EXHIBIT 10.3
SUBLEASE AGREEMENT
This Sublease is made as of the 2nd day of May, 2002 at Xxxxxx County,
Texas by and between LUMINEX CORPORATION (herein, "Sublandlord") and AMERICAN
INNOVATIONS, LTD. (herein, "Subtenant").
Sublandlord is the Lessee under that certain Lease, (the "Main Lease"),
by and between Aetna Life Insurance Company, as landlord, (herein, "Landlord")
and Sublandlord, as tenant, executed on or about October 19, 2001, for the
premises described in the Main Lease (herein, "Leased Premises"), a true and
correct copy of which Main Lease is attached hereto as Exhibit A and
incorporated herein by this reference.
In consideration of the mutual promises contained herein, Sublandlord
does hereby SUBLEASE, DEMISE and SUBLET to Subtenant and Subtenant hereby
accepts that portion of the Leased Premises containing approximately 21,756
square feet in the building known as XxXxxx 5 (the "Building"), Suite 100 at
00000 Xxxxxxxxxx Xxxx and more particularly described on Exhibit B attached
hereto (the "Subleased Premises") together with the non-exclusive right to use
the common areas of the Building and the Project, subject to the terms of the
Main Lease and subject further to the provisions of this Sublease, as follows:
1. Subtenant hereby agrees to abide by and observe all the terms,
covenants and conditions of the Main Lease as they apply to the
Subleased Premises. Sublandlord represents that the Main Lease is in
full force and effect with no amendments thereto and that no Events of
Default (as described in Section 19 of the Main Lease) have occurred on
Sublandlord's part under it as of the commencement of the term of this
Sublease.
2. The term of this Sublease shall be for a term of 60 months commencing
on August 1, 2002 and ending July 31, 2007, provided, however, that
this Sublease shall terminate upon the termination of the Main Lease or
as otherwise provided herein.
3. The terms and provisions of the Main Lease, to the extent that they do
not conflict with specific provisions of this Sublease, are
incorporated into this Sublease as if fully completely rewritten
herein. Subtenant shall not commit any act that would constitute a
default or event of default under the Main Lease. Notwithstanding
anything in the Sublease to the contrary, the following provisions of
the Main Lease are not incorporated into or made a part of the
Sublease: 23.K, 26, and Exhibit E.
4. The relationship between Subtenant and Sublandlord shall be the same as
that between Tenant and Landlord under the Main Lease. Notwithstanding
anything to the contrary contained herein, Sublandlord shall not be
liable to Subtenant for any Losses (as defined in the Main Lease)
unless such Losses are directly caused by an act or omission of
Sublandlord.
4.1. Subtenant agrees that with respect to the Subleased Premises,
Sublandlord shall have all rights vis-a-vis Subtenant that
Landlord has vis-a-vis Sublandlord under the Main Lease. Such
rights of Sublandlord include (but are not limited to) (i) the
right to receive any notices that Landlord is entitled to
receive from Sublandlord under the Main Lease, (ii) the right
to require that Subtenant obtain Sublandlord's consent in any
and all circumstances that require the consent of Landlord
under the Main Lease (provided that if Landlord has granted
its consent to any request by Subtenant under the Main Lease,
Sublandlord's consent shall not be unreasonably withheld,
delayed or conditioned), and (iii) the right to be indemnified
by Subtenant against certain damages, costs and expenses as if
the indemnity provisions under the Main Lease applied to
Subtenant and Sublandlord instead of Sublandlord and Landlord,
respectively, and to the Subleased Premises instead of the
Leased Premises. Such rights also include the right to act
upon a default hereunder by Subtenant in the same manner that
Landlord would have the right to act upon a similar default by
Sublandlord under the Main Lease. In addition, if Subtenant
should fail to fully perform its obligations hereunder,
Sublandlord shall have the right, following the earlier of (i)
thirty (30) days prior written notice to Subtenant or (ii) the
date upon which failure to perform causes an Event of Default
under the Main Lease (but in no event earlier than following
ten (10) days prior written notice to Subtenant), to perform
such obligations on behalf of Subtenant and to charge
Subtenant all reasonable costs thereof, whether or not
Landlord could similarly perform such obligations on behalf of
Sublandlord under the Main Lease.
4.2.Subtenant agrees to notify Sublandlord promptly following
Subtenant's receipt of written notice of any claim by Landlord
that the Main Lease has been breached with respect to the
Subleased Premises. The rights of Sublandlord and obligations
of Subtenant set out in the other provisions of this Sublease
shall supplement, not be in lieu of, the rights of Sublandlord
and obligations of Subtenant under this paragraph.
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5. Subtenant agrees to pay Sublandlord, as base rent ("Base Rent") for the
Subleased Premises, the amounts shown in the table immediately below.
Such Base Rent shall be payable in advance on the 1st day of each
calendar month during the term of this Sublease.
----------------------- ----------------------- ------------------------- ------------------------
PERIOD ANNUAL RENT MONTHLY RENT MO. RENT/SQ. FT.
----------------------- ----------------------- ------------------------- ------------------------
Months 1-3 $0.00 $0.00 $0.00
----------------------- ----------------------- ------------------------- ------------------------
Months 4-36 $169,696.80 $14,141.40 $0.65
----------------------- ----------------------- ------------------------- ------------------------
Months 37-48 $182,750.40 $15,229.20 $0.70
----------------------- ----------------------- ------------------------- ------------------------
Months 49-60 $195,804.00 $16,317.00 $0.75
----------------------- ----------------------- ------------------------- ------------------------
6. The Base Rent payable by Subtenant shall be increased by an amount
("Additional Rent") equal to Subtenant's Pro Rata Share of the Main
Lease Obligations. For purposes of this Sublease, "Main Lease
Obligations" shall mean the share of Tenant Costs (as defined in the
Main Lease) and all other amounts that Sublandlord is obligated to pay
under the Main Lease for the term of this Sublease, except for
Sublandlord's obligation to pay Base Rent as specified in Section 2A of
the Main Lease. "Subtenant's Pro Rata Share" shall mean (i) the
percentage (calculated based on the ratio of the square footage of the
Subleased Premised to the Leased Premises) of all Main Lease
Obligations other than Main Lease Obligations that become due because
of a default by Sublandlord under the Main Lease or failure of
Sublandlord to timely perform any obligation under the Main Lease, (ii)
l00% with respect to any Main Lease Obligations that become due solely
because of a default by Sublandlord under the Main Lease if such
default is caused solely by Subtenant's failure to abide by the terms
of this Sublease, and (iii) 0% with respect to any Main Lease
Obligations that become due because of a default by Sublandlord under
the Main Lease, if such default is not caused by Subtenant's failure to
abide by the terms of this Sublease. Following receipt of a timely
request from Subtenant, Sublandlord shall exercise its right to conduct
an audit as provided under the Main Lease and Subtenant shall pay
Subtenant's Pro Rata Share of the cost of such audit.
7. All payments of Base Rent and Additional Rent shall be paid to
Sublandlord at the address specified in this Sublease or elsewhere as
designated from time to time by written notice from Sublandlord to
Subtenant; provided, however, if Landlord wishes to collect such
payments directly from Subtenant and credit Sublandlord therefore under
the Main Lease, then Subtenant, following at least ten (10) days prior
written notice from Landlord, will pay such amounts to Landlord at the
address of Landlord specified in the Main Lease and will simultaneously
send evidence of such payment to Sublandlord.
8. Within three (3) business days after Subtenant receives a fully
executed original of this Sublease, Subtenant shall deposit with
Sublandlord the sum of eighteen thousand five hundred dollars
($18,500.00) as a security deposit to be held by Sublandlord pursuant
to the provisions of the Main Lease.
9. Sublandlord agrees to provide Subtenant with an allowance (the
"Sublease Allowance") for the construction of tenant improvements
within the Subleased Premises (the "Sublease Tenant Improvements").
Such Sublease Allowance and Sublease Tenant Improvements shall be
approved, administered and disbursed in accordance with Exhibit C of
the Main Lease, provided that the per square foot value of the Sublease
Allowance shall be $6.00. All Sublease Tenant Improvements must be
approved by Sublandlord and Landlord in accordance with the procedures
set forth in the Main Lease. Subtenant shall remain liable at all times
for its obligations under this Sublease despite any delay in completion
of the Sublease Tenant Improvements (unless any such delay is
attributable solely to Sublandlord's acts or omissions).
10. If at any time during the term of this Sublease, Sublandlord receives a
bona fide offer to sublease all or any portion of Sublandlord's
remaining space in the Building, which offer Sublandlord intends to
accept, Sublandlord shall give Subtenant written notice of such offer
and give Subtenant five (5) business days to accept such offer. Should
Subtenant fail to exercise its right to sublease such space within such
five (5) business day period, Sublandlord shall have the right to
sublease the space upon the terms contained within such offer.
Subtenant's right of first refusal as set forth herein is subject to
the condition that on the date that Subtenant delivers its notice
exercising its right of first refusal, no uncured event of default
exists and is continuing hereunder. If the offer on such space is for a
term that ends on or before the expiration date of this Sublease, then
Subtenant's sublease of any such space will be coterminous with the
term of this Sublease. If the offer on such space is for a term that
ends after the expiration date of this Sublease, then Subtenant may, at
its option, extend the term of this Sublease to be coterminous with the
term of any such space. In such event, the Base Rent for the extended
term of this Sublease shall be the Base Rent payable under the Main
Lease with respect to the Subleased Premises.
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11. Sublandlord and Subtenant each warrant to the other that it has not
dealt with any broker or agent in connection with this Lease other than
Colliers Oxford Commercial ("Colliers") and Endeavor Real Estate Group
("Endeavor"). If but only if, the parties to this Sublease validly
execute and deliver this Sublease and Landlord delivers its consent to
this Sublease (the date of completion of such items, the "Valid
Agreement Date"), Sublandlord shall pay to Endeavor a commission equal
to 4% of the Base Rent, taxes, insurance and common area maintenance
expenses due under this Sublease (the "Commission"), payable as
follows: (a) 50% of the Commission by the date which is 30 days
following the Valid Agreement Date, and (b) the remaining 50% of the
Commission by the date which is 30 days following the occupancy of
Subtenant in the Subleased Premises and the commencement of Subtenant's
payment of Base Rent hereunder. Subtenant and Sublandlord shall each
indemnify the other against all costs, legal fees, and other
liabilities for commissions or other compensation claimed by any broker
or agent (other than the Colliers and Endeavor) claiming the same by,
through, or under the indemnifying party.
12. Time is of the essence of this Sublease, and each and all the terms
hereof.
13. Any notice or other communication required or permitted to be given
under this Sublease or under the Main Lease shall be in writing and
shall be deemed to be delivered on the date it is hand delivered to the
party to whom such notice is given, at the address set forth below, or
if such notice is mailed, on the date on which it is deposited in the
United States Mail, postage prepaid, certified or registered mail,
return receipt requested, addressed to the party to whom such notice is
directed, at the address set forth below:
IF TO SUBLANDLORD: IF TO SUBTENANT:
Luminex Corporation American Innovations, Ltd.
00000 Xxxxxxxxxx Xxxx. 00000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: General Counsel Attention: Contracts Administrator
14. Subtenant shall have no right to assign or sublet any interest in this
Sublease without first obtaining the written consent of the Landlord
and Sublandlord, which consent by Landlord is subject to the terms of
the Main Lease and which consent by Sublandlord shall not be
unreasonably withheld. Subtenant may, without Sublandlord 's prior
written consent and without payment of any amount to Sublandlord or
Landlord, sublet the Subleased Premises or assign the Sublease to (i) a
subsidiary, affiliate, division, or corporation controlling, controlled
by, or under common control with Subtenant, or (ii) a successor
corporation related to Subtenant by merger, consolidation,
non-bankruptcy reorganization, or government action, provided that if
the Subtenant no longer exists, the successor corporation's net worth
is equal to or greater than the net worth of Subtenant at the time of
such assignment. Subtenant shall give notice to Sublandlord prior to
the effective date of any assignment/sublease not requiring
Sublandlord's consent.
15. Sublandlord shall have no liability to Subtenant for any wrongful
action or default on the part of Landlord pursuant to the terms of the
Main Lease, and Subtenant hereby agrees to look solely to Landlord in
event of any such default, the liability and obligations of Sublandlord
being solely pursuant to the terms and conditions of this Sublease. If
Landlord shall default in the performance of any of its material
obligations under the Main Lease, Sublandlord shall, upon the written
request of Subtenant, use reasonably diligent, good faith efforts to
promptly enforce the Main Lease (including, without limitation,
Landlord's obligations with respect to providing services to the
Subleased Premises) and obtain Landlord's compliance with its
obligations thereunder, such efforts, as they relate to the Subleased
Premises, and to the extent not paid by Landlord, to be funded by
Subtenant. Without limiting the generality of the foregoing sentence,
Sublandlord shall, without request of Subtenant, use reasonably
diligent, good faith efforts to promptly enforce the Main Lease with
respect to Landlord's obligations under Paragraph 5.C thereof and
promptly deliver to Subtenant copies of all information received
thereunder.
16. In the event any one or more of the provisions contained in this
Sublease shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
agreement shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein.
17. Provided that Subtenant pays the Base Rent and Additional Rent and
other sums herein recited to be paid by Subtenant and performs all of
Subtenant's covenants and agreements herein contained, Sublandlord
covenants that Subtenant shall, and may peacefully have, hold and enjoy
the Subleased Premises against any person whomsoever lawfully claiming
the same or any part thereof by, through, or under Sublandlord, but not
otherwise, subject to the other provisions hereof and those of the Main
Lease. Sublandlord agrees that it will not enter any amendment of the
Main Lease which materially adversely affects the rights of Subtenant
hereunder (including, without limitation, any agreement not
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expressly contemplated in the Lease to terminate the Main Lease with
respect to the Subleased Premises) without the prior written consent of
Subtenant, which consent will not be unreasonably withheld.
18. Sublandlord shall indemnify Subtenant for and hold Subtenant harmless
from and against all costs, expenses (including reasonable attorneys'
fees), fines, suits, claims, demands, liabilities and actions resulting
from any breach, violation or nonperformance of any covenant or
condition hereof or from the use or occupancy of the Premises
(excluding the Subleased Premises) by Sublandlord or Sublandlord's
employees, agents, contractors, licensees and invitees. The foregoing
indemnification of Subtenant does not provide indemnification for
negligence or willful misconduct.
19. Subtenant shall indemnify Sublandlord for and hold Sublandlord harmless
from and against all costs, expenses (including reasonable attorneys'
fees), fines, suits, claims, demands, liabilities and actions resulting
from any breach, violation or nonperformance of any covenant or
condition hereof or from the use or occupancy of the Subleased Premises
by Subtenant or Subtenant's employees, agents, contractors, licensees
and invitees. The foregoing indemnification of Sublandlord does not
provide indemnification for negligence or willful misconduct.
20. Each insurance policy which is required under the provisions of
Paragraph 10.E of the Main Lease to contain a waiver of subrogation
with respect to the tenant thereunder will also contain a waiver of
subrogation with respect to Subtenant.
21. If at any time Sublandlord has executed a subordination and
non-disturbance agreement with Landlord's lender (an "SNDA") as set
forth in Paragraph 21 of the Main Lease, Sublandlord shall (a) provide
a copy of the SNDA to Subtenant, and (b) use reasonable efforts to
enforce Subtenant's rights under the Sublease in accordance with the
SNDA.
22. Subtenant shall be permitted to use the parking area situated in the
Project (as defined in the Main Lease) for non-designated parking at
the rate of 2.68 spaces per 1,000 square feet in the Subleased
Premises. Use of the parking area by Subtenant shall be subject to the
provisions of Paragraph 5.B of the Main Lease.
23. The failure of either party to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Sublease shall not be
construed as a waiver thereof. The waiver of any violation of any term,
covenant, agreement or condition contained in this Sublease shall not
prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original
violation. No express waiver shall affect any condition other than the
one specified in such waiver and that one only for the time and in the
manner specifically stated. A receipt by Sublandlord of any rent with
knowledge of the breach of any covenant or agreement contained in this
Sublease shall not be deemed a waiver of such breach No waiver by
either party of any provision of this Sublease shall be deemed to have
been made unless expressed in writing and signed by such party. The
provisions of Paragraph 23.D of the Main Lease shall apply to the
obligations of both parties hereunder.
24. Should either party hereto institute any action or proceeding in court
to enforce any provision hereof or for damages by reason of any alleged
breach of any provision of this Sublease or for any other judicial
remedy, the prevailing party shall be entitled to receive from the
losing party all reasonable attorneys' fees and all court costs in
connection with said proceeding.
25. All of the covenants, agreements, terms and conditions to be observed
and performed by the parties hereto shall be applicable to and binding
upon their respective heirs, personal representatives, successors and,
to the extent assignment is permitted hereunder, their respective
assigns.
26. Sublandlord or Sublandlord's agents have made no representations or
promises with respect to the Subleased Premises except as herein
expressly set forth and no rights, easements or licenses are acquired
by Subtenant by implication or otherwise except as expressly set forth
in the provisions of this Sublease.
27. Sublandlord and Subtenant represent to the other that each person
signing this Sublease on behalf of such party was and continues to be
authorized to do so.
28. This agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings and written or oral
agreements between the parties respecting the subject matter of this
Sublease.
29. This Sublease is contingent upon Landlord's consent and approval, which
is to be evidenced by the signature of Landlord below. If Landlord's
written consent (including the non-disturbance agreement described in
paragraph 30 below) to this Sublease is not obtained by 5:00 p.m.
Central time on the
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seventh (7th) business day following the full execution of this
Sublease, this Sublease agreement shall automatically terminate and be
of no further force and effect.
30. Prior to the commencement of the term of this Sublease, Sublandlord
shall attempt to obtain from Landlord a non-disturbance agreement in a
form reasonably acceptable to Subtenant obligating Subtenant to remain
in possession of the Subleased Premises in the event of a termination
of the Main Lease or Sublandlord's rights of possession thereunder,
such possession by Subtenant to be subject to the terms of the Main
Lease regarding the Subleased Premises.
31. Provided Subtenant pays the Base Rent and Additional Rent and other
sums herein recited to be paid by Subtenant and performs all of
Subtenant's covenants and agreements herein contained, in the event the
Main Lease is terminated by Sublandlord or Landlord as a result of a
default by either party thereunder (or is terminated by Sublandlord and
Landlord as a result of a mutual agreement not expressly contemplated
in the Lease), Sublandlord agrees to reimburse Subtenant for its
Termination Losses. As used herein, the term "Termination Losses" means
the difference between (a) the base rent paid by Subtenant under the
Main Lease for the Subleased Premises, and (b) the Base Rent which
would have been paid by Subtenant under the Sublease for the Subleased
Premises for the comparable period, relating only to the period
remaining during the term hereof.
EXECUTED to be effective on the day and year first above written.
SUBLANDLORD: SUBTENANT:
Luminex Corporation American Innovations, Ltd.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------- --------------------
Name: Xxxx X. Xxxxxxxx, Ph.D. Name: Xxxxxxx X. Xxxxxxxx
Title: CEO & President Title: President
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CONSENT BY LANDLORD
Landlord, as landlord under the Main Lease referred to in this Sublease, hereby
consents to the foregoing Sublease Agreement, provided that this Sublease in no
way modifies or amends the Main Lease, and such consent shall not be construed
in any way as a consent to any other sublease of the Leased Premises or
assignment of the Lease.
AETNA LIFE INSURANCE COMPANY
By: UBS Realty Investors LLC, its Investment
Advisers and Agent
By: /s/ Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Director
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EXHIBIT A
Main Lease signed 10-19-01
EXHIBIT B
Subleased Premises
[Diagram inserted.]
