EXHIBIT 10.16
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made and entered into as of the
19th day of January, 1994 (the "Effective Date"), between TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, national banking association (hereinafter called
"Landlord"), and XXXXXX XXXX & XXXXXXXX, INC., a Texas corporation (hereinafter
called "Tenant"):
ARTICLE I: PRIME LEASE
1.01 This Sublease is subject and subordinate to that certain Lease
(hereinafter called the "Prime Lease") dated September 1, 1991 and
executed by and between 5599 SAN XXXXXX, LTD. (hereinafter called the
"Prime Lessor"), as lessor and AMERITRUST TEXAS NATIONAL ASSOCIATION
(predecessor-in-interest to Landlord), as lessee, a copy of which Prime
Lease is attached hereto as Exhibit A and made a part hereof. Except to
the extent that the terms, conditions and provisions of this Sublease are
different from the terms and provisions of the Prime Lease, the terms,
conditions and provisions contained in the Prime Lease shall be applicable
to this Sublease with the same force and effect as if Landlord were the
lessor under the Prime Lease and Tenant were the lessee thereunder.
Accordingly, except as set forth in Section 1.03 below, Tenant shall
comply with all obligations of Landlord under the Prime Lease including,
without limitation, all repair obligations, all insurance obligations, all
obligations to pay utility charges and taxes, and all indemnification
obligations of Landlord thereunder. Additionally, Tenant agrees that
whenever the consent of Prime Lessor is required under the terms of the
Prime Lease with respect to any actions to be taken thereunder, Tenant
shall obtain the consent (a) of Landlord and (b) of Prime Lessor as
required under the Prime Lease.
1.02 Notwithstanding any provision of this Sublease to the contrary, the only
services and rights to which Tenant is entitled hereunder are those to
which Landlord is entitled under the Prime Lease, and Tenant shall look
solely to Prime Lessor under the Prime Lease for all such services and
rights; provided, however, this provision shall not cause Tenant's
benefits or remedies to be less than the benefits or remedies to which
Landlord is entitled under the Prime Lease.
1.03 With the exception of the obligation to pay Base Rental pursuant to
Section 5 of the Prime Lease and to pay Lessee's Share of Forecast Actual
Operating Expenses and any Operating Expense Adjustment pursuant to
Section 7 thereof, and any liability accruing from Landlord's failure to
pay same when due thereunder, Tenant hereby covenants and agrees to
indemnify and hold Landlord harmless from and against all claims, losses,
damages, duties, obligations and liabilities arising under the Prime Lease
(unless such claims, losses, damages, duties, obligations and liabilities
arise due to Landlord's gross negligence or
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willful misconduct), and all reasonable expenses incurred by Landlord in
defending same, including court costs and reasonable attorneys' fees.
1.04 Landlord expressly covenants that, without the prior written consent of
Tenant, it shall not amend or alter the Prime Lease or take any other
action which would adversely affect the use by Tenant of the Leased
Premises (hereinafter defined) or increase the obligations of Tenant or
decrease the rights of Tenant hereunder or thereunder. Landlord and Tenant
each covenant and agree to promptly deliver to the other party copies of
any and all notices or other correspondence from the Prime Lessor that
might affect said other party in any manner and further agree,
notwithstanding Section 10.05 to the contrary, to so deliver same in the
manner most appropriate to insure that said other party will be able to
respond to any of such notices or other correspondence from the Prime
Lessor within any time periods set forth in the Prime Lease.
1.05 Tenant shall not have the right to exercise any of Landlord's options or
elections permitted or authorized under the Prime Lease. In the event that
Prime Lessor shall default in the performance of any of its obligations
under the Prime Lease, Tenant shall have the right, in the name of
Landlord, to make demand or institute any appropriate action or proceeding
against Prime Lessor for the enforcement of the obligations of Prime
Lessor, and Landlord shall cooperate with Tenant with respect thereto.
1.06 In case of any breach hereof by Tenant, Landlord, in addition to all other
rights of Landlord hereunder or available to Landlord at law or equity
shall have all the rights against Tenant as would be available to the
Prime Lessor against the lessee under the Prime Lease if such breach were
by the lessee thereunder. In the event either party defaults in the
performance of any of the terms and provisions hereof and the
non-defaulting party places the enforcement of this Sublease in the hands
of an attorney, the defaulting party agrees to reimburse the
non-defaulting party for all reasonable expenses incurred by the
non-defaulting party as a result thereof including, but not limited to,
reasonable attorneys' fees.
ARTICLE II: DEMISE AND DESCRIPTION
2.01 Pursuant to the Prime Lease, Landlord has leased from Prime Lessor
approximately 44,485 square feet of Net Rentable Area located on the third
(3rd) and fourth (4th) floors of the Building, all as more particularly
defined and described in the Prime Lease (herein called the "Prime Lease
Space").
2.02 Subject to and upon the terms and conditions set forth herein, Landlord
hereby subleases to Tenant, and Tenant hereby subleases from Landlord for
the term
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herein set forth, all of Landlord's right, title and interest in and to
the use and occupancy of approximately 10,798 square feet of Net Rentable
Area out of the Prime Lease Space, as shown outlined on Exhibit B attached
hereto and made a part hereof (herein called the "Leased Premises").
Landlord and Tenant hereby stipulate and agree that the Net Rentable Area
of the Leased Premises is 10,798 square feet and the Net Rentable Area of
the Building is 450,508 square feet, notwithstanding any minor variations
in measurement or other minor variations that may have been incurred in
the calculation thereof.
ARTICLE III: TERM
3.01 Unless the Prime Lease is terminated sooner pursuant to the terms thereof,
the term of this Sublease shall commence on the date which is the earlier
of (a) five (5) business days following written notice from Landlord to
Tenant, that Landlord has completed the relocation of its personnel from
the Leased Premises, such that the entire Leased Premises are available
for Tenant's use and occupancy or (b) February 15, 1994 (the "Commencement
Date"). The initial term of this Sublease (the "Term") shall commence on
the Commencement Date, and unless sooner terminated under any other terms
and provisions hereof or under the Prime Lease, shall terminate on March
14, 1999.
ARTICLE IV: RENT
4.01 Tenant hereby agrees to pay an annual base rental (the "Base Rent") as
follows: (a) from the Commencement Date through April 30, 1994, an amount
equal to Five and 25/100 Dollars ($5.25) per square foot of Net Rentable
Area within the Leased Premises, payable in monthly installments equal to
Four Thousand Seven Hundred Twenty-Four and 13/100 Dollars ($4,724.13)
each, and (b) from May 1, 1994 through March 31, 1999, an amount equal to
Ten and 50/100 Dollars ($10.50) per square foot of Net Rentable Area
within the Leased Premises, payable in monthly installments equal to Nine
Thousand Four Hundred Forty-Eight and 25/100 Dollars ($9,448.25) each.
Tenant shall pay such rental to Landlord monthly without demand, for each
and every month of this Sublease, such installments being due and payable
on the first day of each calendar month; provided, however, that if the
Term of the Sublease commences on a day other than the first day of the
calendar month, the first payment under the Sublease shall be prorated for
the remainder of the calendar month in which the Term of the Sublease
commences.
4.02 As used in this Sublease, "Rent" shall mean the Base Rental, the Tenant's
Share of Forecast Excess Operating Expenses (hereinafter defined), the
Operating Expense Adjustment, and all other amounts provided for in this
Sublease to be paid by Tenant, all of which shall constitute rental in
consideration for this
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Sublease and the leasing of the Leased Premises. The Rent shall be paid at
the times and in the amounts provided for herein in legal tender of the
United States of America to Landlord at the address specified above or to
such other person or at such other address as Landlord may from time to
time designate in writing. The Rent shall be paid without notice, demand,
abatement, deduction, or offset except as may be expressly set forth in
this Sublease.
4.03 (a) Beginning with the calendar year 1995 and continuing for each year
during the remainder of the Term thereafter, Tenant shall reimburse
Landlord for Tenant's Share of the amount, if any, by which the Actual
Operating Expenses for each such year, after any adjustment thereof
pursuant to Section 7 of the Prime Lease and this Section 4.03, exceeds
the amount of the Actual Operating Expenses for the calendar year 1994
(the "BaseYear"), after any adjustment thereof pursuant to Section 7 of
the Prime Lease and this Section 4.03, as provided for in this Article IV.
(b) "Forecast Excess Operating Expenses", as that term is used herein,
shall mean the Actual Operating Expenses as projected by Prime Lessor for
any calendar year that are in excess of the Actual Operating Expenses for
the Base Year. "Tenant's Share", as that term is used herein, shall mean a
fraction the numerator of which is the number of square feet of Net
Rentable Area in the Leased Premises and the denominator of which is the
greater of 95% of the Net Rentable Area in the Building or the total Net
Rentable Area leased to and occupied by tenants of the Building. For each
calendar year after the Base Year, a statement of the projected amount of
Tenant's Share of Forecast Excess Operating Expenses shall be furnished by
Landlord to Tenant upon receipt by Landlord of the estimate to be provided
by Prime Lessor pursuant to Section 7(b) of the Prime Lease. Concurrently
with each installment payment of Base Rental, Tenant shall pay to Landlord
one-twelfth (1/12th) of the Tenant's Share of Forecast Excess Operating
Expenses for each calendar year after the Base Year. In the event of Prime
Lessor's failure or delay in providing the new estimate required pursuant
to Section 7(b) of the Prime Lease, Tenant shall make progress payments of
Tenant's Share of Forecast Excess Operating Expenses based on the last
previous estimate until Landlord is able to provide such new estimate.
(c) If Tenant's Share of Actual Operating Expenses for any calendar year
after the Base Year is greater than payments theretofore made by Tenant on
account of Tenant's Share of Forecast Excess Operating Expenses, and
Actual Operating Expenses included in Base Rental, Tenant shall pay to
Landlord within thirty (30) days after Tenant's receipt of the annual
statements referred to in Section 4.03(e) below the amount of such excess.
However, if Tenant's Share of Actual Operating Expenses for such calendar
year is less than payments theretofore
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made by Tenant on account of Tenant's Share of Forecast Excess Operating
Expenses and Actual Operating Expenses included in Base Rental, Landlord
shall pay to Tenant within thirty (30) days after Tenant's receipt of such
statement the amount of such difference.
(d) Any sum payable by Tenant under this Section 4.03 shall be deemed
additional rent.
(e) Promptly after receipt of the written statement to be provided to
Landlord by Prime Lessor pursuant to Section 7(e) of the Prime Lease for
each calendar year during the term hereof, Landlord shall deliver to
Tenant a written statement itemized in reasonable detail and certified to
by Landlord, showing Actual Operating Expenses for the calendar year in
question and a statement of Tenant's Share of Actual Operating Expenses.
(f) Notwithstanding any other provision herein to the contrary, it is
agreed that in the event the Building is less than ninety-five percent
(95%) occupied during any year (including the Base Year) an adjustment
(the "Operating Expense Adjustment") shall be made in computing the Actual
Operating Expenses for such year so that the Actual Operating Expenses
shall be computed for such year as though the Building has been
ninety-five percent (95%) occupied during such year. It is agreed that if
in any year subsequent to the Base Year, the taxes assessed against the
Building increase due to the fact that any tenant of the Building (other
than Tenant) installs leasehold improvements in its space which exceed the
value (on a per square foot basis) of the leasehold improvements installed
in the Leased Premises, then the amount of such increase shall not be
included in Actual Operating Expenses for such subsequent year and
subsequent years.
4.05 Tenant shall be responsible for (i) all telephone charges incurred in the
use of the Leased Premises, and (ii) the costs of all additional services
requested of Prime Lessor from time to time (such as overtime HVAC
service), for which Tenant shall pay Prime Lessor directly as billed (or,
if billed to Landlord, Tenant shall reimburse Landlord promptly upon
demand). If it is determined in good faith by a qualified electrical
engineer that Tenant is consuming electricity in excess of the maximum
consumption provided for the Prime Lease Space in the Prime Lease,
Landlord may install or cause to be installed a meter to monitor such
electrical consumption. The cost of such meter and the installation of
same shall be borne by Tenant, which cost shall be equal to the cost
charged to Landlord for such meter and its installation.
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ARTICLE V: QUIET ENJOYMENT
5.01 Provided Tenant has performed all of the terms, covenants, agreements and
conditions of this Sublease, including the payment of rental and all other
sums due hereunder, Landlord covenants that Tenant shall peaceably and
quietly hold and enjoy the Leased Premises against Landlord and all
persons claiming by, through or under Landlord, for the term herein
described subject to the provisions and conditions of this Sublease and of
the Prime Lease.
ARTICLE VI: ASSIGNMENT
6.01 Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, assign, transfer, mortgage,
pledge, hypothecate or encumber this Sublease or any interest herein or
sublet the Leased Premises or any part thereof, or permit the use of the
Leased Premises by any party other than Tenant. Any such assignment or
subletting without such consent by Landlord shall be void. Any such
consent by Landlord to any such assignment or subletting shall not release
Tenant from any of Tenant's obligations hereunder or be deemed to be a
consent to any subsequent assignment, subletting, occupation or use by
another person. Notwithstanding the foregoing, Tenant may sublease or
assign this sublease to any entity controlled or under common control with
Tenant (herein called an "Affiliate") without the prior written consent of
Landlord; provided, however, any assignment or subletting to an Affiliate
shall not release Tenant from any of Tenant's obligations hereunder.
ARTICLE VII: INDEMNIFICATION
7.01 Tenant shall indemnify Landlord for and hold Landlord harmless from and
against all costs, expenses (including 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 Leased Premises by Tenant or Tenant's
employees, agents, contractors, licensees and invitees. Landlord shall not
be liable to Tenant or Tenant's employees, agents, contractors, licensees
or invitees for any damage to person or property resulting from any act or
omission or negligence of any visitor to the Leased Premises except as
Landlord's own negligence may contribute thereto.
ARTICLE VIII: PREFERENTIAL RIGHT TO SUBLEASE
8.01 During the twenty-four (24) months immediately following the Commencement
Date, Tenant shall have a right of first opportunity (the"Preferential
Right") to
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include in the Leased remises under this Sublease the lease space located
on the third (3rd) and fourth (4th) floors of the Building that are
contained within the Prime Lease Space (the "Opportunity Space"), prior to
the Opportunity Space being subleased by Landlord to a third party.
Landlord shall deliver written notice (the"Availability Notice") to Tenant
when Landlord enters or intends to enter serious negotiations with a third
party to sublease all or any portion of the Opportunity Space (and
Landlord's good faith determination of whether serious negotiations have
been entered or are about to be entered shall be conclusive and binding
upon the parties). The Availability Notice shall include a floor plan of
the subject Opportunity Space, and shall state the date that Landlord
expects same to be available, and all principal terms and conditions upon
which Landlord is willing to sublease such space (including, without
limitation, rental rate, term, renewal and expansion options, and other
preferential rights, the number of parking spaces and rates therefor, the
basis upon which operating expenses will be charged to the Tenant, and if
Tenant's right to the subject Opportunity Space will be subject to
expansion or renewal rights held by other subtenants). Upon request of
Tenant, Landlord will provide access to the subject Opportunity Space to
Tenant and its representatives during the period of time Tenant has the
right to exercise its Preferential Right with respect to such space.
8.02 Tenant shall have a period of ten (10) business days after receipt of the
Availability Notice to sublease the subject Opportunity Space by
delivering written notice to Landlord exercising its right to sublease
same upon the terms and conditions contained in the Availability Notice.
If Tenant fails to respond to Landlord's Availability Notice within such
ten (10) business day period, Tenant shall be deemed to have elected not
to sublease such Opportunity Space. If Tenant exercises the right to
sublease the Opportunity Space, said sublease shall commence on the
earliest to occur of (x) Tenant's occupancy of such space for the purpose
of conducting business therefrom, (y) sixty (60) days after Landlord's
delivery of such space to Tenant, or (z) the date a third party would have
commenced paying Rent thereon had Tenant not exercised its Preferential
Right with respect to such space. After Tenant validly exercises the
Preferential Right, the parties shall negotiate in good faith an amendment
to this Sublease adding the Opportunity Space and confirming the
subleasing of such Opportunity Space to Tenant, but an otherwise valid
exercise of the Preferential Right shall be fully effective, whether or
not such amendment is executed.
8.03 The Preferential Right shall apply only with respect to the entire
Opportunity Space offered by Landlord to Tenant, and may not be exercised
with respect to only a portion thereof, unless only a portion shall first
become the subject of Landlord's notice concerning negotiations with
another party as described above. If Tenant shall fail to exercise such
Preferential Right after notice by
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Landlord as provided herein, Landlord may sublease the portion of the
Opportunity Space described in the Availability Notice, on such terms and
conditions as Landlord may determine in its sole and absolute discretion,
except that in no event shall the effective rental rate (taking into
consideration all amounts to be paid by Tenant to Landlord thereunder,
such as annual Base Rental, Tenant's additional rental and parking
charges, together with all allowances and monetary concessions (such as
tenant improvement allowance and free rent) to be provided by Landlord to
Tenant) in such sublease be less than ninety percent (90%) of the
effective rental rate offered to Tenant in the Availability Notice, and
the Preferential Right shall be of no further force or effect with respect
to such portion of the Opportunity Space. The foregoing Preferential Right
shall be subject and subordinate to any expansion or renewal rights
granted to a third party in a sublease of Opportunity Space that Tenant
elected not to sublease pursuant to this Article VIII, provided that such
rights were set forth in the applicable Availability Notice. If, upon
Tenant's failure to exercise its Preferential Right, Landlord does not
enter into a sublease of such space within one hundred twenty (120) days
following the Availability Notice, Tenant's Preferential Rights shall
apply again to such space, and Landlord shall be required to notify Tenant
when Landlord enters or intends to enter serious negotiations with another
party to lease such space as provided above.
8.04 Tenant shall not be permitted to exercise any Preferential Right hereunder
if on the date Tenant exercises such right or at the time Landlord
delivers such space to Tenant, Tenant is in default under this Sublease
beyond any applicable grace period. If this Sublease or Tenant's right to
possession of the Leased Premises shall terminate in any manner whatsoever
before Tenant shall exercise the right herein provided, then immediately
upon such termination, the right to sublease the Opportunity Space herein
granted shall simultaneously terminate and become null and void. Tenant
shall not have the right to assign its Preferential Right hereunder to any
sublessee of the Leased Premises or any assignee of this Sublease (other
than an Affiliate), nor may any such sublessee or assignee exercise such
Preferential Right (other than an Affiliate).
8.05 Tenant shall be entitled to one additional (1) unreserved parking permit
for each 850 square feet of Net Rentable Area subleased pursuant to such
Preferential Right, up to a maximum (including the original thirteen
unreserved spaces) of forty-four (44) unreserved spaces. Tenant shall be
entitled to one additional (1) reserved parking permit for each 11,000
square feet of Net Rentable Area subleased pursuant to such Preferential
Right in excess of 22,000 square feet of Net Rentable Area, up to a
maximum (including the original three reserved spaces) of five (5)
reserved spaces.
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ARTICLE IX: PARKING
9.01 Parking spaces shall be provided to Tenant during the term of this
Sublease in accordance with the terms of Exhibit C attached hereto and
made a part hereof for all purposes.
ARTICLE X: MISCELLANEOUS
10.01 No amendment, modification or alteration of the terms hereof shall
be binding unless the same shall be in writing, dated subsequent to
the date hereof and duly executed by the parties hereto.
10.02 Descriptive headings are for convenience only and shall not control
or affect the meaning or construction of any provision of this
Sublease. Whenever the context of this Sublease requires, words used
in the singular shall be construed to include the plural and vice
versa and pronouns of whatsoever gender shall be deemed to include
and designate the masculine, feminine or neuter gender.
10.03 For the convenience of the parties, any number of counterparts of
this Sublease may be executed by one or more parties hereto and each
such executed counterpart shall be, and shall be deemed to be, an
original instrument.
10.04 Landlord makes no warranties, express or implied, with respect to
the present physical condition of the Leased Premises, or the
physical condition of the Building and related facilities. The
Leased Premises shall be delivered to Tenant, and Tenant shall
accept same, in the condition and with only such leasehold
improvements, if any, as set forth in Exhibit D attached hereto.
Tenant agrees to accept the Leased Premises "as is" and agrees that,
except for the obligations of Landlord provided in Exhibit D
attached hereto, Landlord shall not be obligated to make or pay for
any repairs, additions or improvements thereto.
10.05 Subject to Article 1.04 hereof, all notices, consents, requests,
instructions, approvals and other communications provided for herein
and all legal process in regard hereto shall be validly given, made
or served, if in writing and delivered personally or sent by United
States certified or registered mail, postage prepaid, return receipt
requested, if to:
The address for Landlord is:
Texas Commerce Bank National Association
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000
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Attention: Corporate Real Estate Department
The address for Tenant is:
Xxxxxx Xxxx & Xxxxxxxx, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx XX
Either party shall have the right to change its address to which notices
shall thereafter be sent by giving the other written notice thereof.
10.06 This Sublease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns in
accordance with the terms of this Sublease.
10.07 Time is of the essence in the performance by Tenant of its
obligations hereunder.
10.08 Landlord has agreed to pay a brokerage commission to Xxxxx & Xxxxx
Company (the "Broker") pursuant to a separate agreement between
Landlord and the Broker. Landlord and Tenant hereby represent and
warrant each to the other that they have not employed any other
agents, brokers or other such parties in connection with this
Sublease, and each agrees that they shall hold the other harmless
from and against any and all claims of all other agents, brokers or
other such parties claiming by, through or under the respective
indemnifying party.
10.09 Tenant acknowledges that the existing leasehold improvements located
on the third (3rd) floor of the Building were constructed in
contemplation of the entire floor being occupied by a single tenant.
Tenant agrees to occupy only the approximately 10,798 square feet of
Net Rentable Area as indicated by the cross-hatched area on the
attached Exhibit B. If Tenant occupies any portion of the third
(3rd) floor of the Building outside of the cross-hatched area (other
than pursuant to the valid exercise by Tenant of the Preferential
Right provided in Article VIII of this Sublease) Tenant shall pay
base rental and additional rent from the Commencement Date through
the date of such use equal to an annual "gross" base rental rate of
Fifteen and No/100 Dollars ($15.00) per square foot of Net Rentable
Area actually used by Tenant. Notwithstanding the foregoing, this
shall in no event constitute an option for Tenant to expand the
Leased Premises, it being understood that Landlord may terminate
Tenant's use and occupancy of such additional space at any time upon
written notice to Tenant. Failure of Landlord to terminate Tenant's
occupancy of such additional space
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upon notice thereof to Landlord, or delay in taking any action in
connection therewith, shall not waive any of Landlord's rights with
respect to the termination of such occupancy or with respect to the
collection of rent as a result of such occupancy. If Landlord elects
to sublease a portion of the third (3rd) floor of the Building to a
third party other than Tenant, Landlord shall construct, at
Landlord's sole cost and expense, such leasehold improvements as are
necessary to modify the third (3rd) floor of the Building from a
single tenant floor to a multi-tenant floor. Tenant agrees that
Landlord shall -not be required to make such modifications until
such time as Landlord subleases a portion of the third (3rd) floor
of the Building to a third party other than Tenant.
10.10 Tenant covenants and agrees that it will not injure the Building or
the Leased Premises but will take the same care thereof which a
reasonably prudent person would take of its own property, and upon
termination of this Sublease, Tenant will surrender and deliver up
the Leased Premises to Landlord in the same condition in which the
same existed on the Commencement Date of this Sublease, except for
ordinary wear and tear. Tenant shall not change, remove or modify
any of the leasehold improvements located in the Leased Premises
without the prior written consent of Landlord.
10.11 Notwithstanding anything else contained herein to the contrary,
Tenant shall not have the right to exercise any of Landlord's
options or elections permitted or authorized under Sections 51, 52,
54, 55, 56 or 59 or Schedules 5 or 6 or under any other Section or
Schedule of the Prime Lease.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this
Sublease effective as of the Effective Date.
"Landlord"
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
a national banking association
By:__________________________________
Name:________________________________
Title:_______________________________
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"Tenant"
XXXXXX XXXX & XXXXXXXX, INC.,
a Texas corporation
By:__________________________________
Name:________________________________
Title:_______________________________
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FIRST AMENDMENT TO SUBLEASE AGREEMENT
This First Amendment to Sublease Agreement (this "First Amendment") is
entered into by and between TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("Landlord") and XXXXXX XXXX & XXXXXXXX, INC., a Texas
corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Sublease Agreement
dated January 19, 1994 (the "Sublease"), covering sublease space on the third
(3rd) floor of the building located at 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx (the "Building"); and
WHEREAS, Landlord and Tenant desire to amend the Sublease in accordance
with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the duties, covenants and
obligations of each to the other hereunder, the Leased Premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
confessed and acknowledged, Landlord and Tenant hereby agree to amend, and do
hereby amend, the Sublease as follows (all terms defined in the Sublease shall,
when used herein, have the same meanings as set forth in the Sublease unless
otherwise defined herein):
1. Section 2.02 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
"2.02 Subject to and upon the terms and conditions set forth herein,
Landlord hereby subleases to Tenant, and Tenant hereby subleases from
Landlord for the term herein set forth, all of Landlord's right, title and
interest in and to the use and occupancy of approximately 10,998 square
feet of Net Rentable Area out of the Prime Lease Space, as shown outlined
on Exhibit B attached hereto and made a part hereof (herein called the
"Leased Premises"). Landlord and Tenant hereby stipulate and agree that
the Net Rentable Area of the Leased Premises is 10,998 square feet and the
Net Rentable Area of the Building is 450,508 square feet, notwithstanding
any minor variations in measurement or other minor variations that may
have been incurred in the calculation thereof."
2. Section 3.01 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
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"The initial term of this Sublease (the "Term") shall commence on
February 14, 1994 (the "Commencement Date"), and unless sooner terminated
under any other terms and provisions hereof or under the Prime Lease,
shall terminate on March 14,1999."
3. Section 4.01 of the Sublease is hereby deleting the first sentence
thereof in its entirety and the following shall be substituted in its place:
"Tenant hereby agrees to pay an annual base rental (the "Base Rent")
as follows: (a) from the Commencement Date through April 30, 1994, an
amount equal to Five and 25/100 Dollars ($5.25) per square foot of Net
Rentable Area within the Leased Premises, payable in monthly installments
equal to Four Thousand Eight Hundred Eleven and 63/100 Dollars ($4,811.63)
each, and (b) from May 1, 1994 through March 31, 1999, an amount equal to
Ten and 50/100 Dollars ($10.50) per square foot of Net Rentable Area
within the Leased Premises, payable in monthly installments equal to Nine
Thousand Six Hundred Twenty-Three and 25/100 Dollars ($9,623.25) each."
4. Section 10.09 of the Sublease is hereby deleting the second sentence
thereof in its entirety and the following shall be substituted in its place:
"Tenant agrees to occupy only the approximately 10,998 square feet
of Net Rentable Area as indicated by the cross-hatched area on the
attached Exhibit B."
5. Exhibit D to the Sublease is amended by deleting the first sentence of
Paragraph I of Part IV thereof in its entirety and substituting the following in
its place:
"Landlord hereby agrees to provide Tenant with an allowance (the
"Improvement Allowance") of no less than Thirty-Two Thousand Nine Hundred
Ninety-Four and No/100 Dollars ($32,994.00) to reimburse Tenant for: (a)
the cost and expense of the preparation of the Space Plan and the Working
Drawings and (b) the cost and expense of the Tenant's Work (collectively,
the "Construction Costs")."
6. Exhibit B, previously attached to the Sublease, is hereby replaced with
Exhibit B attached to this First Amendment.
7. In connection with the expansion of the Leased Premises as set forth in
this First Amendment, Landlord agrees to pay to Xxxxx & Xxxxx Company (the
"Tenant's Broker") a real estate brokerage commission as set forth in a separate
listing agreement between Landlord and Tenant's Broker. Landlord and Tenant
hereby represent and warrant each to the other that they have not employed any
other agents,
14
brokers or other such parties in connection with the expansion of the term of
the Sublease as set forth in this First Amendment, and each agrees that they
shall hold the other harmless from and against any and all claims of all other
agents, brokers or other such parties claiming by, through or under the
respective indemnifying party.
8. Except as expressly provided herein, the Leased Premises shall be
governed by the same terms and conditions as set forth in the Sublease. The
Sublease as hereby amended is hereby ratified and affirmed and, except as
expressly amended hereby, all other items and provisions of the Sublease remain
unchanged and continue to be in full force and effect. The terms of this First
Amendment shall control over any conflicts between the terms of the Sublease and
the terms of this First Amendment.
9. The Sublease, as amended by this First Amendment, constitutes the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and all prior agreements, proposals, negotiations,
understandings and correspondence between the parties in this regard, whether
written or oral, are hereby superseded and merged herewith.
IN WITNESS WHEREOF, this First Amendment may be executed by the parties
hereto on separate multiple counterparts, each of which shall be deemed to be an
original, executed to be effective as of the ____ day of February, 1994.
"Landlord"
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
a national banking association
By:__________________________________
Name:________________________________
Title:_______________________________
"Tenant"
XXXXXX XXXX & XXXXXXXX, INC.,
a Texas corporation
By:__________________________________
Name:________________________________
Title:_______________________________
15
SECOND AMENDMENT TO SUBLEASE AGREEMENT
This Second Amendment to Sublease Agreement (this "Second Amendment") is
entered into by and between TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("Landlord") and XXXXXX XXXX & XXXXXXXX, INC., a Texas
corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Sublease Agreement
dated January 19, 1994 (the "Original Sublease"), covering approximately 10,798
square feet of net rentable area (the "Initial Leased Premises") on the third
(3rd) floor of the building located at 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx (the "Building"); and
WHEREAS, Landlord and Tenant expanded the Initial Leased Premises to
include an additional 200 square feet of net rentable area pursuant to that
certain First Amendment to Sublease Agreement (the "First Amendment") dated
effective as of February 23, 1994, executed by and between Landlord and Tenant
(the Original Sublease, as amended by the First Amendment, is herein referred to
as the "Sublease"); and
WHEREAS, Tenant desires to further expand the Initial Leased Premises to
include an additional 2,497 square feet of net rentable area (the "Expansion
Space"), which Expansion Space is more particularly described on Exhibit B
attached hereto and made a part hereof for all purposes; and
WHEREAS, Landlord and Tenant desire to further amend the Sublease to
include the Expansion Space in accordance with the terms and conditions set
forth below;
NOW, THEREFORE, for and in consideration of the duties, covenants and
obligations of each to the other hereunder, the Leased Premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
confessed and acknowledged, Landlord and Tenant hereby agree to amend, and do
hereby amend, the Sublease as follows (all terms defined in the Sublease shall,
when used herein, have the same meanings as set forth in the Sublease unless
otherwise defined herein):
1. Section 2.02 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
16
"2.02 Subject to and upon the terms and conditions set forth herein,
Landlord hereby subleases to Tenant, and Tenant hereby subleases from
Landlord for the term herein set forth, all of Landlord's right, title and
interest in and to the use and occupancy of approximately 13,495 square
feet of Net Rentable Area out of the Prime Lease Space, as shown outlined
on Exhibit B attached hereto and made a part hereof (herein called the
"Leased Premises"). Landlord and Tenant hereby stipulate and agree that
the Net Rentable Area of the Leased Premises is 13,495 square feet and the
Net Rentable Area of the Building is 450,508 square feet, notwithstanding
any minor variations in measurement or other minor variations that may
have been incurred in the calculation thereof"
2. Section 3.01 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
"The initial term of this Sublease (the "Term") shall commence on
February 14, 1994 (the "Commencement Date"), and unless sooner terminated
under any other terms and provisions hereof or under the Prime Lease,
shall terminate on March 14, 1999."
3. Section 4.01 of the Sublease is hereby deleting the first sentence
thereof in its entirety and the following shall be substituted in its place:
"Tenant hereby agrees to pay an annual base rental (the "Base Rent')
as follows: (a) from the Commencement Date through April 30, 1994, monthly
installments equal to Four Thousand Eight Hundred Eleven and 63/100
Dollars ($4,811.63) each, (b) from May 1, 1994 through May 31, 1994, a
monthly installment equal to Ten Thousand Eight Hundred Forty-Nine and
97/100 Dollars ($10,849.97) each, and (c) from June 1, 1994 through March
14, 1999 monthly installments equal to Eleven Thousand Eight Hundred Sixty
and 15/100 Dollars ($11,860.15) each."
4. Section 10.09 of the Sublease is hereby deleting the second sentence
thereof in its entirety and the following shall be substituted in its place:
"Tenant agrees to occupy only the approximately 13,495 square feet
of Net Rentable Area as indicated by the cross-hatched area on the
attached Exhibit B."
5. Landlord shall provide Tenant with an allowance (the "Expansion Space
Improvement Allowance") of up to Four Thousand Nine Hundred Ninety-Four and
No/100 Dollars ($4,994.00) to reimburse Tenant for: (a) the cost and expense of
the preparation of the space plans and the working drawings relating to the
Expansion
17
Space and (b) the cost and expense of all work (the "Tenant's Expansion Work")
required to complete the Expansion Space substantially in accordance with the
space plans and construction drawings approved by Landlord (collectively, the
"Construction Costs"). Upon completion of the Tenant's Expansion Work, Landlord
shall disburse the Expansion Space Improvement Allowance for reimbursement to
Tenant of the Construction Costs incurred by Tenant, upon receipt by Landlord of
lien releases, invoices, receipts and such other evidence as Landlord may
reasonably request in connection with such reimbursement. In the event any
portion of the Expansion Space Improvement Allowance is not fully advanced by
Landlord, Tenant shall not be entitled to any payment or credit under this
Second Amendment as a result of the unadvanced portion of the Expansion Space
Improvement Allowance.
6. Exhibit B, previously attached to the Sublease, is hereby replaced with
Exhibit B attached to this Second Amendment.
7. In connection with the expansion of the Leased Premises as set forth in
this Second Amendment, Landlord agrees to pay to Xxxxx & Xxxxx Company (the
"Tenant's Broker") a real estate brokerage commission as set forth in a separate
listing agreement between Landlord and Tenant's Broker. Landlord and Tenant
hereby represent and warrant each to the other that they have not employed any
IN WITNESS WHEREOF, this Second Amendment may be executed by the parties
hereto on separate multiple counterparts, each of which shall be deemed to be an
original, executed to be effective as of the 26th day of April, 1994.
"Landlord"
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
a national banking association
By:__________________________________
Name:________________________________
Title:_______________________________
"Tenant"
XXXXXX XXXX & XXXXXXXX, INC.,
a Texas corporation
By:__________________________________
Name:________________________________
Title:_______________________________
18
THIRD AMENDMENT TO SUBLEASE AGREEMENT
This Third Amendment to Sublease Agreement (this "Third Amendment") is
entered into by and between TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("Landlord") and XXXXXX XXXX & XXXXXXXX, INC., a Texas
corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Sublease Agreement
dated January 19,1994 (the "Original Sublease"), covering approximately 10,798
square feet of net rentable area (the "Initial Leased Premises") on the third
(3rd) floor of the building located at 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx (the "Building"); and
WHEREAS, Landlord and Tenant expanded the Initial Leased Premises to
include an additional 200 square feet of net rentable area pursuant to that
certain First Amendment to Sublease Agreement (the "First Amendment") dated
effective as of February 23, 1994, executed by and between Landlord and Tenant;
and
WHEREAS, Landlord and Tenant further expanded the Initial Leased Premises
to include an additional 2,497 square feet of net rentable area pursuant to that
certain Second Amendment to Sublease Agreement (the "Second Amendment") dated
effective as of April 26, 1994, executed by and between Landlord and Tenant (the
Original Sublease, as amended by the First Amendment and the Second Amendment,
is herein referred to as the "Sublease"); and
WHEREAS, Tenant desires to further expand the Initial Leased Premises to
include an additional 8,707 square feet: of net rentable area(the "Expansion
Premises"), which Expansion Premises are more particularly described on Exhibit
B attached hereto and made a part hereof for all, purposes; and
WHEREAS, Landlord and Tenant desire to further amend the Sublease to
include the Expansion Premises in accordance with the terms and conditions set
forth below;
NOW, THEREFORE, for and in consideration of the duties, covenants and
obligations of each to the other hereunder, the Leased Premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
confessed and acknowledged, Landlord and Tenant hereby agree to amend, and do
hereby amend, the Sublease as follows (all terms defined in the Sublease shall,
when used herein, have the same meanings as set forth in the Sublease unless
otherwise defined herein):
19
1. Section 2.02 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
"2.02 Subject to and upon the terms and conditions set forth herein,
Landlord hereby subleases to Tenant, and Tenant hereby subleases from
Landlord for the term herein set forth, all of Landlord's right, title and
interest in and to the use and occupancy of approximately 13,495 square
feet of Net Rentable Area out of the Prime Lease Space, as shown outlined
on Exhibit B attached hereto and made a part hereof (herein called the
"Initial Leased Premises"). Landlord and Tenant hereby stipulate and agree
that the Net Rentable Area of the Leased Premises is 13,495 square feet
and the Net Rentable Area of the Building is 450,508 quare feet,
notwithstanding any minor variations in measurement or other minor
variations that may have been incurred in the calculation thereof. The
"Leased Premises" as such term is used herein shall include the Initial
Leased Premises and, effective as of their respective commencement dates,
the First Expansion Premises, the Second Expansion Premises and the Third
Expansion Premises.
Effective as of February 1,1995 (the "First Expansion Commencement
Date"), the Leased Premises shall be expanded to include an additional
3,045 square feet of Net Rentable Area out of the Prime Lease Space, as
shown outlined on Exhibit B attached hereto and made a part hereof (herein
called the "First Expansion Premises") and the defined term "Leased
Premises" shall be deemed to include the Initial Leased Premises and the
First Expansion Premises. Landlord and Tenant hereby stipulate and agree
that effective as of the First Expansion Commencement Date, the Net
Rentable Area of the Leased Premises shall be 16,540 square feet,
notwithstanding any minor variations in measurement or other minor
variations that may have been incurred in the calculation thereof.
Effective as of August 1,1995 (the "Second Expansion Commencement
Date"), the Leased Premises shall be expanded to include an additional
3,035 square feet of Net Rentable Area out of the Prime Lease Space, as
shown outlined on Exhibit B attached hereto and made a part hereof (herein
called the "Second Expansion Premises") and the defined term "Leased
Premises" shall be deemed to include the Initial Leased Premises, the
First Expansion Premises and the Second Expansion Premises. Landlord and
Tenant hereby stipulate and agree that effective as of the Second
Expansion Commencement Date, the Net Rentable Area of the Leased Premises
shall be 19,575 square feet, notwithstanding any minor variations in
measurement or other minor variations that may have been incurred in the
calculation thereof.
Effective as of January 1,1996 (the "Third Expansion Commencement
Date"), the Leased Premises shall be expanded to include an additional
2,627 square feet of Net Rentable Area out of the Prime Lease Space, as
shown
20
outlined on Exhibit B attached hereto and made a part hereof (herein
called the "Third Expansion Premises") and the defined term "Leased
Premises" shall be deemed to include the Initial Leased Premises, the
first Expansion Premises, the Second Expansion Premises and the Third
Expansion Premises. Landlord and Tenant hereby stipulate and agree that
effective as of the Third Expansion Commencement Date, the Net Rentable
Area of the Leased Premises shall be 22,202 square feet, notwithstanding
any minor variations in measurement or other minor variations that may
have been incurred in the calculation thereof The term "Expansion
Premises" as used herein shall mean collectively the First Expansion
Premises, the Second Expansion Premises and the Third Expansion Premises."
2. Section 3.01 of the Sublease is hereby deleted in its entirety and the
following shall be substituted in its place:
"The initial term of this Sublease (the "Term") shall commence on
February 14, 1994 (the "Commencement Date"), and unless sooner terminated
under any other terms and provisions hereof or under the Prime Lease,
shall terminate on March 14, 1999."
3. The first sentence of Section 4.01 of the Sublease is hereby deleted in
its entirety and the following shall be substituted in its place:
"Tenant hereby agrees to pay an annual base rental (the "Base Rent")
as follows:
(a) from the Commencement Date through April 30, 1994, monthly
installments equal to Four Thousand Eight Hundred Eleven and
63/100 Dollars ($4,811.63) each;
(b) from May 1, 1994 through May 31, 1994, a monthly installment
equal to Ten Thousand Eight Hundred Forty-Nine and 97/100
Dollars ($10,849.97) each;
(c) from June 1, 1994 through January 31, 1995, monthly
installments equal to Eleven Thousand Eight Hundred Sixty and
15/100 Dollars ($11,860.15) each;
(d) from February 1, 1995 through July 31, 1995, monthly
installments equal to Fourteen Thousand One Hundred Forty-
Three and 90/100 Dollars ($14,143.90) each;
(e) from August 1, 1995 through December 31, 1995, monthly
installments equal to Sixteen Thousand Four Hundred Twenty and
15/100 Dollars ($16,420.15) each; and
21
(f) from January 1, 1996 through March 14, 1999, monthly
installments equal to Eighteen Thousand Three Hundred Ninety
and 40/100 Dollars ($18,390.40) each."
4. Section 4.03(a) of the Sublease is hereby deleted in its entirety and
the following shall be substituted in its place:
"Beginning with the calendar year 1995 and continuing for each year
during the remainder of the Term thereafter, Tenant shall reimburse
Landlord for Tenant's Share of the amount, if any, by which the Actual
Operating Expenses for each such year, after any adjustment thereof
pursuant to Section 7 of the Prime Lease and this Section 4.03, exceeds
the amount of the Actual Operating Expenses for the Base Year (as
hereinafter defined) applicable to each portion of the Leased Premises,
after any adjustment thereof pursuant to Section 7 of the Prime Lease and
this Section 4.03, as provided for in this Article IV. The"Base Year" as
used herein shall mean the calendar year 1994 with respect to the Initial
Leased Premises and calendar year 1995 with respect to the Expansion
Premises."
5. Article VIII of the Sublease is hereby deleted in its entirety.
6. The second sentence of Section 10.09 of the Sublease is hereby deleted
in its entirety and the following shall be substituted in its place:
"Tenant acknowledges that the existing leasehold improvements located on
the third (3rd) floor of the Building were constructed in contemplation of
the entire floor being occupied by a single tenant. Tenant agrees to
occupy only the approximately 13,495 square feet of Net Rentable Area as
indicated by the cross-hatched area on the attached Exhibit B. If Tenant
occupies any portion of the First Expansion Premises, the Second Expansion
Premises or the Third Expansion Premises prior to the respective
commencement dates for each such space, then Tenant shall pay base rental
and additional rent from the Commencement Date through the date of such
use equal to an annual "gross" base rental rate of Fifteen and No/100
Dollars ($15.00) per square foot of Net Rentable Area actually used by
Tenant. Failure of Landlord to terminate Tenant's occupancy of such
additional space upon notice thereof to Landlord, or delay in taking any
action in connection therewith, shall not waive any of Landlord's rights
with respect to the termination of such occupancy or with respect to the
collection of rent as a result of such occupancy."
7. Exhibit B and Exhibit C, previously attached to the Sublease, is hereby
replaced with Exhibit B and Exhibit C attached to this Third Amendment,
8. By its execution of this Third Amendment, Tenant acknowledges and
agrees that all leasehold improvements and tenant finish in the Expansion
Premises are
22
in good and satisfactory condition acceptable to Tenant and Tenant hereby agrees
to accept the Expansion Premises in their present condition, i.e. "AS IS" and
"WITH ALL FAULTS".
9. In connection with the expansion of the Leased Premises as set forth in
this Third Amendment, Landlord agrees to pay to Trione & Xxxxxx ("Landlord's
Broker") a real estate brokerage commission as set forth in a separate listing
agreement between Landlord and Landlord's Broker and Landlord agrees to pay to
The Staubach Company (the "Tenant's Broker") a real estate brokerage commission
as set forth in a separate commission agreement between Landlord and Tenant's
Broker. Landlord and Tenant hereby represent and warrant each to the other that
they have not employed any other agents, brokers or other such parties in
connection with the expansion of the Leased Premises as set forth in this Third
Amendment. Landlord and Tenant each agree that they shall hold the other
harmless from and against any and all claims of all other agents, brokers or
other such parties claiming by, through or under the respective indemnifying
party.
10. Except as expressly provided herein, the Leased Premises shall be
governed by the same terms and conditions as set forth in the Sublease. The
Sublease as hereby amended is hereby ratified and affirmed and, except as
expressly amended hereby, all other items and provisions of the Sublease remain
unchanged and continue to be in full force and effect. The terms of this Third
Amendment shall control over any conflicts between the terms of the Sublease and
the terms of this Third Amendment.
11. The Sublease, as amended by this Third Amendment, constitutes the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and all prior agreements, proposals, negotiations,
understandings and correspondence between the parties in this regard, whether
written or oral, are hereby superseded and merged herewith.
IN WITNESS WHEREOF, this Third Amendment may be executed by the parties
hereto on separate multiple counterparts, each of which shall be deemed to be an
original, executed to be effective as of the 19th day of January, 1995.
"Landlord"
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
a national banking association
By:__________________________________
Name:________________________________
Title:_______________________________
23
"Tenant"
XXXXXX XXXX & XXXXXXXX, INC.,
a Texas corporation
By:__________________________________
Name:________________________________
Title:_______________________________
24
