ELEVENTH AMENDMENT TO LEASE
Exhibit 10.18
| Re: |
000 Xxxx Xxx | |||||||||
| 000 Xxxx Xxx Xxxxxxxxx | ||||||||||
| Xxxxxxx, Xxxxx | ||||||||||
ELEVENTH AMENDMENT TO LEASE
| THE STATE OF TEXAS |
§ | |||
| § | KNOW ALL PERSONS BY THESE PRESENTS: | |||
| COUNTY OF XXXXXX |
§ |
THIS ELEVENTH AMENDMENT TO LEASE (this “Amendment”) has been executed as of the 22nd day of October, 2003, by THE REALTY ASSOCIATES FUND V, L.P., a Delaware limited partnership (“Landlord”), and XXXXXXXXXXX INTERNATIONAL, INC. (“Tenant”).
R E C I T A L S:
A. Cigna Investments, Inc. (“Cigna”) and Xxxxxxxxxxx Enterra U.S., Limited Partnership (“Prior Tenant”) have heretofore executed that certain Lease Agreement (the “Original Lease”), dated as of January 26, 1996, pursuant to which Tenant initially leased approximately 73,746 rentable square feet on floors 2, 6, 9, 10 and 11 and certain storage space in that certain building known as 515 Post Oak, located at 000 Xxxx Xxx Xxxxxxxxx, Xxxxxxx, Xxxxx, and more particularly described in the Lease (the “Building”); as the Original Lease was amended by (1) First Amendment to Lease Agreement, dated as of April 11, 1996, by and between Cigna and Prior Tenant, pursuant to which Prior Tenant leased approximately an additional 13,937 rentable square feet on the seventh (7th) floor of the Building; (2) Second Amendment to Lease, dated as of September 16, 1996, by and between Cigna and Prior Tenant, pursuant to which Prior Tenant leased an additional approximately 549 rentable square feet on the seventh (7th) floor of the Building; (3) Third Amendment to Office Lease, dated as of July 10, 1998, by and between Transwestern CG Partners I, L.P. (“Prior Landlord”) and Prior Tenant, pursuant to which Prior Tenant leased an additional approximately 1,853 rentable square feet on the seventh (7th) floor of the Building; (4) Fourth Amendment to Office Lease, dated as of July 30, 1998, by and between Prior Landlord and Prior Tenant, pursuant to which Prior Tenant leased an additional approximately 3,617 rentable square feet on the second (2nd) floor of the Building, an additional approximately 45,479 rentable square feet on the second (2nd) and third (3rd) floors of the Building and an additional approximately 5,036 rentable square feet on the fifth (5th) floor of the Building, commencing at the expiration of sublease (i.e., July 1, 1999); (5) Temporary Space License Agreement, dated as of July 19, 1999, by and between Prior Landlord and Tenant, pursuant to which Tenant was granted a temporary license to begin construction on the Sixth Expansion Space (hereafter defined); (6) Fifth Amendment to Office
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construction on the Sixth Expansion Space (hereafter defined); (6) Fifth Amendment to Office Lease, dated as of August 13, 1999, by and between Prior Landlord and Tenant, pursuant to which Tenant leased an additional approximately 7,702 rentable square feet on the second (2nd) floor of the Building, approximately 5,703 rentable square feet on the second (2nd) floor of the Building, approximately 10,830 rentable square feet on the fifth (5th) floor of the Building, approximately 6,901 rentable square feet on the eighth (8th) floor of the Building and approximately 4,994 rentable square feet on the eighth (8th) floor of the Building; (7) Sixth Amendment to Lease, dated as of June 20, 2000, by and between Landlord and Tenant, pursuant to which Tenant leased an additional approximately 9,215 rentable square feet on the fourth (4th) floor of the Building; (8) Seventh Amendment to Lease, dated as of December 6, 2000, by and between Landlord and Tenant, pursuant to which Tenant leased an additional approximately 481 rentable square feet on the first (1st) floor of the Building, approximately 1,992 rentable square feet on the first (1st) floor of the Building and approximately 1,132 rentable square feet on the seventh (7th) floor of the Building; (9) Eighth Amendment to Lease (the “Eighth Amendment”), last executed October 23, 2001, by and between Landlord and Tenant, pursuant to which Tenant leased an additional 2,956 rentable square feet on the first floor of the Building and an additional 31,804 rentable square feet located on the first, fourth and twelfth floors in the Building; (10) Ninth Amendment to Lease (the “Ninth Amendment”), dated effective January 1, 2003, pursuant to which Tenant leased an additional 2,850 rentable square feet on the first (1st) floor of the Building (the “Eighteenth Expansion Space”), and (11) Tenth Amendment to Lease (the “Tenth Amendment”), dated April 2, 2003, pursuant to which Tenant leased an additional 7,656 rentable square feet on the first (1st) floor of the Building (the “Eighteenth Expansion Space”) and an additional 4,682 rentable square feet on the first (1st) floor of the Building (the “Nineteenth Expansion Space”); and, accordingly, as of the Eighteenth Expansion Commencement Date and the Nineteenth Expansion Commencement Date, respectively, the Premises, as so expanded, contain approximately 243,115 rentable square feet of space in the Building (collectively referred to as the “Current Premises”). The Original Lease, as so amended, is referred to as the “Lease.” Unless otherwise defined herein, all initially capitalized terms will have the respective meanings assigned thereto in the Lease.
B. Landlord has acquired the Building and succeeded to all of Prior Landlord’s interest as landlord under the Lease. Tenant has assumed all obligations of Prior Tenant under the Lease and succeeded to all of Prior Tenant’s interest as tenant under the Lease.
C. Landlord and Tenant desire to execute this Amendment in order to evidence their agreement to make certain other amendments to the Lease, all as more particularly set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
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Article I
CERTAIN AMENDMENTS
SECTION 1.01. Twentieth Expansion Premises. As of the later to occur of: (a) November 1, 2003, or (b) ninety (90) days following delivery of the Twentieth Expansion Space to Tenant (the “Twentieth Expansion Commencement Date”), and subject to the terms and conditions set forth in this Amendment, the Lease shall be amended to reflect that the Current Premises shall be expanded to include the premises outlined on the cross-hatched floor plan attached hereto as Exhibit A-1 (the “Twentieth Expansion Space”) consisting of approximately 5,391 rentable square feet located on the second (2nd) floor in the Building (the Twentieth Expansion Space, when added, and the Current Premises being collectively referred to as the “Premises”). Accordingly, the Premises leased to Tenant under the Lease shall consist of approximately 248,506 rentable square feet in the Building. The Twentieth Expansion Commencement Date for the Twentieth Expansion Space shall commence as set forth above, notwithstanding that Tenant has not substantially completed improvements to the Twentieth Expansion Space. Tenant agrees to execute and deliver the Verification Letter in the form attached as Exhibit B-1 to confirm the Twentieth Expansion Commencement Date.
SECTION 1.02. Twenty-First Expansion Premises. As of the later to occur of: (a) October 1, 2004, or (b) ninety (90) days following delivery of the Twenty-First Expansion Space to Tenant (the “Twenty-First Expansion Commencement Date”), and subject to the terms and conditions set forth in this Amendment, the Lease shall be amended to reflect that the Current Premises shall be expanded to include the premises outlined on the cross-hatched floor plan attached hereto as Exhibit A-2 (the “Twenty-First Expansion Space”) consisting of approximately 2,316 rentable square feet located on the eighth (8th) floor in the Building (the Twentieth Expansion Space, the Twenty-First Expansion Space, when added, and the Current Premises being collectively referred to as the “Premises”). Accordingly, the Premises leased to Tenant under the Lease shall consist of approximately 250,822 rentable square feet in the Building. The Twenty-First Expansion Commencement Date for the Twenty-First Expansion Space shall commence as set forth above, notwithstanding that Tenant has not substantially completed improvements to the Twenty-First Expansion Space. Tenant agrees to execute and deliver the Verification Letter in the form attached as Exhibit B-2 to confirm the Twenty-First Expansion Commencement Date.
SECTION 1.03. Term of Lease. The Expiration Date of the Lease for the entire Premises (including, without limitation, the Twentieth and Twenty-First Expansion Spaces) is March 31, 2012, subject to adjustment and earlier termination as set forth in the Lease (the “Expiration Date”).
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SECTION 1.04. Base Rent.
A. Twentieth Expansion Space. As of the Twentieth Expansion Commencement Date, the Base Rent for the Twentieth Expansion Space only during the Term of the Lease shall be as follows:
| Period: |
Annual Base Rent per R.S.F.: | ||
| Twentieth Expansion Commencement Date - 8/31/08 |
$ | 18.25 | |
| 9/1/08 – 3/31/12 |
$ | 20.25 | |
B. Twenty-First Expansion Space. As of the Twenty-First Expansion Commencement Date, the Base Rent for the Twenty-First Expansion Space only during the Term of the Lease shall be as follows:
| Period: |
Annual Base Rent per R.S.F.: | ||
| Twenty-First Expansion Commencement Date - 8/31/08 |
$ | 18.25 | |
| 9/1/08 – 3/31/12 |
$ | 20.25 | |
C. Current Premises. The Base Rent for the Current Premises shall remain as set forth in the Lease.
The Base Rent shall be due and payable in equal monthly installments, each such monthly installment due and payable on or before the first day of each calendar month, in advance, without demand and without setoff or deduction whatsoever.
SECTION 1.05. Tenant’s Pro Rata Share. As of the Twentieth Expansion Commencement Date, Tenant’s Pro Rata Share shall be increased to 95.59% (i.e., 248,506 rentable square feet in the Premises divided by 259,971 rentable square feet in the Building). As of the Twenty-First Expansion Commencement Date, Tenant’s Pro Rata Share shall be increased to 96.48% (i.e., 250,822 rentable square feet in the Premises divided by 259,971 rentable square feet in the Building).
SECTION 1.06. Base Year. The Base Year for the Twentieth Expansion Space and Twenty-First Expansion Space shall be the calendar year 2004. The Base Year for the Current Premises shall remain as set forth in the Eighth Amendment and Ninth Amendment, respectively.
SECTION 1.07. Parking. As of the Twentieth Expansion Commencement Date and Twenty-First Expansion Commencement Date, respectively, with respect to only the Twentieth Expansion Space and Twenty-First Expansion Space, respectively, Tenant shall be entitled to up to three (3) additional parking permits per 1,000 rentable square feet contained in the Twentieth
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Expansion Space and Twenty-First Expansion Space, respectively, to the parking garage associated with the Building on the same terms and conditions provided with respect to the original Parking Permits in Exhibit F to the Lease. With respect to such spaces, Tenant shall pay to Landlord, as parking rent*, $35.00, plus tax, per space per month for unassigned spaces and $75.00, plus tax, per space per month for assigned spaces.
*Landlord hereby abates the parking rent described above for the spaces attributable to the Twentieth Expansion Space and the Twenty-First Expansion Space through and including June 30, 2006. Tenant shall pay any and all other parking charges attributable to the Current Premises in accordance with the Lease. If Tenant defaults under this Lease beyond any applicable period of notice and cure, any remaining rent abatement shall cease from the date of such default, and Tenant shall immediately pay to Landlord all sums previously abated hereunder.
SECTION 1.08. Delay in Delivery. Tenant acknowledges that there are currently existing tenants occupying the Twentieth Expansion Space and Twenty-First Expansion Space, respectively. Tenant agrees to take possession of the Twentieth Expansion Space and Twenty-First Expansion Space, respectively, from Landlord when such space becomes available for Landlord to lease to Tenant and Landlord tenders possession thereof to Tenant. The rental obligations shall commence on the Twentieth Expansion Commencement Date and Twenty-First Expansion Commencement Date as provided in Sections 1.01 and 1.02 above (i.e., ninety (90) days following Landlord’s tender of possession to Tenant). Notwithstanding the foregoing, Landlord shall not be in default under the Lease or liable to Tenant for damages in the event Landlord is unable to secure possession thereof. Tenant’s sole remedy in the event of a delay shall be that the Twentieth Expansion Commencement Date or Twenty-First Expansion Commencement Date shall be extended until ninety (90) days following Landlord’s tender of possession to Tenant.
SECTION 1.09. Brokers. Landlord and Tenant each warrant to the other that it has not dealt with any broker or agent in connection with the negotiation or execution of this Amendment except Xxxxxxxx Xxxx Company and Xxxxxxx & Xxxxxxxxx of Texas, Inc. (hereafter, the “Brokers”) and that a commission is owed to Brokers arising from this Amendment pursuant to a separate agreement. Landlord agrees to pay the Brokers pursuant to a separate agreement. Landlord and Tenant hereby indemnify each other from the payment of any commissions owed to any broker with respect to this Amendment resulting from the acts of such party, but not otherwise; provided, however, Tenant shall not be required to indemnify Landlord for any claims brought by the Brokers.
SECTION 1.10. Exhibits. Landlord and Tenant agree that the following exhibits have been attached hereto and will be deemed a part of this Amendment and the Lease for all purposes and will be in lieu of any similar rights or provisions currently set forth in the Lease:
| Exhibit A-1 | - Description of Twentieth Expansion Space |
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| Exhibit A-2 | - Description of Twenty-First Expansion Space |
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| Exhibit B-1 |
- Verification Letter – Twentieth Expansion Space |
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| Exhibit B-2 |
- Verification Letter – Twenty-First Expansion Space |
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| Exhibit C-1 |
- Twentieth and Twenty-First Expansion Space – Tenant Finish-Work: Allowance |
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| Exhibit C-2 |
- Construction Guidelines |
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SECTION 1.11. Further Amendment. To the extent this Amendment is inconsistent with or otherwise conflicts with the terms of the Lease, the terms of this Amendment shall govern. All occupancy of any Expansion Space prior to the applicable Commencement Date shall be subject to the terms and conditions of the Lease, except for the payment of Rent.
Article II
MISCELLANEOUS
SECTION 2.01. Ratification. The Lease, as amended hereby, is hereby ratified, confirmed and deemed in full force and effect in accordance with its terms. Each party represents to the other that such party (a) is currently unaware of any default by the other party under the Lease; and (b) has full power and authority to execute and deliver this Amendment and this Amendment represents a valid and binding obligation of such party enforceable in accordance with its terms.
SECTION 2.02. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas.
SECTION 2.03. Counterparts. This Amendment may be executed in multiple counterparts each of which is deemed an original but together constitute one and the same instrument. This Amendment may be executed by facsimile and each party has the right to rely upon a facsimile counterpart of this Amendment signed by the other party to the same extent as if such party had received an original counterpart.
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IN WITNESS WHEREOF, this Amendment has been executed as of (but not necessarily on) the date and year first above written.
| Dated: October 22, 2003 |
LANDLORD: |
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| THE REALTY ASSOCIATES FUND V, L.P., |
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| a Delaware limited partnership |
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| By: |
Realty Associates Fund V LLC, a Massachusetts limited liability company, general partner |
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| By: |
Realty Associates Advisors LLC, a Delaware limited liability company, Manager |
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| By: |
Realty Associates Advisors Trust, a Massachusetts business trust, sole member |
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| By: |
/s/ Xxxxxxx X. Xxxxxxxxx |
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| Officer |
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| By: |
Realty Associates Fund V Texas Corporation, a Texas corporation, general partner |
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| By: |
/s/ Xxxxxxx X. Xxxxxxxxx |
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| Officer Xxxxxxx X. Xxxxxxxxx Regional Director |
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| Date: October 15, 2003 |
TENANT: |
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| XXXXXXXXXXX INTERNATIONAL, INC. |
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| By: |
[ILLEGIBLE] |
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| Name: |
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| Title: |
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