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EXHIBIT 10.51
[CB COMMERCIAL REAL ESTATE GROUP, INC. LETTERHEAD]
SUBLEASE
1. PARTIES.
This Sublease, dated February 26, 1996. is made between Xxxxxxx
Technology, Inc. a Texas Corporation ("Sublandlord"), and SPACEHAB,
Inc. ("Subtenant").
2. MASTER LEASE.
Sublandlord is the tenant under a written lease date August 21, 1991
and amended October 9, 1992, October 7; 1993, February 7, 1994, and
January 6, 1995 wherein Puget of Texas (successor to Aetna Life
Insurance Company) ("Lessor") leased to Sublandlord the real property
located in the City of Houston, County of Xxxxxx, State of Texas,
described as 1331 Gemini. Said lease and amendments are herein
collectively referred to as the "Master Lease" and are attached hereto
as Exhibit "A".
3. PREMISES.
Sublandlord hereby subleases to Subtenant on the terms and conditions
et forth in this Sublease the following portion of the Master Premises
("Premises"): 4,525 rentable square feet indicated on the attached
floor plan as Exhibit "B".
4. WARRANTY BY SUBLANDLORD.
Sublandlord warrants and represents to Subtenant that the Master Lease
has not been amended or modified except as expressly set forth herein,
that Sublandlord is not now, and as of the commencement of the Term
hereof will not be, in default or breach of any of the provisions of
the Master Lease, and that Sublandlord has no knowledge of any claim by
Landlord that Sublandlord is in default or breach of any of the
provisions of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on March 22, 1996
("Commencement Date"), or when Landlord consents to this Sublease (if
such consent is required under the Master Lease), whichever shall last
occur, and end on February 28, 1998 ("Termination Date"), unless
otherwise sooner terminated in accordance with the provisions of this
Sublease. In the event the Term commences on a date other than the
Commencement Date, Sublandlord and Subtenant shall execute a memorandum
setting forth the actual date of commencement of the Term. Possession
of the Premises ("Possession") shall be delivered to Subtenant on the
commencement of the Term. If for any reason Sublandlord does not
deliver Possession to Subtenant on the commencement of the Term,
Sublandlord shall not be subject to any liability for such failure, the
Termination Date shall not be extended by the delay, and the validity
of this Sublease shall not be impaired, but rent shall xxxxx until
delivery of Possession. Notwithstanding the foregoing, if Sublandlord
has not delivered Possession to Subtenant within eighteen (18) days
after the Commencement Date, then at any time thereafter and before
delivery of Possession, Subtenant may give written notice to
Sublandlord of Subtenant's intention to cancel this Sublease. Said
notice shall set forth an effective date for such cancellation which
shall be at least ten (10) days after delivery of said notice to
Sublandlord. If Sublandlord fails to deliver Possession to Subtenant on
or before such effective date, this Sublease shall be canceled, in
which case all consideration previously paid by Subtenant to
Sublandlord on account of this Sublease shall be returned to Subtenant,
this Sublease shall thereafter be of no further force or effect, and
Sublandlord shall have no further liability to Subtenant on account of
such delay or cancellation. If Sublandlord permits Subtenant to take
Possession prior to the commencement of the Term, such early Possession
shall not advance the Termination Date and shall be subject to the
provisions of this Sublease, including without limitation the payment
of rent.
6. RENT.
Minimum Rent. Subtenant shall pay to Sublandlord as minimum rent,
without deduction, setoff, notice, or demand, at 0000 Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 Thirty three hundred and forty nine and
80/100 Dollars ($3,349.80) for months one (1) and two (2) and Four
thousand seventy-two and 50/100 Dollars ($4,072.50) per month for the
remainder of the sublease term, in advance on the first (1st) day of
each month of the Term. Subtenant shall pay to Sublandlord upon
execution of this Sublease the sum of Thirty three hundred forty nine
and 80/100 Dollars ($3,349.80) as rent for month one (1). If the Term
begins or ends on a day other than the first or last day of a month,
the rent for the partial months shall be prorated on a per diem basis,
except for payment of Base Rental as defined herein, Subtenant shall
not be liable for any economic requirements of Sublandlord, including
but not limited to, operating expenses, parking fees, maintenance, etc.
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7. USE OF PREMISES.
The Premises shall be used and occupied only for general office use,
and for no other use or purpose.
8. ASSIGNMENT AND SUBLETTING.
Subtenant shall not assign this Sublease or further sublet all or any
part of the Premises without the prior written consent of Sublandlord
(and the consent of Landlord, if such is required under the terms of
the Master Lease).
9. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are
incorporated into and made a part of this Sublease as if Sublandlord
were the landlord thereunder, Subtenant the lessee thereunder, and the
Premises the Master Premises, except for the following:
(1) Sublandlord shall provide Subtenant with nine (9) keys and nine (9)
card-keys.
(2) At no cost to Subtenant, Subtenant shall be provided one (1) strip
on the outside monument sign, one (1) strip on the lobby directory,
and building standard graphics on Subtenant's front entry, with
directional graphics.
(3) Sublandlord shall install a second exit and demising wall in the
areas indicated on Exhibit "C".
(4) Subtenant shall have an ongoing right of first refusal on
approximately 3,196 rentable square feet of space indicated on
Exhibit "C". If a third party tenant wishes to lease said space,
Subtenant shall have five (5) business days to accept or reject the
refusal space upon the said terms and conditions of the third party
offer.
(5) Sublandlord shall donate all furniture listed in Exhibit "D" to
Subtenant.
(6) The cost for use of HVAC beyond the normal business hours stated in
the Lease is $25.00 per hour. Subtenant assumes and agrees to
perform the landlord's obligations under the Master Lease during
the Term to the extent that such obligations are applicable to the
Premises, except that the obligation to pay rent to Landlord under
the Master Lease shall be considered performed by Subtenant to the
extent and in the amount rent is paid to Sublandlord in accordance
with Section 6 of this Sublease. Subtenant shall not commit or
suffer any act or omission that will violate any of the provisions
of the Master Lease. Sublandlord shall exercise due diligence in
attempting to cause Lessor to perform its obligations under the
Master Lease for the benefit of Subtenant. If the Master Lease
terminates, this Sublease shall terminate and the parties shall be
relieved of any further liability or obligation under this
Sublease, provided however, that if the Master Lease terminates as
a result of a default or breach by Sublandlord or Subtenant under
this Sublease and/or the Master Lease, then the defaulting party
shall be liable to the nondefaulting party for the damage suffered
as a result of such termination. Notwithstanding the foregoing, if
the Master Lease gives Sublandlord any right to terminate the
Master Lease in the event of the partial or total damage,
destruction, or condemnation of the Master Premises or the building
or project of which the master Premises are a part, the exercise of
such right by Sublandlord shall not constitute a default or breach
hereunder, and the subtenant shall be relieved of any further
obligation under this sublease.
10. ATTORNEYS' FEES.
If Sublandlord, Subtenant, or Broker shall commence an action against
the other arising out of or in connection with this Sublease, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorney's fees.
11. AGENCY DISCLOSURE:
Sublandlord and Subtenant each warrant that they have dealt with no
other real estate broker in connection with this transaction except: CB
COMMERCIAL REAL ESTATE GROUP, INC., who represents Xxxxxxx Technology,
Inc. and The Xxxx Xxxxx Company, who represents SPACEHAB, Inc.
12. COMMISSION.
Upon execution of this Sublease, and consent thereto by Landlord (if
such consent is required under the terms of the Master Lease),
Sublandlord shall pay Broker a real estate brokerage commission in
accordance with Sublandlord's contract with Broker for the subleasing
of the Premises, for services rendered in effecting this Sublease.
Broker is hereby made a third party beneficiary of this Sublease for
the purpose of enforcing its right to said commission.
13. NOTICES.
All notices and demands which may or are to be required or permitted to
be given by either party on the other hereunder shall be in writing.
All notices and demands by the Sublandlord to Subtenant shall be sent
by United States Mail, postage prepaid, addressed to the Subtenant at
the Premises, and to the address hereinbelow, or to such other place as
Subtenant may from time to time designate in a notice to the
Sublandlord. All notices and demands by the Subtenant to Sublandlord
shall be sent by United States Mail, postage prepaid, addressed to the
Sublandlord at the address set forth herein, and to such other person
or place as the Sublandlord may from time to time designate in a notice
to the Subtenant.
To Sublandlord: Xxxxxxx Technology, 0000 Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000
To Subtenant: SPACEHAB, Inc., 0000 Xxxxxx, Xxxxx , Xxxxxxx,
Xxxxx 00000
9. (7) Requirements upon Tenant of Section 13 of Master Lease shall not
flow down to Subtenant.
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14. CONSENT BY LANDLORD.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY
LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS
REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
15. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative
orders having jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to, the 1964 Civil
Rights Act and all amendments thereto, the Foreign Investment in Real
Property Tax Act, the Comprehensive Environmental Response Compensation
and Liability Act, and The Americans With Disabilities Act.
Sublandlord: Xxxxxxx Technology, Inc. Subtenant: SPACEHAB, Inc.
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By: By: /s/ Xxxxx Xxxxxxxx
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Title: Contracts Administrator Title: Corporate Secretary
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By: By:
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Title: Title:
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Date: Date:
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Accepted:
LANDLORD'S CONSENT TO SUBLEASE
The undersigned ("Landlord"), landlord under the Master Lease, hereby consents
to the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Landlord certifies that, as of the
date of Landlord's execution hereof, Sublandlord is not in default or breach of
any of the provisions of the Master Lease, and that the Master Lease has not
been amended or modified except as expressly set forth in the foregoing
Sublease.
Landlord: Puget of Texas
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By: Xxx Xxxxx
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Title:
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By:
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Title:
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Date:
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XXXXXXX TECHNOLOGY BUILDING
1331 Gemini Avenue
Third Floor Sublease Area
GRAPHIC OF FLOOR PLAN
Exhibit "B"
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XXXXXXX TECHNOLOGY BUILDING
1331 Gemini Avenue
Third Floor Sublease Area
ARCHITECT'S DRAWINGS OF SUITE
Exhibit "C"
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Exhibit A to "Sublease"
LEASE CONTRACT
This Lease contract thereinafter called the "Lease"), entered into by
and between AETNA LIFE INSURANCE COMPANY, (hereinafter called "Landlord"), and
XXXXXXX TECHNOLOGY, INC., a Texas corporation (hereinafter called "Tenant").
WITNESSETH:
PREMISES
1. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
Thirty-two Thousand Five Hundred Sixty (32,560) square feet of "Rentable Area"
(as hereinafter defined) in the Gemini Development Office Building (such
building whether called by such name of by any other name being hereinafter
called "the Building") located on Gemini Street in Clear Lake City, Xxxxxx
County, Texas, and being more particularly described in Exhibit "A-1", subject
to adjustment as provided in Paragraph 3.B. The areas hereby leased by Tenant in
the Building shall be called "Leased Premises" and are shown outlined and
crosshatched on the floor plan drawings designated Exhibits "A-2" through "A-4"
which are attached hereto and made a part hereof and signed or initialed by the
parties for identification. Landlord shall have the right at any time and from
time to time to change the Building name.
The term "Rentable Area", as used herein with respect to each floor of
the Building on which the entire rentable space is or will be leased to one
tenant (hereinafter called "Single Tenant Floor"), shall be the entire floor
area measured from the inside surface of the outer glass line excluding the area
contained within Building stairs, vertical ducts, elevator shafts, flues, vents,
stacks and pipe shafts, plus a pro rata portion of certain public areas of the
Building. All the area on any Single Tenant Floor that is used for elevator
lobbies, corridors, special tenant stairways, restrooms, mechanical rooms,
electrical rooms, and telephone closets situated on such floor, and all vertical
penetrations that are included for special use by Tenant, and columns and other
structural portions of the Building shall be included within the Rentable Area
of such floor.
On each floor of the Building on which space is or will be leased by more
than one Tenant, the term "Rentable Area" shall be the total of (i) the entire
floor area included within the leased premises covered by such lease, being the
floor area bounded by the inside surface of the exterior glass lines enclosing
the leased premises, the exterior of all walls separating such leased premises
from any public corridors or other public areas on such floor and the centerline
of all demising walls separating such leased premises from other areas leased or
to be leased to other tenants on such floors, (ii) a pro rata portion of the
floor area covered by the elevator lobbies, corridors, restrooms, mechanical
rooms, electrical rooms, and telephone closets situated on such floor, and (iii)
a pro rata portion of certain public areas of the Building (which public areas
may or may not be located on such floors). The Rentable Area for the entire
Building shall be deemed to be fifty-nine thousand eight hundred thirty-three
(59,833) square feet for the purposes of this Lease. Tenant shall have no
option, right of refusal or other right to lease other space in the Building now
or hereafter from Landlord, except as otherwise provided in this Lease.
TERM
2. The term of this Lease shall be for a period beginning on the date of
execution hereof (such commencement date, being hereinafter called the
"Commencement Date"), and ending on the 30th day of November, 1994.
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3. A. Except as noted in Paragraph 27, as rental for the lease and use of the
Leased Premises during the term hereof (hereinafter called "Base
Rental"), Tenant will pay Landlord of Landlord's assigns, at the
Building office or at such other location designated by Landlord,
without demand and without deduction, abatement or setoff (except as
otherwise expressly provided for herein) the sum Of Thirty Six Thousand
Six Hundred Thirty and No/100 Dollars ($36,630.00) per month on the
first day of each calendar month, monthly in advance, for each and
every month in the term of this Lease, in lawful money of the United
States, such amount subject to adjustment as provided in Subparagraph
8, below. If the lease term does not commence on the first day of a
calendar month or end on the last day of a calendar month, Tenant will
pay in advance a pro rata part of such monthly amount as rental for
such first or last partial month. Furthermore, for each occasion on
which Tenant fails to pay within five (5) days when due the Base
Rental, or any other amount required to be paid under this Lease,
Tenant shall pay Landlord a late fee equal to five percent (5%) of such
Base Rental or other amount due.
B. The monthly rent is subject to adjustment based on the actual number of
square feet in the Rentable Area of the Leased Premises, multiplied by
the rate of $13.50 per square foot per year. Landlord's architect shall
compute the floor area and certify such information in writing to both
Landlord and Tenant prior to the Commencement Date. Measurements shall
be calculated as set forth in Paragraph 1.
USE
4. Tenant will use the Leased Premises solely for the purpose of office
space in which Tenant will conduct its regular and customary business affairs,
and for no other purpose without the prior written consent of Landlord.
SERVICES TO BE PROVIDED BY LANDLORD
5. A. Subject to the rules and regulations hereinafter referred to, Landlord
shall furnish Tenant, at Landlord's expense, the following services
during the lease term:
(1) Air conditioning and heating in season, at such times as Landlord
normally furnishes these services to other tenants in the
Building, and at such temperatures and in such amounts as are
considered by Landlord to be standard, but such service on
Saturday afternoons, Sundays and holidays to be furnished only
upon the request of Tenant, who shall bear the cost thereof.
(2) Hot and cold water at those points of general supply provided on
the floor on which the Leased Premises are located.
(3) Janitor service in and about the Building and the Leased Premises
five (5) days per week and periodic window washing; provided,
however, Tenant shall pay the additional costs attributable to the
cleaning of improvements within the Leased Premises other than
building standard improvements.
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(4) Building elevators for access to and access from the Leased
Premises twenty-four (24) hours a day, seven (7) days a week.
(5) Proper facilities so as to enable the appropriate utility company
to furnish sufficient electrical power for building standard
lighting, typewriters, dictating equipment, calculating machines
and other machines of similar low electrical consumption, but not
including any item of electrical equipment which singly consumes
more than 0.25 kilowatts per hour at rated capacity or requires a
voltage other than 120 volts single phase, including without
limitation, electronic date processing equipment and special
lighting in excess of building standard. Tenant shall pay to
Landlord, monthly as billed, such charges as may be separately
metered (the cost of any such meter and its installation to be
borne by Tenant) or as Landlord's engineer may compute for any
electrical service in excess of that stated above. See Addendum to
Lease, Paragraph 3, Tenant Electricity.
(6) Replacement of fluorescent lamps and ballasts in building standard
ceiling mounted fixtures installed by Landlord and incandescent
bulb replacement in all public areas.
B. No interruption or malfunction of any of such services (including,
without limitation, reduction in Landlord's capability, or Landlord's
inability, to provide such services as a result of the enactment or
promulgation, regardless of the ultimate validity or enforceability
thereof, of any federal, state or local law, ordinance, decree, order,
guideline, or regulation now or hereafter enacted or promulgated by any
governmental, quasigovernmental, regulatory or executive authority
shall constitute an eviction or disturbance of Tenant's use and
possession of the Leased Premises or Building or a breach by Landlord
of any of its obligations hereunder or render Landlord liable for
damages or entitle Tenant to be relieved from any of its obligations
hereunder(including the obligation to pay rent) or grant Tenant any
right of setoff or recoupment or abatement. In the event of any such
interruption, however, Landlord shall use reasonable diligence during
normal business hours to restore such service in any circumstances in
which such restoration is within the reasonable control of Landlord.
C. Should Tenant desire any additional services beyond those described in
Subparagraph A of this Paragraph 5 or rendition of any of such services
outside the normal times of Landlord for providing such service,
Landlord may (at Landlord's option), upon reasonable advance notice
from Tenant to Landlord, furnish such services and Tenant agrees to pay
Landlord such charges as may be agreed an between Landlord and Tenant,
but in no event at a charge less than Landlord's actual cost plus
overhead for the additional services provided, it being agreed that the
cast to Landlord of such additional services shall be excluded from the
"Basic Cast", as defined in Paragraph 13.B of this Lease.
REPAIR AND MAINTENANCE
6. A. Landlord will, at its own cost and expense, except as may be provided
elsewhere herein, make necessary repairs of damage to the Building
corridors, lobby, structural members of the Building, and equipment
used to provide
LEASE CONTRACTS - page 3
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the services referred to in Paragraph 5, unless any such damage is
caused by acts or omissions of tenant, its agents, customers, employees
or invitees, in which event Tenant will bear the cost of such repairs.
Tenant will promptly give Landlord written notice of any damage
requiring repair by Landlord, as aforesaid.
B. Tenant will not injure the Leased Premises or the Building but will
maintain the Leased Premises in a clean, attractive condition and in
good repair, except as to damage to be repaired by Landlord, as
provided above. Upon termination of this Lease, Tenant will surrender
and deliver up the Leased Premises to Landlord in good condition,
excepting only ordinary wear and tear and damage arising from any cause
not required to be repaired by Tenant.
C. This Paragraph 6 shall not apply in the case of damage of destruction
by fire of other casualty which is covered by insurance maintained by
Landlord on the Building (as to which Paragraph 7 hereof shall apply)'
or damage resulting from an imminent domain (as to which Paragraph 14
shall apply).
FIRE OR OTHER CASUALTY
7. A. If at any time during the term of this Lease, the Leased Premises or
any portion of the Building shall be damaged or destroyed by fire or
other casualty, so as to render the Building premises untenantable for
over 60 days, then Landlord shall have the option to terminate this
Lease or to repair and reconstruct the Leased Premises and Building to
the condition in which they existed immediately prior to such damage or
destruction and Landlord shall give Tenant notice of its election
within sixty (60) days from the date of such damage or destruction.
B. If any of the aforesaid circumstances, rental shall xxxxx
proportionately during the period and to the extent that the Leased
Premises are unfit for use by Tenant in the ordinary conduct of its
business. If Landlord has elected to repair and restore the Leased
Premises, this Lease shall continue in full force and effect and such
repairs will be made within a reasonable time thereafter, subject to
delays arising from shortages of labor or material, acts of God, war or
other conditions beyond Landlord's reasonable control. In the event
that this Lease is terminated as herein permitted, Landlord shall
refund to Tenant any prepaid rent (unaccrued as of the date of damage
of destruction) less any sum then owing Landlord by Tenant.
COMPLIANCE WITH LAWS AND USAGE
8. Tenant, at its own expense, will comply with all federal, state,
municipal and other laws, ordinances, rules and regulations applicable to the
Leased Premises and the business conducted therein by Tenant (including, without
limitation, any temperature control restrictions); will not engage in any
activity which would cause Landlord's fire and extended coverage insurance to be
cancelled or the rate therefor to be increased (or, at Landlord's option, will
pay any such increase); will not commit any act which is a nuisance or annoyance
to Landlord or to other tenants, or which might, in the exclusive judgment of
Landlord, appreciably damage Landlord's goodwill or reputation, or tend to
injure or depreciate the Building; will not commit or permit waste in the Leased
Premises or Building; will comply with rules and regulations from time to time
promulgated by Landlord, applicable to the Building; will not paint, erect or
display any sign, advertisement, placard or lettering which is visible in the
corridors or lobby of the Building or from the exterior of the Building without
Landlord's prior written approval.
LEASE CONTRACT - Page 4
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LIABILITY AND INDEMNITY
9. A. Tenant agrees to indemnify and hold and save harmless Landlord and
Landlord's partners, agents, employees, invitees and contractors from
any and all claims, losses, costs, damages, or expenses (including but
not limited to attorney's fees) resulting or arising or alleged to
result or arise from any and all injuries to or death of any person or
damage to or loss of any property caused by any act, omission, or
neglect of Tenant or Tenant's partners, venturers, directors, officers,
employees, agents, invitees or guests, or any parties contracting with
Tenant relating to the Leased Premises, the Building, the Land on which
the building is constructed, or by any breach, violation or
non-performance of any covenant of Tenant under this Lease or by
occurring in or about the Leased Premises. If any action or proceeding
should be brought by or against Landlord in connection with any such
liability or claim, Tenant, on notice from Landlord, shall defend such
action or proceeding, at Tenant's expense, by or through attorneys
reasonably satisfactory to Landlord. The provisions of this paragraph
shall apply to all activities of Tenant, its partners, venturers,
directors, officers, employees, agents, invitees, guests, personnel and
contractors with respect to the Leased Premises, the Building, parking
area, or the land on which the Building is constructed, whether
accruing before or after the expiration or termination of this Lease.
Tenant's obligations under this paragraph shall not be limited to the
limits or coverage of insurance maintained or required to be maintained
by Tenant under this Lease. Except in cases of gross negligence by
Landlord, neither Landlord nor its agents and employees, shall be
liable for any damage of any kind or for any damage to property, death
or injury to persons by reason of the use and occupancy of the Leased
Premises by Tenant. Except for structural defects in the Building and
breaches of this Lease by Landlord (to the extent of actual damages, if
any, only), Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord or Landlord's partners, contractors
or agents for any damages, consequential damages, loss of profits or
business opportunity, business interruption, and for any damage to
property, death or injury to persons from any cause whatsoever
including, without limitation, acts or omissions of other tenants or
such other tenants' employees, agents, contractors, invitees or guests,
vandalism, loss of trade secrets or other confidential information, and
damage, loss or injury caused by a defect (other than structural) in
the Leased Premises, the Building, parking area, pipes,
air-conditioning, heating, plumbing or by water leakage of any kind
from the roof, walls, windows, basement or other portion of the Leased
Premises or the Building, or caused by electricity, gas, oil, fire,
interruption of Landlord's services or any cause whatsoever in, on, or
about the Leased Premises, the Building, the parking area, the land on
which the Building is constructed, or any part thereof. Except as
otherwise provided in the immediately preceding sentence, Tenant agrees
to use and occupy the Leased Premises and other facilities of the
Building, parking area, and land on which the Building is constructed
at its own risk and hereby releases Landlord, its agent or employees,
from all claims for any damage or injury to the full extent permitted
by law.
B. In the event that either Landlord or Tenant sustains a loss by reason
of fire or other casualty which is a type of risk covered by such
party's fire and extended
LEASE CONTRACT - Page 5
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coverage insurance policy and such fire or casualty is caused in whole
or in part by acts or omissions of the other party, its agents,
servants or employees, then the party sustaining such loss agrees that
to the extent that the party sustaining such loss is compensated for
such loss by its aforesaid insurance proceeds, the party sustaining
such loss shall have no right of recovery against the other party, or
the agents, servants or employees of the other party and expressly
waives such right herein; and no third party shall have any right of
recovery by way of subrogation or assignment or otherwise.
ADDITIONS AND FIXTURES
10. A. Tenant will make no alteration, change, improvement, repair,
replacement or addition to the Leased Premises without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld. If such prior written consent of Landlord is granted, the
work in such connection shall be at Tenant's expense but by workmen of
Landlord or by workmen and contractors approved in advance in writing
by Landlord and in a manner and upon terms and conditions and at tines
satisfactory to and approved in advance in writing by Landlord. In any
instance where Landlord grants such consent, Landlord may grant such
consent contingent and conditioned upon Tenant's contractors, laborers,
materialmen and others furnishing labor or materials for Tenant's job
working in harmony and not interfering with any labor utilized by
Landlord, Landlord's contractors or mechanics or by any other tenant or
such other tenant's contractors or mechanics; and if at any time such
entry by one or more persons furnishing labor or materials for Tenant's
work shall cause disharmony or interference, the consent granted by
Landlord to Tenant may be withdrawn immediately upon notice to Tenant.
B. Tenant may remove its trade fixtures, supplies and movable office
furniture and equipment not attached to the Building provided: (1) such
removal is made prior to the termination of the term of the Lease; (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. All other property at the Leased Premises and
any alteration or addition to 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 immediately upon such attaching or affixing become the
property of Landlord and shall remain upon and be surrendered with the
Leased Premises as part thereof at the termination of this Lease,
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.
C. Any property not belonging to Landlord remains at the Leased Premises
for ten (10) days following the expiration of the term of this Lease,
Tenant hereby authorizes Landlord to make such disposition of such
property as Landlord may desire without liability for compensation of
damages to Tenant in the event that such property is the property of
Tenant; and in the event that such property is the property of someone
other than Tenant, Tenant agrees to indemnity and hold Landlord
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12
harmless from all suits, actions, liability, loss, damages and expenses
in connection with or incident to any removal, exercise or dominion
over and/or disposition of such property by Landlord.
ASSIGNMENT AND SUBLETTING
11. 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 or grant any concession or license
within the Leased Premises without the prior written permission of
Landlord, and any attempt to do any of the foregoing without the prior
express written permission of Landlord, shall be void and of no effect.
In the event Tenant requests Landlord's permission as to any such
assignment, sublease or other transaction, Landlord shall have the
right and option, as of the requested effective date of such
assignment, sublease or other transaction (but no obligation), to
cancel and terminate this Lease as to the portion of the Leased
Premises with respect to which Landlord has been requested to permit
such assignment, sublease or other transaction; and if Landlord elects
to cancel and terminate this Lease as to the aforesaid portion of the
Leased Premises, than the rent and other charges payable hereunder
shall thereafter be proportionately reduced. In the event of any such
attempted assignment or attempted sublease or should Tenant, in any
other nature of transaction, permit or attempt to permit anyone to
occupy the Leased Premises (or any portion thereof) without the prior
express written permission of Landlord, the same shall constitute a
breach, and, among Landlord's other remedies for an Event of Default,
Landlord shall thereupon have the right and option to cancel and
terminate this Lease effective upon fifteen (15) days' notice to Tenant
given by Landlord at any time thereafter either as to the entire Leased
Premises or as to only the portion thereof which Tenant shall have
attempted to assign or sublease or otherwise permitted some other
party's occupancy without Landlord's prior express written permission;
and if Landlord elects to cancel and terminate this Lease as to the
aforesaid portion of the Leased Premises, then the rent and other
charges payable hereunder shall thereafter be proportionately reduced.
This prohibition against assigning or subletting shall be construed to
include a prohibition against any assignment or subletting by operation
of law.
B. Notwithstanding that the prior express written permission of Landlord
to any of the aforesaid transactions may have been obtained, the
following shall apply:
(1) In the event of an assignment, contemporaneously with the granting
of Landlord's aforesaid consent, Tenant shall cause the assignee
to expressly assume in writing and agree to perform all or the
covenants, duties and obligations of Tenant hereunder and such
assignee shall be jointly and severally liable therefor along
with Tenant; Tenant shall further cause such assignee to grant
Landlord an express first and prior contract lien and security
interest in the manner hereinafter stated as applicable to Tenant;
(2) A signed counterpart of all instruments relative thereto (executed
by all parties to such transaction with the exception of Landlord)
shall
LEASE CONTRACT - Page 7
13
be submitted by Tenant to Landlord prior to or contemporaneously
with the request for Landlord's written consent thereto (it being
understood that no such instrument shall be effective without the
written consent of Landlord);
(3) Tenant shall subordinate to Landlord's statutory lien and
Landlord's aforesaid contract lien and security interest any liens
or other rights which Tenant may claim with respect to any
fixtures, equipment, goods, wares, merchandise or other property
owned by or leased to the proposed assignee or sublessee or other
party intending to occupy the Leased Premises;
(4) No usage of the Leased Premises different from the usage herein
provided to be made by Tenant shall be permitted, and all other
terms and provisions of this Lease shall continue to apply after
any such assignment or subleasing;
(5) In any case where Landlord consents to an assignment, sublease,
grant of a concession or license or mortgage, pledge or
hypothecation of the leasehold, the undersigned Tenant will
nevertheless remain directly and primarily liable for the
performance of all of the covenants, duties, and obligations of
Tenant hereunder (including, without limitation, the obligation to
pay all rent and other sums herein provided to be paid), and
Landlord shall be permitted to enforce the provisions of this
instrument against the undersigned Tenant and/or any assignee
without demand upon or proceeding in any way against any other
person; and
(6) In the event that the rent due and payable by a sublessee under
any such permitted sublease (or a combination of the rent payable
under such sublease plus any bonus or other consideration therefor
or incident thereto) exceeds the hereinabove provided rent payable
under this Lease or if with respect to a permitted assignment,
permitted license or other transfer by Tenant permitted by
Landlord, the consideration payable to Tenant by the assignee,
licensee or other transferee exceeds the rental payable under this
Lease, then Tenant shall be bound and obligated to pay Landlord
all such excess rental and other excess consideration within ten
(10) days following receipt thereof by Tenant from such sublessee,
assignee, licensee or other transferee, as the case might be.
C If Tenant is a corporation, then any transfer of this Lease from Tenant
by merger, consolidation or dissolution or any change of ownership or
power to vote a majority of the voting stock in Tenant outstanding at
the time of execution of this instrument shall constitute an assignment
for the purpose of this Lease; provided, however, that acquisition of
all stock of the corporate tenant by any corporation, the stock of
which is registered pursuant to the Securities Act of 1933 or the
merger of the corporate tenant into such a corporation, the stock of
which is so registered shall not itself be deemed to be a violation of
Paragraph 11.A hereof. In addition, should Tenant desire to assign this
Lease to another to whom it is selling substantially all the assets of
Tenant, or desires to sell a majority of the voting stock and such
purchaser is not registered pursuant to the Securities Act of
LEASE CONTRACT - Page 8
14
1933, Tenant shall first notify Landlord in writing sixty (60) days
prior to the closing of the proposed sale to secure the prior written
consent of Landlord to such assignment, which consent shall not be
unreasonably withheld. In such event, Tenant shall also furnish to
Landlord, with such notice, financial information and such other
information as Landlord may request to review. Should Landlord consent,
then such assignment shall be in compliance with the provisions of
paragraph 11.B. For purposes of this Paragraph 11.C, the term
"voting stock" shall refer to shares of stock regularly entitled to
vote for the election of directors of the corporation involved.
If Tenant is a general partnership having one or more corporations as
partners or if Tenant is a limited partnership having one or more
corporations as general partners, the provisions of the preceding
paragraph shall apply to each of such corporations as if such
corporation alone had been the Tenant hereunder.
If Tenant is a general partnership (whether or not having any
corporations as partners) or if Tenant is a limited partnership
(whether or not having any corporations as general partners), the
transfer of the partnership interest or interests constituting a
majority shall constitute an assignment for the purpose of this Lease.
D. 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 Leased Premises without the
prior express written permission of Landlord, or if the Leased Premises
are occupied in whole or in part by anyone other than Tenant without
the prior express written permission of Landlord, Landlord may
nevertheless collect rent from the assignee, sublessee, mortgagee,
pledgee, party to whom the leasehold interest was hypothecated,
concessionee or licensee 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.
SUBORDINATION
12. Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust, or other lien, or other matters of record presently existing or
hereafter placed upon the Leased Premises, and to any renewals and extension
thereof; but Tenant agrees that any such mortgage and/or beneficiary of any deed
of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have the
right at any time to subordinate such mortgage, deed of trust, or other lien to
this Lease on such terms and subject to such conditions as such Landlord's
Mortgagee may deem appropriate in its discretion. Upon demand Tenant agrees to
execute such further instruments subordinating this Lease, as Landlord may
request, and such nondisturbance and attornment agreements, as any such
Landlord's Mortgagee shall request, in a form satisfactory to Landlord's
Mortgagee.
ADJUSTMENT OF BASE RENTAL
13. A. The Base Rental provided for herein is based, in part, upon Landlord's
estimate Basic Cost (as hereinafter defined) of repairing, maintaining
and operating the
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building during each calendar year of the Lease term will be the total
of such costs for the calendar year 1991 divided by the total Rentable
Area of office space in the Building, such amount being hereinafter
referred to as "Estimated Basic Cost".
B. "Basic Cost" as said term is used herein shall consist of the operating
expenses Of the Building, which shall be computed on the accrual basis.
All operating expenses shall be determined in accordance with generally
accepted accounting principles which shall be consistently applied. The
term "operating expenses" as used herein shall mean all expenses, costs
and disbursements (but not replacement of capital investment items,
except as noted below, nor general office expense nor specific costs
especially billed to and paid by specific tenants nor rental
commissions) of every kind and nature which Landlord shall pay or
become obligated to pay because of, or directly in connection with, the
ownership and the sole and exclusive operation of the Building,
including but not limited to, the following (directly applicable to the
Building in which the Leased Premises is located and to the related
common areas):
(1) Wages and salaries of all employees engaged in operation and
maintenance of the Building, including taxes, insurance and
benefits relating thereto;
(2) Management fees relating to the management of the Building;
(3) Cost of all supplies and materials used in operation and
maintenance of the Building;
(4) Cost of water and power, heating, lighting, air conditioning and
ventilating the Building;
(5) Cost of all maintenance and service agreements on equipment,
including window cleaning and elevator maintenance;
(6) Cost of casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection with
the operation and maintenance of the Building;
(7) All taxes and assessments and other governmental charges whether
federal, state, county or municipal and whether they be by taxing
districts or authorities presently taxing the Leased Premises or
by other subsequently created or otherwise, and any other taxes
and improvement assessments attributable to the Building or its
operation excluding, however, federal and state taxes on net
income. It is agreed that Tenant will be responsible for ad
valorem taxes on its personal property and on the value of
leasehold improvements to the extent that the same exceed standard
Building allowances;
(8) Cost of repairs and general maintenance (excluding cost of major
repairs to the roof, foundation and exterior walls of the Building
constituting a replacement of a capital investment item, repairs
paid by proceeds of insurance or by Tenant or other third parties,
and alterations attributable solely to tenants of the Building
other than Tenant).
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(9) Amortization of the cost of capital investment items and of the
installation thereof (but only with respect to capital investment
items which are installed after the substantial completion of the
construction of the Building) which are primarily for the purpose
of safety, saving energy or reducing operating costs or which may
be required by governmental authority. All such costs shall be
amortized over the reasonable life of the capital investment
items, with the reasonable life and amortization schedule being
determine in accordance with generally accepted accounting
principles and in no event to extend beyond the reasonable life of
the Building.
C. In the event that the Basic Cost of Landlord's operation of the
Building (calculated on a per square foot basis using the Rentable Area
of the Building set forth in Paragraph 1 of this Lease) during any
calendar year during the term of this Lease after calendar year 1991
shall exceed the Estimated Basic Cost set out in Paragraph 13.A, Tenant
shall pay to Landlord, as additional rent, the increase in such Basic
Cost for such year over the Estimated Basic Cost, determined by
multiplying such increase (expressed in terms of dollars per square
foot calculated as aforesaid) by the Rentable Area of the Leased
Premises as set forth in Paragraph 1 of this Lease.
The first amount which may be due under this Paragraph shall be due
within ten (10) days after Landlord submits to Tenant a xxxx or invoice
for the first amount due under this Paragraph; Landlord may thereafter
submit to Tenant a xxxx or invoice each month for one-twelfth (1/12th)
of said amount or one-twelfth (1/12th) of such greater amount as may be
later estimated by Landlord in its good faith business judgment to be
due by Tenant under this Paragraph. The amount of the first such xxxx
or invoice shall be determined by multiplying the monthly amount due by
the number of calendar months of the then current year which have
commenced as of the date of the xxxx or invoice. In the event of such
billing or invoicing procedure by landlord, then Tenant shall be bound
and obligated to pay such indicated amount contemporaneously with
required payment of rental hereunder on the first day of each calendar
month, monthly in advance, for each and every month in the term of this
Lease, in lawful money of the United States.
Once each calendar year, Landlord shall perform such computations as
are necessary to determine the amount properly payable by Tenant under
this Paragraph 13.C, whereupon, if Tenant shall have overpaid, Landlord
shall refund to Tenant the amount of the excess, but if Tenant shall
have underpaid, Landlord shall invoice Tenant for the amount of the
underpayment and such underpayment shall be due within thirty (30)
days.
Tenant shall have the right to audit and verify the prior year's Basic
Cost calculations upon thirty (30) days prior written notice to
Landlord requesting an audit. Such audit shall be conducted at
Landlord's office and at the sole cost and expense of Tenant.
EMINENT DOMAIN
14. If there shall be taken by exercise of the power of eminent domain
during the term of this Lease any part of the Leased Premises or Building,
Landlord may elect to terminate this Lease or to continue same in effect. If
Landlord elects to continue the
LEASE CONTRACT - Page 11
17
Lease, the rental shall be reduced in proportion to the area of the Leased
Premises resulting from such taking. All sums awarded or agreed upon between
Landlord and the condemning authority for the taking of the interest of Landlord
or Tenant, whether as damages or as compensation, will be the property of
Landlord without prejudice, however, to claims of Tenant against the condemning
authority on account of the unamortized cost of leasehold improvements paid for
by Tenant taken by the condemning authority. If this Lease should be terminated
under any provisions of this Paragraph 14, rental shall be payable up to the
date that possession is taken by the taking authority, and Landlord will
refund to Tenant any prepaid unaccrued rent less any sum then owing by Tenant to
Landlord.
ACCESS BY LANDLORD
15. Landlord, its agents and employees shall have access to and the right
to enter upon the Leased Premises at any reasonable time to examine the
condition thereof, to make any repairs or alterations required to be made by
Landlord hereunder, to show the Leased Premises to prospective purchasers or
tenants and for any other purpose deemed reasonable by landlord.
LANDLORD'S LIEN
16. To secure the payment of all rent due and to become due hereunder, and
the faithful performance of all the other covenants of this Lease required by
Tenant to be performed, Tenant hereby gives to Landlord an express contract lien
on and security interest in all property, chattels or merchandise which may be
placed in the Leased Premises and also upon all proceeds of any insurance which
may accrue to Tenant by reason of damage to or destruction of any such property.
All exemption laws are hereby waived by Tenant. This lien and security interest
are given in addition to the Landlord's statutory lien(s) and shall be
cumulative thereto. Upon request of Landlord, Tenant agrees to execute Uniform
Commercial Code financing statements relating to the aforesaid security
interest. Provided Tenant is not in default, Landlord agrees to subordinate its
lien on Tenant's furniture, fixtures and equipment to that of a lender providing
financing to Tenant or an equipment lessor leasing equipment to Tenant. Such
subordination shall be in form and content reasonably satisfactory to Landlord
and shall provide that such lender or equipment lessor shall repair all damage
to the Leased Premises resulting from removal of such furniture, fixtures or
equipment.
REMEDIES
17. A. Each of the following acts or omissions of Tenant or occurrences shall
constitute an "Event of Default":
(1) Failure or refusal by Tenant to timely pay rent or other payments
hereunder;
(2) Failure to perform or observe any other covenant or condition of
this Lease by Tenant to be performed or observed; provided,
however, notwithstanding the occurrence of such Event of Default,
Landlord shall not be entitled to exercise any of the remedies
provided for in this Lease or by law unless such Event of Default
continues beyond the expiration of ten (10) days following notice
to Tenant thereof;
(3) Abandonment or vacating of the Leased Premises or any significant
portion thereof;
(4) The entry of a decree or order for relief by a court having
jurisdiction over Tenant or any guarantor of Tenant's obligations
hereunder in an
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involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of Tenant or any guarantor of Tenant's
obligations hereunder or for any substantial part of said parties'
property, or ordering the winding-up or liquidation of said
parties' affairs;
(5) The commencement by Tenant or any guarantor of Tenant's
obligations hereunder of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any
other similar law, or the consent by either of said parties to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of Tenant or any guarantor of Tenant's obligations
hereunder or for any substantial part of said parties' property,
or the making by said parties of any assignment for the benefit of
creditors, or the failure of Tenant or any guarantor of Tenant's
obligations hereunder generally to pay its debts as such debts
become due, or the taking of corporate action by any corporate
Tenant or any corporate guarantor of Tenant's obligations
hereunder in furtherance of any of the foregoing.
B. This lease and the term and estate hereby granted and the demise hereby
made are subject to the limitation that if and whenever any Event of
Default shall occur, Landlord may, at its option, in addition to all
other rights and remedies 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 the Lease.
(3) Alter locks and other security devices at the Leased Premises.
C. 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. Receipt
by Landlord of Tenant's keys to the Leased Premises shall not
constitute an acceptance of surrender of the Leased Premises. No such
allocation of security devices and no removal of 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
Building. All claims for damages by reason of such reentry and/or
repossession and/or alternation of locks or other security devices are
hereby waived, as are all claims for damages by reason of any distress
warrant, forcible detainer proceedings, sequestration proceedings or
other legal process. Tenant agrees that any reentry
LEASE CONTRACT - Page 13
19
by Landlord may be pursuant to judgment obtained in forcible detainer
proceedings of other legal proceedings or without the necessity for
legal proceedings, as Landlord may elect, and Landlord shall not be
liable in trespass or otherwise.
D. In the event Landlord elects to terminate this Lease by reason of an
Event of Default, Landlord may also elect, upon notice to Tenant, to
accelerate the rent and other charges for the remainder of the term of
the Lease which shall then become due in accordance with the terms of
this Subparagraph D. In such event, Tenant shall be liable for (i) all
rent and other charges which have accrued to the date of such
termination and (ii) all rent and other charges for the remainder of
the term of the Lease less the fair market value of the Lease on the
date of determination, the difference discounted at the discount rate
charged by the Federal Reserve Bank of Dallas plus five percent (5%).
The "date of determination" shall be the date such matter is heard
before a court of competent jurisdiction or such other date as the
parties may agree upon. The "fair market value of the Lease" shall mean
the rent (including the estimate of other charges due hereunder for
the remaining term, including those under Paragraph 13) Landlord would
receive from and after the date of termination, if leased to a third
party, taking into account the market rentals for similar properties in
the geographic area, less the cost of concessions (free rent, tenant
improvements allowance, etc.), brokers fees and discounting for the
reasonable period to relet the Leased Premises at such rental.
E. In the event Landlord elects to terminate the Lease by reason of an
Event of Default, or in the event Landlord elects to terminate Tenant's
right to possession of the Leased Premises, Landlord may hold Tenant
liable for all rent and other indebtedness accrued to the date of such
termination, plus such rent and other indebtedness as would otherwise
have been required to be paid by Tenant to Landlord during the period
following termination of the lease term (or of Tenant's right to
possession of the Leased Premises, as the case may be) measured from
the date of such termination by Landlord until the date of expiration
stated in Paragraph 2 (had Landlord not elected to terminate the Lease
or Tenant's right of possession of the Leased Premises, on account of
such Event of Default) diminished by any net sums thereafter received
by Landlord through reletting the Leased Premises during said period
(after deducting expenses incurred by Landlord as provided in
Subparagraph E hereof). Actions to collect amounts due by Tenant
provided for in this Subparagraph E may be brought from time to time by
Landlord during the aforesaid period, on one or more occasions, without
the necessity of Landlord's waiting until expiration of such period;
and in no event shall Tenant be entitled to any excess of rent (or rent
plus other sums) obtained by reletting over and above the rent provided
for in this Lease
F. In case of an Event of Default, Tenant shall also be liable for and
shall pay to Landlord, 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; the cost of removing and
storing Tenant's or other occupant's property; the cost of repairing,
altering, remodeling of otherwise putting the Leased Premises into
condition acceptable to a new Tenant or tenants; and all other
reasonable expenses incurred by Landlord in enforcing Landlord's
remedies.
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20
G. Rent past due for five (5) days and other past due payments shall bear
interest from date due until paid at the greatest applicable
non-usurious interest rate permitted by law. If no usury statute shall
apply as a limitation, then, past due rent and payments shall bear
interest at eighteen percent (18%) per annum.
H. In the event of termination or repossession of the Leased Premises for
an Event of Default, Landlord shall not have any obligation to relet or
attempt to relet the Leased Premises, or any portion thereof, or to
collect rental after reletting; but Landlord shall have the option to
relet or attempt to relet; and in the event of reletting, Landlord may
relet the whole of any portion of the Leased Premises for any period,
to any tenant, and for any use and purpose.
I. If Tenant should fail to make any payment; or if Tenant should fail to
cure any default hereunder within the time herein permitted; then
Landlord, without being under any obligation to do so and without
thereby waiving such default, may make such payment; and/or Landlord
may 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 incurred by Landlord in taking such
remedial action.
J. In the event of any default by Landlord, Tenant's exclusive remedy
shall be an action for damages (Tenant hereby waiving the benefit of
any laws granting it a lien upon the property of Landlord and/or upon
rent due Landlord), but prior to any such action Tenant will give
Landlord written notice specifying such default with particularity, and
Landlord shall thereupon have thirty (30) days (plus such additional
reasonable period as may be required in the exercise by Landlord of due
diligence) in which to cure any default. Unless and until Landlord
fails to so cure any default after such notice. Tenant shall not have
any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions; and
all such obligations will be binding upon Landlord only during the
period of its possession of the Building and not thereafter.
K. Except as expressly set forth in the succeeding sentence, neither
Landlord nor Tenant shall be entitled to any attorneys' fees incurred
in connection with the institution of any action of proceeding in court
to enforce any provision hereof or for damages by reason of any alleged
breach or default of any provision of this Lease or for a declaration
of either party's rights or obligations hereunder or for any other
judicial remedy, at law or in equity. In the event, however, that
Landlord institutes any action or proceeding to enforce payment of a
monetary sum due hereunder, then, in such event, Tenant will pay to
Landlord all reasonable costs incurred by Landlord in collecting such
sum, including reasonable attorneys' fees.
NONWAIVER
18. Neither acceptance of rent by Landlord nor failure by Landlord to
complain of any action, nonaction or default of Tenant shall constitute a waiver
of any of Landlord's rights hereunder. Waiver by Landlord of any right for any
default of Tenant shall not constitute a waiver of any right for either a
subsequent default of the same obligation or any other default.
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21
HOLDING OVER
19. If Tenant should remain in possession Of the Leased Premises after the
expiration Of the term of this lease, without the execution by Landlord and
Tenant of a new lease, then Tenant shall be deemed to be occupying the Leased
Premises as a tenant-at-sufferance, subject to all the covenants and obligations
of this Lease and at a daily rental of two (2) times the per day rental provided
hereunder, computed on the basis of a thirty (30) day month.
NOTICE
20. Any notice which may or shall be given under the terms of this Lease
shall be in writing and shall be either delivered by hand or sent by United
States Registered or Certified Mail, postage prepaid, return receipt requested,
if for Landlord, to c/o Aetna Realty Investors, Inc. , 0000X Xxxxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000; or if for Tenant, to the Leased Premises, Suite 100.
Such addresses may be changed from time to time by either party by giving notice
as provided above. Notice shall be deemed given when delivered (if delivered by
hand) or when postmarked (if sent by mail).
LANDLORD'S MORTGAGEE
21. If the Building and/or Leased Premises are at any time subject to a
mortgage and/or mortgage and deed of trust, then in any instance in which Tenant
gives notice to Landlord alleging default by Landlord hereunder, Tenant will
also simultaneously give a copy of such notice to each Landlord's Mortgagee
(provided Landlord or Landlord's Mortgagee shall have advised Tenant of the name
and address of landlord's Mortgagee) and each Landlord's Mortgagee shall have
the right (but no obligation) to cure of remedy such default during the period
that is permitted to Landlord hereunder, plus an additional period of thirty
(30) days, and Tenant will accept such curative of remedial action (if any)
taken by Landlord's Mortgagee with the same effect as if such action had bean
taken by Landlord
Tenant will, at such time or times as Landlord any request, sign a
certificate stating whether this Lease is in full force and effect; whether any
amendments or modifications exist; whether there are any defaults hereunder; and
such other information and agreements as may be reasonably requested
PARKING
22. A. Landlord shall make available to Tenant up to a total of one hundred
fifty (150) free unreserved and uncovered parking spaces and a minimum
of five (5) visitor spaces, located in the front of the Building and
marked for visitors, during the primary term of this Lease. If at the
time Tenant exercises any option to renew this Lease or during any such
renewal term, Landlord assesses a charge for parking, Tenant agrees to
pay to Landlord on a monthly basis for the lease of each such parking
space an amount equal to the reasonable charge which may be assessed by
Landlord for parking. Landlord reserves the right to change the parking
if required by governmental law or regulation.
B. Landlord shall not be responsible for any loss or damage to any car or
property therein or for injuries (fatal of nonfatal) to persons
occurring within the parking areas.
MISCELLANEOUS
23. A. Provided Tenant complies with its covenants, duties and obligations
hereunder, Tenant shall quietly have, hold and enjoy the Leased
Premises subject to the terms and provisions of this instrument.
LEASE CONTRACT - Page 16
22
B. In any circumstances where Landlord is permitted to enter upon the
Leased Premises during the lease term, whether for the purpose of
curing any default of Tenant, repairing damage resulting from fire or
other casualty of an eminent domain taking or is otherwise permitted
hereunder or by law to go upon the Leased Premises, no such entry shall
constitute an eviction or disturbance of tenant's use and possession of
the Leased Premises or a breach by Landlord of any of its obligations
hereunder or render Landlord liable for damages for loss or business or
otherwise or entitle Tenant to be relieved from any of its obligations
hereunder or grant Tenant any right of setoff of recoupment or other
remedy; and in connection with any such entry incident to performance
or repairs, replacements, maintenance or construction, all of the
aforesaid provisions shall be applicable notwithstanding that Landlord
may elect to take building materials in, to or upon the Leased Premises
that may be required or utilized in connection with such entry by
Landlord.
C. Except with respect to those counterclaims or claims by Tenant which,
under the laws of the State in which the Leased premises are situated,
may only be asserted in the hereafter referred to proceedings brought
by Landlord or be forever barred if not asserted in said proceedings,
in the event Landlord commences any proceedings against Tenant for
nonpayment of rent or any other sum due and payable by Tenant
hereunder, Tenant will not interpose any counterclaim or other claim
against Landlord of whatever nature or description in any such
proceedings; and in the event Tenant interposes any such counterclaim
or other claim against Landlord in such proceedings, Landlord and
Tenant stipulate and agree that, in addition to any other lawful remedy
of Landlord, upon notion by Landlord, such counterclaim or other claim
asserted by Tenant shall be severed out of the proceedings instituted
by Landlord and the proceedings instituted by Landlord may proceed to
final judgment separately and apart from and without consolidate with
or reference to the status of such counterclaim of any other claim
asserted by Tenant.
D. Landlord may restrain of enjoin any breach or threatened breach of any
covenant, duty or obligation of Tenant herein contained without the
necessity of proving the inadequacy of any legal remedy of irreparable
harm. The remedies of Landlord hereunder shall be deemed cumulative and
no remedy of Landlord, whether exercised by Landlord or not, shall be
deemed to be in exclusion of any other. Except as may be otherwise
herein expressly provided, in all circumstances under this Lease where
prior consent of permission of one party ("first party") is required
before the other party ("second party") is authorized to take any
particular type of action, the matter of whether to grant such consent
or permission shall be within the sole and exclusive judgment and
discretion of the first party; and it shall not constitute any nature
or breach by the first party hereunder or any defense to the
performance of any covenant, duty of obligation of the second party
hereunder that the first party delayed or withheld the granting of such
consent or permission, whether or not the delay or withholding of such
consent or permission was prudent or reasonable or based on good cause.
E. In all instances where Tenant or Landlord is required hereunder to pay
any sum or do any act at a particular indicated time or within an
indicated period, it is understood that tine is of the essence.
LEASE CONTRACT - Page 17
23
F. 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 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
therein is hereinabove expressly provided for and not otherwise. Tenant
waives and relinquishes all rights which Tenant might have to claim any
nature of lien against or withhold, or deduct from or offset against
any rent and other sums provided hereunder to be paid Landlord by
Tenant. Tenant waives and relinquishes any right to assert, either as a
claim or as a defense, that Landlord is bound to perform or is liable
for the nonperformance of any implied covenant or implied duty of
Landlord not expressly herein set forth.
G. Under no circumstance whatsoever shall Landlord ever be liable for
consequential damages or special damages.
H. All monetary obligations of Landlord and Tenant (including, without
limitation, any monetary obligation of Landlord of Tenant for damages
for any breach of the respective covenants, duties or obligations of
Landlord of Tenant hereunder) are performable exclusively in Clear Lake
City, Xxxxxx County, Texas.
I. It any provision of this Lease shall ever be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect
any other provision of the Lease, but such other provisions shall
continue in full force and effect.
J. The term "Landlord" shall mean only the owner, for the time being of
the Building, and in the event of the transfer by such owner of its
interest in the Building, such owner shall thereupon be released and
discharged from all covenants and obligations of the Landlord
thereafter accruing, but such covenants and obligations shall be
binding during the lease term upon each new owner for the duration of
such owner's ownership.
ENTIRE AGREEMENT AND BINDING EFFECT
24. This Lease and any contemporaneous workletter, addenda or exhibits
signed by the parties and attached hereto constitute the entire agreements
between Landlord and Tenant; no prior written or prior or contemporaneous oral
promises or representations shall be binding. This Lease shall not be amended,
changed of extended except by written instrument signed by both parties hereto.
Paragraph captions herein are for convenience only, and neither limit nor
amplify the provisions of this Lease. The provisions of this Lease shall be
binding upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties, but this provision shall in no way altar
the restriction herein in connection with assignment and subletting by Tenant.
The submission of this Lease Contract by Landlord For examination does not
constitute a reservation of or option for the Leased Premises and this Lease
shall become effective only upon execution by all parties hereto and delivery
thereof by Landlord to Tenant.
RULES AND REGULATIONS
25. Tenant shall perform and comply with the Rules and Regulations of the
Building set out in Exhibit "B" hereto, as reasonably amended from time to time
upon written notice to Tenant, and upon written notice thereof, all other
reasonable rules and regulations with respect to safety, care, cleanliness, and
preservation of good order, operation, and conduct in the
LEASE CONTRACT - page 18
24
Building that may be established from time to time by Landlord for tenants of
the Building. Landlord shall not have any liability to Tenant for any failure of
any other tenants of the Building to comply with such Rules and Regulations.
INSURANCE
26. Landlord shall maintain during the term of this Lease fire and extended
insurance coverage insuring the Building and Leased Premises (excluding Tenant's
goods, furniture, property placed in the Leased Premises and tenant
improvements) against damage or loss from fire or other casualty normally
insured against under the terms of standard policies of fire and extended
coverage insurance. If the annual premiums to be paid by Landlord shall exceed
the standard rates because of Tenant's use of the Leased Premises, Tenant shall
(in addition to any payment under Paragraph 13) promptly pay the excess amount
of the premium upon request by Landlord. Tenant shall provide, at Tenant's own
expense, all insurance coverage necessary or desirable for the full protection
against loss or damage from fire or other casualty of any tenant improvements
and Tenant's goods, furniture or other property placed in the Leased Premises,
and Tenant shall further maintain commercial general liability insurance to
include coverage under this Lease for its business operations, independent
contractors, contractual and products coverage, with limits for bodily injury
liability of not less than $1,000,000.00 per occurrence and limits for property
damage of not less than the greater of $500,000.00 or the full insurable
value of Tenant's property, or such other limits as may reasonably be
established from time to time by Landlord. Tenant shall cause Landlord to be
named as an additional insured or loss payee under such liability and other
policies, shall furnish Landlord with current certificates of all required
insurance, which certificates shall provide for thirty (30) days advance written
notice to Landlord of any cancellation thereof, and such policies shall be
written on companies with an A.M. Best Rating of A/XII or better. Landlord shall
not be obligated to insure any portion of the Leased Premises consisting of
tenant improvements or any of Tenant's goods, fixtures, furniture or other
property placed or incorporated in the Leased Premises.
PRIOR LEASE CONTRACTS
27. Upon (and only upon) the execution of at least two (2) copies of this
Lease by both Landlord and Tenant and the delivery of at least one (l) such
executed copy to Landlord, this Lease shall supersede and take the place of that
certain lease dated January 11, 1985 by and between Landlord (as successor in
interest) and Tenant for the lease of its current space in the Building (except
as otherwise noted herein) and all amendments to such prior lease. However, the
rent and other charges under the prior lease shall be incorporated herein by
reference and remain the rent and charges for this Lease for the period from
execution through November 30, 1991, except with respect to the additional areas
described in Paragraph 1 of the Addendum, attached hereto as Exhibit "C", the
rent and charges for such space to be governed by Paragraph 1 of the Addendum.
EXHIBITS
28. The following exhibits, attached hereto, and incorporated into this
Lease by reference, as if set forth verbatim.
Exhibit "A-1"-"A-4" Legal Description, Floor Plans
Exhibit "B" Rules and Regulations
Exhibit "C" Addendum to Lease
Exhibit "D" Signage
Exhibit "E" Cancellation Rights
LEASE CONTRACT - Page 19
25
EXECUTED by Landlord and Tenant on the respective dates indicated
below, the latter of which shall constitute the effective date hereof.
LANDLORD:
AETNA LIFE INSURANCE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxx
---------------------------
Title: Director
----------------------------------
TENANT:
XXXXXXX TECHNOLOGY, INC.,
Attest: a Texas corporation
/s/ X. X. Xxxxxxx 8/21/91
----------------------------- -----------------------------------------
1070/125/d/1.8.14
LEASE CONTRACT - Page 20
26
EXHIBIT "C"
ADDENDUM TO LEASE
1. ADDITIONS TO LEASED PREMISES. As part of the Leased Premises described
in this Lease, Tenant agrees to lease two (2) additional areas, not
previously leased by Tenant, in "As Is" condition on the first (1st)
floor encompassing approximately Two Thousand Four Hundred Sixty-five
(2,465) square feet of Rentable Area as per Exhibit "A-4" attached
hereto. Tenant shall pay monthly rent on these two (2) additional areas
at the rate of $5.50 per square foot of Rentable Area per year through
November 30, 1991. Commencing December 1, 1991, base rent on these two
(2) additional areas shall increase to $13.50 per square foot of
Rentable Area per year with an expense stop equal to Estimated Basic
Cost as set forth in Paragraph 13.A of the Lease. Landlord agrees to
provide an allowance of up to $3.00 per usable square foot times the
number of usable square feet within these two (2) additional areas for
tenant improvements made by Tenant in accordance with plans and
specifications agreed upon by Landlord and Tenant and attached to this
Lease. The allowance is payable on December 1, 1991, based on copies of
paid invoices furnished by Tenant to Landlord evidencing costs of
improvements in these two (2) additional areas.
2. TENANT IMPROVEMENTS; ACCEPTANCE OF PREMISES. Tenant agrees to accept
the Leased Premises in "As Is" condition. All improvements to the
Leased Premises will be done by Tenant, at Tenant's sole cost and
expense, and in accordance with the plans and specifications agreed
upon by Landlord and Tenant and attached to this lease, with the
exception that Landlord will provide Tenant with the following, at
Landlord's cost:
(a) Recarpet the third (3rd) floor lobby and all executive offices
with building standard carpeting.
(b) Repaint and/or touch up of paint in areas agreed to by Landlord
and Tenant after an inspection tour made prior to execution of
this Lease.
(c) Clean carpet in high traffic areas agreed to by Landlord and
Tenant.
(d) Installation of four (4) additional light fixtures in third (3rd)
floor lobby.
Tenant agrees, with respect to tenant improvements made under
Paragraphs 1 and 2 of the Addendum, that all such improvements shall be
made in a good and workmanlike manner, with comparable materials to
those presently used on the Leased Premises, Tenant shall pay all costs
in a timely manner to prevent the imposition of any liens for labor or
materials furnished or, if a lien is filed, Tenant shall immediately
bond same.
3. TENANT ELECTRICITY. Landlord shall install at Landlord's sole cost and
expense a separate meter in the designated HVAC area(s) of the Leased
Premises, shown on plans and specifications, dated _________________,
where separate HVAC units have been installed. The cost of electricity
for operation of these units during the term of the Lease shall be at
Tenant's sole cost and paid as additional rental pursuant to the terms
and provisions of this Lease upon receipt of invoices from Landlord. In
addition, Tenant shall
Landlord's Initial J.Y.E.
_____
Tenant's Initial H.R.B.
_____
ADDENDUM TO LEASE - Page 1
27
be given an annual credit of $9,000.00 toward the electrical, operating
costs of these units, such credit to be applied as charges for
electrical operating costs of these units are billed to Tenant.
4. CANCELLATION. After the completion of one (l) full calendar year of
occupancy from the Commencement Date and if the Tenant is not then in
default, Tenant shall have the right to cancel this Lease as to any
portion of the Leased Premises on the first (1st) and second (2nd)
floors with six (6) months prior written notice to Landlord.
Notwithstanding anything to the contrary, throughout the term of this
Lease, Tenant shall remain liable for rent and charges for the entire
third (3rd) floor.
5. SIGNAGE. Landlord reserves the right to change the exterior monument
sign subject to the final approval of the Tenant, such approval not to
be unreasonably withheld, and master plan developer. So long as Tenant
occupies the largest Rentable Area of any tenant in the Building,
Tenant shall be permitted to largest signage area on the monument sign.
6. BROKERS. Tenant represents and warrants to Landlord that neither it nor
its officers or agents nor anyone acting on its behalf has dealt with
any real estate broker other than Zann Commercial Brokerage, Inc., as
Landlord's agent, and Alliance Commercial, Inc., as Tenant's agent, for
the primary term of this Lease in the negotiating or making of this
Lease, and Tenant agrees to indemnify and hold Landlord harmless from
any claim or claims, as well as costs and expenses including attorneys'
fees incurred by Landlord in conjunction with any such claim or claims,
of Zann Commercial Brokerage, Inc. and Alliance Commercial, Inc. or any
broker or brokers claiming to have interested Tenant in the Building or
Premises or claiming to have caused Tenant to enter into this Lease.
7. LANDLORD'S LIABILITY. Notwithstanding anything in this Lease to the
contrary, covenants, undertakings and agreements herein made on the
part of Landlord are made and intended not for the purpose of binding
Landlord personally or the assets of Landlord but are made and
intended to bind only the Landlord's interest in the Leased Premises
and Building, as the same may, from time to time, be encumbered and no
personal liability shall at any time be asserted of enforceable against
Landlord or its stockholders, officers or partners or their respective
heirs, legal representatives, successors and assigns on account of the
Lease or on account of any covenant, undertaking or agreement of
Landlord in this Lease contained.
8. AUTHORITY OF TENANT. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease
on behalf of said corporation, and that this Lease is binding upon said
corporation.
9. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent and other sums due hereunder
shall be deemed to be other than on account of the earliest rent or
other sums due, nor shall any endorsement or statement on any check or
accompanying any check or payment be deemed an accord and satisfaction;
and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or other sums or
pursue any other remedy provided in this Lease.
Landlord's Initial ____
Tenant's Initial ____
ADDENDUM TO LEASE - Page 2
28
10. HAZARDOUS WASTE. Tenant covenants not to introduce any hazardous or
toxic materials onto the Leased Premises, Building or real property
described in Exhibit "A-1" (collectively the "Property") without (a)
first obtaining Landlord's written consent and (b) complying with all
applicable federal, state, and local laws or ordinances pertaining to
the transportation, storage, use or disposal of such materials,
including but not limited to obtaining proper permits.
If Tenant's transportation, storage, use or disposal of hazardous or
toxic materials on the Property results in (1) contamination of the
soil or surface or ground water or (2) loss or damage to person(s) or
property, then Tenant agrees to respond in accordance with the
following paragraph.
Tenant agrees (i) to notify Landlord immediately of any contamination,
claim of contamination, loss or damage, (ii) after contamination and
approval by Landlord, to clean up the contamination in full compliance
with all applicable statutes, regulations, and standards, and (iii) to
indemnify, defend, and hold Landlord harmless from and against any
claims, suits, causes of action, costs, and fees, including attorney's
fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive termination
of this Lease.
11. NO ACCESS TO ROOF. Tenant shall have no right of access to the roof of
the Premises or the Building and shall not install, repair, or replace
any aerial, fan, air conditioner, or other device on the roof of the
Premises or the Building without the prior written consent of Landlord.
Any aerial, fan, air conditioner, or device installed without such
consent shall be subject to removal, at Tenant's expense, without
notice, at any time.
12. RENEWAL OPTION. If, at the end of the primary term of this Lease,
Tenant is not in default of any of the terms, conditions, or covenants
of the Lease, Tenant, but not any assignee or subtenant of Tenant, is
hereby granted two (2) options to renew this Lease, each for an
additional term of thirty-six (36) months, upon the same terms and
conditions contained in this Lease with the following exceptions:
(a) The last of the two (2) renewal terms will contain no further
renewal options unless specifically granted by Landlord in
writing; and
(b) The rental rate for each renewal term will be based on the then
prevailing rental rates for properties of equivalent quality,
size, utility, and location in the Clear Lake area of Houston,
Texas, with the length of the Lease term and credit standing of
Tenant to be taken in account. If Tenant desires to renew this
Lease, Tenant will notify Landlord in writing of its intention to
renew no later than six (6) months prior to the expiration date of
the primary term or renewal term of the Lease, as applicable;
Landlord shall, within the next fifteen (15) days notify Tenant in
writing of the proposed rental rate. Tenant shall, thereafter,
have fifteen (15) days to accept or reject the proposed rental
rate. If accepted, Tenant shall execute within the next fifteen
(15) days after such acceptance a new Lease containing the same
terms and conditions as the present Lease but specifying the new
rental rate. If Tenant fails to execute the new lease timely, then
this Lease shall terminate on the day and date of expiration of
the primary term or renewal term, as applicable.
Landlord's Initial ____
Tenant's Initial ____
ADDENDUM TO LEASE - Page 3
29
13. FIRST RIGHT OF REFUSAL. As available and provided Tenant is not in
default of this Lease Agreement, Tenant, but not any assignee or
sublessee of Tenant, is hereby granted a First Right of Refusal on all
space within a given floor which is contiguous to space then leased by
Tenant on the floor. Such option shall be at the rate and terms then
offered by Landlord to a prospective tenant but, further, shall be
subordinate to any pre-existing tenant having a First Right of Refusal
for such space in the building. Upon written notice from landlord to
Tenant that any such space is available and the terms to lease such
space, Tenant agrees to respond within the next ten (10) days by
written notice of Tenant's intention to accept or reject such space on
the terms offered. Any failure of Tenant to respond in writing within
the ten (10) day period shall be deemed as a waiver of Tenant's
election to lease such space then being offered.
Landlord's Initial ____
Tenant's Initial ____
1070/125/d/add.8.14
ADDENDUM TO LEASE - Page 4
30
Abstract I: described as follows:
Being 4.5170 acres (196,762 square feet) of land situated in the Xxxxx Xxxx
League. Abstract 13, Xxxxxx County, Texas, and being out of Unrestricted Reserve
"D" (Block 3) of Clear Lake City Industrial Park, Section "D-3", recorded in
Volume 281, Page 29 of the Xxxxxx County Map Records: said 4.5170 acres (196,762
square feet) of land being more particularly described by metes and bounds as
follows (all bearings referenced to the Texas Coordinate System, South Central
Zone);
BEGINNING: at a 5/8 inch iron rod found for the northwest corner of that certain
1.9735 acre tract of land conveyed to St. Xxxxx Professional Joint Venture by
instrument recorded under File Number J771777 and Film Code 000-00-0000 of the
Xxxxxx County Official Public Records of Real Property and being the southwest
corner of the herein described tract of land and also being in the east
right-of-way line of Regents Park Drive, based on 60 feet in width;
THENCE N 23-14-00 E 274.00 feet, with the east right-of-way line of said Regents
Park Drive, to a 5/8 inch iron rod found for the beginning of a curve;
THENCE 119.76 feet (called 119.74 feet), with the arc of a curve to the right in
the east right-of-way line of said Regents Park Drive whose chord bears N
31-24-06 E 119.35 feet (called N 31-24-03 E 119.35 feet) and having a central
angle of 16-20-13 (called 16-20-05) and a radius of 420.00 feet, to a 5/8 inch
iron rod found for the end of the curve;
THENCE N 39-34-13 E 28.82 feet, with the east right-of-way line if said Regents
Park Drive, to a 5/8 inch iron rod set for the northwest corner of this tract;
THENCE S 66-46-00 E 200.00 feet to a 5/8 inch iron rod set for a corner of this
tract;
THENCE N 23-14-00 E 140.00 feet to a 5/8 inch iron rod set for a corner of this
tract;
THENCE S 66-46-00 E 184.60 feet to a 5/8 inch iron rod set for the northwest
corner of this tract and being in the west right-of-way line of Gemini Avenue,
based on 80 feet in width;
THENCE 32.52 feet, with the arc of a curve to the right in the west right-of-
way line of said Gemini Avenue whose chord bears S 22-39-00 W 32.52 feet and
having a central angle of 1-10-00 and a radius of 1597.02 feet, to a 5/8 inch
iron rod found for the end of the curve;
THENCE S 23-14-00 W 527.28 feet, with the west right-of-way line of said Gemini
Avenue, to a 5/8 inch iron rod found for the southwest corner of this tract,
same being the northeast corner of said 1.9735 acre tract;
THENCE N 66-46-00 W 410.00 feet to the PLACE OF BEGINNING and containing 4.5170
acres (196,762 square feet) of land.
31
EXHIBIT "A-1"
"Tract 2" described as follows:
Being 0.3259 acres (35,978 square feet) of land situated in the Xxxxx Deed
League, Abstract 13, Xxxxxx County, Texas and being out of Unrestricted Reserve
"D" (Block 3) of Clear Lake City Industrial Park, Section "D-3", recorded in
Volume 281, Page 29 of the Xxxxxx County Map Records and also being out of that
certain 8.2552-acre tract of land conveyed to Gemini Development, LTD. By
instrument recorded under File No. J-965546 and File Code No. ###-##-#### of
the Xxxxxx County Official Public Records of Real Property; said 0.8259 acres
(35,978 square feet) of land being more particularly described by metes and
bounds as follows (all bearings referenced to the Texas Coordinate System, South
Central Zone);
BEGINNING at a 5/8 inch iron rod found for the Northwest corner of that certain
1.9735-acre tract of land conveyed to St. Xxxxx Professional Joint Venture by
instrument recorded under File No. J-771777 and File Code No.###-##-#### of the
Xxxxxx County Official Public Records of Real Property and being the Southwest
corner of the herein described tract of land and also being in the East
right-of-way line of Regents Park Drive based on 60 feet in width;
THENCE North 23" 14" 00" East 34.50 feet with the East right-of-way line said
Regents Park Drive, to an "X" in concrete;
THENCE South 66" 46" 00" East 68.00 feet to an "X" in concrete;
THENCE South 23" 14" 00" East 30.50 feet to a 1/2 inch iron rod;
THENCE South 64" 46" 00" East 56.00 feet to an "X" in concrete;
THENCE North 23" 14" 00" East 57.00 feet to an "X" in concrete;
THENCE South 66" 46" 00" East 230.00 feet to an "X" in concrete;
THENCE South 23" 14" 00 West 87.50 feet to an "X" in concrete;
THENCE South 66" 46" 00" East 56.00 feet to an "X" in concrete in the West
right-of-way line said Gemini Avenue, to a 5/8 inch iron rod for the Southwest
corner of the tract, same being the Northeast corner of said 1.9735 area tract;
THENCE North 66" 46" 00" West 410.00 feet to the PLACE OF BEGINNING and
containing 0.8259 acres (35,978 square feet) of land.
32
EXHIBIT "A-1"
SQUARE FOOTAGE AREAS BY FLOOR
FLOOR SF/NRA
3rd 25,647 346,234.50 (28,852.88)
2nd 1,618
2,102 54,818.50 (4,984)87)
711
1st 2,482 33,507 (2,792.)25)
-------------
32,560 Total
-------------
$439,560 Year
33
EXHIBIT "A-2"
THIRD FLOOR PLAN
1331 Gemini 3rd FLOOR 25,647 SF NRA
34
EXHIBIT "A-3"
FLOOR PLAN
35
EXHIBIT "A-3"
FLOOR PLAN
36
EXHIBIT "A-3"
FLOOR PLAN
37
EXHIBIT "A-4"
FIRST FLOOR PLAN
1331 GEMINI 1st FLOOR 2,158 SF USABLE )
) = 15%
2,482 SF NRA )
38
Rules And Regulations
HALLS AND PASSAGEWAYS
1. The sidewalks, halls, corridors, stairways and elevators in and
around the Building shall not be obstructed by any Tenant or Tenant's invitees,
employees or visitors or be used by them for any purpose other than for ingress
and egress to and from the Leased Premises.
HEAVY EQUIPMENT
2. All safes or similar heavy equipment or articles shall be brought
into the Building at such time and in such a manner as Landlord shall designate;
and Landlord shall have the right to determine or limit the weight, size and
position of all safes and other heavy equipment brought into the Leased
Premises. Landlord will not be responsible for loss of or damage to any such
safe or property from any cause, and all damage done to the Building by moving
or maintaining any such safe or property shall be repaired at the expense of
Tenant.
SIGNS/DIRECTORY
3. No sign, placard, picture, advertisement, name or notice shall be
painted or affixed by Tenant to the interior or exterior of Building without the
prior written consent of Landlord. Name plates on the entry door to the Leased
Premises will be provided by Landlord. A building directory located in a
prominent place and containing the names of the tenants will be provided by
Landlord. Initial directory listings or name plates will be at the cost of the
Landlord; however, any changes or revisions in the graphics provided for herein,
will be at the expense of Tenant. Tenant will advise Landlord in writing as to
the wording of the initial listing and/or the revised listing, should such
become necessary Tenant will be permitted the use of his name and title on
directory and name plate listings.
FIRE PROTECTION
4. Tenant shall not do or permit to be done in the Leased Premises,
or keep anything therein, which shall in any way increase the rate of fire
insurance on the Building or on property kept therein, or obstruct or interfere
with the rights of other tenants, or conflict with the laws relating to fire or
any regulations of the Fire Department or with an insurance policy upon said
Building. Landlord acknowledges Tenant's requirement for the use of torches
and/or alcohol burners in the course of normal dental procedures and offers no
objection to same provided due diligence is exercised by Tenant. It is
understood that Landlord does not absolve Tenant of responsibility wherein
negligence is committed.
JANITOR
5. Landlord will maintain janitorial services on a five (5) day per
week schedule, and the janitor or his agent shall be allowed admittance into the
Leased Premises after 5:30 p.m., or at any other time, should it become
necessary. Janitorial service shall include ordinary dusting and cleaning and
vacuuming of carpet or rugs. Shampooing of carpets or rugs, moving of furniture,
or other special services shall not be included. Tenant shall not cause any
unnecessary labor expense by reason of carelessness or indifference in the
preservation of good order and cleanliness. Landlord will exercise reasonable
care and discretion in selecting janitorial services; however, Landlord shall
not be responsible for any damage done to the effects of any Tenant by the
janitor or any other person. Tenant shall ensure that the doors of the Leased
Premises are closed and securely locked before leaving the Building.
LOCKS
6. The Tenant shall not alter any lock nor install any new lock nor
any additional locks or bolts on any door of the Leased Premises without the
prior written consent of Landlord. If the Landlord gives its consent, the Tenant
shall furnish the Landlord with two (2) keys for any such lock. Upon termination
of tenancy, Tenant must return to the Landlord all keys to offices, Leased
Premises and Building and in the event of loss of such keys, Tenant shall pay to
Landlord the cost of replacing same or changing the lock or locks opened by such
lost key. If Landlord deems it necessary to make such changes when Tenant takes
occupancy of the Leased Premises two (2) suite keys per lock will be furnished
by Landlord; all additional keys will be requested from Landlord in writing and
will be provided at Tenant's expense.
(Page 1 of 3)
39
BUILDING HOURS
7. On Sundays, holidays and between the hours of 6:00 p.m. and 7:00
a.m., access to the Building or halls, corridors or stairways may be refused
unless the person seeking access is known to the person or employee in charge of
the Building, or is otherwise properly identified. Landlord reserves the right
to maintain a register requiring persons to sign same when requesting admittance
after normal working hours. Landlord shall in no event be liable for damages for
any error with regard to the admission to or exclusion from the building of any
person seeking admittance.
LIGHT AND PASSAGEWAYS
8. Doors, skylights and windows which reflect or admit light and air
into the corridors and passageways or to any place in the Building shall not be
obstructed or covered by Tenant.
UTILITIES
9. The water closets, lavatories and other fixtures shall not be used
for any purpose other than that for which they were designed and no foreign
substance of any kind whatsoever shall be thrown therein. All damage resulting
from any misuse of the utilities or fixtures shall be at the expense of the
Tenant, his employees or visitors who cause same. Tenant shall not waste water
or other utility services and shall observe strict care and caution that all
water faucets, light and/or other apparatus are entirely shut off before Tenant
or Tenant's employees leave the Building.
PARKING
10. (a) All vehicles will be parked within designated areas; blocking
of walkways, loading areas, entrances or driveways shall not be permitted.
Tenant hereby agrees to comply with such parking rules and regulations as
Landlord may establish.
(b) Landlord reserves the right to remove motor vehicles which are
in violation of the parking rules and regulations of Landlord. In the event the
vehicle belongs to Tenant or Tenant's directors, officers, employees, agents
invitees, or guests. Tenant shall defend and hold harmless Landlord, and/or
Landlord's agents from any and all actions which might arise as a result of the
motor vehicle's removal.
EXCESS TRASH DISPOSAL
11. It will be Tenant's responsibility to dispose of excess trash such
as crates, boxes, etc. which will not fit into office wastebaskets and all trash
resulting from Tenant's moving in and out of the Leased Premises. Tenant will
not set such items in the hallways or other areas of the Building, unless
permission is obtained from Landlord or special arrangements are made for such
disposal. If arrangements have been made with Landlord, or if Tenant does not
abide by the terms and conditions of this paragraph, Landlord will, at Tenant's
cost, dispose of any and all trash, waste, and debris and will invoice Tenant
for payment on demand.
HAND TRUCKS
12. Hand trucks or carts used in the delivery of furniture, merchandise
or equipment for any Tenant must be equipped with rubber tires and side guards.
CARPET AND/OR FLOOR DAMAGE
13. Tenant will be responsible for any damage or the correcting of any
damage to carpeting and/or flooring as a result of rust, or mildew or water from
plants, or casters or other objects. No floor coverings shall be affixed to the
floor of the Leased Premises in any manner except by a material which may easily
be removed with water, the use of cement or other similar adhesive material
being expressly prohibited. The affixing, and/or method of affixing any such
covering shall be subject to written approval of Landlord. The expense of
repairing any damage from a violation of this rule shall be borne by Tenant.
CARTAGE
14. Landlord shall have the right to approve Tenant's moving, furniture
delivery, equipment delivery, or freight forwarding company (hereinafter
referred to as cartage agent) and/or require a reasonable deposit to cover any
damage to the real property or to Landlord's personal property. Landlord
(Page 2 of 3)
40
shall require any cartage agent of Tenant to maintain liability insurance in the
minimum amount of $500,000.00, xxxxxxx'x compensation insurance, and property
damage insurance in the minimum amount of $100,000.00. Prior to the move, Tenant
shall require the cartage agent to make available to Landlord a representative
to coordinate activities and familiarize himself with the building rules, and,
following the move, to inspect the Leased Premises and/or the Building for
damages. Landlord shall have the right to limit the hours in which Tenant may
either move in or out of the Building or Leased Premises. Additionally, Landlord
shall have the right from time to time to make rules and regulations governing
the protection of the real property and Landlord's personal property from damage
as a result of the cartage agent's activities. Notwithstanding anything to the
contrary contained herein, Tenant shall remain responsible for cartage agent's
actions or failure to act while in or about the Leased Premises and Building.
MISCELLANEOUS
15. (a) Where elevator service is available, Landlord shall not be
liable for any damage resulting from stoppage or delays in connection with such
service.
(b) Tenant shall not bring into the Building any bicycles or
similar vehicle.
(c) No dogs or other animals are permitted in the Building.
(d) Canvassing soliciting and peddling in the Building are
prohibited, and each Tenant shall cooperate to prevent same.
(e) Tenant shall not sweep or throw or permit to be swept or
thrown from the Leased Premises into the corridors or stairways or elevators of
the Building any dirt or debris or other substance; nor shall any Tenant use,
keep or permit to be used any foul or noxious gas or substance in the Leased
Premises which is or could be offensive or objectionable to the Landlord or
other occupants of the Building by reason of odors, noise and/or vibrations.
(f) All contractors and/or technicians performing work for Tenant
within the Leased Premises or Building must be approved prior to commencing any
work therein.
(g) The Landlord reserves the right to make modifications hereto
and add or delete such other rules and regulations as in its judgment may be
required for the safety, care and cleanliness of the Leased Premises and
Building. Tenant agrees to abide by all such rules and regulations.
(h) Tenant shall notify Landlord in advance of proposed dates of
occupancy, vacation, or moving of furniture or equipment into or out of the
Building or Leased Premises.
(i) Tenant will be solely responsible for abuse or harm to any
plants provided by Landlord within the Leased Premises, Building lobby, or
corridors; and will not permit his employees, agents, or invitees to water,
prune, trim or disturb the plants in any manner whatsoever.
(j) Tenant will be required to furnish plastic desk mats for chairs
and other furniture to protect the carpet and other floor coverings.
(Page 3 of 3)
41
EXHIBIT "D"
SIGNAGE
42
EXHIBIT "F"
LIST OF HOLIDAYS
NEW YEAR'S DAY
MEMORIAL DAY
INDEPENDENCE DAY
LABOR DAY
THANKSGIVING DAY
CHRISTMAS DAY
43
EXHIBIT "E"
LIST OF GOVERNMENT CONTRACTS
FOR CANCELLATION
44
FLOOR PLAN
GEMINI AVENUE
45
FLOOR PLAN
GEMINI AVENUE
46
LEASE CONTRACT, AMENDMENT ONE
[XXXXXXX TECHNOLOGY LETTERHEAD]
October 9, 1992
Xxxxx Xxxxxxx
President
Sumar Enterprises
00000 XXX Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Subject: Lease Contract Between Aetna Life Insurance Company
and Xxxxxxx Technology, Inc.
In accordance with the subject Lease Contract, Exhibit C, Section 4,
Xxxxxxx Technology, Inc. (BTI) hereby provides written notification for
the cancellation of the lease of space on the Second Floor at 1331
Gemini. This notice shall be effective November 1, 1992 and leased space
shall be terminated April 30, 1993. All BTI personnel shall be moved off
the second floor by April 30, 1993.
Any questions regarding the termination of this leased space should be
directed to Xxx Xxxxx at 280-1851 on or before October 23, 1992.
Sincerely,
/s/ Xxxxx X. Xxxxx
------------------------
Xxx Xxxxx
Facilities Manager
concurrence: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Vice President of Operations
47
EXHIBIT "C"
ADDENDUM TO LEASE
1. ADDITIONS TO LEASED PREMISES. As part of the Leased Premises described in
this Lease, Tenant agrees to lease two (2) additional areas, not previously
Leased by Tenant, in "As Is" condition on the first (1st) floor
encompassing approximately Two Thousand Four Hundred Sixty-five (2,465)
square feet of Rentable Area as per Exhibit "A-4" attached hereto. Tenant
shall pay monthly rent on these two (2) additional areas at the rate of
$5.50 per square foot of Rentable Area per year through November 30, 1991.
Commencing December 1, 1991, base rent on these two (2) additional areas
shall increase to $13.50 per square foot of Rentable Area per year with a
an expense stop equal to Estimated Basic Cost as set forth in Paragraph
13.A of the Lease. Landlord agrees to provide an allowance of up to $3.00
per usable square foot times the number of usable square feet within these
two (2) additional areas for tenant improvements made by Tenant in
accordance with plans and specifications agreed upon by Landlord and Tenant
and attached to this Lease. The allowance is payable on December 1, 1991,
based on copies of paid invoices furnished by Tenant to Landlord evidencing
costs of improvements in these two (2) additional areas.
2. TENANT IMPROVEMENTS; ACCEPTANCE OF PREMISES. Tenant agrees to accept the
Leased Premises in "As Is" condition. All improvements to the Leased
Premises will be done by Tenant, at Tenant's sole cost and expense, and in
accordance with the plans and specifications agreed upon by Landlord and
Tenant and attached to this lease, with the exception that Landlord will
provide Tenant with the following, at Landlord's cost:
(a) Recarpet the third (3rd) floor lobby and all executive offices with
building standard carpeting.
(b) Repaint and/or touch up of paint in areas agreed to by Landlord and
Tenant after an inspection tour made prior to execution of this Lease.
(c) Clean carpet in high traffic areas agreed to by landlord and Tenant.
(d) Installation of four (4) additional light fixtures in third (3rd)
floor lobby.
Tenant agrees, with respect to tenant improvements made under Paragraphs 1
and 2 of the Addendum, that all such improvements shall be made in a good
and workmanlike manner, with comparable materials to those presently used
on the Leased Premises, Tenant shall pay all costs in a timely manner to
prevent the imposition of any liens for labor or materials furnished or, if
a lien is filed, Tenant shall immediately bond same.
3. TENANT ELECTRICITY. Landlord shall install at Landlord's sole cost and
expense a separate meter in the designated HVAC area(s) of the Leased
Premises, shown on plans and specifications, dated , where
separate HVAC units have been installed. The cost of electricity for
operation of these units during the term of the Lease shall be at Tenant's
sole cost and paid as additional rental pursuant to the terms and
provisions of this Lease upon receipt of invoices from Landlord. In
addition, Tenant shall
Landlord's Initial ___
Tenant's Initial ___
ADDENDUM TO LEASE - Page 1
48
be given an annual credit of $9,000.00 toward the electrical, operating
costs of these units, such credit to be applied as charges for electrical
operating costs of these units are billed to Tenant.
4. CANCELLATION. After the completion of one (1) full calendar year of
occupancy from the Commencement Date and if the Tenant is not then in
default, Tenant shall have the right to cancel this Lease as to any portion
of the Leased Premises on the first (1st) and second (2nd) floors with six
(6) months prior written notice to Landlord. Notwithstanding anything to
the contrary, throughout the term of this Lease, Tenant shall remain liable
for rent and charges for the entire third (3rd) Floor.
5. SIGNAGE. Landlord reserves the right to change the exterior monument sign
subject to the final approval of the Tenant, such approval not to be
unreasonably withheld, and master plan developer. So long as Tenant
occupies the largest Rentable Area of any tenant in the Building, Tenant
shall be permitted to largest signage area on the monument sign.
6. BROKERS. Tenant represents and warrants to Landlord that neither it nor its
officers or agents nor anyone acting on its behalf has dealt with any real
estate broker other than Zann Commercial Brokerage, Inc., as Landlord's
agent, and Alliance Commercial, Inc., as Tenant's agent, for the primary
term of this Lease in the negotiating or making of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any claim or claims, as
well as costs and expenses including attorneys' fees incurred by Landlord
in conjunction with any such claim or claims, of Zann Commercial Brokerage,
Inc. and Alliance Commercial, Inc. or any broker or brokers claiming to
have interested Tenant in the Building or Premises or claiming to have
caused Tenant to enter into this Lease.
7. LANDLORD'S LIABILITY. Notwithstanding anything in this Lease to the
contrary, covenants, undertakings and agreements herein made on the part of
Landlord are made and intended not for the purpose of binding Landlord
personally or the assets of Landlord but are made and intended to bind only
the Landlord's interest in the Leased Premises and Building, as the same
may, from time to time, be encumbered and no personal liability shall at
any time be asserted or enforceable against Landlord or its stockholders,
officers or partners or their respective heirs, legal representatives,
successors and assigns on account of the Lease or on account of any
covenant, undertaking or agreement of Landlord in this Lease contained.
8. AUTHORITY OF TENANT. If Tenant is a corporation, each individual executing
this Lease on behalf of said corporation represents and warrants that he
is duly authorized to execute and deliver this Lease on behalf of said
corporation, and that this Lease is binding upon said corporation.
9. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent and other sums due hereunder shall be
deemed to be other than on account of the earliest rent or other sums due,
nor shall any endorsement or statement on any check or accompanying any
check or payment be deemed an accord and satisfaction; and Landlord may
accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or other sums or pursue any other remedy
provided in this Lease.
Landlord's Initial ___
Tenant's Initial ___
ADDENDUM TO LEASE - Page 2
49
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "First Amendment") is
made and entered into this 7 day of February, 1994, by and between AETNA LIFE
INSURANCE COMPANY, a Connecticut corporation (hereinafter "Landlord") and
XXXXXXX TECHNOLOGY, INC., a Texas corporation (hereinafter "Tenant").
WITNESSETH
WHEREAS, by that certain Lease Contract dated August 21, 1991 (as
amended, the "Lease") Landlord leased to Tenant approximately 32,560 square feet
of Rentable Area of office space located on floors 1-3 (the "Leased Premises")
of the building known as Gemini Development Office Building located at 0000
Xxxxxx Xxxxxx in Clear Lake City, Xxxxxx County, Texas (the "Building"), all as
is more fully described in the Lease; and
WHEREAS, pursuant to the Lease Landlord and Tenant subsequently
reduced the Leased Premises by an aggregate amount of approximately 7,144 square
feet of Rentable Area; and
WHEREAS, Landlord and Tenant entered into that certain letter
agreement dated October 7, 1993 and agreed and accepted on December 1, 1993 (the
"First Amendment") amending the Lease to provide, among other provisions, for
the reduction of the Leased Premises by approximately 3,330 square feet of
Rentable Area; and
WHEREAS, Landlord and Tenant desire to further amend the Lease by
reducing the Leased Premises and to extend the term of the Lease under the terms
and conditions as set forth below:
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree to amend, and do hereby amend, the Lease as follows:
1. Relinquishment of First Floor Premises. So long as Tenant is not
in default under this Lease, effective March 1, 1994, (the "First Floor
Relinquishment Date") Landlord hereby takes back from Tenant and Tenant does
hereby relinquish to Landlord 2,674 square feet of Rentable Area on the first
floor of the Building, as shown cross-hatched on the floor plan attached as
Exhibit A hereto and made a part hereof for all purposes (the "First Floor
Relinquishment Premises"). From and after the First Floor Relinquishment Date
all of Tenant's rights, privileges, duties and obligations accruing with respect
to the First Floor Relinquishment Premises, including, without limitation,
Tenant's right to possession and use thereof, shall terminate, except that
Tenant shall be liable for all Base Rental and other sums due and owing from
Tenant to Landlord (including, without limitation, all amounts accruing pursuant
to Paragraph 13 of the Lease) with respect to such space accruing to the First
Floor Relinquishment Date. Landlord and Tenant hereby agree that from and after
the First Floor Relinquishment Date, the definition of "Leased
50
Premises" set forth in Paragraph 1 of the Lease shall be stipulated to mean
19,412 square feet of Rentable Area located on the third (3rd) floor of the
Building. Accordingly, Tenant's "Basic Cost" and "Estimated Basic Cost"
components of Base Rental calculated pursuant to Paragraph 13.B. of the Lease
shall be proportionately reduced from and after the First Floor Relinquishment
Date.
2. Partial Relinquishment of Third Floor Premises. So long as Tenant
is not in default under this Lease either at the time of exercise or at the time
of termination, effective November 30, 1994 (the "Sublease Premises
Relinquishment Date") Landlord hereby agrees to take back from Tenant and Tenant
does hereby agree to relinquish to Landlord 1,711 square feet of Rentable Area
on the third floor of the Leased Premises as shown cross-hatched on the floor
plan attached as Exhibit B hereto and made a part hereof for all purposes (the
"Sublease Relinquishment Premises"). From and after the Sublease Premises
Relinquishment Date all of Tenant's rights, privileges, duties and obligations
accruing with respect to the Sublease Relinquishment Premises, including,
without limitation, Tenant's right to possession and use thereof, shall
terminate, except that Tenant shall be liable for all Base Rental and other sums
due and owing from Tenant to Landlord (including, without limitation, all
amounts accruing pursuant to Paragraph 13 of the Lease) with respect to such
space accruing to the Sublease Premises Relinquishment Date. Landlord and
Tenant hereby agree that from and after the Sublease Premises Relinquishment
Date, the definition of "Leased Premises" set forth in Paragraph 1 of 5 the
Lease shall be stipulated to mean 17,701 square feet of Rentable Area located on
the third (3rd) floor of the Building. Accordingly, Tenant's "Basic Cost" and
"Estimated Basic Cost" components of Base Rental calculated pursuant to
Paragraph 13.B. of the Lease shall be proportionately reduced from and after the
Sublease Premises Relinquishment Date.
3. Condition of Premises. Tenant shall vacate the First Floor
Relinquishment Premises and the Sublease Relinquishment Premises no later than
the dates specified in Sections 1 and 2 above. Tenant shall leave those portions
of the Leased Premises in a clean and orderly condition in accordance with
Paragraph 6.B. of the Lease.
4. Renewal Term. Subject to and upon the terms, provisions and
conditions set forth herein and in the Lease, or in any exhibit hereto or to the
Lease, the term of the Lease as to the remaining portion of the Leased Premises
shall be extended for a period of four (4) years commencing on March 1, 1994 and
expiring on February 28, 1998 (the "Termination Date").
5. Rent. Base Rental payable by Tenant during the renewal term shall
be determined according to the following schedule:
Lease Year Base Rental Rate
---------- ----------------
1-2 $11.50 per square foot of Rentable Area within the Leased Premises
3 $12.00 per square foot of Rentable Area within the Leased Premises
4 $12.50 per square foot of Rentable Area within the Leased Premises
In addition, Tenant agrees to pay all additional rental with respect to the
Leased Premises in accordance with Paragraph 13.B. of the Lease. Tenant's "Basic
Cost" and "Estimated Basic Cost" components of Base Rental as calculated
pursuant to Section
-2-
51
13.B. of the Lease during the renewal term shall be determined based on the
Basic Cost for the calendar year 1994. Tenant agrees to pay all other sums
payable to Landlord by Tenant with respect to the Leased Premises on the terms
and conditions provided for in the Lease.
6. Leased Premises Improvements; Moving Expenses. Tenant
acknowledges that (i) no representations as to the repair of the Leased Premises
or the Building, nor promises to alter, remodel or improve the Leased Premises
or the Building have been made by Landlord in connection with the renewal term
and (ii) the Leased Premises shall be delivered to Tenant on March 1, 1994 in
its current condition, i.e., "AS IS" and "WITH ALL FAULTS". Tenant shall be
responsible for all expenses or costs incurred by Tenant in connection with (i)
Tenant's relinquishment of the First Floor Relinquishment Premises and
relocation to the third (3rd) floor portion of the Leased Premises and (ii)
Tenant's remodeling of the third (3rd) floor portion of the Leased Premises in
accordance with the specifications attached hereto as EXHIBIT C.
7. Exhibits. The third page of Exhibit A-1 and Exhibit X-0, Xxxxxxx
X-0 and Exhibit A-4 to Lease are hereby deleted in their entirety. In addition,
paragraphs 1, 2, 4, 6, 12 and 13 of Exhibit C to the Lease are hereby deleted.
8. Parking. Landlord will provide parking to Tenant during the
renewal term in accordance with Paragraph 22.A. of the Lease at no cost to
Tenant.
9. Landlord Services. Landlord will provide to Tenant those services
described in Paragraph 5 of the Lease during the renewal term. Air conditioning
and heating will be provided during normal business hours of the Building which
are currently 7:00 a.m. to 6:00 p.m., Monday through Friday and 8:00 a.m. to
1:00 p.m. on Saturday. After hours air conditioning will be made available to
Tenant in accordance with the terms of the Lease at the rate then charged by
Landlord from time to time which is currently $25.00 per hour.
10. Brokerage Commissions. Tenant hereby represents and warrants to
Landlord that Tenant has not employed any agents, brokers or other such parties
in connection with this Second Amendment, and agrees that Tenant shall hold
Landlord harmless from and against any and all claims of agents, brokers, or
other such parties claiming by or through Tenant.
11. Miscellaneous.
(a) Amendment to Lease. Tenant and Landlord acknowledge and agree
that the Lease has not been amended or modified in any respect, other
than by the First Amendment and this Second Amendment, and there are
no agreements of any kind currently in force and effect between
Landlord and Tenant with respect to the Leased Premises or the
Building.
(b) Counterparts. This Second Amendment may be executed in
multiple counterparts, and each counterpart when fully executed and
delivered shall constitute an original instrument, and all such
multiple counterparts shall constitute but one and the same
instrument.
-3-
52
(c) Entire Agreement. This Second Amendment sets forth all
covenants, agreements and understandings between Landlord and Tenant
with respect to the subject matter hereof and there are no other
covenants, conditions or understandings, either written or oral,
between the parties hereto except as set forth in this Second
Amendment.
(d) Lease Governs. Except as expressly provided herein, the
Leased Premises shall be governed by the same terms and conditions as
the Lease.
(e) Full Force and Effect. Except as expressly amended hereby,
all other items and provisions of the Lease remain unchanged and
continue to be in full force and effect.
(f) Conflicts. The terms of this Second Amendment shall control
over any conflicts between the terms of the Lease and the terms of
this Second Amendment.
(g) Authority of Tenant. Tenant warrants and represents to
Landlord that (i) Tenant is a duly organized and existing legal
entity, in good standing in the State of Texas, (ii) Tenant has full
right and authority to execute, deliver and perform this Second
Amendment; (iii) the persons executing this Second Amendment were
authorized to do so and (iv) upon request of Landlord, such persons
will deliver to Landlord satisfactory evidence of their authority to
execute this Second Amendment on behalf of Tenant.
(h) Capitalized Terms. Capitalized terms not defined herein shall
have the same meanings attached to such terms under the Lease.
(i) Successors and Assigns. This Second Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Executed as of the first day written above.
LANDLORD
AETNA LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
TENANT
XXXXXXX TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Contracts Manager
-4-
53
Exhibit A
01 FIRST FLOOR PLAN
[MAP]
FIRST FLOOR PLAN
AS BUILTS
0000 XXXXXX
XXXXX XXXX XXXX, XXXXX
[AINSLIE ARCHITECTS LOGO]
54
Exhibit B
01 THIRD FLOOR PLAN
[MAP]
THIRD FLOOR PLAN
AS BUILTS
0000 XXXXXX
XXXXX XXXX XXXX, XXXXX
[AINSLIE ARCHITECTS LOGO]
55
Exhibit C
[J&P CONSTRUCTION LOGO] Inquiry No.______________________
General Contractors Date 1-10-94
X.X. Xxx 000 Xxxxx Xxx 00
Xxxxxx, Xxxxx 00000 Prices quoted are
(000) 000-0000 F.O.B.___________________________
Delivery_________________________
To Xxxxxxx Technology
Attn.: Xxxx and or Xxxxxx
Xxxxxxx Assett Management Company
Attn.: Xxx Xxxxxxx or Xxxxx Xxxxxxxxx
3rd floor Remodel for Xxxxxxx
1331 Gemini
We are pleased to quote as follows. Your Inquiry
================================================================================
Quantity Description Price Amount
--------------------------------------------------------------------------------
Electrical:
(31) 2X4 Lights relocate (2) switches
( 5) 2X4 Lights rewire (4) 3 way switches
( 3) ded plugs kitchen area
( 9) Power poles relocate FBO
( 3) New power poles
(12) 120 Volt circuits
( 1) Sub Panel
Misc. Demo and rewire 5,229.00
No Certification of existing 2X4 Lights is in
the electrical bid
HVAC:
Relocate existing diffusers as required
New lay out and use existing grills, slots and
balance 748.00
Plumbing:
Add new bar sink 19"X22" sink stainless steel
(1) 6 gallon water heater
Coffee maker: lines for rough in and floor coring
for waste after Hours 3,245.00
Demo walls 192 lF. 1,216.00
New walls 192 lF. 3,645.00
12 lF. xxxx wall for plumbing 176.00
Patch sheet rock 346.00
(1) case opening 144.00
Ceiling tile patch 680.00
Grid repair 192.00
Relocate (6) doors 540.00
(6) Lever sets for ADA Compliance 966.00
Uppers and lower cabinets 1,725.00
Raco window Mullion (2) 108.00
Patch carpet building or tenant to supply carpet 460.00
================================================================================
Bid continued on page -2-
By _________Gary Xxxxxx
56
[J&P CONSTRUCTION LOGO] Inquiry No.______________________
General Contractors Date 1-10-94
X.X. Xxx 000 Xxxxx Xxx 00
Xxxxxx, Xxxxx 00000 Prices quoted are
(000) 000-0000 F.O.B.___________________________
Delivery_________________________
To Xxxxxxx Technology
attn.: Xx. Xxxx or Xxxxxx
Xxxxxxx
attn.: Xxx Xxxxxxx or Xxxxx Xxxxxxxxx Page -2-
We are pleased to quote as follows. Your Inquiry
================================================================================
Quantity Description Price Amount
--------------------------------------------------------------------------------
Bid continued:
New base at new walls only and construction
related areas 397 LF. 389.00
Paint new walls and construction related areas
5,820 Sq. Ft. 1,397.00
Permits - drawings to obtain permits by others 250.00
Clean up construction area 3,054 Sq. Ft. 760.00
--------
Cost $22,216.00
Tax 1,832.82
----------
Total $24,048.82
Work is based on regular business hours no overtime
no weekend work is included
All furniture to be moved by others not included
Price god for 30 days
Thanks J&P
================================================================================
By Xxxx Xxxxxx
------------------------------
57
[CAPITAL DEVELOPMENT LETTERHEAD]
January 6, 1995
Xx. Xxxx Xxxxxxx
Xxxxxxx Technology, Inc.
0000 Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Dear Xxxx:
As per our conversation, I have agreed to adjust the net rentable square
footage of your premises to include a 15% common area factor as opposed to a
20% factor used in your present lease. Therefore, effective January 1, 1995,
the net rentable square footage is 17,354 (14,751/.85). In this respect, the
new monthly rent is $16,630.92.
I hope everything is to your satisfaction.
Very truly yours,
/s/ Xxxxxx Xxxxxxxxx
----------------------
Xxxxxx Xxxxxxxxx
Vice President
GM:sb
