EXHIBIT 10.6
LEASE AGREEMENT
Between
Telephone Real Estate Equity Trust,
as Landlord
and
VIKO TECHNOLOGY, INC. D/B/A VIKO TEST LAB,
as Tenant
Covering approximately 6,963 gross square feet
of the Building known (or to be known) as
SOUTHPARK B
Located at
0000 XXXXXXXX XXXXXX
XXXXXX, Xxxxx.
STANDARD INDUSTRIAL LEASE AGREEMENT
XXXXXXXX XXXX COMPANY- (AUS/91)
Approximately 6,963 gross square feet
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx
(Southpark B)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between Telephone Real
Estate Equity Trust, hereinafter referred to as "Landlord" and Viko Technology,
Inc. d/b/a Viko Test Lab, hereinafter referred to as "Tenant".
1. PREMISES AND TERM. In consideration of the mutual obligations of
Landlord and Tenant set forth herein, Landlord leases to Tenant, and
Tenant hereby takes from Landlord, certain leased premises situated
within the County of Xxxxxx, State of Texas, as more particularly
described on EXHIBIT "A" attached hereto and incorporated herein by
reference (the "Premises"), to have and to hold, subject to the
terms, covenants and conditions in this Lease. The term of this
Lease shall commence on the Commencement Date hereinafter set forth
and shall end on the last day of the month that is thirty six (36)
months after the Commencement Date.
A. Existing Building Improvements. If no material
improvements are to be constructed to the Premises, the
"Commencement Date" shall be November 1, 1993. In such
event, Tenant acknowledges that (i) it has inspected and
accepts the Premises in its "as is" condition, (ii) the
buildings and improvements comprising the same are
suitable for the purpose for which the Premises are
leased, (iii) the Premises are in good and satisfactory
condition, and (iv) no representations as to the repair
of the Premises nor promises to alter, remodel or
improve the Premises have been made by Landlord (unless
otherwise expressly set forth in this Lease). The
Demised Premises currently contains in excess of 800 of
amps.
B. Building or Improvements to be Constructed. If the
Premises or part thereof are to be constructed, the
"Commencement Date" shall be deemed to be the earliest
of: (i) the date upon which the Premises and other
improvements to be erected in accordance with the plans
and specifications described on EXHIBIT "B" attached
hereto and incorporated herein by reference (the
"Plans") have been substantially completed: (ii) the
date on which the Premises or such improvements would
have been substantially completed but for delays caused
directly or indirectly by Tenant, including Plan delays
or change orders; (iii) the date on which Tenant
occupies any part of the Premises; or (iv) sixty (60)
days from the date hereof. As used herein, the term
"substantially completed" shall mean that, in the
opinion of the architect or space planner that prepared
the Plans, such improvements have been completed in
accordance with the Plans, and the Premises are in good
and satisfactory condition, with the exception of
completion of minor punch list items. As soon as such
improvements have been substantially completed, Landlord
shall notify Tenant in writing that the Commencement
Date has occurred.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW DEPOSITS.
A. Base Rent. Tenant agrees to pay Landlord rent for the
Premises, in advance, without demand, deduction or set
off, at the rate of three thousand eight hundred thirty
and 00/100 dollars ($3,830.00) per month for months one
(1) through twenty four (24) and four thousand one
hundred seventy seven and 00/100 dollars ($4,177.00) per
month for months twenty five (25) through thirty six
(36). One such monthly installment, plus the other
monthly charges set forth in Xxxxxxxxx 0X xxxxx, shall
be due and payable on the date hereof, and a like
monthly installment shall be due and payable on or
before the first
day of each calendar month succeeding the Commencement
Date, except that all payments due hereunder for any
fractional calendar month shall be prorated.
B. Security Deposit. In addition, Tenant agrees to deposit
with Landlord on the date hereof the sum of three
thousand eight hundred thirty and 00/100 Dollars
($3,830.00), which shall be held by Landlord, without
obligation for interest, as security for the performance
of Tenant's obligations under this Lease (the "Security
Deposit"), it being expressly understood and agreed that
the Security Deposit is not an advance rental deposit or
a measure of Landlord's damages in case of Tenant's
default. Upon occurrence of an Event of Default.
Landlord may use all or part of the Security Deposit to
pay past due rent or other payments due Landlord under
this Lease or the cost of any other damage, injury,
expense or liability caused by such Event of Default,
without prejudice to any other remedy provided herein or
provided by law. On demand, Tenant shall pay Landlord
the amount that will restore the Security Deposit to its
original amount. The Security Deposit shall be deemed
the property of Landlord, but any remaining balance of
the Security Deposit shall be returned by Landlord to
Tenant when all of Tenant's present and future
obligations under this Lease have been fulfilled.
C. Escrow Deposits. Without limiting in any way Tenant's
other obligations under this Lease, Tenant agrees to pay
to Landlord its Proportionate Share (as defined in this
Xxxxxxxxx 0x xxxxx) of (i)Taxes (hereinafter defined)
payable by Landlord pursuant to Xxxxxxxxx 0X xxxxx, (xx)
the cost of utilities payable by Landlord pursuant to
Xxxxxxxxx 0 xxxxx, (xxx) Landlord's cost of maintaining
insurance pursuant to Paragraph 9A below, and (iv)
Landlord's cost of maintaining the Premises pursuant to
paragraph 5E below and any common area charges payable
by Tenant in accordance with Paragraph 4B below
(collectively, the "Tenant Costs"). During each month of
the term of this Lease, on the same day that rent is due
hereunder, Tenant shall deposit in escrow with Landlord
an amount equal to one-twelfth (1/12) of the estimated
amount of Tenant's Proportionate Share of the Tenant
Costs. Tenant authorizes Landlord to use the funds
deposited with Landlord under this Xxxxxxxxx 0X to pay
such Tenant Costs. The initial monthly escrow payments
are based upon the estimated amounts for the year in
question and shall be increased or decreased annually to
reflect the projected actual amount of all Tenant Costs.
If the Tenant's total escrow deposits for any calendar
year are less than Tenant's actual Proportionate Share
of the Tenant Costs for such calendar year, Tenant shall
pay the difference to Landlord within ten (10) days
after demand. If the total escrow deposits of Tenant for
any calendar year are more than Tenant's actual
Proportionate Share of the Tenant Costs for such
calendar year, Landlord shall retain such excess and
credit it against Tenant's escrow deposits next maturing
after such determination. In the event the Premises
constitute a portion of a multiple occupancy building
(the "Building"), Tenant's "Proportionate Share" with
respect to the Building, are used in this Lease, shall
mean a fraction, the numerator of which is the gross
rentable area contained in the Premises and the
denominator of which is the gross rentable area
contained in the entire Building. In the event the
Premises or the Building is part of a project or
business park owned, managed or leased by Landlord or an
affiliate of Landlord (the "Project"), Tenant's
"Proportionate Share" of the Project, as used in this
Lease, shall mean a fraction, the numerator of which is
the gross rentable area contained in the Premises and
the denominator of which is the gross rentable area
contained in all of the buildings (including the
Building) within the Project.
3. TAXES
A. Real Property Taxes. Subject to reimbursement under
Paragraph 2C herein, Landlord agrees to pay all taxes
assessments and governmental charges of any kind and nature
(collectively referred to herein as "Taxes") that accrue
against the Premises, the Building and/or the land of which
the Premises or the Building are a part. If any time during
the term of this Lease there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on
the rents received
therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents
from the Premises and/or the land and improvements of which
the Premises are a part, then all such taxes, assessments,
levies or charges, or the part thereof so measured or based
shall be deemed to be included within the term "Taxes" for
the purposes hereof. The Landlord shall have the right to
employ a tax consulting firm to attempt to assure a fair tax
burden on the real property within the applicable taxing
jurisdiction. Tenant agrees to pay its Proportionate Share
of the cost of such consultant.
B. Personal Property Taxes. Tenant shall be liable for all
taxes levied or assessed against any personal property or
fixtures placed in or on the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property
and (i) Landlord pays the same or (ii) the assessed value of
Landlord's property is increased by inclusion of such
personal property and fixtures and Landlord pays the
increased taxes, then Tenant shall pay to Landlord, upon
demand, the amount of such taxes.
4. LANDLORD'S REPAIR AND MAINTENANCE.
A. Structural Repairs. Landlord at its own cost and
expenses shall maintain the roof, foundation and the
structural soundness of the exterior walls of the
Building in good repair, reasonable wear and tear
excluded. The term "walls" as used herein shall not
include windows, glass or plate glass, any doors,
special store fronts or office entries, and the term
"foundation" as used herein shall not include loading
docks. Tenant shall immediately give Landlord written
notice of defect or need for repairs, after which
Landlord shall have reasonable opportunity to effect
such repairs or cure such defect.
B. Tenant's Share of Common Area Charges. Tenant agrees to
pay its Proportionate Share of the cost of (i)
maintenance and/or (including both maintenance and
replacement of landscaping) of any property that is a
part of the Building and/or the Project; (ii)
operating, maintaining and repairing any property,
facilities or services (including without limitation
utilities and insurance therefor) provided for the use
or benefit of Tenant or the common use or benefit of
Tenant and other lessees of the Project or the
Building; and (iii) an administrative fee of fifteen
percent (15%) of all common area maintenance charges.
5. TENANT'S REPAIR
A. Maintenance of Premises and Appurtenances. Tenants, at
its own cost and expense, shall (i) maintain all parts
of the Premises and promptly make all necessary repairs
and replacements to the Premises (except those for
which Landlord is expressly responsible hereunder), and
(ii) keep the parking areas, driveways and alleys
surrounding the Premises in a clean and sanitary
condition. Tenant's obligation to maintain, repair and
make replacements to the Premises shall cover, but not
be limited to, pest control (including termites), trash
removal and the maintenance, repair and replacement of
all HVAC, electrical, plumbing, sprinkler and other
mechanical systems.
C. Parking. Tenant and its employees, customers and
licensees shall have the right to use only its
Proportionate Share of any parking areas that have been
designated for such use by Landlord in writing, subject
to (i) all rules and regulations promulgated by
Landlord, and (ii) rights of ingress and egress of
other lessees. Landlord shall not be responsible for
enforcing Tenant's
parking rights against any third parties, and Tenants
expressly does not have the right to tow or obstruct
improperly parked vehicles. Tenant agrees not to park
on any public streets or private roadways adjacent to
or in the vicinity of the Premises.
D. System Maintenance. Tenant , at its own cost and
expenses, shall enter into a regularly schedule
preventive maintenance/service contract with a
maintenance contractor approved by Landlord for
servicing all hot water, heating and air conditioning
systems and equipment within the Premises. The service
contract must include all services suggested by the
equipment manufacturer in its operation/maintenance
manual and must become effective within thirty (30)
days of the date Tenant takes possession of the
Premises. Landlord and swamp systems shall ensure that
the air conditioning and heating systems and swamp
systems are in good working order upon Tenant's
occupancy of the Demised Premises. Landlord shall
provide Tenant with a HVAC certification of inspection
within thirty (30) days of occupancy.
E. Option to Maintain Premises. Landlord reserves the
right to perform, in whole or in part and without
notice to Tenant, maintenance, repairs and replacements
to the Premises, paying , common area, landscape,
exterior painting, common sewage, line plumbing and any
other items that are otherwise Tenant's obligations
under this Paragraph 5, in which event, Tenant shall be
liable for its Proportionate Share of the cost and
expense of such repair, replacement, maintenance and
other such items.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of
Landlord. Tenant at its own cost and expense, may erect such shelves,
bins, machinery and trade fixtures as it desires, provided that (i)
such items do not alter the basic character of the Premises or the
Building, (ii) such items do not overload or damage same, (iii) such
items may be removed without injury to the Premises, and (iv) the
construction, erection or installation thereof complies with all
applicable governmental laws, ordinances, regulations and with
Landlord's specifications and requirements. Tenants shall be
responsible for compliance with The American With Disabilities Act of
1990. Without implying any consent of Landlord thereto, all
alterations, additions, improvements and partitions erected by Tenant
shall be and remain the property of Tenant during the term of this
Lease. All shelves, bins, machinery and trade fixtures installed by
Tenant shall be removed on or before the earlier to occur of the day
of termination or expiration of this Lease or vacating the Premises,
at which time Tenant shall restore the Premises to their original
condition. All alterations, installations, removals and restorations
shall be performed in a good and workmanlike manner so as not to
damage or alter the primary structure or structural qualities of the
Building or other improvements situated on the Premises or of which
the Premises are a part.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval and shall be submitted to Landlord prior
to the Commencement Date of this Lease. Tenant shall repair, paint
and/or replace the Building fascia surface to which its signs are
attached upon Tenant's vacating the Premises or the removal or
alteration of its signage. Tenant shall not, without Landlord's prior
written consent, (i) make any changes to the exterior of the Premises,
such as painting; (ii) install any exterior lights, decorations,
balloons, flags, pennants or banners; or (iii) erect or install any
signs, windows or door lettering, placards, decorations or advertising
media of any type which can be viewed from the exterior of the
Premises. All signs, decorations, advertising media, blinds, draperies
and other window treatment or bars or other security installations
visible from outside the Premises shall conform in all respects to the
criteria established by Landlord or shall be otherwise subject to
Landlord's prior written consent.
8. UTILITIES. Landlord agrees to provide normal water and electricity
service to the Premises. Tenant shall pay for all water, gas , heat,
light, power, telephone, sewer, sprinkler charges and other utilities
and services used on or at the Premises, together with any taxes,
penalties, surcharges or the like pertaining to the Tenant's use of
the Premises and any maintenance charges for utilities. Landlord shall
have the right to cause any said services to be separately metered to
Tenant, at Tenant's expense. Tenant shall pay its pro rate share, as
reasonably determined by Landlord, of all charges for jointly metered
utilities. Landlord shall not be liable for any interruption or
failure of utility service on the Premises, and Tenant shall have no
rights or claims as a result of any such failure. In the event water
is not separately metered to Tenant, Tenants agrees that it will not
use water and sewer capacity for uses other than normal domestic
restroom and kitchen usage, and Tenant further agrees to reimburse
Landlord for the entire amount of common water and sewer costs as
additional rental if ,in fact, Tenant uses water or sewer capacity for
uses other than normal domestic restroom and kitchen uses without
first obtaining Landlord's written permission, including but not
limited to the cost for acquiring additional sewer capacity to service
Tenant's excess sewer use. Furthermore, Tenants agrees in such event
to install at its own expense a submeter to determine Tenant' usage.
9. INSURANCE.
A. Landlord's Insurance. Subject to reimbursement under Paragraph 2C
herein, Landlord shall maintain insurance covering the Building in an
amount not less than eighty percent (80%) of the "replacement cost"
thereof, insuring against the perils of fire, lightning, extended coverage,
vandalism and malicious mischief.
B. Tenant's Insurance. Tenants, at its own expense, shall maintain
during the term of this Lease a policy or policies of workers compensation
and comprehensive general liability insurance, including personal injury
and property damage, with contractual liability endorsement, in the amount
of Five Hundred Thousand Dollars ($500,000.00) for property damage and One
Million Dollars ($1,000,000.00) per occurrence and One Million Dollars
($1,000,000.00) in the aggregate for personal injuries or deaths of persons
occurring in or about the Premises. Tenant, at its own expense, shall also
maintain during the term of this Lease fire and extended coverage insurance
covering the replacement cost (i) all alterations, additions, partitions
and improvements installed or placed on the Premises by Tenant or by
Landlord on behalf of Tenant: and (ii) all of Tenant's personal property
contained within the Premises. Said policies shall (i) name the Landlord as
an additional insured and insure Landlord's contingent liability under or
in connection with this Lease (except for the workers' compensation policy,
which instead shall include a waiver of subrogation endorsement in favor of
Landlord); (ii) be issued by an insurance company which is acceptable to
Landlord; and (iii) provide that said insurance shall not be cancelled
unless thirty (30) days prior written notice has been given to Landlord.
Said policy or policies or certificates thereof shall be delivered to
Landlord by Tenant on or before the Commencement Date and upon each renewal
of said insurance
C. Prohibited Uses. Tenant will not permit the Premises to be used for
any purpose or in any manner that would (i) void the insurance thereon,
(ii) increase the insurance risk or cost thereof, or (iii) cause the
disallowance of any sprinkler credits; including without limitation, use of
the Premises for the receipt, storage or handling of any product, material
or merchandise that is explosive or highly inflammable. If any increase in
the cost of any insurance on the Premises or the Building is caused by
Tenant's use of the Premises or because Tenant vacates the Premises, then
Tenant shall pay the amount of such increase to Landlord upon demand
therefor.
10. FIRE AND CASUALTY DAMAGE.
A. Total or Substantial Damage and Destruction. If the Premises or the
Building should be damaged or destroyed by fire or other peril, Tenant
shall immediately give written notice to Landlord of such damage or
destruction. If the Premises or the Building should be totally destroyed by
any peril covered by the insurance to be provided by Landlord under
Paragraph 9A above, or if they should be so damaged thereby that, in
Landlord's estimation, rebuilding or repairs cannot be completed within one
hundred eighty (180) days after the date of such damage or after such
completion there would not be enough time remaining under the terms of this
Lease to fully amortize such rebuilding or repairs, then this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
B. Partial Damage or Destruction. If the Premises or the Building
should be damaged by any peril covered by the insurance to be provided by
Landlord under Paragraph 9A above and, in Landlord's estimation, rebuilding
or repairs can be substantially completed within one hundred eighty (180)
days after the date of such damage, then this Lease shall not terminate and
Landlord shall substantially restore the Premises to its previous
condition, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other
improvements that may have been constructed erected or installed in or
about the Premises for the benefit of, by or for Tenant.
C. Lienholders' Rights in Proceeds. Notwithstanding anything herein to
the contrary, in the event the holder of any indebtedness secured by a
mortgage or deed of trust covering the Premises requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the
right to terminate this Lease by delivering written notice of termination
to Tenant within (15) days after such requirement is made known to Landlord
by such holder, whereupon all rights and obligations hereunder shall cease
and terminate.
D. Waiver of Subrogation. Notwithstanding anything in this Lease to
the contrary, Landlord and Tenant hereby waive and release each other of
and from any all rights of recovery, claims, actions or causes of action
against each other, or their respective agents, officers and employees, for
any loss or damage that may occur to the Premises, improvements to the
Building or personal property (Building contents) within the Building
and/or Premises, for any reason regardless of cause or origin. Each party
to this Lease agrees immediately after execution of this Lease to give
written notice of the terms of the mutual waivers contained in this
subparagraph to each insurance company that has issued to such party
policies of fire and extended coverage insurance and to have the insurance
policies properly endorsed to provide that the carriers of such policies
waive all rights of recovery under subrogation or otherwise against the
other party.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that landlord has released, Tenant shall hold
Landlord harmless from and defend Landlord against any and all claims or
liability for any injury or damage (i) to any person or property whatsoever
occurring in, on or about the Premises or any part thereof, the Building
and/or other common areas, the use of which Tenant may have in accordance
with this Lease, if (and only if) such injury or damage shall be caused in
whole or in part by the act, neglect, fault or omission of any duty by
Tenant, its agents, servants, employees or invitees; (ii) arising from the
conduct or management of any work done by the Tenant in or about the
Premises; (iii) arising from transactions of the Tenant; and (iv) all
costs, counsel fees, expenses and liabilities incurred in connection with
any such claim or action or proceeding brought thereon. The provision of
this Paragraph 11 shall survive the expiration or termination of this
Lease. Landlord shall not be liable in any event for personal injury or
loss of Tenant's property caused by fire, flood, water leaks, rain, hail,
ice, snow, smoke, lightning, wind, explosion, interruption of utilities or
other occurrences. Landlord strongly recommends that Tenant secure Tenant's
own insurance in excess of the amounts required elsewhere in this Lease to
protect against the above occurrences if Tenant desires additional coverage
for such risks. Tenant shall give prompt notice to Landlord of any
significant accidents involving injury to persons or property, Furthermore,
Landlord shall not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Premises or from the public areas of
the Building or the Project, regardless of whether such loss occurs when
the area is locked against entry. Landlord shall not be liable to Tenant or
Tenant's employees, customers or invitees for any damages or losses to
persons or property caused by any lessees in the Building or the Project,
or for any damages or losses caused by theft, burglary, assault, vandalism
or other crimes. Landlord strongly recommends that Tenant provide its own
security systems and services and secure Tenant's own insurance in excess
of the amounts required elsewhere in this Lease to protect against the
above occurrences if Tenant desires additional protection or coverage for
such risks. Tenant shall give Landlord prompt notice of any criminal or
suspicious conduct within or about the Premises, the Building or the
Project and/or any personal injury or property damage caused thereby.
Landlord may, but is not obligated to, enter into agreements with third
parties for the provision, monitoring, maintenance and repair of any
courtesy patrols or similar services or fire protective systems and
equipment and , to the extent same is provided at Landlord's sole
discretion, Landlord shall not be liable to Tenant for any damages, cost or
expenses which occur for any reason in the event any such system or
equipment is not properly installed, monitored or maintained or any such
services are not
properly provided. Landlord shall use reasonable diligence in the
maintenance of existing lighting, if any, in the parking garage or parking
areas servicing the Premises, and Landlord shall not be responsible for
additional lighting or any security measures in the Project, the Premises,
the parking garage or other parking areas.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be directly incidental thereto. Outside storage, including
without limitation storage of trucks and other vehicles is prohibited
without Landlord's prior written consent. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in,
upon or connected with the Premises, all at Tenant's sole expense. Tenants
shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise or vibrations to emanate from the Premises, nor take any other action
that would constitute a nuisance or would disturb, unreasonably interfere
with or endanger Landlord or any other lessees of the Building or the
Project.
13. HAZARDOUS WASTE. The term "Hazardous Substances" as used in this Lease,
shall mean pollutants, contaminants, toxic or hazardous wastes, radioactive
materials or any other substances, the use and/or the removal of which is
required or the use of which is restricted, prohibited or penalized by any
"Environmental Law" which term shall mean any federal, state or local
statue, ordinance, regulation or other law of a governmental or
quasi-governmental authority relating to pollution or protection of the
environment or the regulation of the storage or handling of Hazardous
Substances. Tenant hereby agrees that: (i) no activity will be conducted on
the Premises that will produce any Hazardous Substances, except for such
activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities"), provided said Permitted Activities
are conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Landlord and, in connection therewith,
Tenant shall be responsible for obtaining any required permits or
authorizations and paying any fees and providing any testing required by
any governmental agency; (ii) the Premises will not be used in any manner
for the storage of any Hazardous Substances, except for the temporary
storage of such materials that are used in the ordinary course of Tenant's
business (the "Permitted Materials"), provided such Permitted Materials are
properly stored in a manner and location meeting all Environmental Laws and
have been approved in advance in writing by Landlord, and, in connection
therewith, Tenant shall be responsible for obtaining any required permits
or authorizations and paying any fees and providing any testing required by
any governmental agency; (iii) no portion of the Premises will be used as a
landfill or a dump; (iv) Tenant will not install any underground tanks of
any type; (v) Tenant will not allow any surface or subsurface conditions to
exists or come into existence that constitute, or with the passage of time
may constitute , a public or private nuisance; and (vi) Tenant will not
permit any Hazardous Substances to be brought onto the Premises , except
for the Permitted Materials, and if so brought or found located thereon,
the same, shall be immediately removed, with proper disposal, and all
required clean-up procedures shall be diligently undertaken by Tenant at
its sole cost pursuant to all Environmental Laws. Landlord and Landlord's
representative shall have the right but not the obligation to enter the
Premises for the Purpose of inspecting the storage, use and disposal of any
Permitted Materials to ensure compliance with all Environmental Laws.
Should it be determined, in Landlord's sole opinion, that any Permitted
Materials are being improperly stored, used or disposed of, then Tenant
shall immediately take such corrective action as requested by Landlord.
Should Tenant fail to such corrective action within twenty-four (24) hours,
Landlord shall have the right to perform such work and Tenant shall
reimburse Landlord, on demand, for any and all costs associated with said
work. If at any time during or after the term of this Lease, the Premises
is found to be contaminated with Hazardous Substances, Tenants shall
diligently institute proper and thorough clean-up procedures, at Tenant's
sole cost. Tenant agrees to indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, costs, expenses, damages, penalties
and obligations of any nature arising from or as a result of any
contamination of the Premises with Hazardous Substances, or otherwise
arising from the use of the Premises by Tenant. The foregoing
indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this Lease.
14. INSPECTION. Landlord's agents and representatives shall have the right
to enter the Premises at any reasonable time during business hours (or at
any time in case of emergency) (i) to inspect the Premises, (ii)
to make such repairs as may be required or permitted pursuant to this
Lease, and/or (iii) during the last six (6) months of the Lease term, for
the purpose of showing the Premises. In addition, Landlord shall have the
right to erect a suitable sign on the Premises stating the Premises are
available for lease. Tenant shall notify Landlord in writing at least (30)
days prior to vacating the Premises and shall arrange to meet with Landlord
for a joint inspection of the premises prior to vacating. If tenant fails
to give such notice or to arrange for such inspection, then Landlord's
inspection of the Premises shall be deemed correct for the purpose of
determining Tenant's responsibility for repairs and restoration of the
Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to sublet,
assign or otherwise transfer or encumber this Lease, or any interest
therein, without the prior written consent of Landlord and such consent is
not to be unreasonably withheld. Any attempted assignment, subletting,
transfer or encumbrance by Tenant in violation of the terms and covenants
of this paragraph shall be void. Any assignee, sublessee or transferee of
Tenant's interest in this Lease ( all such assignees, sublessees and
transferees being hereinafter referred to as "Transferees"), by assuming
Tenant's obligation hereunder, shall assume liability to Landlord for all
the amounts paid to persons other than the Landlord by such Transferees to
which Landlord is entitled or is otherwise in contravention of this
Paragraph 15. No assignment, subletting or other transfer, whether or not
consented to by Landlord or permitted hereunder, shall relieve Tenant of
its liability under this Lease. If an Event of Default occurs while the
Premises or any part thereof are assigned or sublet, then Landlord, in
addition to any other remedies herein provided or provided by law, may
collect directly from such Transferee all rents payable to the Tenant and
apply such rent against any sums due Landlord hereunder. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder. If Landlord consents
to any subletting or assignment by Tenant as hereinabove provided and any
category of rent subsequently received by Tenant under any such sublease is
in excess of the same category of rent payable under this Lease, or any
additional consideration is paid to Tenant by the assignee under any such
assignment, then Landlord may, at its option, declare such excess rents
under any sublease or such additional consideration for any assignment to
be due and payable by Tenant to Landlord as additional rent hereunder. The
following shall additionally constitute an assignment of this Lease by
Tenant for the purpose of this paragraph 15: (i) if Tenant is a
corporation, any merger, consolidation, dissolution or liquidation, or any
change in ownership or power to vote of thirty percent (30%) or more of
Tenant's outstanding voting stock; (ii) if Tenant is a partnership, joint
venture or other entity, any liquidation, dissolution or transfer of
ownership of any interests totalling thirty percent (30%) or more of the
total interests in such entity; (iii) the sale, transfer, exchange,
liquidation or other distribution of more than thirty percent (30%) of
Tenant's assets, other than this Lease; or (iv) the mortgage, pledge,
hypothecation or other encumbrance of or grant of a security interest by
Tenant in this Lease, or of any of Tenant's rights hereunder.
16. CONDEMNATION. If more than eighty percent (80%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance
or regulation, or by right of eminent domain or private purchase in lieu
thereof, and the taking prevents or materially interferes with the use of
the remainder of the Premises for the purpose for which they were leased to
Tenant, then this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective on the date of such taking.
If less than eighty percent (80%) of the Premises are taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or
by right of eminent domain or private purchase in lieu thereof, or if the
taking does not prevent or materially interfere with the use of the
remainder of the Premises for the purpose for which they were leased to
Tenant, then this Lease shall not terminate, but the rent payable hereunder
during the unexpired portion of this Lease shall be reduced to such extent
as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any foregoing
proceedings shall be the property of Landlord, and the Tenant hereby
assigns any interest in any such award to Landlord; provided, however,
Landlord shall have no interest in any award made to Tenant for loss of
business or goodwill for the taking of Tenant's trade fixtures and personal
property, if a separate award for such items is made to Tenant.
17. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant shall immediately deliver possession of the premises to
Landlord with all repairs and maintenance required herein to be performed
by Tenant completed. If, for any reason, Tenant retains possession of the
premises
after the expiration or termination of this Lease, unless the parties
hereto otherwise agree in writing, such possession shall be deemed to be a
tenancy at will only, and all of the other terms and provisions of this
Lease shall be applicable during such period , except that the Tenant shall
pay landlord from time to time, upon demand, as rental for the period of
such possession, an amount equal to one and one-half (1 1/2) times the rent
in effect on the date of such termination of this Lease, computed on a
daily basis for each day of such period. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided. The preceding provisions of this
paragraph 17 shall not be construed as consent for tenant to retain
possession of the Premises in the absence of written consent thereto by
Landlord.
18. QUIET ENJOYMENT. Landlord represents that it has the authority to enter
into this Lease and that, so long as tenant pays all amounts due hereunder
and performs all other covenants and agreements herein set forth, Tenant
shall peaceably and quietly have, hold and enjoy the Premises for the term
hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred
to as an "Event of Default") each shall be deemed to be a default in or
breach of Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period of
five (5) days from the date such payment was due.
B. Tenant shall (i) vacate or abandon all or a substantial portion of
the Premises or (ii) fail to continuously operate its business at the
Premises for the permitted use set forth herein, in either event whether or
not Tenant is in default of the rental payments due under this Lease.
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of paragraph 22 hereof within (20) days after any such lien or
encumbrance is filed against the Premises.
D. Tenant shall default in the performance of any of its obligations
under any other lease to tenant from Landlord, or from any person or entity
affiliated with or related to Landlord, and same shall remain uncured after
the lapsing of any applicable cure periods provided for under such other
Lease.
E. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed above in this paragraph) and shall not
cure such failure within twenty (20) days after written notice thereof from
Landlord.
20. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall
have the option to pursue any one or more of the following remedies without
any notice or demand:
(a) Terminate this Lease;
(b) Enter upon and take possession of the Premises without terminating
this Lease;
(c) Make such payments and/or take such action and pay and/or perform
whatever Tenant is obligated to pay or perform under the terms of this
Lease, and Tenant agrees that Landlord shall not be liable for any damages
resulting to Tenant from such actions; and/or
(d) Alter all locks and other security devices at the Premises, with
or without terminating this Lease, and pursue, at Landlord's option, one or
more remedies pursuant to this Lease, and Tenant hereby expressly agrees
that Landlord shall not be required to provide to tenant the new key to the
Premises, regardless of hour, including Tenant's regular business hour;
and in any such event Tenant shall immediately vacate the Premises, and if
Tenant fails to do so, Landlord, without waiving any other remedy it may
have, may enter upon and take the possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or
any part thereof,
without being liable for prosecution or any claim of damages therefore. In
the event of any violation of section 93.002 of the Texas Property Code by
Landlord or by any agent or employee of Landlord, Tenant hereby expressly
waives any and all rights Tenant may have under Paragraph (g) of such
Section 93.002.
A Damages Upon Termination. If Landlord terminates this Lease at
Landlord's option, Tenant shall be liable for and shall pay to Landlord the
sum of all rental and other payments owed to Landlord hereunder accrued to
the date of such termination, plus, as liquidated damages, an amount equal
to (i) the present value of the total rental and other payments owed
hereunder for the remaining portion of the Lease term, calculated as if
such term expired on the date set forth in Paragraph 1, less (ii) the
present value of the then fair market rental for the premises for such
period, provided that, because of the difficulty of ascertaining such value
and in order to achieve a reasonable estimate of liquidated damages
hereunder, Landlord and Tenant stipulate and agree, for the purpose hereof,
that such fair market rental shall in no event exceed seventy-five percent
(75%) of the rental amount for such period set forth in Paragraph 2 above.
B. Damages Upon Repossession. If Landlord repossesses the Premises
without terminating this Lease, Tenant, at Landlord's option, shall be
liable for and shall pay Landlord on demand all rental and other payments
owed to Landlord hereunder, accrued to the date of such repossession, plus
all amounts required to be paid by Tenant to Landlord until the date of
expiration of the term as stated in Paragraph 1, diminished by all amounts
actually received by Landlord through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved).
Actions to collect amounts due by Tenant to Landlord under this paragraph
may be brought from time to time, on one or more occasions, without the
necessity of Landlord's waiting until expiration of the Lease term.
C. Cost of Reletting, Removing, Repairs and Enforcement. Upon an Event
of Default, in addition to any sum provided to be paid under this Paragraph
20, Tenant also shall be liable for and shall pay to Landlord (i) brokers'
fees and all other costs and expenses incurred by Landlord in connection
with reletting the whole or any part of the Premises; (ii) the costs of
removing, storing or disposing of Tenant's or any other occupant's
property; (iii) the costs of repairing, altering, remodeling or otherwise
putting the Premises into condition acceptable to a new tenant or tenants;
(iv) any and all costs and expenses incurred by Landlord in effecting
compliance with Tenant's obligations under this Lease; and (v) all
reasonable expenses incurred by Landlord in enforcing or defending
Landlord's rights and/or remedies hereunder, including without limitation
all reasonable attorneys' fees and all court costs incurred in connection
with such enforcement or defense.
D. Late Charge. In the event Tenant fails to make any payment due
hereunder within five (5) days after such payment is due, including without
limitation any rental or escrow payment, in order to help defray the
additional cost to Landlord for processing such late payments and not as
interest, Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such payment. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law, and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
E. Interest on Past Due Amounts. If Tenant fails to pay any sum which
at any time becomes due to Landlord under any provision of this Lease as
and when the same becomes due hereunder, and such failure continues for ten
(10) days after the due date for such payment, then Tenant shall pay to
Landlord interest on such overdue amounts from the date due until paid at
an annual rate which equals the lesser of (i) eighteen percent (18%) or
(ii) the highest rate then permitted by law.
F. No Implied Acceptances or Waivers. Exercise by Landlord of any one
or more remedies hereunder granted or otherwise available shall not be
deemed to be an acceptance by Landlord of Tenant's surrender of the
Premises, it being understood that such surrender can be effected only by
the written agreement of Landlord. Tenant and Landlord further agree that
forbearance by Landlord to enforce any other it's lights under this lease
or at law or in equity shall not be a waiver of Landlord's right to enforce
any one or more of its rights, including any right previously forborne, in
connection with any existing or subsequent default. No re-entry or taking
possession of the Premises by Landlord shall be construed as an
election on its part to terminate this Lease, unless a written notice of
such intention is given to Tenant, and, notwithstanding any such reletting
or re-entry or taking possession of the Premises, Landlord may at any time
thereafter elect to terminate this Lease for a previous default. Pursuit of
any remedies hereunder shall not preclude the pursuit of any other remedy
herein provided or any other remedies provided by law, nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages occurring to Landlord by reason
of the violation of any of the terms, provisions and covenants contained in
this Lease. Landlord's acceptance of any rent following an Event of Default
hereunder shall not be construed as Landlord's waiver of such Event of
Default. No waiver by Landlord of any violation or breach of any of the
terms, provisions and covenants of this Lease shall be deemed or construed
to constitute a waiver of any other violation or default.
G. Reletting of Premises. In the event of any termination of this
Lease and/or repossession of the Premises for an Event of Default, Landlord
shall use reasonable efforts to relet the Premises and to collect rental
after reletting, with no obligation to accept any lessee that Landlord
deems undesirable or to expend any funds in connection with such reletting
or collection of rents there from. Tenant shall not be entitled to credit
for or reimbursement of any proceeds of such reletting in excess of the
rental owed hereunder for the period of such reletting. Landlord may relet
the whole or any portion of the Premises, for any period, to any tenant and
for any use or purpose.
H. Landlord's Default. If Landlord fails to perform any of its
obligations hereunder within thirty (30) days after written notice from
Tenant specifying such failure, Tenant's exclusive remedy shall be an
action for damages. 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 Premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time
being, of the Premises and, in the event of the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and
discharged from all covenants and obligations of the Landlord thereafter
accruing, provided that such covenants and obligations shall be binding
during the Lease term upon each new owner for the duration of such owner's
ownership. Notwithstanding any other provision of this Lease, Landlord
shall not have any personal liability hereunder. In the event of any breach
or default by Landlord in any term or provision of this Lease, Tenant
agrees to look solely to the equity or interest then owned by Landlord in
the Premises or the Building; however, in no event shall any deficiency
judgment or any money judgment of any kind be sought or obtained against
any Landlord.
I. Tenant's Personal Property. If Landlord repossesses the Premises
pursuant to the authority herein granted, or if Tenant vacates or abandons
all or any part of the Premises, then, in addition to Landlord's rights
under Paragraph 27 hereof, Landlord shall have the right to (i) keep in
place and use, or (ii) remove and store, all of the furniture, fixtures and
equipment at the Premises, including that which is owned by or leased to
Tenant, at all times prior to any foreclosure thereon by Landlord or
repossession thereof by any lessor thereof or third party having a lien
thereon. In addition to the Landlord's other rights hereunder, Landlord may
dispose of the stored property if Tenant does not claim the property within
ten (10) days after the date the property is stored. Landlord shall give
Tenant at least ten (10) days prior written notice of such intended
disposition. Landlord shall also have the right to relinquish possession of
all or any portion of such furniture, fixtures, equipment and other
property to any person ("Claimant") who presents to Landlord a copy of any
instrument represented by Claimant to have been executed by Tenant (or any
predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or
other property, without the necessity on the part of Landlord to inquire
into the authenticity or legality of said instrument. The rights of
Landlord herein stated shall be in addition to any and all other rights
that Landlord has or may hereafter have at law or in equity, and Tenant
stipulates and agrees that the rights granted Landlord under this paragraph
are commercially reasonable.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon or
the Building, provided, however, that if the mortgage, trustees or holder
of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease superior to any such instrument, then by notice to Tenant from
such mortgage, trustee or holder, this Lease shall be deemed superior to
such lien,
whether this Lease was executed before or after said mortgage or deed of
trust. Tenant, at any time hereafter on demand, shall execute any
instruments, releases or other documents that may be required by any
mortgagee, trustee or holder for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage. Tenant shall not
terminate this Lease or pursue any other remedy available to Tenant
hereunder for any default on the part of the Landlord without first giving
written notice by certified or registered mail, return receipt requested,
to any mortgagee, trustee or holder of any such mortgage or deed of trust,
the name and post office address of which Tenant has received written
notice, specifying the default in reasonable detail and affording such
mortgage, trustee or holder a reasonable opportunity ( but in no event less
than thirty (30) days) to make performance, at its election, for and on
behalf of Landlord.
22. MECHANIC'S LIEN. Tenant has no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or
in any manner to bind, the interest of Landlord or Tenant in the Premises.
Tenant will save and hold Landlord harmless from any and all loss, cost or
expense, including without limitation attorneys' fees, based on or arising
out of asserted claims or liens against the leasehold estate or against the
right, title and interest of the Landlord in the Premises or under the
terms of this Lease.
23. MISCELLANEOUS.
A. Interpretation. The captions inserted in this Lease are for
convenience only and in no way define, limit or otherwise describe the
scope or intent of this Lease, or any provision hereof, or in any way
affect the interpretation of this Lease. Any reference in this Lease to
rentable area shall mean the gross rentable area as determined by the
roofline of the building in question.
B. Binding Effect. Except as otherwise herein expressly provided, the
terms, provisions and covenants and conditions in this Lease shall apply
to, inure to the benefit of and be binding upon the parties hereto and upon
their respective heirs, executors, personal representatives, legal
representatives, successors and assigns. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
Premises and in the Building and other property that are the subject of
this Lease.
C. Evidence of Authority. Tenant agrees to furnish to Landlord,
promptly upon demand, a corporate resolution, proof of due authorization by
partners or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
D. Force Majeure. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by material
shortages, acts of God, labor disputes or other events beyond the control
of Landlord.
E. Payments Constitute Rent. Notwithstanding anything in this Lease to
the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as rent, shall
constitute rent.
F. Estoppel Certificates. Tenant agrees, from time to time, within ten
(10) days after request of Landlord, to deliver to Landlord, or Landlord's
designee, an estroppel certificate stating that this Lease is in full force
and effect, the date to which rent has been paid, the unexpired term of
this Lease, any defaults existing under this Lease (or the absence thereof)
and such other factual or legal matters pertaining to this Lease as may be
requested by Landlord. It is understood and agreed that Tenant's obligation
to furnish such estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of this Lease.
G. Entire Agreement. This Lease constitutes the entire understanding
and agreement of Landlord and Tenant with respect to the subject matter of
this Lease, and contains all of the covenants and agreements of the
Landlord and Tenant with respect thereto. Landlord and Tenant each
acknowledge that no representation, inducements, promises or agreements,
oral or written, have been made by Landlord or Tenant, or anyone acting on
behalf of Landlord or Tenant, which are not contained herein, and any prior
agreements, promises, negotiations or representations not expressly set
forth in this Lease are of no force or effect. EXCEPT AS SPECIFICALLY
PROVIDED IN THIS LEASE, TENANT HEREBY WAIVES THE
BENEFIT OF ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PREMISES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR ANY PARTICULAR PURPOSE. Landlord's agents and
employees do not and will not have authority to make exceptions, changes or
amendments to this Lease, or factual representations not expressly
contained in this Lease. Under no circumstances shall Landlord or Tenant be
considered an agent of the other. This Lease may not be altered, changed or
amended except by an instrument in writing signed by both parties hereto.
H. Survival of Obligations. All obligations of Tenant hereunder not
fully performed as of the expiration or earlier termination of the term of
this Lease shall survive the expiration or earlier termination of the term
hereof, including without limitation all payment obligations with respect
to taxes and insurance and all obligations concerning the condition and
repair of the Premises. Upon the expiration or earlier termination of the
term hereof, and prior to Tenant vacating the Premises, Tenant shall pay to
Landlord any amount reasonably estimated by Landlord as necessary to put
Premises in good condition and repair, reasonable wear and tear excluded,
including without limitation the cost of repairs to and replacements of all
heating and air conditioning systems and equipment therein. Tenant shall
also, prior to vacating the Premises, pay to Landlord the amount ,as
estimated by Landlord, of Tenant's obligation hereunder for real estate
taxes and insurance premiums for the year in which the Lease expires or
terminates. All such amounts shall be used and held by Landlord for payment
of such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefore upon demand by Landlord, or with any excess to
be returned to Tenant after all such obligations have been determined and
satisfied, as the case may be. Any Security Deposit held by Landlord may,
at Landlord's option, be credited against any amounts due from Tenant under
this Paragraph 23H.
I. Severability of Terms. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws effective
during the term of this Lease then, in such event, it is the intention of
the parties hereto that the remainder of this lease shall not be affected
thereby, and it is also the intention of the parties to this Lease that in
lieu of each clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in terms to such illegal, invalid, or unenforcable
clause or provision as may be possible and be legal, valid and enforceable.
J. Effective Date. All references in this Lease to "the date hereof"
or similar reference shall be deemed refer to the last date, in point of
time, on which all parties hereto have executed this Lease.
K. Brokers' Commission. Tenant represents and warrants that it has
dealt with and will deal with no broker, other than Xxxx Xxxx with Xxxxxxx
Xxxx Central Texas, Inc., agent or other person in connection with this
transaction or future related transactions and that no broker, agent or
other person brought about this transaction, and Tenant agrees to indemnify
and hold Landlord harmless from and against any claims by any broker, agent
or other person claiming a commission or other form of compensation by
virtue of having dealt with tenant with regard to this leasing transaction.
L. Ambiguity. Landlord and Tenant hereby agree and acknowledge that
this Lease has been fully reviewed and negotiated by both Landlord and
Tenant, and that Landlord and Tenant have each had the opportunity to have
this Lease reviewed by their respective legal counsel, and, accordingly, in
the event of any ambiguity herein, Tenant does hereby waive the rule of
construction that such ambiguity shall be resolved against the party who
prepared this Lease.
M. Joint Several Liability. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. If
there be a guarantor of Tenant's obligation hereunder, the obligations
hereunder imposed upon Tenant shall be joint and several obligations of
Tenant and such guarantor, and Landlord need not first proceed against
Tenant before proceeding against such guarantor, nor shall any such
guarantor be released from its guaranty for any reason whatsoever,
including, without limitation, in case of any amendments hereto, waivers
hereof or failure to give such guarantor any notices hereunder.
N. Third Party Rights. Nothing herein expressed or implied is
intended, or shall be construed, to confer upon or give to any person or
entity, other than the parties hereto, any right or remedy under or by
reason of this Lease.
O. Exhibits and Attachments. All exhibits, attachments, riders and
addenda referred to in this Lease, and the exhibits listed herein below and
attached hereto, are incorporated into this Lease and made a part hereof
for all intents and purposes as if fully set out herein. All capitalized
terms used in such documents shall, unless otherwise defined therein, have
the same meanings as are set forth herein.
P. Applicable Law. This Lease has been executed in the State of Texas
and shall be governed in all respects by the laws of the State of Texas. It
is the intent of Landlord and Tenant to conform strictly to all applicable
state and federal usury laws. All agreements between Landlord and Tenant,
whether now existing or hereafter arising and whether written or oral, are
hereby expressly limited so that in no contingency or event whatsoever
shall the amount contracted for, charged or received by Landlord for the
use, forbearance or retention of money hereunder or otherwise exceed the
maximum amount which Landlord is legally entitled to contract for, charge
or collect under the applicable state or federal law. If, from any
circumstance whatsoever, fulfillment of any provision hereof at the time
performance of such provision shall be due shall involve transcending the
limit of validity prescribed by law, then the obligation to be fulfilled
shall be automatically reduced to the limit of such validity, and if from
any such circumstance Landlord shall ever receive as interest or otherwise
an amount in excess of the maximum that can be legally collected, then such
amount which would be excessive interest shall be applied to the reduction
of rent hereunder, and if such amount which would be excessive interest
exceeds such rent, then such additional amount shall be refunded to Tenant.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivering of notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing
or delivering of any notice or the making of any payment by Tenant to
Landlord shall be deemed to be complied with when and if the following
steps are taken:
(i) All rent and other payments required to be made by tenant to
Landlord hereunder shall be payable to Landlord at the address for Landlord
set forth below or at such other address as Landlord may specify from time
to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent and any other amounts to Landlord under then terms
of this Lease shall not be deemed satisfied until such rent and other
amounts have been actually received by Landlord.
(ii). All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith
(iii) Except as expressly provided herein any written notice, document
or payment required or permitted to be delivered hereunder shall be deemed
to be delivered when received or, whether actually received or not, when
deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See EXHIBIT "C" attached hereto and incorporated
herein by reference.
EXECUTED BY LANDLORD, this 1st day of October , 1993.
Telephone Real Estate Equity Trust
By: Karsten Realty Advisors, as Agent
Attest/Witness
/s/ Xxxxx X. Xxxx
----------------------------------------
/s/ Xxxxx Xxxxx By: Xxxxx X. Xxxx
---------------------------------- Title: Vice President
Title: ___________________________ Address: HILL PARTNERS
0000-X Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
EXECUTED BY TENANT, this 13th day of September, 1993
Viko Technology, Inc. d/b/a Viko
Test Lab:
Attest/Witness /s/ Xxxx xxXxxxxxxx
/s/ Witness --------------------------------
--------------------------------- By: Xxxx xxXxxxxxxx
Title: Regional Manager Title: VP
Address: 0000 X Xxxxxx Xx.
Xxx Xxxx, XX, 00000
EXHIBIT "A" - Description of Premises
EXHIBIT "C" - Additional Provisions
EXHIBIT "C"
ADDITIONAL PROVISIONS
TENANT FINISH ALLOWANCE
Landlord shall provide a tenant finish allowance of $6,000.00 to be applied
toward interior improvements. Tenant shall reimburse Landlord for the amount of
tenant improvements provided by Landlord in excess of the finish-out allowance
of $6,000.00. This amount shall be due and payable within fifteen (15) days from
receipt of invoice.
INTERIOR IMPROVEMENTS
All improvements must comply with Owner's standard specifications and all
applicable governmental regulations. Prior to beginning construction of any such
improvements, Tenant shall submit architectural drawing of the proposed
improvements to Landlord and shall obtain Landlord's written consent to begin
construction.
CANCELLATION OPTION
Tenant shall have the right to cancel this agreement on or before September 15,
1993 only in the event that it does not obtain a contract from a semi-conductor
manufacturer located in Austin, Texas.
RENEWAL OPTION
Tenant shall have the right and option to renew this Lease for one (1)
additional five (5) year term(s) by delivering written notice thereof to
Landlord at least One Hundred Eighty (180) days prior to the expiration date of
the lease term, provided that the time of such notice and the and of the lease
term, Tenant is not a default hereunder. Upon the delivery of said notice and
subject to the conditions set forth in the proceeding sentence, this Lease shall
be extended upon the same terms, covenants and conditions as provided in this
Lease, except that the rental payable during said extended term shall be the
prevailing market rental rate for space of comparable size, quality and location
at the commencement of such extended term. If a conflict arises in the
determination of such a FMV rental rate, a three-member committee, selected from
the Austin Board of Realtors, shall determine the FMV rental rate. The first two
members of such committee shall be selected by Landlord and Tenant respectively,
which two members shall select the third. In no event shall the rate decrease
below the rate Tenant is currently paying.
EXHIBIT "A"
BUILDING : Southpark B
LEGAL DESCRIPTION : Crew Industrial Park South, Section 1, Lot 12
ADDRESS 0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
[FLOOR PLAN]
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
TELEPHONE REAL ESTATE EQUITY TRUST, AS LANDLORD, AND
VIKO TECHNOLOGY, INC., DBA/ VIKO TEST LAB, AS TENANT
To be attached to and form a part of Lease made the 1st day of October,
1993 (which together with any amendments, modifications and extensions
thereof, is hereinafter called the Lease), between Landlord and Tenant,
covering a total of 6,963 square feet and located at 0000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxx, known as Southpark B.
WITNESSETH that the Commencement Date shall be December 1, 1993 and
shall expire thirty-six (36) months thereafter.
Except herein and hereby modified and amended the Agreement of Lease
shall remain in full force and effect and all the terms, provisions, covenants
and conditions thereof are herby ratified and confirmed.
DATED AS OF THE 3RD DAY OF DECEMBER, 1993
WITNESS: TELEPHONE REAL ESTATE EQUITY TRUST:
By: Xxxx Investment Management, as Agent
/s/ Witness /s/ Xxxxx X. Xxxx
--------------------------- -------------------------------------
By: Xxxxx X. Xxxx
Title: Vice President
WITNESS: VIKO TECHNOLOGY, INC., DBA/ VIKO
TEST LAB:
/s/ WITNESS /s/ XXXX XXXXXXXXXX
--------------------------- --------------------------------------
BY: Xxxx xxXxxxxxxx
TITLE: V.P. MKT.
AMENDMENT OF LEASE AGREEMENT
This AMENDMENT TO LEASE AGREEMENT [this "Amendment"] is made and entered
into effective as of May 31, 1996 by and between TELEPHONE REAL ESTATE EQUITY
TRUST, as Landlord and VIKO TECHNOLOGY, INC., d/b/a/ VIKO TEST LAB, as Tenant.
WITNESSETH
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated and effective as of October 1, 1993 [which together with the "First
Amendment to Lease Agreement Between Telephone Real Estate Equity Trust, as
Landlord, and Viko Technology, Inc., dba Viko Test Lab, as Tenant " dated as of
December 3, 1993, is hereinafter called "Lease"] covering approximately 6,963
rentable square feet of space located in Landlord's building known as Southpark
B, 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx, 00000; and Tenant has accepted and is
occupying the Leased Premises under the Lease; and
WHEREAS, Tenant has exercised its Renewal Option in Exhibit C of the
Lease. Landlord and Tenant desire to amend the Lease upon the terms of this
Amendment; and
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
mutual covenants herein, and the benefits derived or to be derived from this
Amendment and this Lease, and other good and valuable consideration, Landlord
and Tenant hereby agree to amend and hereby amend the Lease as follows:
1 Lease Term. Landlord and Tenant herby confirm that the Lease Term
under Paragraph 1 of this Lease (which was modified to December 31,
1996 by a letter to Tenant dated December 21, 1993) will be extended
and will expire on December 31, 2001, unless sooner terminated or
renewed and extended pursuant to any provisions of this Lease.
2. Rental. Beginning as of January 1, 1997, the Base Rent due under
Paragraph 2.A. of this Lease for the Premises shall be FOUR THOUSAND
NINE HUNDRED TWENTY-NINE and 80/100 DOLLARS ($4,929.80).
In all other respect, the monthly rental installment due under this Lease from
time to time shall remain unchanged.
3. In addition to the Base Rent, Tenant will pay as Additional Rent
Tenant's Share of the Property Costs which includes: insurance
premiums (whether elective or required), Real Property Taxes, and
Operating Costs. Tenant's Share is the percentage obtained by dividing
the number of rentable square feet in the Premises by the number of
square feet of rentable square feet in the Building or in Xxx 00 xx
Xxxx Xxxxxxxxxx Xxxx Xxxxx (whichever is applicable). Operating Costs
include all reasonable costs and expenses of any kind or nature
incurred by Landlord in managing, operating, equipping, policing,
protecting, lighting, repairing, replacing and maintaining.
any of Xxx 00 xx Xxxx Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx X, and the common areas,
including, but not limited to, maintenance and repairs, common area utilities,
water and sewer, management fees, landscaping, irrigations systems, cleaning,
snow removal, lighting, pest control, security costs, supplies, trash removal,
parking lot sweeping, personal property taxes, Owners' Association dues,
maintenance of and reasonable amortization of the cost for replacement of
equipment, exterior painting, roof repairs, parking lot repairs, seal coating,
and striping, plumbing repairs, and compensation and benefits of employees
involved in such work. Excluded from Operating Cost are net income taxes,
financing costs, capital improvements, leasing commissions, cost and expenses
for which another tenant is responsible, advertising expenses, renovation of
space for new tenants, and renovation as a result of casualty, and similar types
of other costs or expenses. If Tenant fails to pay its share of these expenses.
Landlord shall have the remedies provided for the failure to pay Base Rent.
4. Tenant Improvement Allowance. Landlord has agreed to provide Tenant
with a $22,281.60 tenant improvement allowance for the purpose of
constructing tenant improvements in, on and to the Premises (the
"Tenant Improvements"), which allowance shall be reimbursed to
Tenant provided that proper documentation, lien releases and
invoices are presented to Landlord for all actual out-of-pocket
costs of construction, including, without limitation, permitting and
architectural costs. Should the cost of such construction
(including, but not limited to permitting and architectural costs)
exceed $22,281.60, Tenant will be solely responsible for such costs,
Tenant shall indemnify, defend and hold harmless Landlord from any
occurrence whatsoever related to construction of Tenant
Improvements. Tenant shall be directly responsible for hiring and
paying the architect and contractors in connection with the
construction of the Tenant Improvements. In addition, Tenant shall
obtain landlord's written approval of all contractors drawings,
plans and specifications, prior to commencing the construction of
the Tenant Improvements. Such drawings. plans and specifications
(the "Plans") shall be attached to the Lease as Exhibit D upon
completion and approval by Landlord. Notwithstanding anything to the
contrary contained herein, any approvals required to be obtained
from Landlord may be granted or withheld in Landlord's sole
discretion, and Tenant shall at all times coordinate all aspects of
the construction of the Tenant Improvements through Landlord.
5. Replacement of Exhibit A. Exhibit A in the Lease shall be deleted in
its entirty and replaced with the attached Exhibit A.
6. Landlord's Address for Notice. Until changed in accordance with the
provisions of Article XIV of this Lease, from and after the
execution of this Amendment, Landlord's address for notices shall be
in care of Oxford Commercial, Inc., 1500 NationsBank Tower, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000. The address for the agent for
the Owner, Xxxx Investment Management shall be 00000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxx, 00000.
7. Expansion. "Expansion Space" shall mean Suite 2205 (approximately
2,100 Rentable Square Feet) directly contiguous to the east of
Tenant in Building B which is occupied by Alert Centre, Inc. as of
the date of this Amendment. Provided that as of the date of the
giving of Landlord's Notice Tenant is not in default hereunder, If
prior to December 31, 1996 Landlord learns that Landlord's lease
with Alert Centre, Inc. will terminate, Landlord shall offer to
Tenant to include the Expansion Space within the Premises on the
same terms as the Lease and all subsequent amendments, except: (a.)
the Base Rent shall be increased by $1,486.80 per month ($.708 per
Rentable Square Foot), and (b.) the Expansion Space shall be
delivered to Tenant "as-is, where-is" in "broom clean" condition
with no warranties or representations by Landlord or Landlord's
agent. Such offer shall be made in writing by Landlord to Tenant
("Landlord's Notice"). Tenant may accept the offer set forth in
Landlord's Notice by delivering to Landlord an unconditional
acceptance ("Tenant's Notice") of such offer within ten (10) days
after delivery of Landlord's Notice. Time shall be of the essence
with respect to the giving of Tenant's Notice. If Tenant does not
accept (or fails to timely accept) an offer made by Landlord
pursuant to the provisions of this Xxxxxxxxx 0, Xxxxxxxx shall be
under no further obligation with respect to the Expansion Space. If
Tenant accepts the offer in Landlord's Notice by timely delivery of
Tenant's Notice, Tenant and Landlord agree to execute an amendment
to the Lease incorporating the terms of Landlord's
Notice. If Tenant accepts the offer in Landlord's Notice by timely
delivery of Tenant's Notice, the new amendment shall give Tenant the
right to renew the Lease for an additional term of five years at
market rates with written notice of 180 days.
8. Lease Agreement. Reference is made to the Lease for all purposes of
this Amendment and references to "Lease" mean the Lease as amended
by this Amendment and all prior amendments. All capitalized terms
used in this Amendment shall have the same meanings ascribed to
those terms in the Lease, except as such terms are amended by this
Amendment. This Amendment shall control any conflict between the
provisions of this Amendment and the provisions of the Lease. The
Lease, as amended by this Amendment, is and shall continue in full
force and effect and this Lease and the terms and provisions of this
Lease are confirmed, ratified and adopted in all respects by
Landlord and Tenant.
9. Renewal and Expansion Rights. Except as identified in Paragraph 7
herein, Tenant no longer has any renewal or expansion rights in the
Lease.
THIS AMENDMENT OF LEASE AGREEMENT is executed (in multiple counterparts)
by the undersigned Landlord and Tenant (acting by and through respective duly
authorized officers) effective as of the date first above written.
LANDLORD: TENANT:
TELEPHONE REAL ESTATE EQUITY VIKO TECHNOLOGY, INC.
TRUST BY Xxxx Investment Management d/b/a VIKO TEST LAB
as Investment Manager for TREET
By: /s/ Xxxx Xxxxxx , 1996 By: /s/ Xxxx xxXxxxxxxx
------------------------- --------------------------------
Xxxx X. Xxxxxx Xxxx xx Xxxxxxxx
Vice President Vice President
Date: 8/5, 1996 Date: 7/17, 1996
THIRD AMENDMENT TO LEASE
This third Amendment to Lease ("Amendment") is made this 15th day of February,
2000 by and between BEDFORD PROPERTY INVESTORS, INC., successor-in-interest to
Telephone Real Estate Equity Trust ("Landlord") and VIKO TECHNOLOGY, INC., DBA
VIKO Test Lab ("Tenant").
RECITALS
A. Tenants and Landlord entered into that certain Lease dated, for
reference purposes only, October 1, 1993, a First Amendment to Lease
dated December 3, 1993 and an Amendment (Second) of Lease Agreement
dated May 31, 1996 (collectively the "Lease") of certain premises
containing approximately 6,963 square feet of rentable space,
located at 0000 Xxxxxxxx, Xxxxxx, Xxxxx (the "Leased Premises) which
Leased Premises and the complex in which they are located ("the
"Complex") are more particularly described in the Lease.
B. The initial Leased Premises is comprised of 6,963 square feet and
the Term of the Lease expires on December 31, 2001. Tenant is in
possession of the Leased Premises. Landlord and Tenant desire to
amend the Lease, to expand the Leased Premises, to extend the term
of the Leased Premises, to change the rent due and payable under the
Lease as a result thereof, and to make certain other changes to the
Lease, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree to the following:
1. Confirmation. Tenant acknowledges and agrees that: (a) Tenant is in
sole possession of the Leased Premises demised under the Lease; (b)
all work, improvements and furnishings required under the Lease have
been completed and accepted by Tenant except that required under
this Amendment; (c) all free rent and any other concession required
under the Lease have been granted, used and otherwise satisfied; and
(d) it has no offset, claim, recoupment or defense against the
payment of rent and other sums and the performance of all
obligations of Tenant under the Lease
2. Expansion Space. Section 1 of the Lease is amended to include, 2,100
square feet at 0000 Xxxxxxxx, Xxxxxx, Xxxxx, effective April 1,
2000. Effective April 1, 2000 the Leased Premises will contain 9,063
square feet and Section 2 of the Lease, The Prorata % is amended to
9,063SF/78,276SF=11.578%
3. Extended Term. Section 1 of the Lease is amended to provide that the
term of the Lease shall be extended commencing January 1, 2002 and
expiring on December 31, 2004
4. Base Rent. Section 2 of the Lease is amended to provide that the
Base Rent for the Leased Premises shall be $6,462.80 from April 1,
2000 through December 31, 2001, and $6,889.00 from January 1, 2002
through December 31, 2004
5. Condition of the Leased Premises. "AS IS".
6. Right of First Offer. Tenant shall have the right of first offer to
lease the adjacent suits, 2215 Xxxxxxxx, approximately 5,400 square
feet, if space becomes vacant. Tenant will lease under the terms and
conditions presented by Landlord (Offer Notice). Tenant must notify
Landlord in writing of their acceptance of the offer within five (5)
days of written notice from Landlord that the space is available for
lease. Failure by Tenant to notify Landlord will make the Right of
First Offer null and void.
7. Real Estate Brokers. Landlord and Tenant each represents and
warrants to the other party that it has not authorized or employed,
or acted by implication to authorize or employ, any real estate
broker or salesman to act for it in connection with this Lease
Amendment. Landlord and Tenant shall each indemnify, defend and hold
the other party harmless from and against any real estate broker or
salesman whom the indemnifying party authorized or employed, or
acted by implication to authorize or employ, to act for the
indemnifying party in connection with this Lease Amendment.
8. Except as specifically set forth herein, all other terms, conditions
and provisions of the Lease are hereby ratified and reconfirmed.
This Amendment shall be incorporated as a part of the Lease by this
reference.
IN WITNESS WHEREOF, the parties have executed this Amendment of Lease on
the day first above stated.
LANDLORD: BEDFORD PROPERTY TENANT: VIKO TECHNOLOGY, INC.,
INVESTORS, INC. dba Viko Test Lab
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx xx Xxxxxxxx
------------------------------ ---------------------------
Xxxxx X. Xxxxx
Its: Exectuive Vice President By: Xxxx xxXxxxxxxx
------------------------
(Print Name)
Date: 2/28/00
Its: Vice President
Date: 2/16/00
