expense, any damage to the
Premises caused by bringing into the Premises any property for Lessee's use, or
by the installation or removal of such property, regardless of fault or by whom
such damage was caused, unless caused by Lessor, its agents, employees or
contracts. Upon execution of this Lease, Lessee, at its own cost and expense,
shall enter into a regularly scheduled preventative maintenance/service contract
with Lessor, or a maintenance contractor approved by Lessor, for servicing all
hot water, heating, and air-conditioning systems and equipment within the
Premises. If Lessee fails to make such repairs and/or to perform the maintenance
and repairs to the Premises which are Lessee's obligation under this Lease,
Lessor may make same, and Lessee agrees to pay, as additional rent, the cost
thereof, plus 10% overhead, to Lessor promptly upon Lessor's demand therefor.
17. ROOF AND WALLS. Lessor or its designee shall have the exclusive
right (a) to use all or any part of the roof of the Building for any purpose
including to erect additional stories or other structures over all or any part
of the Premises, and to erect in connection with the construction thereof
temporary scaffolds and other aids to construction on the exterior of the
Premises, provided
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that access to the Premises shall not be denied; and (b) to install, maintain,
use, repair and replace within the Premises, pipes, ducts, conduits, wires and
all other mechanical equipment serving other parts of the Building, the same to
be in locations within the Premises as will not materially interfere with
Lessee's use thereof. Lessee shall have no right to penetrate or erect
improvements on the roof without the prior written consent of Lessor. Lessee
shall be liable in damages to Lessor for any breach of this provision, including
damages for loss of any and all warranties.
18. SIGNS AND ADVERTISING. Lessee will not place or suffer to be placed
or maintained on or displaced to the exterior of the Premises, any sign,
advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on the glass of any window or
door of the Premises without first obtaining the written approval of Lessor.
Lessee will maintain any approved sign, decoration, lettering, advertising
matter or other thing in good condition and repair at all times.
19. ENTRY BY LESSOR. Lessee shall permit Lessor or Lessor's agents,
representatives, or employees to enter upon the Premises at reasonable times,
and upon having given Lessee 24 hours advance notice, except in the case of an
emergency, when no notice shall be required, (a) to inspect the Premises, to
determine whether Lessee is in compliance with the terms of this Lease; (b) to
show the Premises to prospective purchasers, lessees, mortgagees, beneficiaries
under trust deeds, or insurers (but as to prospective lessees only during the
last 6 months of the Term), and (c) to make repairs, improvements, additions and
alterations thereto, as Lessor is permitted to make according to the terms of
the Lease. Any inspections of the Premises pursuant to this subsection shall be
at Lessor's cost and expense; provided, however, in the event it is determined
by Lessor that an environmental study should be conducted on the Premises and
said environmental study determines that Lessee has not complied with all then
existing environmental laws, Lessee shall reimburse Lessor for the cost of the
study within 15 days after receipt of an invoice setting forth the cost, and
Lessee shall promptly take all action necessary, at Lessee's sole expense, to
remedy any noncompliance by Lessee discovered by such study in accordance with
Section 15 above.
20. LIENS. In the event that any mechanic's, materialman's, or other
lien shall at any time be filed against the Premises, the Building or the Land
purporting to be for work, labor, services or materials performed for or
furnished to Lessee or anyone holding the Premises through or under Lessee, or
arising out of any alleged act or omission of Lessee, Lessee shall forthwith
cause the same to be properly bonded or released. If Lessee shall fail to cause
such lien to be bonded or released within 15 days after being notified of the
filing thereof, then, in addition to any other right or remedy of Lessor, Lessor
may, but shall not be obligated to, discharge the same by posting a bond or
paying the amount claimed to be due, and the amount so paid by Lessor, and all
costs and expenses incurred by Lessor in procuring the discharge of such lien,
including reasonable attorney's fees, shall be due and payable by Lessee to
Lessor as additional rent on the first day of the next succeeding month. Lessor
shall not be liable for any labor or materials furnished to Lessee upon credit,
and that no mechanics', materialman's or other liens for any such labor or
materials shall attach to or affect the estate or interest of Lessor in and to
the Land or Building.
21. SUBORDINATION. Lessee agrees that this Lease is and shall be
subordinate to any mortgage or deed of trust which may now or hereafter encumber
the Building or the Land, and to all
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renewals, modifications, consolidations, replacements and extensions thereof,
provided, however, that the holder of any such mortgage or deed of trust shall
agree that Lessee shall not be disturbed in its possession of the Premises or
its rights hereunder terminated or amended by the mortgagee, any purchaser at or
in lieu of foreclosure or other party so long as Lessee is not in default under
this Lease. In confirmation of such subordination, Lessee shall at Lessor's
request execute promptly any appropriate certificate or instrument that Lessor
may reasonably request. In the event of the enforcement by the trustee or the
beneficiary under a mortgage or deed of trust of the remedies provided for by
law or by such mortgage or deed of trust, Lessee will, upon request of any
person or party succeeding to the interest of Lessor as a result of such
enforcement, automatically become the lessee of such successor in interest
without change in the terms or other provisions of this Lease; provided,
however, that such successor in interest shall not be bound by (i) any payment
of Base Rent or Additional Rent for more than one month in advance except
prepayments in the nature of security for the performance by Lessee of its
obligations under this Lease; (ii) any amendment or modifications under this
Lease made without the written consent of such trustee, beneficiary, or
successor in interest; (iii) any default by the prior owner or Landlord in the
observance or performance of any of its covenants or obligations hereunder, or
(iv) any right of offset which Lessee may have had against the prior owner or
Landlord. Upon request by any successor in interest, Lessee shall execute and
deliver an instrument or instruments confirming the attornment herein provided
for.
Within 15 days after Lessor's request, Lessee agrees to execute an
estoppel certificate or other agreement certifying to Lessor and/or any
mortgagee of the Building such facts and agreeing to such reasonable notice
provisions as such mortgagee may request in connection with Lessor's financing,
subject, however, to the non-disturbance rights of Lessee above-described. If
Lessee fails or refuses to give a certificate hereunder within the time period
herein specified, then the information contained in such certificate as
submitted by Lessor shall be deemed correct for all purposes, and all notice
provisions and other matters in the certificate shall be deemed agreed to, but
Lessor shall have the right to treat such failure or refusal as a default by
Lessee.
This Lease and all rights of Lessee hereunder are further subject and
subordinate to the extent that the same relate to the Premises to all ground or
underlying leases covering the Land/or any part thereof which may now or
hereinafter affect the Land or the Building, and any renewals or modifications
thereof; provided, however that the holder of any ground lease or underlying
leases covering the Land or the Building shall agree that Lessee shall not be
disturbed in its possession of the Premises or its rights hereunder terminated
or amended by such holder as long as Lessee is not in default under this Lease.
Within 45 days after Lessor places a mortgage on the Building, Lessor
will deliver to Lessee a commercially reasonable Nondisturbance, Attornment, and
Subordination Agreement executed by the beneficiary of the mortgage or deed of
trust.
22. CONDEMNATION. If the whole or any part of the Premises shall be
taken under the power of eminent domain, this Lease shall terminate as to the
part so taken on the date Lessee is required to yield possession thereof to the
condemning authority. Lessor shall, with reasonable diligence, make such repairs
and alterations as may be necessary in order to restore the part not taken
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to a useful condition, and the Base Rent shall be reduced proportionately to the
portion of the Premises so taken. If the amount of the Premises so taken
substantially impairs the usefulness of the Premises for the purposes set forth
in Section 4, either party may terminate this Lease within 30 days after Lessor
gives Lessee notice that it will be dispossessed, effective as of the date when
Lessee is required to yield possession, at which time all Lessor's and Lessee's
rights and obligations under the Lease, including Lessee's obligation to pay
rent shall terminate. All compensation awarded for any taking shall belong to
and be the property of Lessor.
23. FIRE AND CASUALTY. In the event of a fire or other casualty in the
Premises, Lessee shall immediately give notice thereof to Lessor. If the
Premises, through no fault or neglect of Lessee, its agents, employees,
invitees, licensees or visitors, shall be destroyed by fire or other casualty so
as to render the Premises untenantable, the rental herein shall be reduced
proportionally as of the date of such casualty to the portion of the Premises
rendered untenantable until such time as the Premises are made tenantable by
Lessor. If from such cause the same shall be so damaged that Lessor shall decide
not to rebuild, then all rent and other sums owed hereunder up to the time of
such destruction or casualty shall be paid by Lessee, and thenceforth this Lease
shall cease and come to an end. If (i) the repairs or restoration will take more
than 275 days after Lessee has given Lessor notice of the loss or damage, in
Lessor"s opinion reasonably formed or (ii) if Lessor has not given Lessee notice
of its decision to repair and restore the Premises within 75 days of the date
Lessee has given Lessor notice of the loss or damage, then Lessee may terminate
the Lease.
24. CASUALTY INSURANCE. Lessor shall, at all times during the Term,
maintain a policy or policies of insurance with the premiums thereon fully paid
in advance, issued by and binding upon, (i) an insurance company or companies
rated "A-" or higher under the current edition of A.M. Best"s Key Rating Guide,
(ii) Lloyds of London underwriter, or (iii) an insurance company agreed to by
Lessee, insuring Lessor's interest in the Building against loss or damage by
fire and other hazards within the coverage of a Texas standard special form
extended coverage policy, for the full replacement value thereof, with payments
for losses thereunder payable solely to Lessor or its designee. Lessee shall
maintain in force a like policy insuring Lessee's interest in any improvements
which Lessee may construct thereon.
25. LIABILITY INSURANCE. Lessee shall maintain, at its expense, at all
times during the Term, a policy or policies of commercial general liability
insurance, with the premiums thereon fully paid in advance, issued by (i) an
insurance company or companies rated "A-" or higher under the most current
edition of A.M. Best's Key Rating Guide, (ii) a Lloyds of London underwriter, or
(iii) an insurance company agreed to by Lessor. All insurers must be licensed to
do business in the State of Texas. The insurance shall afford protection of not
less than $1,000,000 combined single limit bodily injury and property damage per
occurrence. The policy or policies shall name Lessor as an additional insured.
As to any injury or damage occurring in or on the Premises, Lessee's insurance
shall be primary. Lessor agrees not to make a claim against Lessee's insurer in
excess of $1,000,000.00 combined single limit bodily injury and property damage
per occurrence. Lessee's policy shall contain an agreement by the insurer that
such policy, or policies may not be canceled or materially modified without 30
days' prior notice to Lessor. Lessee shall provide Lessor a copy of the required
policy or policies, or a certificate evidencing the required coverage, before
beginning
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any work in the Premises or taking occupancy of same. Additionally, Lessee shall
provide Lessor evidence of the renewal of each policy at least 30 days before
the expiration of the policy.
26. RELEASE OF CLAIMS; WAIVER OF SUBROGATION. ANYTHING IN THIS LEASE TO
THE CONTRARY NOTWITHSTANDING, LESSOR AND LESSEE EACH WAIVE ANY AND ALL RIGHT OF
RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION AGAINST THE OTHER AND ITS PARTNERS
(IF ANY), AND THE AGENTS, OFFICERS, AND EMPLOYEES OF THE OTHER PARTY OR ITS
PARTNERS, FOR ANY LOSS OR DAMAGE:
(i) TO THE PREMISES, THE BUILDING, OR ANY IMPROVEMENTS THERETO, OR
ANY PERSONAL PROPERTY OF SUCH PARTY THEREIN, BY REASON OF
FIRE, THE ELEMENTS OR ANY OTHER CAUSE WHICH COULD HAVE BEEN
INSURED AGAINST UNDER A TEXAS STANDARD SPECIAL FORM EXTENDED
COVERAGE INSURANCE POLICY, OR
(ii) ARISING OUT OF ANY BUSINESS INTERRUPTION, INCLUDING BUT NOT
LIMITED TO LOSS OF PROFITS, BY REASON OF FIRE, THE ELEMENTS OR
ANY OTHER CAUSE,
REGARDLESS OF CAUSE OR ORIGIN, INCLUDING THE SOLE OR CONCURRENT NEGLIGENCE OF
THE OTHER PARTY OR ITS PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF THE
OTHER PARTY OR ITS PARTNERS. LESSOR AND LESSEE COVENANT THAT NO INSURER SHALL
HOLD ANY RIGHT OF SUBROGATION AGAINST THE OTHER PARTY FOR LOSSES WHICH MUST BE
INSURED AGAINST BY THE TERMS OF THIS LEASE. THIS SECTION SHALL SURVIVE THE
TERMINATION OF THIS LEASE.
27. RELEASE AND INDEMNIFICATION BY LESSEE. SUBJECT TO SECTION 26 ABOVE,
LESSEE RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD LESSOR AND ITS
PARTNERS, AND THE AGENTS, OFFICERS AND EMPLOYEES OF LESSOR OR ITS PARTNERS,
HARMLESS FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR DAMAGE OR INJURY OR
DEATH TO PERSONS OR PROPERTY OCCURRING ON OR IN THE PREMISES, INCLUDING, BUT NOT
LIMITED TO, ANY CLAIMS OR CAUSES OF ACTION CAUSED BY OR RESULTING FROM (I) THE
SOLE OR CONCURRENT NEGLIGENCE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LESSOR OR ITS PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF
LESSOR OR ITS PARTNERS, OR (II) STRICT LIABILITY OR PRODUCT LIABILITY. LIKEWISE,
SUBJECT TO SECTION 17 ABOVE, LESSOR RELEASES AND AGREES TO DEFEND, INDEMNIFY AND
HOLD LESSEE AND ITS PARTNERS, AND THE AGENTS, OFFICERS AND EMPLOYEES OF LESSEE
OR ITS PARTNERS, HARMLESS FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR
DAMAGE OR INJURY OR DEATH TO PERSONS OR PROPERTY OCCURRING ON OR IN THE
BUILDING, OTHER THAN THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OR
CAUSES OF ACTION CAUSED BY OR RESULTING FROM (I) THE SOLE OR CONCURRENT
NEGLIGENCE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE OR ITS
PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF LESSEE OR ITS PARTNERS, OR
(II) STRICT LIABILITY OR PRODUCT LIABILITY. THIS SECTION SHALL SURVIVE THE
TERMINATION OF THIS LEASE.
28. HOLDING OVER. In the event of holding over by Lessee after the
expiration or termination of the Term and without the written consent of Lessor,
Lessee shall be a Tenant at will and shall pay monthly rent equal to 150% the
amount of all Base Rent, and Additional Rent payable during the last month of
the Term. Further, Lessee shall indemnify Lessor against all actual claims for
damages by any other lessee to whom Lessor may have leased all or any part of
the Premises. Lessor may terminate the tenancy by giving written notice to
Lessee. No holding over by Lessee, either with or without the consent and
acquiescence of Lessor, shall operate to extend the Lease for a
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longer period than l month. Any holding over with the consent of Lessor in
writing shall thereafter constitute this Lease a lease from month to month.
29. DEFAULT BY LESSEE. If (a) Lessee fails to timely pay any sum to be
paid by Lessee under this Lease. (Lessor shall endeavor, but shall not be
obligated, to deliver written notice to Lessee within 15 days after the
occurrence of any such failure to timely pay; Lessor shall not be in default of
this Lease, or be deemed to waive Lessee"s failure to pay, if Lessor fails to
deliver such notice); (b) Lessee fails to perform any of its other duties or
obligations under this Lease and such default continues for 20 days after Lessor
delivers written notice to Lessee or deposits written notice in the U. S. Mail
addressed to Lessee's address above, except that said 20 day period shall be
extended up to 10 additional days if Lessee commences to cure within the 20 day
period and is diligently pursuing to cure the default; (c) any of the following
actions occur and Lessee fails to contest same using Lessee"s best reasonable
efforts, and cause same to be removed, dismissed, or vacated within 30 days from
the date of entry or filing: (i) Lessee's interest under this Lease is levied on
under execution or other legal process, or (ii) any petition is filed by or
against Lessee to declare Lessee a bankrupt or to delay, reduce or modify
Lessee's debts or obligations, or (iii) any petition under the Bankruptcy Code
is filed or other action taken to reorganize or modify Lessee's capital
structure, or (iv) Lessee is declared insolvent according to law, or (v) any
general assignment of Lessee's property is made for the benefit of creditors, or
(vi) a receiver or trustee is appointed for Lessee or its property; (d) if
Lessee is a corporation, Lessee ceases to exist as a corporation in good
standing in the State of Texas; or (e) if Lessee is a partnership or other
entity, Lessee is dissolved or otherwise liquidated, then Lessor may treat the
occurrence of any one or more of the foregoing events as a breach of this Lease.
Upon the occurrence of any of the foregoing events, at Lessor's option, Lessor
shall have any one or more of the following described remedies, in addition to
all other rights and remedies provided at law or in equity:
A. Lessor may terminate this Lease and forthwith repossess the
Premises and recover damages in a sum of money equal to the total of (i) the
cost of recovering the Premises, including the cost of the removal and storage
of any of Lessee's possessions left within the Premises, (ii) the unpaid Base
Rent and Additional Rent earned at the time of termination, plus interest
thereon at the lesser of 18% or the then maximum interest rate permitted to be
charged by applicable law ("Interest") from the due date until paid, (iii) the
balance of the Base Rent and Additional Rent for the remainder of the Term,
discounted to its present value at the rate of 6% per annum, less the fair
market rental value (allowing a reasonable period for reletting) of the Premises
for said period (provided said sum shall not be less than zero), and (iv) any
other sum of money and damages owed by Lessee to Lessor.
B. Without terminating this Lease, Lessor may terminate
Lessee's right of possession and repossess the Premises by forcible detainer
suit or otherwise, without demand or notice of any kind to Lessee. If Lessor
pursues this remedy, Lessor shall use reasonable efforts to relet the Premises
for Lessee's account, for such rent and upon such terms and conditions as Lessor
deems satisfactory. Lessor shall be deemed to have used "reasonable efforts" to
relet the Premises if Lessor offers the Premises as "for lease" and entertains
in good faith, bona fide offers to lease submitted to Lessor. In no event shall
Lessor be obligated to lease the Premises in priority of other space in the
Building or adjacent buildings owned by Lessor or any affiliate thereof. For the
purpose of such
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reletting, Lessor is authorized to make any repairs, changes, alterations or
modifications in or to the Premises as it deems necessary to prepare the
Premises to relet at Lessee's expense, including building standard buildout. If
Lessor fails to relet the Premises, then Lessee shall pay to Lessor as damages a
sum equal to the amount of the Base Rent and Additional Rent provided for in
this Lease for such period or periods. If Lessor relets the Premises and fails
to realize a sufficient sum from such reletting after deducting (a) the due and
unpaid Base Rent and Additional Rent, (b) the accrued Interest thereon, (c) the
cost of recovering possession, (d) the costs and expenses of all repairs,
changes, alterations and modifications, and any building standard buildout, and
(e) the expense of such reletting and the collection of the rent accruing
therefrom, then Lessee shall pay to Lessor any such deficiency upon demand from
time to time. Lessor may file one or more suits to recover any sums falling due
under this Section from time to time. Any reletting shall not be an election by
Lessor to terminate this Lease unless Lessor gives a written notice of such
intention to Lessee. Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this Lease for such
previous default.
X. Xxxxxx may change the locks on the Premises. The Lessor
will not have to give the Lessee a new key unless the Lessee cures the
default(s); the new key will be provided only during Lessor's regular business
hours.
30. WAIVER. Failure of Lessor or Lessee to declare any default by the
other immediately upon occurrence thereof, or delay in taking any action in
connection therewith, shall not waive such default, but the non-defaulting party
shall have the right to declare any such default at any time and take such
action as might be lawful or authorized hereunder, either in law or at equity.
31. LIEN FOR RENT. INTENTIONALLY DELETED.
32. ASSIGNMENT BY LESSOR. Lessor shall have the right to sell, transfer
or assign, in whole or in part, all of its rights and obligations hereunder and
in the Building and the Land. In such event and upon the assumption by such
transferee of Lessor's obligations hereunder, no further liability or obligation
shall thereafter accrue against Lessor hereunder.
33. ASSIGNMENT BY LESSEE. Lessee shall not assign this Lease or
any interest therein, nor sublet the Premises or any part
thereof or any right or privilege appurtenant thereto, nor
permit any other person, firm or entity to occupy or use the
Premises or any portion thereof without first obtaining the
written consent of Lessor, which consent shall not be
unreasonably withheld or delayed, Lessor shall have the right,
at its option, to terminate this Lease as to any portion of
the Premises covered by a proposed assignment or sublease, or
to reasonably approve any such assignment or sublease only
upon the condition that (a) 50% of all rentals paid by the
assignee or sublessee in excess of the rentals due from Lessee
hereunder, shall be paid directly to Lessor after deducting
all reasonable out-of-pocket expenses incurred by Lessee as a
result of the assignment or sublease, (b) the proposed
assignee or sublessee is financially capable of assuming
Lessee's obligations hereunder, in the judgment of Lessor, and
(c) the proposed assignee or sublessee agrees to use the
Premises only for the uses permitted by Lessee under this
Lease, and to comply with all of the other
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terms and conditions of this Lease. Consent by Lessor to one
assignment, subletting, occupation or use by another person
shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by the same or
another person. Consent to an assignment or sublease shall not
release Lessee from liability for the continued performance of
the terms and provisions to be kept and performed by Lessee
hereunder, unless Lessor specifically and in writing releases
Lessee from said liability. In addition, an amendment,
modification or extension of the Lease after the assignment or
sublease shall not release Lessee from liability for the
continued performance of the terms and provisions to be
performed by Lessee hereunder. Any assignment or subletting by
operation of law or otherwise, (including without limitation,
a transfer of controlling interest in Lessee to any other
person, firm or entity, except to an Affiliate as described
below) without the prior written consent of Lessor, which
consent shall not be unreasonably withheld or delayed, shall
be void and shall, at the option of Lessor, terminate this
Lease. Lessee covenants and agrees that when the prior written
consent of Lessor is obtained, and in the event the subletting
or assignment is to be arranged through public advertisement
or listing of any kind, Lessee will treat all applications for
sublease or assignment in a uniform manner and will award
leases according to objective standards. No decision on any
application shall be made on the grounds of the applicant's
race, color, religion, sex, handicap, familial status, or
national origin. Notwithstanding anything contained herein to
the contrary, provided Lessee is not in default hereunder and
all Base Rent and Additional Rent due and owing as of the date
of such assignment have been paid in full, Lessee shall have
the right at any time and from time to time, as many times as
may be convenient, a) to sublease the Premises to a licensed
franchisee of Lessee, b) to sublet or assign all or part of
the Premises to (i) a partially or wholly owned corporation
subsidiary of Lessee, to its parent company, or an Affiliate
of Lessee, as described below, (ii) any corporation which
acquires all or substantially all of the assets or operations
of Lessee, or (iii) any corporation into which or with which
Lessee has merged or consolidated, other than an Affiliate, so
long as the surviving entity has a net worth not less than
Lessee"s prior to the merger, consolidation or acquisition;
provided, (a) Lessee gives prior written notice of the
assignment or transfer to Lessor and presents evidence to
Lessor of the assignees ability to perform Lessee's financial
obligations hereunder, (b) the assignee assumes in writing the
duties and obligations of Lessee hereunder, and (c) Lessee
remains directly and primarily liable for the performance of
all the covenants, duties and obligations of Lessee hereunder
(including, without limitation, the obligation to pay all rent
and other sums herein provided to be paid), and Lessor shall
be permitted to enforce the provisions of this instrument
against the undersigned Lessee and/or any assignee without
demand upon or proceeding in any way against any other person.
As used in this Lease, the term "Affiliate" shall mean and
refer to any person or entity controlling, controlled by, or
under common control with another such person or entity.
"Control" as used herein shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of such controlled person or entity;
ownership, directly or indirectly, of more than fifty percent
(50%) of the voting securities of, or possession of the right
to vote, in the
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ordinary direction of its affairs, more than fifty percent
(50%) of the voting interest in, any person or entity shall be
presumed to constitute such control.
Notwithstanding anything contained herein to the contrary, Lessor shall
not be obligated to entertain or consider any request by Lessee to consent to
any proposed assignment of this Lease or sublease of all or any part of the
Premises unless each request by Lessee is accompanied by a nonrefundable fee
payable to Lessor in the amount of $ 500.00 to cover Lessor's administrative,
legal, and other costs and expenses incurred in processing each of Lessee's
requests. Neither Lessee's payment nor Lessor's acceptance of the foregoing fee
shall be construed to impose any obligation whatsoever upon Lessor to consent to
Lessee's request.
34. TRANSFER OF CONTROL. If Lessee is a corporation, and if at any time
during the Term of this Lease, corporate shares of Lessee shall be transferred
by sale, assignment, bequest, inheritance, operation of law or other disposition
so as to result in a change in the present control of said corporation by the
person or persons now owning a majority of said corporate shares, Lessee shall
be in default of this Lease and Lessor may exercise its rights in respect of
default hereunder. Notwithstanding anything contained herein to the contrary,
this provision will not apply to a transfer of Lessee's corporate shares as
described in Section 24 above to an Affiliate or to an entity other than an
Affiliate so long as the surviving entity has a net worth no less than Lessee"s
on the date of this Lease.
35. NOTICES. Any notice required or permitted to be given pursuant to
the terms of this Lease shall be sent by certified or registered U.S. mail to
Lessor at 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx 00000, Attn: Property
Management, with a copy to Crescent Real Estate Equities Limited Partnership,
000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000, Attn: Legal Department,
and to Lessee at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000, Attn:
Xxxx Xxxxxxx. The place to which such notices shall be sent may be
changed by either party giving notice of such change to the other party in the
manner hereinabove provided. A notice shall be deemed given and received on the
3rd business day following deposit in the U. S. Mail as provided above.
36. SEVERABILITY. If any of the provisions of this Lease shall
contravene or be invalid under the laws of the particular state, county, or
jurisdiction where applied, such contravention or invalidity shall not
invalidate the Lease or any other portions thereof and the remainder of this
Lease or the application thereof to other persons or circumstances shall not be
affected thereby.
37. CORPORATE AUTHORITY. If Lessee signs as a corporation, each of the
persons executing this Lease on behalf of Lessee represents and warrants that
Lessee is a duly organized and existing corporation, that Lessee has and is
qualified to do business in Texas, that the corporation has full right and
authority to enter into this Lease, and that all persons signing on behalf of
the corporation were authorized to do so by appropriate corporate actions.
38. TITLE. This Lease is subject to all matters of record in the Real
Property Records of Xxxxxxxxxx County, Texas. By execution of this Lease, Lessee
consents to all plats and replats of the Land, if any, in compliance with all
applicable laws.
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39. NOT AN OFFER. The submission of this Lease to Lessee shall not be
construed as an offer, nor shall Lessee have any rights with respect thereto
unless Lessor executes a copy of this Lease and delivers the same to Lessee.
40. EXHIBITS, RIDERS AND ADDENDA. This Lease also includes and
incorporates herein for all purposes all attached Exhibits, Riders, and Addenda,
if any.
41. JOINT AND SEVERAL TENANCY. If more than one person executes this
Lease as Lessee, their obligations hereunder are joint and several, and any act
or notice of or to, or refund to, or the signature of, any one or more of them,
in relation to the renewal or termination of this Lease, or under or with
respect to any of the terms hereof shall be fully binding on each and all of the
persons executing this Lease as a Lessee.
42. BINDING EFFECT. This Lease shall be binding upon and inure to the
benefit of the heirs, successors or assigns of Lessor and Lessee, subject to the
limitation on subleasing and assignment herein contained.
43. ENTIRE AGREEMENT. This Lease shall constitute the sole and only
agreement of Lessor and Lessee with regard to the Lease of the Premises, and
shall supercede any prior or contemporaneous oral or written agreements. This
Lease may not be altered, changed or amended, except by an instrument in
writing, signed by both parties hereto.
44. PRONOUNS. Pronouns which refer to either Lessor or Lessee shall be
construed to mean the appropriate number and gender intended.
45. FORCE MAJEURE. If either party shall be delayed or prevented from
the performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive
governmental laws or regulations or other cause without fault and beyond the
control of the party obligated (Lessee's financial inability, such as inability
to obtain financing or lack of capital, excepted), performance of such act shall
be excused for the period of the delay, and the period for the performance of
any such act shall be extended by a period equal to the period of such delay;
provided, however, nothing in this Section shall excuse Lessee from the prompt
payment of any rental or other charge required of Lessee hereunder, except as
may be expressly provided elsewhere in this Lease.
46. NO PERSONAL LIABILITY OF LESSOR. ANY JUDGMENT RECOVERED BY ANY
LESSEE PARTY AGAINST ANY LESSOR PARTY SHALL BE SATISFIED SOLELY OUT OF PROCEEDS
RECEIVED AT JUDICIAL SALE UPON EXECUTION ANY LEVY MADE AGAINST LESSOR"S RIGHT,
TITLE AND INTEREST IN THE BUILDING AND IN THE RENTS THEREFROM RECEIVABLE BY
LESSOR. THE LESSEE PARTIES ARE LESSEE, ITS SHAREHOLDERS, MEMBERS, PARTNERS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBLESSEES, LICENSEES AND
INVITEES. THE LESSOR PARTIES ARE LESSOR, THE MANAGER OF THE BUILDING, LESSOR'S
MORTGAGEE(S) AND ANY AFFILIATES OR SUBSIDIARIES OF THE FOREGOING,
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AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS,
MEMBERS, PARTNERS, AGENTS AND CONTRACTORS. THE LESSOR'S MORTGAGEES ARE ANY
MORTGAGEE, GROUND LESSOR, TRUSTEE UNDER A DEED OF TRUST, OR BUYER AT A
FORECLOSURE OR TRUSTEE'S SALE. NO LESSOR PARTY SHALL OTHERWISE HAVE ANY
PERSONAL, CORPORATE OR OTHER LIABILITY UNDER THIS LEASE. FOLLOWING ANY TRANSFER
BY LESSOR OF ANY INTEREST IN THE PREMISES, LESSOR SHALL BE RELEASED FROM ALL
OBLIGATIONS OF "LESSOR" THEREAFTER ARISING UNDER THIS LEASE, AND LESSEE SHALL
ATTORN AND LOOK SOLELY TO LESSOR"S SUCCESSOR-IN-INTEREST FOR PERFORMANCE OF SUCH
OBLIGATIONS.
47. RIGHT TO RELOCATE. Lessor shall have the right to require Lessee,
upon 60 days notice, to relocate the Premises to any other premises within the
Building ('Relocated Premises") on a date of relocation (the "Relocation Date")
specified therein. In such event, all reasonable expenses of moving Lessee and
decorating the Relocated Premises with substantially the same leasehold
improvements shall be at the expense of Lessor, including the physical move,
telephone installation and stationery costs. Within 5 business days following
receipt of Lessor's relocation notice, Lessee shall have the option, effective
as of the Relocation Date, either to enter into an appropriate lease amendment
relocating the Premises, or to terminate the Lease. Failure of Lessee to choose
either option shall constitute Lessee's election to relocate. If Lessee elects
to relocate, Lessor shall have the option to tender the Relocated Premises to
Lessee on any date within a 30 day period prior to or after the Relocation Date,
in which event the Relocation Date shall become the date of tender of possession
of the Relocated Premises. From the Relocation Date through the termination date
of the Lease, the aggregate Base Rent for the Relocated Premises shall be the
same as for the original Premises.
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48. GENERAL. Time is of the essence of this Lease. All rights and
remedies of Lessor and Lessee under this Lease shall be cumulative and none
shall exclude any other rights or remedies allowed by law. This Lease shall be
declared to be a Texas lease, and all of the terms hereof shall be construed
according to the laws of the State of Texas. Said Lease shall be performable
only in Xxxxxxxxxx County, Texas, and venue for any action hereunder shall lie
exclusively in Xxxxxxxxxx County, Texas or in the Southern District of Texas,
Houston Division, as appropriate.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease in
multiple counterparts, each of which shall constitute an original but
collectively shall constitute only one document. Notwithstanding anything
contained herein to the contrary, the terms of this Lease shall not be binding
on Lessor until it has been signed by Lessor and a fully executed copy is
delivered to Lessee.
LESSOR:
WOODLANDS OFFICE EQUITIES-'95 LIMITED,
a Texas limited partnership,
By: THE WOODLANDS COMMERCIAL
PROPERTIES COMPANY, L.P.,
a Texas limited partnership
Its General Partner
By: The Woodlands Operating Company,
L.P., a, Texas limited partnership
Its Authorized Agent
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------
Title: V.P., Commercial Division
-------------------------------
LESSEE:
TELXON CORPORATION
a Delaware corporation
By: /s/ X.X. XxXxx 1/11/00
---------------------------------------------------
Name: X.X. XxXxx
-------------------------------------------------
Title: VP/CPO
------------------------------------------------
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EXPANSION, MODIFICATION AND RATIFICATION OF LEASE
-------------------------------------------------
This Expansion, Modification and Ratification of Lease Agreement
("Agreement"), effective the 1st day of May 2000, is between WOODLANDS OFFICE
EQUITIES-'95 LIMITED ("Lessor"), a Texas limited partnership and TELXON
CORPORATION, a Delaware Corporation ("Lessee"), for and in consideration of
$1.00, and other good and valuable consideration.
W I T N E S S E T H:
1. Lessor and Lessee hereby confirm and ratify (as modified below) all
of the terms, conditions and covenants in that certain Lease Agreement ("Lease")
between the parties dated January 31, 2000; under which Lessee has leased from
Lessor approximately 25,857 square feet of net rentable area in that building
located at 0000 Xxx Xxxxxx Xxxxx, Xxxxx X, Xxx Xxxxxxxxx, Xxxxxxxxxx Xxxxxx,
Xxxxx ("Building").
2. Lessor and Lessee agree that effective April 1, 2000 ("Expansion
Area Effective Date"), the area of the Premises shall be increased by 10,041
square feet of net rentable area ("Expansion Area") which Expansion Area is
outlined on attached Exhibit "A", changing the size of the Premises to 35,898
square feet of net rentable area. Lessee agrees to accept the Expansion Area on
the terms of the Exhibit "B" attached to the Lease.
3. Lessor and Lessee agree that beginning on the Expansion Area
Effective Date through the remainder of the Term, the Base Rent, as set out in
Section 7 of the Lease, shall be $26,175.63 per month.
4. Lessee agrees to accept the Expansion Area on the terms of the
Exhibit "B" attached to the Lease.
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The parties hereto have executed this Agreement in multiple
counterparts, each of which shall constitute and original, but collectively
shall constitute only one document. Notwithstanding anything contained herein to
the contrary, the terms of this Agreement shall not be binding on Lessor until
it has been signed by Lessor and a fully executed copy is delivered to Lessee.
LESSOR: LESSEE:
WOODLANDS OFFICE EQUITIES-`95 TELXON CORPORATION,
LIMITED, A Delaware Corporation
A Texas limited partnership,
By: The Woodlands Commercial
Properties Company, L. P., By: /s/ X.X. XxXxx
----------------------------
A Texas limited partnership Name: X.X. XxXxx
Its General Partner Title: Vice President/CFO
By: The Woodlands Operating Company,
L.P., a Texas limited partnership
Its Authorized Agent
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President,
Commercial Division
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