EXHIBIT 10.18
LEASE AGREEMENT
Between
AETNA LIFE INSURANCE COMPANY,
as Landlord,
and
LUMINEX CORPORATION,
as Tenant,
Covering approximately 98,158 gross square feet
of the Buildings known (or to be known) as
XxXxxx 3, XxXxxx 4, and XxXxxx 5
located at
12109-12201, 12212, and 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx, 00000
STANDARD INDUSTRIAL LEASE AGREEMENT
XXXXXXXX XXXX COMPANY - (AUS/91)
Approximately 98,158 gross square feet
Xxxxxx, Xxxxx 00000
(__________________)
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into by and between
Aetna Life Insurance Company, by UBS Realty Investors LLC, its investment
advisor and agent, hereinafter referred to as "Landlord," and Luminex
Corporation, hereinafter referred to as "Tenant."
1. PREMISES, TERM, AND TENANT IMPROVEMENTS.
A. Premises.
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i. Tenant is currently leasing from Landlord approximately 51,189 square
feet located in three buildings, with differing termination dates, as follows:
(a) 18,330 square feet in XxXxxx 0, Xxxxx 000 (the "Current XxXxxx 3 Premises")
terminating on May 31, 2003; (b) 12,737 square feet in XxXxxx 4, Suites I, J and
K (the "Current XxXxxx 4 Premises") terminating on March 31, 2002; and (c)
20,122 square feet in XxXxxx 0, Xxxxx 000 (the "Current XxXxxx 5 Premises")
terminating on March 31, 2002, all of which current premises are sometimes
referred to collectively herein as the "Current Premises". In consideration of
the mutual obligations of Landlord and Tenant set forth herein, and in
conjunction with the simultaneous termination of the existing lease for the
Current Premises and its replacement herewith, Landlord leases to Tenant, and
Tenant hereby leases from Landlord, the Current Premises, as the Current
Premises are more particularly described or depicted on Exhibit "A" attached
hereto and incorporated herein by reference, to have and to hold, subject to the
terms, covenants and conditions in this Lease.
ii. Pursuant to Exhibit "B" (Expansion Space) attached hereto and
incorporated herein by reference, Tenant will lease from Landlord, and Landlord
will lease to Tenant, additional premises as expansion space as follows: (a)
22,713 square feet in XxXxxx 4 (the "XxXxxx 4 Expansion Space"); and (b) 24,256
square feet in XxXxxx 5 (the "XxXxxx 5 Expansion Space"), all of which
additional premises are sometimes referred to collectively herein as the
"Expansion Space"), and all of which Expansion Space is more particularly
described or depicted on Exhibit "A" attached hereto and incorporated herein by
reference.
iii. Unless otherwise indicated by the reference, all references herein
to the "Premises" shall mean all of the Current Premises and the Expansion Space
in the aggregate. The Premises, as more particularly described elsewhere herein,
are in buildings known as XxXxxx 3, located at 12109-12201 Technology Boulevard,
XxXxxx 4, located at 00000 Xxxxxxxxxx Xxxxxxxxx, and XxXxxx 5, located at 00000
Xxxxxxxxxx Xxxxxxxxx, all in Xxxxxx, Xxxxxx County, Texas.
iv. Landlord represents to Tenant that the Current Premises and the
Land (hereinafter defined) do not presently violate in any material respects or
give rise to liability under applicable laws or restrictive covenants or
encumbrances relating to the Current Premises, and that on the applicable
Commencement Date, the Expansion Space and the use thereof contemplated by this
Lease will comply in all material respects with and not give rise to liability
under applicable laws and any such restrictive covenants or encumbrances. Within
thirty (30) days following the date hereof, Landlord shall (a) inspect and treat
the Current Premises for termites (if necessary), and (b) survey the Current
Premises for asbestos in accordance with City of Austin Ordinance No. 01329-49.
B. Term.
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i. The Commencement Date for the Current Premises shall be the date
hereof. The Commencement Date (a) for the XxXxxx 4 Expansion Space is
anticipated to be November 1, 2002 (subject to adjustment pursuant to Exhibit B
attached hereto), provided Landlord shall use reasonable efforts to make such
XxXxxx 4 Expansion Space available to Tenant prior to such date, and (b) for the
XxXxxx 5 Expansion Space is anticipated to be October 1, 2002 (subject to
adjustment pursuant to Exhibit B attached hereto). Unless otherwise
specifically indicated in the reference, all references herein to the
"Commencement Date" shall apply to each portion of the Premises, and the
parties' rights and obligations in connection therewith, according to the
particular commencement date applicable to each such portion of the Premises.
Except as may expressly be provided otherwise in this Lease, including any
exhibit hereto, regarding "Tenant Improvements" (as defined below), Tenant
acknowledges that as of the Commencement Date (I) it has inspected and accepts
the Premises in their "as is" condition, (II) the buildings and improvements
comprising the same are suitable for the purpose for which the Premises are
leased, (III) the Premises are in good and satisfactory condition, and (IV) no
representations as to the repair of the Premises nor promises to alter, remodel
or improve the Premises have been made by Landlord.
ii. The term of this Lease shall end on July 31, 2010 for all of the
Premises, unless renewed and extended, or otherwise amended, as hereinafter
provided for. The "Term" of this Lease means the period between the
Commencement Date and the termination date hereof, and includes any Renewal Term
(as defined in Exhibit "C" attached hereto).
C. Project. For purposes of this Lease, the "Project" consists of all of
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the three buildings known as XxXxxx 3, XxXxxx 4, and XxXxxx 5 (which buildings
are sometimes referred to herein as a "Building" or the "Buildings") and the
Land (the "Land") owned by Landlord on which the Buildings and related parking
areas and other improvements and appurtenances are located. Landlord and Tenant
stipulate that, as of the date of this Lease, the total size of the Buildings is
148,228 square feet. Landlord and Tenant further stipulate that, as of any date
during the Term, Tenant's "Proportionate Share" is the relationship (described
as a percentage) of the square footage of the Premises then available to Tenant
pursuant to this Lease to the total square footage of the Buildings, where the
total square footage of the Buildings represents 100%. The Proportionate Share
shall be adjusted as the size of the Premises changes.
D. Tenant Improvements. Tenant shall construct in the Premises the
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improvements (the "Tenant Improvements") described on the plans and
specifications referenced on Exhibit "C" attached hereto and incorporated herein
by reference. By occupying the Premises, Tenant shall have accepted the Premises
in their "as is" condition.
2. BASE RENT, SECURITY DEPOSIT AND TENANT COSTS.
A. Base Rent. Base rent for the component areas within the Premises will be
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as separately stated below through April 30, 2005, and as of May 1, 2005, the
base rent for all of the Premises will be uniform, all as set forth below.
Tenant agrees to pay Landlord rent for the Premises, in advance, without demand,
deduction or set off, at the following rates:
For the Current XxXxxx 3 Premises (18,330 square feet)
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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Date hereof - October 31, 2001 $0.80 Already Paid
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November 1, 2001 - November 30, 2001 $0.00 $ 0.00
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December 1, 2001 - June 30, 2003 $0.80 $14,664.00
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July 1, 2003 - April 30, 2005 $0.85 $15,580.50
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For the Current XxXxxx 4 Premises (12,737 square feet)
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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Date hereof - October 31, 2001 $0.75 Already Paid
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November 1, 2001 - November 30, 2001 $0.00 $ 0.00
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December 1, 2001 - April 30, 2002 $0.80 $10,189.60
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May 1, 2002 - April 30, 2005 $0.85 $10,826.45
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For the XxXxxx 4 Expansion Space (22,713 square feet)
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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November 1, 2002 -November 30, 2002 $0.00 $ 0.00
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December 1, 2002 - April 30, 2005 $0.85 19,306.05
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For the Current XxXxxx 5 Premises (20,122 square feet)
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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Date hereof - October 31, 2001 $0.75 Already Paid
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November 1, 2001 - November 30, 2001 $0.00 $ 0.00
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December 1, 2001 - April 30, 2002 $0.75 $15,091.50
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May 1, 2002 - April 30, 2005 $0.85 $17,103.70
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For the XxXxxx 5 Expansion Space (24,256 square feet)
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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October 1, 2002 - October 31, 2002 $0.00 $ 0.00
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November 1, 2002 -April 30, 2005 $0.85 $20,617.60
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For all of the Premises beginning May 1, 2005
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Months Base Rental Rate PSF/Mo. Total Monthly Rent
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May 1, 2005 - April 30, 2007 $0.89 $87,360.62
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May 1, 2007 - April 30, 2009 $0.92 $90,305.36
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May 1, 2009 - July 31, 2010 $0.96 $94,231.68
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per month during the Term. One monthly installment of base rent, plus the other
monthly charges set forth in Xxxxxxxxx 0X xxxxx, shall be due and payable on the
Commencement Date, and a like monthly installment shall be due and payable,
according to the rent schedule above, on or before the first day of each
calendar month succeeding the Commencement Date, except that all payments due
hereunder for any fractional calendar month shall be prorated. Tenant shall
combine its payments of rent hereunder for each of the component areas of the
Premises into one monthly payment.
B. Security Deposit. In addition, Tenant agrees to deposit with Landlord on
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or before the date hereof a sum equal to $115,000 (the "Security Deposit").
Tenant's obligation to provide the Security Deposit may be satisfied by
depositing with Landlord an irrevocable stand-by letter of credit in the amount
of the Security Deposit, which shall be held and/or applied by Landlord, and
restored by Tenant, in accordance with this Section 2.B. The Security Deposit
shall be held by Landlord, without obligation for interest, as security for the
performance of Tenant's obligations under this Lease, it being expressly
understood and agreed that the Security Deposit is not an advance rental deposit
or a measure of Landlord's damages in case of Tenant's default. Upon occurrence
of an Event of Default, Landlord may use all or part of the Security Deposit to
pay past due rent or other payments due Landlord under this Lease or the cost of
any other damage, injury, expense or liability caused by such Event of Default,
without prejudice to any other remedy provided herein or provided by law. On
demand, Tenant shall pay Landlord the amount that will restore the Security
Deposit to the amount required hereunder. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant within a reasonable
period after the expiration of the Term and upon Tenant's vacation of all of the
Premises. In the event any Building is sold, the Security Deposit will be
transferred to the new owner.
C. Tenant Costs. Without limiting in any way Tenant's other obligations
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under this Lease, Tenant agrees to pay to Landlord its Proportionate Share of
(i) Taxes (hereinafter defined) payable by Landlord pursuant to Paragraph 3A
below, and the cost of any tax consultant to assist Landlord in determining the
fair tax valuation of the Project, (ii) the cost of common area utilities
payable by Landlord pursuant to Xxxxxxxxx 0 xxxxx, (xxx) Landlord's cost of
maintaining any insurance or insurance related expense applicable to the Project
and Landlord's personal property used in connection therewith including, but not
limited to, insurance pursuant to Paragraph 9A below, and (iv) Landlord's cost
of maintaining the Project, which include, but are not limited to (except to the
extent certain charges are specifically limited in this paragraph), (a)
maintenance and repairs, (b) landscaping, (c) common area utilities, (d) water
and sewer, (e) management fees, (f) exterior painting, (g) parking lot
maintenance and repairs, and (h) beginning one year following the applicable
Commencement Date, 1/15th (per annum) of the cost of new HVAC units for the
Premises replaced pursuant to Section 5C hereof (collectively, the "Tenant
Costs"), provided that expenses related to the repair and maintenance of Utility
Infrastructure (as defined in Section 4 hereof), the roof, foundation, and load-
bearing walls of any of the Buildings shall not be Tenant Costs, unless such
repair is required by, or such maintenance is made costlier by, any negligent or
intentional actions or omissions of Tenant with respect to such Utility
Infrastructure, roofs, foundations, or load-bearing walls. Notwithstanding the
foregoing, during the Term, the amount of the management fee chargeable to
Tenant as Tenant's Proportionate Share of such Tenant Cost during any calendar
year shall not exceed four percent (4%) of the annual Base Rent due from Tenant
to Landlord hereunder for that same calendar year. For purposes of this Lease,
the parties agree that (1) Taxes, utilities, and insurance as described in
Paragraph 2C(i)-(iii) above are Tenant Costs that are beyond Landlord's control,
(2) all other Tenant Costs are within Landlord's control (the "Controllable
Costs"), (3) the total amount of Controllable Costs for calendar year 2001 shall
be the "Base Line" hereunder, and (4) the total amount of Controllable Costs for
any given calendar year during the Term may not exceed the Base Line increased
by five percent (5%) per year cumulatively through the calendar year in
question. Notwithstanding the foregoing, Tenant Costs shall not include the
following expenses: (a) any costs for interest, amortization, or other payments
on loans to Landlord; (b) expenses incurred in leasing or procuring tenants, (c)
legal expenses other than those incurred for the general benefit of the
Building's tenants, (d) allowances, concessions, and other costs of renovating
or otherwise improving space for occupants of the Building or vacant space in
the Building, (e) rents under ground leases, (f) costs incurred in selling,
syndicating, financing, mortgaging, or hypothecating any of Landlord's interests
in the Building, (g) costs paid by insurance or paid or reimbursed by other
parties, (h) expenditures which should be capitalized according to consistently
applied generally accepted accounting principles, (i) costs resulting from any
breach or claimed breach by Landlord of its contractual obligations to other
parties, and (j) costs of correcting violations of or discharging liabilities
under applicable laws on the Project (unless and except to the extent the acts
or omissions of Tenant or Tenant's employees, agents, or invitees [excluding
acts or omissions of Landlord required under this Lease or applicable law in
order to avoid such violation or liability] constitute such violation or give
rise to such liability), or because of construction defects or deficiencies
affecting the
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Building or Project (provided, however, the cost of any alteration
made to the Building or Project because of a change in law that becomes
effective after the Commencement Date may be capitalized and Landlord's cost of
operation and maintenance of the Project may include a factor each year equal to
the amount necessary to amortize such capitalized alteration over their useful
lives on a straight-line basis). During each month of the Term, on the same day
that rent is due hereunder, Tenant shall deposit in escrow with Landlord an
amount equal to one-twelfth (1/12) of the estimated amount of Tenant's
Proportionate Share of the Tenant Costs. Tenant authorizes Landlord to use the
funds deposited with Landlord under this Xxxxxxxxx 0X to pay such Tenant Costs.
The initial monthly escrow payments are based upon the estimated amounts for the
year in question and shall be increased or decreased in good faith annually to
reflect the projected actual amount of all Tenant Costs. If the Tenant's total
escrow deposits for any calendar year are less than Tenant's actual
Proportionate Share of the Tenant Costs for such calendar year, Tenant shall pay
the difference to Landlord within ten (10) days after demand. If the total
escrow deposits of Tenant for any calendar year are more than Tenant's actual
Proportionate Share of the Tenant Costs for such calendar year, Landlord shall
retain such excess and credit it against Tenant's escrow deposits next maturing
after such determination.
D. Audit. Landlord shall keep good and accurate books and records in
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accordance with sound accounting principles consistently applied concerning the
Tenant Costs, and Tenant shall have the right, upon 10 days' prior written
notice, to inspect and copy such books and records. Tenant shall not have the
right to conduct any such inspection more frequently than once annually or for
periods prior to the immediately preceding calendar year (other than the Base
Line year). If such audit reveals that the amount charged to Tenant was
incorrect, Landlord and Tenant shall make an appropriate adjustment in cash
within thirty days after the completion of the audit. If such audit reveals
that Tenant was overcharged for such Tenant Costs by more than five percent over
the actual amount due and owing by Tenant, Landlord will reimburse Tenant for
the cost of such audit. Within one hundred fifty (150) days after the end of
each calendar year during the Term and following the expiration of the Term,
Landlord shall provide Tenant with a reasonably detailed accounting of the
Tenant Costs for that calendar year or partial calendar year in the case of the
expiration of the Term, provided that Landlord shall endeavor to provide such
accounting within ninety (90) days after the end of such calendar year or
partial calendar year.
3. TAXES
A. Real Property Taxes. Without negating Tenant's obligation hereunder to
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pay Tenant Costs, Landlord agrees to pay all taxes, assessments and governmental
charges of any kind and nature (collectively referred to herein as "Taxes") that
accrue against the Project. The term "Taxes" shall not include (a) penalties or
fines levied upon Landlord as a result of late payment of the Taxes (unless such
penalties or fines result from the failure of Tenant to timely pay Tenant
Costs), and (b) any franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon rents from the Project.
B. Personal Property Taxes. Tenant shall be liable for all taxes levied or
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assessed against any personal property or Tenant's fixtures placed in or on the
Premises. If any such taxes are levied or assessed against Landlord or
Landlord's property and (i) Landlord pays the same or (ii) the assessed value of
Landlord's property is increased by inclusion of such personal property and
Tenant's fixtures and Landlord pays the increased taxes, then Tenant shall pay
to Landlord, upon demand, the amount of such taxes.
4. LANDLORD'S REPAIRS AND MAINTENANCE.
A. Repairs. Landlord, at its own cost and expense, shall maintain the
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common areas and common area improvements of the Project (and, to the extent
necessary to comply with Environmental Laws, the Land), all utility
infrastructure from (i) the point of connection to the lines of the applicable
utility provider to (ii) the connection point to the Premises (the "Utility
Infrastructure"), the foundation, the roof, and the structural soundness of the
exterior and load-bearing walls of the Building in good condition and repair,
reasonable wear and tear excluded, and in accordance with and discharging
obligations (other than obligations of Tenant under this Lease) under applicable
law, provided, however, that Tenant acknowledges and agrees that notwithstanding
the foregoing, Landlord's costs for common area maintenance and roof maintenance
are among the costs described in Paragraph 2C that are paid in part by Tenant as
Tenant Costs, and further provided that nothing in this Paragraph 4.A. shall
relieve Tenant of any of its repair or maintenance obligations as set forth in
this Lease. The term "walls" as used herein shall not include windows, glass or
plate glass, any doors, special store fronts or office entries, and the term
"foundation" as used herein shall not include loading docks. The term "roof"
shall not include any devices or equipment installed or otherwise located on the
roof by or for the benefit of Tenant or any other tenant of the Project, and no
such device or equipment may be so located without the prior written consent of
Landlord, to be given or withheld in its reasonable discretion. Tenant shall
immediately give Landlord written notice of defect or need for repairs, after
which Landlord shall have reasonable opportunity to effect such repairs or cure
such defect. If Landlord fails to perform its obligations under this section and
Landlord does not begin to cure such failure within 30 days after Tenant
delivers to Landlord written notice thereof (or within a reasonable period of
time after notification in the event of an emergency) and thereafter diligently
pursue the cure thereof to completion (even if such cure period extends beyond
30 days), then Tenant may, after giving such 30-day written notice thereof (or
such shorter written notice, or if necessary oral notice, as is reasonable under
the circumstances in the event of an emergency) to Landlord, perform Landlord's
unperformed obligations. If Tenant shall so perform Landlord's obligations, then
Landlord shall reimburse Tenant for the reasonable cost thereof, within 15 days
after Tenant delivers to Landlord a written request therefor, together with such
supporting documentation as Landlord may reasonably request.
5. TENANT'S REPAIRS.
A. Maintenance of Premises and Appurtenances. Tenant, at its own cost and
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expense, shall (i) maintain all parts of the interior of the Premises and
promptly make all necessary repairs and replacements to the interior of the
Premises (except those for which Landlord is expressly responsible hereunder),
and (ii) keep the Premises, parking areas, driveways, alleyways and areas
surrounding the loading docks free of Tenant's trash, debris and inventory,
including but not limited to pallets, barrels, and equipment from tenant use.
If in thirty (30) days from receipt of a written request therefor, Tenant has
not performed its maintenance duties as described in this paragraph, then
Landlord may perform such duties, and Tenant shall reimburse Landlord within
thirty (30) days of Landlord's presentation to Tenant of a xxxx for the
reasonable costs of performing such duties for Tenant. Tenant's obligation to
maintain, repair and make replacements to the Premises shall cover, but not be
limited to (except as otherwise provided herein), pest control (including
termites), trash removal and the maintenance, repair and replacement of all
HVAC, electrical, plumbing, sprinkler and other mechanical systems.
B. Parking. Tenant and its employees, customers and licensees shall have
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the right to use, as of the applicable Commencement Date, (i) with respect to
the Current XxXxxx 3 Premises, any other space leased by Tenant in XxXxxx 3 and
the XxXxxx 4 Expansion Space, 3.13 parking spaces in the Project per 1,000 feet
of space, and (ii) with respect to the Current XxXxxx 5 Premises and the XxXxxx
5 Expansion Space, 2.68 parking spaces in the Project per 1,000 feet of space,
subject to (i) all rules and regulations promulgated by Landlord which are
delivered to Tenant and are in accordance with the terms of this Lease, uniform
as to all tenants in the Project and consistently enforced, and (ii) rights of
ingress and egress of other tenants. Landlord shall not be responsible for
enforcing Tenant's parking rights against any third parties, and Tenant
expressly does not have the right to tow or obstruct improperly parked vehicles.
Tenant agrees not to park on any public streets or private roadways adjacent to
or in the vicinity of the Project, unless permitted by applicable law.
C. System Maintenance. Prior to Tenant's permitted entry into a portion of
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the Premises to construct the Tenant Improvements, Landlord shall deliver to
Tenant a report regarding the HVAC equipment with respect to such Premises.
Landlord shall service and repair (if necessary) the HVAC equipment utilizing a
licensed HVAC technician to ensure such HVAC equipment is in good working order
on the applicable Commencement Date and the date of Tenant's entry into the
Premises to construct its Tenant Improvements pursuant to the terms hereof, and
shall provide a warranty (i.e. repair and replace as necessary at no cost to
Tenant) on the HVAC equipment of each Building for one (1) year from the
applicable Commencement Date. Following the expiration of Landlord's warranty,
in the event a mutually acceptable licensed HVAC technician advises Tenant that
an HVAC unit serving the Premises is in need of replacement, upon the written
election of Tenant to Landlord, Landlord shall replace such HVAC unit within ten
(10) days of its receipt of such written election (the cost of which replacement
is a Tenant Cost pursuant to Xxxxxxxxx 0X hereof). Tenant, at its own cost and
expense, shall enter into a regularly scheduled preventive maintenance/service
contract with a maintenance contractor approved by Landlord for servicing all
hot water, heating and air conditioning systems and equipment within the
Premises. The service contract must include the replacement of filters on a
regular basis and all services suggested by the equipment manufacturer in its
operations/maintenance manual and must become effective within thirty (30) days
of the date Tenant takes possession of the Premises.
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D. Option to Maintain Premises. If an Event of Default occurs and is
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continuing, Landlord reserves the right to perform, in whole or in part and
without notice to Tenant, Tenant's obligations under this Paragraph 5, in which
event, Tenant shall be liable for its Proportionate Share of the reasonable cost
and expense of such repair, replacement, maintenance and other such items.
6. ALTERATIONS. Except as otherwise specifically provided in this Lease and
minor cosmetic changes to the interior of the Premises, Tenant shall not make
any alterations, additions or improvements to the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Landlord shall not be required to notify Tenant of
whether it consents to any alteration, addition or improvement until it (a) has
received plans and specifications in a CAD disk format (or other format which is
the industry standard at the time of the alteration) therefor which are
sufficiently detailed to allow construction of the work depicted thereon to be
performed in a good and workmanlike manner, and (b) has had a period of five
business days to review them. Landlord's approval of any plans and
specifications shall not be a representation that the plans or the work depicted
thereon will comply with law or be adequate for any purpose, but shall merely be
Landlord's consent to performance of the work. Upon completion of any material
alteration, addition, or improvement, Tenant shall deliver to Landlord accurate,
reproducible as-built plans therefor in a CAD disk format (or other format which
is the industry standard at the time of the alteration); provided that Tenant is
not required to provide such plans in a CAD disk format (or other format which
is the industry standard at the time of the alteration) for alterations,
addition, or improvements that cost less than $10,000.00 in the aggregate to
construct; provided further, however, that in any event, and regardless of cost,
if the alteration, addition or improvement will affect the Building's structure,
HVAC system, or mechanical, electrical, or plumbing systems, then the plans and
specifications therefor must be prepared by a licensed engineer reasonably
acceptable to Landlord and provided to Landlord in a CAD disk format (or other
format which is the industry standard at the time of the alteration). Tenant
may erect shelves, bins, machinery and trade fixtures provided that such items
(1) do not alter the basic character of the Premises or the Building; (2) do not
overload or damage the same; and (3) may be removed without damage to the
Premises. Unless Landlord specifies in writing otherwise, all alterations,
additions, and improvements, but not Tenant's trade fixtures, shall be
Landlord's property when installed in the Premises. All shelves, bins,
machinery and trade fixtures installed by Tenant shall be removed on or before
the earlier to occur of the day of termination or expiration of this Lease or
vacating the Premises, at which time Tenant shall restore the Premises to their
original condition, reasonable wear and tear excepted. All work performed by
Tenant in the Premises (including that relating to the installations, repair
replacement, or removal of any item) shall be performed in accordance with all
applicable governmental laws, ordinances, regulations, and with Landlord's
reasonable specifications and requirements, in a good and workmanlike manner,
and so as not to damage or alter the Building's structure or the Premises.
Tenant shall be responsible for compliance with The Americans With Disabilities
Act of 1990 (as amended, the "Act") as the Act effects the Premises, including
the entrance doors to the Premises located in exterior walls of a Building which
are modified by Tenant in connection with its renovation of the Premises or the
outside of a Building; Landlord shall be responsible for compliance with the Act
as it effects the Project and are not the responsibility of Tenant as provided
in this sentence. Notwithstanding the foregoing, Landlord shall bear all
expenses of altering the applicable portion of the Expansion Space to comply
with the Act as of the applicable Commencement Date based on the density ratios
of comparable space in the Current Premises.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval (which approval shall not be unreasonably withheld),
and shall be submitted to Landlord prior to Tenant's installation of such
signage. Tenant shall repair, paint, and/or replace the Building fascia surface
to which its signs are attached upon Tenant's vacating the Premises or the
removal or alteration of its signage. Tenant shall not, without Landlord's
prior written consent (which consent shall not be unreasonably withheld), (i)
make any changes to the exterior of the Premises, such as painting; (ii) install
any exterior lights, decorations, balloons, flags, pennants or banners; or (iii)
erect or install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises. All signs, decorations, advertising media, blinds, draperies and
other window treatment or bars or other security installations visible from
outside the Premises shall conform in all respects to the criteria established
by Landlord or shall be otherwise subject to Landlord's prior written consent,
which consent shall not be unreasonably withheld. Provided that Landlord and
Tenant must first mutually agree as to the location and appearance of such
monument signage (such agreement by Landlord not to be unreasonably withheld),
and subject to applicable governmental regulations, Tenant may install up to
three (3) monument signs at the Project at Tenant's sole cost and expense
(including, without limitation, permitting, design, and construction costs).
Tenant shall keep any such monument signs in good maintenance and repair during
the Term, and after the Term such monument sign structures shall be the property
of Landlord, provided that Tenant shall remove its sign panels and/or fascia at
its sole cost and expense prior to expiration of the Term.
8. UTILITIES. Tenant shall pay directly to the utility provider all
electricity and telephone charges used at the Premises, together with any taxes,
penalties, surcharges, maintenance charges (except to the extent Landlord is
obligated to maintain the Utility Infrastructure), and the like pertaining
thereto. Tenant shall obtain telephone and computer line service to the
Premises. Except for electricity and telephone service, Tenant's use of all
utilities shall be part of Tenant's Costs; provided, however, if Tenant's use of
any utility exceeds building-standard service, Landlord may, at Tenant's
expense, separately meter and xxxx Tenant as a portion of Tenant's Costs (but at
the full cost, not Tenant's Proportionate Share thereof) directly for its use of
any such utility service, in which case, the amount separately billed to Tenant
for above building-standard utility service shall not be duplicated in Tenant's
obligation to pay additional rent under Paragraph 2C. If Landlord fails to
maintain the Utility Infrastructure as provided in Paragraph 4A such that
Tenant's business in the Premises is materially and adversely affected (for
purposes of this Section 8, "Landlord's Utility Failure"), Tenant shall notify
Landlord of Landlord's Utility Failure. If Landlord's Utility Failure continues
for a period of three (3) consecutive business days following Tenant's notice to
Landlord, then Tenant shall thereafter be entitled to an equitable abatement of
Rent until such failure is cured. If Landlord commences cure of Landlord's
Utility Failure within three (3) business days after Tenant's notice, and
thereafter diligently pursues cure, then beginning with the sixth (6th)
consecutive business day of Landlord's Utility Failure, Tenant shall be entitled
to a day of Rent abatement for that portion of the Premises materially and
adversely affected by Landlord's Utility Failure for each day that such failure
continues. If Landlord does not timely commence cure, and Landlord's Utility
Failure continues for a period of thirty (30) consecutive business days
following Tenant's notice, Tenant may terminate this Lease by delivering written
notice of such termination to Landlord.
9. INSURANCE.
A. Landlord's Insurance. Landlord shall maintain property insurance on an
--------------------
all-risk basis covering the Buildings in an amount not less than the
"replacement cost" thereof. Landlord shall also maintain commercial general
liability insurance (including contractual liability coverage with respect to
Landlord's indemnity obligations set forth herein) on an "occurrence" basis
insuring against liability for bodily injury, personal injury, or loss or damage
to property occurring on, in or about the Project, other than within the
Premises. Such liability policy shall state that it is primary and any
liability insurance carried by Tenant shall be non-contributory. Such insurance
policy or policies shall be in such amounts and with coverage not less than
carried by Tenant for the Premises, as set forth below. The cost of Landlord's
insurance pursuant to this paragraph shall be included within the definition of
"Tenant Costs."
B. Tenant's Insurance. Tenant, at its own expense, shall maintain during
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the Term (a) workers' compensation insurance (with a waiver of subrogation
endorsement reasonably acceptable to Landlord) and commercial general liability
insurance (with contractual liability endorsement), including personal injury
and property damage in the amount of One Million Dollars ($1,000,000.00) per
occurrence combined single limit for personal injuries and death of persons and
property damage occurring in or about the Premises, plus umbrella coverage of at
least Two Million Dollars ($2,000,000.00) per occurrence, and (b) fire and
extended coverage insurance covering (i) the replacement cost of all of Tenant's
furniture, trade fixtures and equipment, and personal property in the Premises,
and (ii) loss of profits in the event of an insured peril damaging the Premises.
Said policies shall (i) name the Landlord and the property manager for the
Project (including, without limitation, UBS Realty Investors LLC) as additional
insureds (and as loss payees on the fire and extended coverage insurance), (ii)
be issued by an insurance company reasonably acceptable to Landlord, (iii)
provide that said insurance may not be canceled unless thirty (30) days' prior
written notice has been given to Landlord, (iv) be delivered to Landlord by
Tenant on or before the earlier of the (1) the date of Tenant's entry into the
Premises to construct the Tenant Improvements, and (2) Commencement Date, and at
least 15 days prior to each renewal of said insurance, and (v) provide primary
coverage to Landlord when any policy issued to Landlord is similar or duplicate
in coverage, in which case Landlord's policy shall be excess over Tenant's
policies.
C. Prohibited Uses. Tenant will not permit the Premises to be used for any
---------------
purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance cost thereof, or (iii) cause the disallowance of any
sprinkler credits (including without limitation, use of the Premises for the
receipt, storage or handling of any product, material or merchandise that is
4
explosive or highly inflammable, except for any such product, material, or
merchandise that is incidental to Tenant's business and reasonably necessary to
be kept in the Premises in the ordinary course of Tenant's business). If any
increase in the cost of any insurance on the Premises or any Building is caused
by Tenant's use of the Premises or because Tenant vacates the Premises, then
Tenant shall pay the amount of such increase to Landlord upon demand therefor.
10. FIRE AND CASUALTY DAMAGE.
A. Total or Substantial Damage and Destruction. If the Premises or the
-------------------------------------------
Building should be damaged or destroyed by fire or other casualty covered by the
insurance required to be provided by Landlord under Paragraph 9A above, Tenant
shall immediately give written notice to Landlord of such damage or destruction.
If the Premises or the Building should be totally destroyed by fire or other
casualty, or if they should be so damaged thereby that, in Landlord's sole but
reasonable estimation to be provided to Tenant not more than thirty (30) days
following the casualty, rebuilding or repairs cannot be completed within two
hundred ten (210) days after the date of such damage, then this Lease shall
terminate, and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
B. Partial Damage or Destruction. If the Premises or the Building should
-----------------------------
be damaged by fire or other casualty and, in Landlord's reasonable estimation to
be provided to Tenant not more than thirty (30) days following the casualty,
rebuilding or repairs can be substantially completed within two hundred ten
(210) days after the date of such damage, then this Lease shall not terminate
and Landlord shall substantially restore the Building and the Premises to their
previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements that may have been constructed, erected or installed in or about
the Premises for the benefit of, by or for Tenant. If the Premises or the
Building should be damaged by fire or other casualty and, in Landlord's
reasonable estimation to be provided to Tenant not more than thirty (30) days
following the casualty, rebuilding or repairs cannot be substantially completed
within two hundred ten (210) days after the date of such damage or, following a
casualty, Landlord commences rebuilding and repairs of the Building or the
Premises but fails to substantially complete same within two hundred ten (210)
days of such damage, then Tenant shall have the right to terminate this Lease
within thirty (30) days of Landlord's notice to Tenant of its estimated
rebuilding or reconstruction time frame or within thirty (30) days following the
expiration of two hundred ten (210) days after the date of such damage in the
event Landlord has not completed rebuilding or repairs by such date.
C. Lienholders' Rights in Proceeds. Notwithstanding anything herein to
-------------------------------
the contrary, in the event the holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made known to Landlord by any such holder,
whereupon all rights and obligations hereunder shall cease and terminate, except
for any indemnities or other obligations that expressly survive the expiration
or earlier termination of this Lease.
D. Abatement of Rent. In the event of a fire or other casualty, Tenant
-----------------
shall be entitled to a fair abatement of rent during the time and to the extent
the Premises are unfit for occupancy.
E. Waiver of Subrogation. Notwithstanding anything in this Lease to the
---------------------
contrary, Landlord and Tenant hereby waive and release each other of and from
any and all rights of recovery, claims, actions or causes of action against each
other, or their respective agents, officers and employees, for any insured loss
or damage (but only to the extent of such insurance) that may occur to the
Project, the Premises, improvements to the Buildings or personal property
(Building contents) within the Building and/or Premises, for any reason
regardless of cause or origin (REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE IS
CAUSED BY THE FAULT, NEGLIGENCE OR OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF
LANDLORD OR TENANT OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
INVITEES), which loss or damage is covered by the insurance policies required to
be carried by such party by the terms of this Lease. Without in any way limiting
the foregoing waivers and to the extent permitted by applicable law, the parties
hereto each, on behalf of their respective insurance companies insuring the
property of either Landlord or Tenant against any such loss, waive any right of
subrogation that Landlord or Tenant or their respective insurers may have
against the other party or their respective officers, directors, employees,
agents or invitees and all rights of their respective insurance companies based
upon an assignment from its insured. Each party to this Lease agrees immediately
after execution of this Lease to give written notice of the terms of the mutual
waivers contained in this subparagraph to each insurance company that has issued
to such party policies of fire and extended coverage insurance. EACH PARTY
SHALL CAUSE ITS INSURANCE CARIER TO ENDORSE, IF APPLICABLE, ALL APPLICABLE
POLICIES WAIVING THE CARRIER'S RIGHT OF RECOVERY UNDER SUBROGATION OR OTHERWISE
AGAINST THE OTHER PARTY.
11. LIABILITY AND INDEMNIFICATION.
A. Indemnity Definitions. As used in this paragraph 11, the following
---------------------
terms have the following meanings:
"Losses" means the following, to the extent (but only to the extent)
resulting from, arising out of or in connection with events or
circumstances (including the condition of the Project) that occurred or
existed or may hereafter occur or exist on or before the Loss Cutoff Date:
any and all losses, liabilities, damages (whether actual, consequential,
punitive or otherwise denominated), demands, claims, administrative or
legal proceedings, actions, judgments, causes of action, assessments,
fines, penalties, costs and expenses (including reasonable attorneys' fees
and the reasonable fees of outside accountants and environmental
consultants), of any and every kind or character, foreseeable and
unforeseeable, liquidated and contingent, proximate and remote.
"Loss Cutoff Date" means the latest of the dates upon which (i) this
Lease terminates or expires, (ii) Tenant surrenders possession of the
Premises (even if after the termination or expiration of the Term of this
Lease), or (iii) Tenant ceases to have any leasehold interest in the
Project under this Lease (with the understanding that if, at any time, one
of the three listed events has not occurred, then the Loss Cutoff Date
shall not have occurred).
"Indemnified Party" means a party entitled to indemnification from the
Indemnifying Party under this paragraph 11.
"Indemnifying Party" means a party obligated to indemnify an
Indemnified Party under this paragraph 11.
B. By Tenant. Except for any Losses from which Landlord has released or
---------
with respect to which Landlord has agreed (in this Lease) to indemnify Tenant,
Tenant shall defend, indemnify, and hold Landlord and its agents and employees
harmless from and against any and all Losses for (i) any injury to or death of
any person or persons or any damage to or theft, destruction, loss, or loss of
use of any real or personal property caused by casualty, theft or fire, and any
injury or damage or inconvenience that may arise through Tenant's repair or
Tenant's alteration of any part of the Premises, or Tenant's failure to make
repairs as required by this Lease, (ii) arising from Tenant's failure to perform
its obligations under this Lease or arising from any act or omission (whether
negligent, intentional or otherwise) of Tenant or Tenant's agents, employees,
invitees or contractors, and (iii) any contamination of the Premises or the
Project with Hazardous Substances (hereinafter defined) by Tenant, its
employees, agents or contractors; provided Tenant shall not be required to
indemnify Landlord for Losses of an Indemnified Party (i) after, and not
proximately caused by events or circumstances that occurred or existed on or
before, the Loss Cutoff Date, and (ii) to the extent such Losses are caused by
the negligence or intentional misconduct or breach of this Lease by Landlord.
Landlord shall not be liable in any event for personal injury or loss of
Tenant's property caused by fire, flood, water leaks, rain, hail, ice, snow,
smoke, lightning, wind, explosion, interruption of utilities or other
occurrences, except and to the extent any such water leaks, explosions, or
interruption of utilities is caused by Landlord's negligence or intentional
misconduct or breach of this Lease by Landlord. Landlord strongly recommends
that Tenant secure Tenant's own insurance in excess of the amounts required
elsewhere in this Lease to protect against the above occurrences if Tenant
desires additional coverage for such risks. Tenant shall give prompt notice to
Landlord of any significant accidents involving injury to persons or property on
the Premises. Furthermore, unless due to the negligence or intentional
misconduct or breach of this Lease of Landlord, Landlord shall not be
responsible for lost or stolen personal property, equipment, money or jewelry
from the Premises or from the public areas of the Buildings or the Project,
regardless of whether such loss occurs when the area is locked against entry.
Unless due to the negligence or intentional misconduct of or breach of this
Lease by Landlord, Landlord shall not be liable to Tenant or Tenant's employees,
customers or invitees for any damages or losses to persons or property caused by
any tenants in the Buildings or the Project, or for any damages or losses caused
by theft, burglary, assault, vandalism or other crimes. Landlord strongly
recommends that Tenant provide its own security systems and services and secure
Tenant's own insurance in excess of the amounts required elsewhere in
5
this Lease to protect against the above occurrences if Tenant desires additional
protection or coverage for such risks. Tenant shall give Landlord prompt notice
of any criminal or suspicious conduct within or about the Premises, the
Buildings or the Project and/or any personal injury or property damage caused
thereby. Landlord may, but is not obligated to, enter into agreements with third
parties for the provision, monitoring, maintenance and repair of any courtesy
patrols or similar services or fire protective systems and equipment and, to the
extent same is provided at Landlord's sole discretion, Landlord shall not be
liable to Tenant for any damages, costs or expenses which occur for any reason
in the event any such system or equipment is not properly installed, monitored
or maintained or any such services are not properly provided. Landlord shall use
reasonable diligence in the maintenance of existing lighting, if any, in the
parking garage or parking areas servicing the Premises, and Landlord shall not
be responsible for additional lighting or any security measures in the Project,
the Premises, any parking garage or other parking areas.
C. By Landlord. Landlord shall defend, indemnify, and hold Tenant and
-----------
its agents and employees harmless from and against any and all Losses for: (i)
any violation or nonperformance by Landlord of any representation or covenant
contained in this Lease which continues beyond any applicable cure period; (ii)
for bodily injury, death and/or damage to property occurring in or resulting
from any occurrence on the Land or in the common areas of the Project (but
specifically excluding any portion of the Premises) as a direct result of any
negligence or intentional misconduct or violation or nonperformance by Landlord
of any express obligation of Landlord hereunder; (iii) any bodily injury, death
and/or property damage that is proximately caused by the negligence or
intentional misconduct of Landlord or any of its agents, employees or
contractors; (iv) any claim for unpaid broker's commission which arises by,
through or on behalf of Landlord, and (v) any contamination of the Premises or
the Project with Hazardous Substances other than contamination caused by Tenant,
its employees, agents or contractors; provided, however, that Landlord shall not
defend, indemnify Tenant against nor hold Tenant harmless from any Losses that
constitute actual or consequential damages resulting from Tenant's decision not
to accept the XxXxxx 4 Expansion Space and/or to terminate this Lease based on
the presence of substances, including Hazardous Substances, in, on, or around
the XxXxxx 4 Expansion Space; provided further, however, that Landlord shall not
so indemnify an Indemnified Party to the extent that such Losses are caused by
the negligence or intentional misconduct of or breach of this Lease by an
Indemnified Party.
D. General Indemnity Provisions. If an Indemnified Party notifies the
----------------------------
Indemnifying Party of any claim or proceeding included in, or any investigation
or allegation concerning, Losses for which such Indemnifying Party is
responsible pursuant to this subparagraph, Indemnifying Party shall assume on
behalf of the Indemnified Party and conduct with due diligence and in good faith
the investigation and defense thereof and the response thereto with counsel
selected by Indemnifying Party, but reasonably satisfactory to the Indemnified
Party; provided, that the Indemnified Party shall have the right to be
represented by advisory counsel of its own selection and at its own expense; and
provided further, that if any such claim, proceeding, investigation or
allegation involves both Indemnifying Party and the Indemnified Party and the
Indemnified Party shall have been advised in writing by counsel that there may
be legal defenses available to it which are inconsistent with those available to
Indemnifying Party, then the Indemnified Party shall have the right to select
separate counsel to participate in the investigation and defense of and response
to such claim, proceeding, investigation or allegation on its own behalf, and
Indemnifying Party shall pay or reimburse the Indemnified Party for all
reasonable attorney's fees incurred by the Indemnified Party because of the
selection of such separate counsel. If Indemnifying Party fails to assume
promptly (and in any event within thirty days after being notified of the
applicable claim, proceeding, investigation or allegation) the defense of the
Indemnified Party, then the Indemnified Party may contest (or settle, with the
prior written consent of Indemnifying Party, which consent will not be
unreasonably withheld) the claim, proceeding, investigation or allegation at
Indemnifying Party's expense using counsel selected by the Indemnified Party.
Moreover, if any such failure by Indemnifying Party continues for sixty days or
more after Indemnifying Party is notified of any such claim, proceeding,
investigation or allegation, the Indemnified Party may elect not to contest or
continue contesting the same and instead settle (or pay in full) all claims
related thereto without Indemnifying Party's consent and without releasing
Indemnifying Party from any obligations to the Indemnified Party under this
paragraph 11 so long as, in the written opinion of reputable counsel to the
Indemnified Party, the settlement (or payment in full) is clearly advisable.
The provisions of this Paragraph 11 shall survive the expiration or termination
of this Lease.
12. USE. The Premises shall be used only for those uses permitted by
applicable law, provided, however, that (i) outside storage, including without
limitation storage of trucks and other vehicles, (ii) the conduct of a sexually
oriented business, or (iii) any residential uses are prohibited without
Landlord's prior written consent. Without limiting any obligations of Tenant
hereunder, including, without limitation, Tenant's compliance obligations under
Section 6, Tenant shall comply with all governmental laws, ordinances and
regulations applicable to Tenant's particular use of the Premises and shall
promptly comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in, upon or connected with the Premises,
all at Tenant's sole expense. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action that would constitute a nuisance or would
disturb, unreasonably interfere with or endanger Landlord or any other lessees
of the Building or the Project.
13. HAZARDOUS WASTE.
A. Definitions. As used herein, the following terms have the following
-----------
meanings:
"Environmental Law" shall mean any federal, state or local statute,
ordinance, regulation or other law of a governmental or quasi-governmental
authority relating to pollution or protection of the environment or the
regulation of the storage or handling of Hazardous Substances.
"Environmental Reports" shall mean a Phase I Environmental Site Assessment
and/or Phase II Environmental Site Assessment of the Project prepared for Tenant
including any updates thereto.
"Hazardous Substances" shall mean pollutants, contaminants, toxic or
hazardous wastes, radioactive materials or any other substances, the use and/or
the removal of which is required or the use of which is restricted, prohibited
or penalized by any Environmental Law.
"Permitted Activities" shall mean those activities that are part of the
ordinary course of Tenant's business activities.
"Permitted Materials" shall mean those materials that are used in the
ordinary course of Tenant's business.
"Tenant's Group" shall mean Tenant or Tenant's employees, agents,
contractors, or invitees (excluding Landlord or Landlord's employees, agents,
contractors, and invitees).
B. Tenant Agreements. Tenant hereby agrees that: (i) no activity will be
-----------------
conducted by the Tenant or Tenant's Group on the Premises that will produce any
Hazardous Substances, except for the Permitted Activities, provided said
Permitted Activities are conducted in accordance with all Environmental Laws
and, in connection therewith, Tenant shall be responsible for obtaining any
required permits or authorizations and paying any fees and providing any testing
required by any governmental agency; (ii) the Premises will not be used by the
Tenant Group in any manner for the storage of any Hazardous Substances, except
for the storage of Permitted Materials, provided such Permitted Materials are
properly stored in a manner and location meeting all Environmental Laws, and, in
connection therewith, Tenant shall be responsible for obtaining any required
permits or authorizations and paying any fees and providing any testing required
by any governmental agency; (iii) no portion of the Premises will be used by the
Tenant Group as a landfill or a dump; (iv) Tenant will not install any
underground tanks of any type; (v) Tenant will not allow the Tenant Group to
cause any surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute, a public or private
nuisance; and (vi) Tenant and the Tenant Group will not bring any Hazardous
Substances onto the Premises, except for the Permitted Materials, and if so
brought thereon (or if Hazardous Substances are found on the Premises, and the
presence of such Hazardous Substances is the result of an act or negligent
omission by Tenant or the Tenant Group), the same shall be immediately removed,
with proper disposal, and all required clean-up procedures shall be diligently
undertaken by Tenant at its sole cost pursuant to all Environmental Laws.
Landlord and Landlord's representatives shall have the right but not the
obligation to enter the Premises for the purpose of inspecting the storage, use
and disposal of any Permitted Materials to ensure compliance with all
Environmental Laws.
C. Corrective Action. Should it be determined, in Landlord's reasonable
-----------------
opinion, that any Permitted Materials are being improperly stored, used or
disposed of, then Tenant shall immediately take such corrective action as
requested by Landlord to comply with applicable Environmental Law. Should
Tenant fail to take such corrective action within seventy-two (72) hours,
Landlord shall have the right to perform such work and Tenant shall reimburse
Landlord, on demand, for any and all reasonable
6
costs associated with said work. If at any time during or after the Term, the
Premises are found to be contaminated with Hazardous Substances in violation
with applicable Environmental Law as a result of the Tenant Group's actions or
omissions in violation of this Lease, Tenant shall diligently institute proper
and thorough clean-up procedures, at Tenant's sole cost. If at any time during
or after the Term, the Premises are found to be contaminated with Hazardous
Substances in violation with applicable Environmental Law which are not the
result of the Tenant Group's actions or omissions in violation of this Lease,
Landlord shall diligently institute proper and thorough clean-up procedures, at
Landlord's sole cost.
D. Survival. The responsibilities of Tenant and Landlord under this
--------
Section 13 shall survive the termination or expiration of this Lease.
E. Environmental Reports. Landlord has made available to Tenant for
---------------------
Tenant's review an environmental report pertaining to the XxXxxx 4 Expansion
Space currently occupied by LTD Ceramics. Subject to Tenant's indemnity against
damages, the consent of LTD Ceramics, and other conditions specified in a
separate letter from Landlord to Tenant, Landlord has authorized Tenant to
perform the Environmental Reports (subject also to Landlord's prior approval of
any drilling locations), such performance to occur by no later than December 31,
2001. Landlord shall have no liability whatsoever for the cost or performance of
the Environmental Reports, provided, however, that if, but only if, Tenant
delivers a Termination Notice to Landlord pursuant to Paragraph 13.G. of this
Lease, then Landlord shall reimburse, or cause to be reimbursed, Tenant the
reasonable cost of the Environmental Reports.
F. Current Hazardous Substance Remediation. If either Environmental
----------------------------------------
Report indicates that the XxXxxx 4 Expansion Space or the Project is
contaminated with Hazardous Substances, then Landlord shall, within fifteen (15)
days of receiving such Environmental Report, notify Tenant of its election to
remediate such Hazardous Substances (the "Remediation Notice"). In the event
Landlord elects to remediate such Hazardous Substances, Landlord shall
diligently remediate the Hazardous Substances in accordance with Environmental
Laws (the "Current Hazardous Substance Remediation") and cause the Environmental
Reports to be updated to indicate, in Tenant's reasonable judgment based on its
review of the Environmental Reports, the proper and complete remediation of such
Hazardous Substance in accordance with Environmental Laws (such updated report,
a "Clean Environmental Report").
G. Tenant's Options Concerning Remediation. In the event either (a)
---------------------------------------
Landlord elects in the Remediation Notice not to remediate any Hazardous
Substances referenced in an Environmental Report, or (b) Landlord commences the
Current Hazardous Substances Remediation but fails to provide Tenant a Clean
Environmental Report within ninety (90) days following the date of the
Remediation Notice (the "Outside Remediation Completion Date"), Tenant shall
have the right, to be exercised in its sole discretion within thirty (30) days
following the date of the Remediation Notice or the Outside Remediation
Completion Date, as the case may be, to terminate this Lease (a "Termination
Notice") in its entirety effective as of a certain date which is not more than
two hundred forty (240) days following the date of such Termination Notice. In
the event Tenant does not provide a Termination Notice as provided in the
previous sentence, then Tenant shall be conclusively deemed not to have
terminated this Lease.
14. INSPECTION. Landlord's agents and representatives shall have the right to
enter the Premises at any reasonable time during business hours (or at any time
in case of emergency) (i) to inspect the Premises, (ii) to make such repairs as
may be required or permitted pursuant to this Lease, and/or (iii) during the
last six (6) months of the Term, for the purpose of showing the Premises. In
addition, Landlord shall have the right to erect a suitable sign on the Premises
stating the Premises are available for lease during the last twelve (12) months
of the Term.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to sublet,
assign or otherwise transfer or encumber this Lease, or any interest therein,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. (Notwithstanding the foregoing,
Landlord hereby consents to the sublease to any entity owned or controlled by
Xxxx Xxxxxxxx of no more than twenty percent (20%) of the then total square
footage of the Premises for which Tenant is then obligated to pay Rent
hereunder.) Any attempted assignment, subletting, transfer or encumbrance by
Tenant in violation of the terms and covenants of this paragraph shall be void.
Any assignee, sublessee or transferee of Tenant's interest in this Lease (all
such assignees, sublessees and transferees being hereinafter referred to as
"Transferees"), by assuming Tenant's obligations hereunder, shall assume
liability to Landlord for all amounts paid to persons other than Landlord by
such Transferees to which Landlord is entitled or is otherwise in contravention
of this Paragraph 15. No assignment, subletting or other transfer, whether or
not consented to by Landlord or permitted hereunder, shall relieve Tenant of its
liability under this Lease. If an Event of Default occurs while the Premises or
any part thereof are assigned or sublet, then Landlord, in addition to any other
remedies herein provided or provided by law, may collect directly from such
Transferee all rents payable to the Tenant and apply such rent against any sums
due Landlord hereunder. No such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Tenant's
obligations hereunder. If Landlord consents to any subletting or assignment by
Tenant as hereinabove provided and any category of rent subsequently received by
Tenant under any such sublease is in excess of the same category of rent payable
under this Lease, or any additional consideration is paid to Tenant by the
assignee under any such assignment, then Landlord may, at its option, declare
such excess rents under any sublease or such additional consideration for any
assignment to be due and payable by Tenant to Landlord as additional rent
hereunder. The mortgage, pledge, hypothecation or other encumbrance of or grant
of a security interest by Tenant in this Lease shall additionally constitute an
assignment of this Lease by Tenant for the purposes of this Paragraph 15.
Provided the assignment of this Lease is to an entity (a) in which or with which
Tenant, or its successors or assigns, is merged or consolidated, (b) acquiring
all or substantially all of Tenant's assets, or (c) acquiring all or
substantially all of Tenant's stock, so long as Tenant's obligations hereunder
are assumed by the new entity in the case of a merger/consolidation or asset
acquisition, such assignment shall not require the consent of Landlord under
this Lease, provided, however, that Tenant shall in all instances give Landlord
prompt, written notice of all assignments, which notice shall include the name
and address of the assignee.
16. CONDEMNATION. If more than fifty percent (50%) of the Premises in any
Building is taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by right of eminent domain or private purchase in
lieu thereof, and the taking prevents or materially interferes with the use of
the remainder of the Premises for the purpose for which they were leased to
Tenant, then Tenant may, within thirty (30) days of the date of such taking,
terminate this Lease upon written notice to Landlord as to the Premises in that
Building and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking; provided, however, that if Tenant
does not provide such notice to Landlord within thirty (30) days of taking, then
Tenant shall be conclusively deemed not to have terminated this Lease. If less
than fifty percent (50%) of the Premises in any Building is taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or private purchase in lieu thereof, or if the taking
does not prevent or materially interfere with the use of the remainder of the
Premises for the purpose for which they were leased to Tenant, then (a) this
Lease shall not terminate, and (b) following the condemnation, Landlord shall
utilize the condemnation proceeds to restore the Building to substantially the
same condition, to the extent possible, but the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to such extent as may be
fair and reasonable under all of the circumstances. All compensation awarded in
connection with or as a result of any of the foregoing proceedings shall be the
property of Landlord, and Tenant hereby assigns any interest in any such award
to Landlord; provided, however, Landlord shall have no interest in any award
made to Tenant for loss of business or goodwill or for the taking of Tenant's
trade fixtures and personal property, if a separate award for such items is made
to Tenant.
17. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant shall immediately deliver possession of the Premises to
Landlord with all repairs and maintenance required herein to be performed by
Tenant completed, reasonable wear, tear and casualty damage excepted. If, for
any reason, Tenant retains possession of the Premises after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in writing,
such possession shall be deemed to be a tenancy at will only, and all of the
other terms and provisions of this Lease shall be applicable during such period,
except that Tenant shall pay Landlord from time to time, upon demand, as rental
for the period of such possession, an amount equal to the greater of (i) the
market rate at the time of the holdover, or (ii) one and one-half (1 1/2) times
the Base Rent in effect on the date of such termination of this Lease, computed
on a daily basis for each day of such period. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided. The preceding provisions of this
Paragraph 17 shall not be construed as consent for Tenant to retain possession
of the Premises in the absence of written consent thereto by Landlord.
18. QUIET ENJOYMENT. Landlord represents that it has the authority to enter
into this Lease and that, so long as Tenant pays all amounts due hereunder and
performs all other covenants and agreements herein set forth, Tenant shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord or anyone claiming by
7
through or under Landlord, subject to the terms and provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to
as an "Event of Default") each shall be deemed to be a default in or breach of
Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of ten (10) days following
written notice of such failure to Tenant, provided, however, that Landlord shall
only be obligated to give Tenant written notice of any monetary default twice in
any twelve month period, and thereafter Tenant shall be deemed in default ten
days after failure to make such payment without requirement of notice from
Landlord.
B. In the event that Tenant abandons or vacates all or a substantial
portion of the Premises for a period in excess of one (1) month and Tenant shall
fail, at its expense, to maintain at least a minimum operation of the systems in
the Premises, including, without limitation, the HVAC system, such that the
Premises shall not incur damage or deteriorate as a result of the vacation. In
addition to any other repair and maintenance obligations of Tenant under this
Lease, Tenant shall repair, maintain, and operate such systems to the extent
necessary to prevent or repair any damage to or deterioration of the Premises
about which Tenant is aware or has been notified by Landlord or any other entity
following a periodic visual inspection of the vacated Premises.
C. Tenant shall fail to discharge or bond around any lien placed upon the
Premises in violation of Paragraph 22 hereof within twenty (20) days after
Tenant receives actual notice or any other notice permitted by applicable law
that any such lien or encumbrance is filed against the Premises.
D. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed above in this paragraph) and shall not cure
such failure within thirty (30) days after written notice thereof from Landlord,
or if such failure is not reasonably susceptible of being cured within thirty
(30) days, Tenant shall fail to commence the curing thereof within thirty (30)
days after Landlord gives written notice to Tenant thereof, or having commenced
the curing thereof, Tenant shall fail to diligently pursue the curing of such
default to completion.
20. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand:
(a) Terminate this Lease;
(b) Enter upon and take possession of the Premises without terminating
this Lease;
(c) Make such payments and/or take such action and pay and/or perform
whatever Tenant is obligated to pay or perform under the terms of this Lease,
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action; and/or
(d) Alter all locks and other security devices at the Premises, with or
without terminating this Lease, and pursue, at Landlord's option, one or more
remedies pursuant to this Lease;
and in any such event Tenant shall immediately vacate the Premises, and if
Tenant fails to do so, Landlord, without waiving any other remedy it may have,
may enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying such Premises or any part thereof,
without being liable for prosecution or any claim of damages therefore. The
provisions of this Lease are intended to supersede Section 93.002 of the Texas
Property Code and Tenant hereby expressly waives any and all rights and remedies
Tenant may have under Paragraph (g) of such Section 93.002.
A. Damages Upon Termination. If Landlord terminates this Lease, Tenant
------------------------
shall be liable for and shall pay to Landlord the sum of all rental and other
payments owed to Landlord hereunder accrued to the date of such termination.
Landlord and Tenant agree that determining the actual amount of additional
damages which Landlord will incur will be extremely difficult to estimate
because neither party can predict the market conditions that will exist at the
time of the termination. In order to arrive at a reasonable forecast of just
compensation, Landlord and Tenant agree that, at Landlord's option, and if the
termination occurred as a result of the occurrence of an Event of Default under
Xxxxxxxxxx 00X, 00X, or 19E above, Tenant shall additionally pay to Landlord
immediately upon demand as liquidated damages, an amount equal to (i) the
present value of the total rental and other payments owed hereunder for the
remaining portion of this Lease term, calculated as if such term expired on the
date set forth in Paragraph 1, less (ii) the present value of the then fair
market rental for the Premises for such period. Because of the difficulty of
ascertaining such value and in order to achieve a reasonable estimate of
liquidated damages hereunder, Landlord and Tenant stipulate and agree, for the
purposes hereof, that the present value discount rate shall be seven percent
(7%).
B. Damages Upon Repossession. If Landlord repossesses the Premises
-------------------------
without terminating this Lease, Tenant, at Landlord's option, shall be liable
for and shall pay Landlord on demand all rental and other payments owed to
Landlord hereunder, accrued to the date of such repossession, and shall
additionally timely pay as they accrue all amounts required to be paid by Tenant
under this Lease to Landlord until the date of expiration of the term as stated
in Paragraph 1, diminished by all amounts actually received by Landlord through
reletting the Premises during such remaining term (but only to the extent of the
rent herein reserved). Actions to collect amounts due by Tenant to Landlord
under this paragraph may be brought from time to time, on one or more occasions,
without the necessity of Landlord's waiting until expiration of the Lease term.
C. Costs of Reletting, Removing, Repairs and Enforcement. Upon an
-----------------------------------------------------
Event of Default, in addition to any sum provided to be paid under this
Paragraph 20, Tenant also shall be liable for and shall pay to Landlord (i)
brokers' fees and all other costs and expenses incurred by Landlord in
connection with reletting the whole or any part of the Premises (apportioned
over the term of any new lease, but in any event over no longer a period of time
than the remaining Term of this Lease); (ii) the costs of removing, storing or
disposing of Tenant's or any other occupant's property; (iii) the costs of
repairing, altering, remodeling or otherwise putting the Premises into condition
acceptable to a new tenant or tenants; (iv) any and all costs and expenses
incurred by Landlord in effecting compliance with Tenant's obligations under
this Lease; and (v) all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies hereunder, including without
limitation all reasonable attorneys' fees and all court costs incurred in
connection with such enforcement or defense.
D. Late Charge. In the event Tenant fails to make any payment due
-----------
hereunder within five (5) business days after such payment is due, including
without limitation any rental or escrow payment, in order to help defray the
additional cost to Landlord for processing such late payments and not as
interest, Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such payment. The provision for such late charge
shall be in addition to all of Landlord's other rights and remedies hereunder or
at law, and shall not be construed as liquidated damages or as limiting
Landlord's remedies in any manner.
E. Interest on Past Due Amounts. If Tenant fails to pay any sum which
----------------------------
at any time becomes due to Landlord under any provision of this Lease as and
when the same becomes due hereunder, and such failure continues for ten (10)
days after the due date for such payment, then Tenant shall pay to Landlord
interest on such overdue amounts from the date due until paid at an annual rate
which equals the lesser of (i) twelve percent (12%) or (ii) the highest rate
then permitted by law.
F. No Implied Acceptances or Waivers. Exercise by Landlord of any one or
---------------------------------
more remedies hereunder granted or otherwise available shall not be deemed to be
an acceptance by Landlord of Tenant's surrender of the Premises, it being
understood that such surrender can be effected only by the written agreement of
Landlord. Tenant and Landlord further agree that forbearance by Landlord to
enforce any of its rights under this Lease or at law or in equity shall not be a
waiver of Landlord's right to enforce any one or more of its rights, including
any right previously forborne, in connection with any existing or subsequent
default. No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention is given to Tenant, and, notwithstanding any such
reletting or re-entry or taking possession of the Premises, Landlord may at any
time thereafter elect to terminate this Lease for a previous default. Pursuit
of any remedies hereunder shall not preclude the pursuit of any other remedy
herein provided or any other remedies provided by law, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages occurring to Landlord by reason of the
violation of any of the terms, provisions and covenants contained in this Lease.
Landlord's acceptance of any rent following an Event of Default hereunder shall
not be construed as Landlord's waiver of such Event of Default, unless the Event
of Default is a failure to pay such rent. No waiver by Landlord of any
violation or breach
8
of any of the terms, provisions and covenants of this Lease
shall be deemed or construed to constitute a waiver of any other violation or
default.
G. Reletting of Premises. In the event of any termination of this Lease
---------------------
and/or repossession of the Premises for an Event of Default, Landlord shall use
reasonable efforts to relet the Premises and to collect rental after reletting,
with no obligation to accept any lessee that Landlord deems undesirable, in its
reasonable business judgment. Tenant shall not be entitled to credit for or
reimbursement of any proceeds of such reletting in excess of the rental owed
hereunder for the period of such reletting. Landlord may relet the whole or any
portion of the Premises, for any period, to any tenant and for any use or
purpose.
H. Landlord's Default. If Landlord fails to perform any of its
------------------
obligations hereunder within thirty (30) days after written notice from Tenant
specifying such failure, Tenant's exclusive remedy shall be an action for
damages, unless expressly provided otherwise herein. Unless and until Landlord
fails to so cure any default after such notice, Tenant shall not have any remedy
or cause of action by reason thereof. All obligations of Landlord hereunder will
be construed as covenants, not conditions; and all such obligations will be
binding upon Landlord only during the period of its possession of the premises
and not thereafter. The term "Landlord" shall mean only the owner, for the time
being, of the Premises and, in the event of the transfer by such owner of its
interest in the Premises, such owner shall thereupon be released and discharged
from all covenants and obligations of the Landlord thereafter accruing, provided
that such covenants and obligations shall be binding during the Term upon each
new owner for the duration of such owner's ownership. Notwithstanding any other
provision of this Lease, Landlord shall not have any personal liability
hereunder. In the event of any breach or default by Landlord in any term or
provision of this Lease, Tenant agrees to look solely to the equity or interest
then owned by Landlord in the Premises or the Building or the Project, and/or
the proceeds of the foregoing; however, in no event shall any deficiency
judgment or any money judgment of any kind be sought or obtained against any
Landlord.
I. Tenant's Property. In addition to the Landlord's other rights
------------------
hereunder, Landlord may dispose of any stored property owned by Tenant if Tenant
does not claim the property within thirty (30) days after the date the property
is stored. Landlord shall give Tenant at least twenty (20) days prior written
notice of such intended disposition. Landlord shall also have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Landlord
a copy of any instrument represented by Claimant to have been executed by Tenant
(or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Landlord to inquire into the
authenticity or legality of said instrument. The rights of Landlord herein
stated shall be in addition to any and all other rights that Landlord has or may
hereafter have at law or in equity, and Tenant stipulates and agrees that the
rights granted Landlord under this paragraph are commercially reasonable.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust at any time hereafter constituting a lien or
charge upon the Premises or the improvements situated thereon or any of the
Buildings or the Project, provided, however, that if the mortgagee, trustee or
holder of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease superior to any such instrument, then by notice to Tenant from such
mortgagee, trustee or holder, this Lease shall be deemed superior to such lien,
whether this Lease was executed before or after said mortgage or deed of trust.
Landlord represents that currently there is no mortgage or deed of trust
encumbering the Premises. The provisions of this Paragraph 21 shall be self-
operative, and no further instrument shall be required to effect such
subordination; however, Landlord shall deliver to Tenant, and Tenant shall
execute from time to time within ten days after delivery thereof to Tenant, a
commercially reasonable instrument from each of Landlord's mortgages, trustees,
or holders evidencing the subordination of this Lease to any such mortgage or
deed of trust (and Landlord will make best efforts to cause such instrument to
include a commercially reasonable non-disturbance provision in favor of Tenant).
Tenant shall not terminate this Lease or pursue any other remedy available to
Tenant hereunder for any default on the part of Landlord without first giving
written notice by certified or registered mail, return receipt requested, to any
mortgagee, trustee or holder of any such mortgage or deed of trust, the name and
post office address of which Tenant has received written notice, specifying the
default in reasonable detail and affording such mortgagee, trustee or holder a
reasonable opportunity (but in no event less than thirty (30) days from the date
of Tenant's notice of default to such mortgagee, trustee or holder, which 30-day
period may overlap in whole or in part with Landlord's applicable cure period)
to make performance, at its election, for and on behalf of Landlord.
Notwithstanding the foregoing, in an emergency, Tenant may pursue any remedy
(other than termination) for a Landlord default before giving notice of such
default to Landlord of Landlord's mortgagee, trustee or holder.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord or Tenant in the Premises. Tenant
will defend, indemnify, and hold Landlord harmless from and against any and all
loss, cost or expense, including without limitation attorneys' fees and court
costs, based on or arising out of asserted claims or liens against the leasehold
estate or against the right, title and interest of the Landlord in the Premises
or under the terms of this Lease because of the actions of Tenant, its
employees, agents, and contractors.
23. MISCELLANEOUS.
A. Interpretation. The captions inserted in this Lease are for
--------------
convenience only and in no way define, limit or otherwise describe the scope or
intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease. Any reference in this Lease to rentable area shall
mean the gross rentable area as determined by the roofline of the building in
question.
B. Binding Effect. Except as otherwise herein expressly provided, the
--------------
terms, provisions and covenants and conditions in this Lease shall apply to,
inure to the benefit of and be binding upon the parties hereto and upon their
respective heirs, executors, personal representatives, legal representatives,
successors and assigns. Landlord shall have the right to transfer and assign, in
whole or in part, its rights and obligations in the Premises, the Buildings, and
other property that are the subject of this Lease.
C. Evidence of Authority. Tenant agrees to furnish to Landlord, promptly
---------------------
upon demand, a corporate resolution, proof of due authorization by partners or
other appropriate documentation evidencing the due authorization of such party
to enter into this Lease. UBS Realty Investors LLC is authorized to execute
this Lease on behalf of Landlord.
D. Force Majeure. Neither Landlord nor Tenant shall be held responsible
-------------
for delays in the performance of their obligations hereunder when caused by
unforeseeable material shortages, acts of God, labor disputes or other events
beyond the control of Landlord or Tenant, as applicable.
E. Payments Constitute Rent. Notwithstanding anything in this Lease to
------------------------
the contrary, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated as rent, shall constitute rent.
F. Estoppel Certificates. Tenant agrees, from time to time, within ten
---------------------
(10) days after request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating, to the extent factually accurate,
that this Lease is in full force and effect, the date to which rent has been
paid, the unexpired term of this Lease, any defaults known to Tenant existing
under this Lease (or the absence thereof) and such other factual matters
pertaining to this Lease as may be reasonably requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
G. Entire Agreement. This Lease constitutes the entire understanding and
----------------
agreement of Landlord and Tenant with respect to the subject matter of this
Lease, and contains all of the covenants and agreements of Landlord and Tenant
with respect thereto. Landlord and Tenant each acknowledge that no
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises, negotiations
or representations not expressly set forth in this Lease are of no force or
effect. TENANT ACKNOWLEDGES THAT (I) UPON OCCUPANCY OF THE PREMISES IT HAS
INSPECTED AND ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION (SUBJECT TO
ANY PUNCHLIST ITEMS AS DESCRIBED IN THIS LEASE) AND THAT THE BUILDINGS'
IMPROVEMENTS ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED, AND
(II) LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE FITNESS FOR ANY PARTICULAR PORUPOSE OF THE PREMISES. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS LEASE, TENANT HEREBY WAIVES THE BENEFIT OF ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES, INCLUDING WITHOUT
LIMITATION ANY IMPLIED
9
WARRANTY THAT THE PREMISES ARE HABITABLE OR SUITABLE FOR
ANY PARTICULAR PURPOSE. Landlord's agents and employees do not and will not
have authority to make exceptions, changes or amendments to this Lease, or
factual representations not expressly contained in this Lease. Under no
circumstances shall Landlord or Tenant be considered an agent of the other.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
H. Survival of Obligations. All obligations of Tenant hereunder not
-----------------------
fully performed as of the expiration or earlier termination of the term of this
Lease shall survive the expiration or earlier termination of the term hereof,
including without limitation all payment obligations with respect to Taxes and
insurance and all obligations concerning the condition and repair of the
Premises. Any Security Deposit held by Landlord may, at Landlord's option, be
credited against any amounts due from Tenant under this Paragraph 23H.
I. Severability of Terms. If any clause or provision of this Lease is
---------------------
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then, in such event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added, as a part of this Lease, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and be legal, valid and enforceable.
J. Effective Date. All references in this Lease to "the date hereof" or
--------------
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
K. Brokers' Commission. Landlord and Tenant 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 (the "Broker"). Landlord shall pay to
Broker a commission pursuant to the agreement with the Broker, a copy of which
is attached hereto as Exhibit "E". Tenant and Landlord shall each indemnify the
other against all costs, attorneys' fees, and other liabilities for commissions
or other compensation claimed by any broker or agent (other than the Broker)
claiming the same by, through, or under the indemnifying party.
L. Ambiguity. Landlord and Tenant hereby agree and acknowledge that this
---------
Lease has been fully reviewed and negotiated by both Landlord and Tenant, and
that Landlord and Tenant have each had the opportunity to have this Lease
reviewed by their respective legal counsel, and, accordingly, in the event of
any ambiguity herein, Tenant does hereby waive the rule of construction that
such ambiguity shall be resolved against the party who prepared this Lease. A
black line comparison of this Lease against the first discussion draft of this
Lease is attached hereto as Exhibit "F" for purposes of acknowledging the
revisions to this Lease that have occurred during the negotiation process, and
in order to eliminate confusion regarding the final terms hereof.
M. Joint Several Liability. If there be more than one Tenant, the
-----------------------
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor, and Landlord need not first proceed against Tenant before proceeding
against such guarantor, nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including, without limitation, in case of
any amendments hereto, waivers hereof or failure to give such guarantor any
notices hereunder.
N. Third Party Rights. Nothing herein expressed or implied is intended,
------------------
or shall be construed, to confer upon or give to any person or entity, other
than the parties hereto, any right or remedy under or by reason of this Lease.
O. Exhibits and Attachments. All exhibits, attachments, riders and
------------------------
addenda referred to in this Lease, and the exhibits listed herein below and
attached hereto, are incorporated into this Lease and made a part hereof for all
intents and purposes as if fully set out herein. All capitalized terms used in
such documents shall, unless otherwise defined therein, have the same meanings
as are set forth herein.
P. Applicable Law. This Lease has been executed in the State of Texas
--------------
and shall be governed in all respects by the laws of the State of Texas. It is
the intent of Landlord and Tenant to conform strictly to all applicable state
and federal usury laws. All agreements between Landlord and Tenant, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever shall the amount
contracted for, charged or received by Landlord for the use, forbearance or
retention of money hereunder or otherwise exceed the maximum amount which
Landlord is legally entitled to contract for, charge or collect under the
applicable state or federal law. If, from any circumstance whatsoever,
fulfillment of any provision hereof at the time performance of such provision
shall be due shall constitute a violation of the usury limits prescribed by law,
then the obligation to be fulfilled shall be automatically reduced to the
relevant limit, and if from any such circumstance Landlord shall ever receive as
interest or otherwise an amount in excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied
to the reduction of rent hereunder, and if such amount which would be excessive
interest exceeds such rent, then such additional amount shall be refunded to
Tenant.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(i) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth
below or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
(ii) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(iii) Except as expressly provided herein, any written notice, document or
payment required or permitted to be delivered hereunder shall be deemed to be
delivered when received by hand delivery, overnight service, facsimile (with
confirmation), or the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective addresses set
out below, or at such other address as they have theretofore specified by
written notice delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See Exhibit "D" attached hereto and incorporated
herein by reference.
26. LANDLORD'S LIEN. The statutory landlord's lien granted to Landlord
pursuant to the Texas Property Code shall be subject and subordinate to any
liens or security interests covering Tenant's inventory, or financed fixtures,
furniture or equipment of Tenant. Further, in no event shall such landlord lien
cover intellectual property, files, promissory notes, documents, contracts,
instruments, records or similar property, and notwithstanding any eviction of
Tenant pursuant to the terms of the Lease, Landlord will make such excluded
property available to Tenant upon request.
27. TERMINATION OF LEASE FOR CURRENT PREMISES. Landlord and Tenant agree that
the Lease Agreement dated August 1, 1989 (as amended, the "Original Lease")
between Landlord's and Tenant's predecessors in interest covering the Current
Premises is being terminated pursuant to a separate agreement between the
parties.
10
EXECUTED BY LANDLORD, this 19th day of October, 2001.
AETNA LIFE INSURANCE COMPANY,
By UBS Realty Investors LLC, its Investment
Advisers and Agent
/s/
------------------------------------------------
Attest/Witness By: Xxxxxx X. Xxxxxxx
------------------------------------------------
Title: Director
------------------------- ------------------------------------------------
Title: Address:c/o Xxxxxxxx Xxxx Central Texas, Inc.
------------------------- ------------------------------------------------
000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
------------------------- ------------------------------------------------
EXECUTED BY TENANT, this 4th day of October, 2001.
LUMINEX CORPORATION
/s/
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Attest/Witness By: Xxxx Xxxxxxxx
------------------------------------------------
Title: President and CEO
------------------------- ------------------------------------------------
Title: Address: 00000 Xxxxxxxxxx Xxxxxxxxx
------------------------- ------------------------------------------------
Xxxxxx, XX 00000
------------------------- ------------------------------------------------
Attention: General Counsel
------------------------------------------------
Exhibit "A" - Description or Depiction of Premises, including Expansion Space
Exhibit "B" - Expansion Space
Exhibit "C" - Tenant Improvements
Exhibit "D" - Additional Provisions
Exhibit "E" - Lease Commission Agreement
Exhibit "F" - Black Line Draft
11
EXHIBIT "A-1"
[Intentionally left blank]
12
EXHIBIT "A-2"
Building: XxXxxx #4
Legal Description: Xxx 00, XxXxxx Xxxx Commercial Division
SECTION 2
Address: 00000 Xxxxxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
[Building layout inserted.]
13
EXHIBIT "A-3"
XxXxxx #5
44,378 SF
[Building layout inserted.]
14
Exhibit "B"
Expansion Space
A. Tenant may enter the Expansion Space commencing sixty (60) days before
the anticipated Commencement Date stated in Section 1B(i) of this Lease for such
Expansion Space (or, with regard to the XxXxxx 4 Expansion Space, before the
date that Landlord anticipates it can deliver such space to Tenant after any
remediation) (the "Entry Date") to construct Tenant's Improvements therein,
provided that Tenant shall first deliver to Landlord evidence that the insurance
required under Section 9B of this Lease has been obtained by Tenant and Tenant's
contractors that will be working in such Expansion Space prior to the
Commencement Date, and provided further that Tenant shall indemnify and hold
Landlord and the Project harmless from and against any and all damages, costs,
expenses, liens, and liability, as applicable, (including reasonable attorneys'
fees) for damage to property or injury to or death of any person, or for unpaid
amounts due to providers of services or materials, arising from or in connection
with Tenant's construction of the Tenant Improvements. Tenant's failure to
provide such evidence to Landlord shall not delay the Commencement Date for such
Expansion Space. Any such entry shall be on the terms of this Lease, but no rent
or Tenant Costs shall accrue during the period that Tenant so enters the
Premises.
B. Not less than sixty (60) days prior to the relevant Entry Date, Landlord
shall deliver to Tenant a letter setting forth such date. Landlord shall use
its best efforts to make available and deliver each Expansion Space by the
relevant Entry Date. In the event that the Premises are not made available and
delivered to Tenant by the applicable Entry Date, the corresponding applicable
Commencement Date (and commencement of the payment of rent and abatement of one
months' rent, as reflected in Section 2A of this Lease) shall be adjusted
forward by the same number of days as is such Entry Date, provided, however, if
a Commencement Date is adjusted forward in excess of one hundred twenty (120)
days from the anticipated Commencement Date as set forth in Section 1B(i)
hereof, Tenant shall have the right to terminate Tenant's obligations to lease
such Expansion Space upon written notice to Landlord, provided, however, that if
such Expansion Space is made available and delivered to Tenant prior to the
delivery of Tenant's termination notice to Landlord, then Tenant shall remain
obligated to lease such Expansion Space. For purposes of this Lease, any
Expansion Space is "available" on the date that such Expansion Space (a) is made
available by Landlord with the shell Building in the same condition as on the
Effective Date of this Lease, reasonable wear and tear excepted, (b) is in
broom-clean condition, (c) has been inspected and treated for termites (if
necessary), (d) has been surveyed for asbestos in accordance with City of Austin
Ordinance No. 01329-49, and (e) is serviced by all utilities, including HVAC.
Notwithstanding the foregoing, if any Expansion Space is available prior to its
applicable Entry Date, Tenant shall not be obligated to accept and commence
paying rent on such Expansion Space ahead of the schedule set out in Section 2A
hereof. In no event shall any Commencement Date be delayed or adjusted forward
as a result of any delay or failure to perform attributable to Tenant or any
Tenant's employee, agent, contractor, or invitee.
C. Landlord and Tenant shall cooperate with each other to finalize the plans
for such Expansion Space in accordance with Exhibit C attached hereto. All
Expansion Space taken by Tenant shall be taken "as is" (except for the
representations specifically made in this Lease), and Landlord shall have no
obligation to construct any leasehold improvements therein or to make any
alterations thereto.
D. Tenant shall not be required to commence paying rent on the applicable
Expansion Space upon the later of (i) the relevant Commencement Date, or (ii)
the Commencement Date as adjusted pursuant to Section A of this Exhibit.
E. Except as provided in this Exhibit "B", or as otherwise specifically
provided in this Lease, the leasing of any Expansion Space shall be upon the
same terms and conditions as the leasing of the Current Premises, and shall be
upon and subject to all of the provisions of this Lease. Upon each applicable
Commencement Date, and as more fully provided elsewhere in this Lease, rent will
be increased as indicated for the Expansion Space, the Premises shall be deemed
to include the applicable Expansion Space, and Tenant's Percentage Share of the
Tenant Costs shall be increased to reflect the increased portion of the Project
occupied by Tenant.
F. Tenant's obligations under this Exhibit "B" shall survive the expiration
or earlier termination of this Lease.
15
Exhibit "C"
Tenant Improvements
1. Prior to commencement of the construction of Tenant's Improvements,
Tenant shall cause to be prepared and submitted to Landlord for Landlord's
approval (i) a complete set of plans and specifications for the Tenant
Improvements (the "Plans") relating to all or a portion of the Premises, and
-----
(ii) Tenant's contractor or bidder list. Landlord's approval of the Plans and
the list shall not be unreasonably withheld. Landlord shall review the Plans
and deliver to Tenant in writing any requested modifications or changes thereto
within five (5) business days after receipt of the same. Tenant shall then
diligently cause to be made those requested modifications and changes to the
Plans, and then shall resubmit the Plans to Landlord. The foregoing process
shall be repeated until Landlord and Tenant have agreed on the Plans. Upon
approval of the Plans by Landlord and Tenant, Tenant shall enter into a contract
for the Tenant Improvements with a contractor chosen by Tenant and reasonably
acceptable to Landlord. Upon delivery of a copy of a receipt for Tenant's
payment for architectural services rendered in connection with the development
of the Plans, and provided that Tenant is not in default, Landlord will
reimburse Tenant for payment for such services in the amount of $0.12 per
rentable square foot in all of the Premises for which such Plans were prepared,
and such reimbursement shall not be a deduction from the Allowance. Any delay
by Tenant in providing the Plans to Landlord shall not result in the adjustment
forward of any Commencement Date hereunder.
2. Upon execution of the construction contract for the applicable space,
Tenant shall cause the contractor to construct the relevant Tenant Improvements
in a good and workmanlike manner, in accordance with the Plans and all
governmental requirements and otherwise in accordance with Paragraph 6 of this
Lease. Tenant may commence construction on the Current Premises as soon as all
the Plans are approved by Landlord and necessary permits are received. Tenant
may commence construction on any given Expansion Space after the Plans therefor
are approved by Landlord and permits are obtained, but no sooner than the date
that such Expansion Space is made available by Landlord to Tenant (as described
in Exhibit "B").
3. Following final approval of the Plans in accordance with Paragraph 1
above, Tenant may from time to time make changes to the Plans with Landlord's
prior written consent, which shall not be unreasonably withheld or delayed. If
Tenant requests any such change, then Tenant shall pay all additional costs in
designing and constructing the Tenant Improvement as a result of such changes.
4. Tenant shall pay (subject to the Allowance) all costs incurred in
designing and constructing the Tenant Improvements (the "Construction Costs")
------------------
which Construction Costs shall include permitting fees, architectural fees and
engineering fees. The "Allowance" shall be a sum equal to the lesser of (A)
---------
actual Construction Costs or (B) (i) $4.00 per square foot in the Current
Premises, (ii) $6.00 per square foot in all of the Expansion Space except for
the XxXxxx 4 Expansion Space, (iii) $6.00 per square foot in the XxXxxx 0 XXXX
Space described on Exhibit D hereto if such space is taken by Tenant by December
31, 2003 (but no Allowance if such space is not taken by Tenant by that date
unless an allowance is provided in a right of first refusal offer to lease such
space as prescribed by Paragraph 2 of Exhibit D hereof), and (iv) (a) $15.00 per
---------
square foot for Construction Costs and (b) $1.50 per rentable square foot for
demolition costs (for a total of $16.50 per rentable square foot) in the XxXxxx
4 Expansion Space (provided that Tenant shall be responsible for paying all such
demolition costs).
5. Tenant may submit applications for progress payments (each, an
"Application for Payment") from the Allowance, no more often than monthly during
the construction. Each Application for Payment shall be for the aggregate cost
of the Tenant Improvements constructed during the previous month. Concurrent
with each Application for Payment, Tenant shall furnish to Landlord copies of
all invoices and other documentation supporting all amounts for which
reimbursement is requested in the Application for Payment, together with lien
waivers executed by the contractors and subcontractors for the work done that is
subject to reimbursement. Within ten (10) days after Tenant's submission of an
Application for Payment to Landlord as required herein, Landlord shall make
payment to Tenant of the amount requested therein. Landlord shall not charge any
construction management fee with respect to the Tenant Improvements unless
Landlord has actually performed construction management services in connection
therewith pursuant to an agreement with Tenant or Tenant's contractor.
16
Exhibit "D"
Additional Provisions
1. Renewal Option
--------------
A. Subject to all of the terms and conditions of this Exhibit D,
including, without limitation, Paragraph D below, Landlord hereby grants to
Tenant two (2) consecutive options to renew the Term of this Lease for five (5)
years each (the "Renewal Term") by giving Landlord written notice of Tenant's
election to renew at least at least nine (9) months prior to the expiration date
of the primary Term or the first Renewal Term, as appropriate.
B. If Tenant has properly elected to renew the Term, then on or before the
commencement date of the upcoming Renewal Term, Landlord and Tenant shall
execute an amendment to this Lease extending the Term on the same terms provided
in this Lease, except that the Base Rent payable for each month during the
Renewal Term and the improvement allowance and any other concessions shall be
determined in accordance with the prevailing Market Rate as determined below.
Within fifteen (15) days after Landlord's receipt of Tenant's renewal notice,
Landlord will notify Tenant of Landlord's determination of the prevailing market
rental rate (calculated utilizing, as comparables, arm's length renewal tenant
transactions for space in comparable buildings for space of equivalent quality,
size, utility, and location) and any concessions (including allowances for
tenant finish improvements, free rent and other concessions) payable during the
renewal term (the "Market Rate"). Thereafter, Tenant shall have thirty (30)
days in which to notify Landlord whether Tenant agrees or disagrees with
Landlord's determination of the Market Rate. Upon delivery of such notice, if
Tenant agrees with Landlord's determination, this Lease shall be extended upon
the same terms and conditions of this Lease except the Base Rent payable for
each renewal term and any concessions shall be the prevailing Market Rate as
determined by Landlord, and Landlord and Tenant shall enter into an amendment of
this Lease extending the Term at the prevailing Market Rate as determined by
Landlord. If Tenant fails to timely notify Landlord of its agreement or
disagreement with Landlord's determination of the prevailing Market Rate, Tenant
shall be deemed to have agreed with Landlord's determination and this Lease
shall be extended upon the same terms and conditions of this Lease except the
Base Rent payable for each renewal term and any concessions shall be the
prevailing Market Rate as determined by Landlord, and Landlord and Tenant shall
enter into an amendment to evidence such extension. If Tenant timely notifies
Landlord that it disputes Landlord's determination of the prevailing Market
Rate, Landlord and Tenant agree to negotiate in good faith for a period of sixty
(60) days after Landlord's receipt of Tenant's notice disputing Landlord's
determination of the prevailing Market Rate. If Landlord and Tenant have not
reached an agreement with respect to the prevailing Market Rate within such
sixty (60) day period, Tenant shall be entitled to have the prevailing Market
Rate determined by real estate brokers as set forth below. If Tenant desires to
invoke its right to have the prevailing Market Rate determined by real estate
brokers, Tenant must notify Landlord within ten (10) business days after the
expiration of the sixty (60) day period referenced above (such notice, the
"Notification") and the prevailing Market Rate shall be determined in accordance
with the following paragraph. If Tenant does not timely invoke its right to
have the prevailing Market Rate determined by real estate brokers as provided
above, then this option to renew shall expire and this Lease shall terminate at
the expiration of the primary Term (or the then current Renewal Term, as
appropriate) of this Lease.
C. If Tenant timely invokes its rights under this Paragraph by providing
Landlord the Notification, the following shall apply:
(i) Landlord and Tenant shall each appoint a real estate broker (who shall
not be required to be a disinterested broker) with at least five (5) years
experience who is familiar with rental values for similar properties in the
vicinity of the Project. Each party will make the appointment no later than
(10) days after Landlord's receipt of the Notification. The agreement of the
two brokers as to the prevailing Market Rate for the Renewal Term will be
binding upon Landlord and Tenant. If the two (2) brokers cannot agree upon the
prevailing Market Rate within thirty (30) days following their appointment, they
shall within ten (10) days thereafter agree upon a real estate broker (the
"Independent Broker"), who must be a disinterested, reputable, qualified real
estate broker with at least ten (10) years experience and who is familiar with
rental values for similar properties in the vicinity of the Project.
Immediately thereafter, each of the brokers will submit his best estimate of the
prevailing Market Rate for the Renewal Term (together with a written report
supporting such estimate) to the Independent Broker and such broker will choose
between the two estimates. The estimate of prevailing Market Rate chosen by the
Independent Broker as the closest to the prevailing Market Rate will be binding
upon Landlord and Tenant. Notification in writing of this estimate shall be
made to Landlord and Tenant within fifteen (15) days following the selection of
the Independent Broker.
(ii) If either Tenant or Landlord fails to appoint a broker or fails to
notify the other party of such appointment within ten (10) days after receipt of
notice that the prescribed time for appointing the brokers has passed, then the
other party's broker will determine the prevailing Market Rate for the Renewal
Term which must be reasonable within the context of the market.
(iii) If an Independent Broker must be chosen under the procedure set out
above, he will be chosen on the basis of objectivity and competence, not on the
basis of his relationship with the brokers or the parties to this Lease, and the
brokers will be so advised, although the brokers will be instructed to attempt
in good faith to agree upon the broker.
(iv) Either Landlord or Tenant may notify the broker selected by the other
party to demand the submission of an estimate of the prevailing Market Rate or a
choice of the Independent Broker as required under the procedure described
above; and if the submission of such an estimate or choice is required but the
other party's broker fails to comply with the demand within ten (10) days after
receipt of such notice, then the prevailing Market Rate or choice of the
Independent Broker, as the case may be, selected by the other broker (i.e., the
notifying party's broker) will be binding upon the Landlord and Tenant.
(v) Landlord and Tenant shall bear the expense, if any, of the broker
appointed by it, and the expense of the Independent Broker will be shared
equally by Landlord and Tenant.
17
(vi) At such time as the prevailing Market Rate is determined, Landlord and
Tenant shall enter into an amendment to this Lease evidencing the extension of
the Lease Term at the prevailing Market Rate determined in accordance with the
foregoing procedure. If for any reason the prevailing Market Rate has not been
determined prior to the commencement of the Renewal Term, then during such
Renewal Term until the prevailing Market Rate is determined in accordance with
the procedure described above, Tenant shall pay Base Rent at the holdover rate
as set out in Section 17 of this Lease. Later, when the prevailing Market Rate
for the Renewal Term is determined, an adjustment will be made between Landlord
and Tenant for any overpayment or underpayment of the Base Rent payable during
the Renewal Term. Any underpayment of Base Rent for the period prior to such
determination will be paid with the installment of Base Rent next due after such
determination, and any overpayment of Base Rent shall be applied as an offset by
Landlord against Tenant's next maturing installments of Base Rent.
D. This renewal option is subject to the conditions that: (i) on the date
that Tenant gives Landlord its Notification, no uncured Tenant Event of Default
exists; (ii) no more than two monetary Events of Default, or more than four non-
monetary performance Events of Default regarding which Landlord has sent Tenant
notice, have occurred during the Term; and (iii) with regard to the second
renewal, Tenant may not exercise its option to renew for a second Renewal Term
unless it has exercised its option for the first Renewal Term.
2. Right of First Refusal. If at any time during the Term of this Lease
----------------------
Landlord receives a bona fide offer to lease (or an offer from an existing
tenant to extend its lease which is not contemplated in such lease) one or more
of the following spaces (each of which is currently occupied, as indicated):
A. 14,846 square feet (Tanisys)
B. 3,711 square feet (Strategic Resources)
C. 14,475 square feet (Simplex)
D. 12,633 square feet (Austin American Technology)
E. 6,000 square feet (Amherst Technology) (the "XxXxxx 3 Expansion Space
E")
all of which are located in XxXxxx 3 (individually and collectively, the "ROFR
----
Space"), which offer Landlord intends to accept, Landlord shall give Tenant
-----
written notice of such offer and such notice shall (i) specify all material
terms and conditions of such offer and (ii) contain an offer to Tenant under the
same terms and conditions as the offer (subject, however, to the additional
provisions of this Lease regarding the termination date) and give Tenant ten
(10) business days to accept such offer. Should Tenant fail to exercise its
right to lease such available ROFR Space within such ten (10) business day
period, Landlord shall have the right to lease the ROFR Space to such upon the
terms contained within such offer, but Tenant's right of first refusal regarding
the ROFR Space that was the subject of the third-party offer shall not lapse as
to such ROFR Space, and shall apply to any future offers, subject to the
conditions hereof. Tenant's right of first refusal as set forth herein is
subject to the conditions that on the date that Tenant delivers its notice
exercising its right of first refusal, no uncured Event of Default exists and is
continuing. Notwithstanding any provision of this Section to the contrary, if
the offer on the ROFR Space is for a term that (a) ends on or before the
expiration date of this Lease, then Tenant's lease of any such ROFR Space will
be coterminous with the Term of this Lease, or (b) ends after the expiration
date of this Lease, then Landlord may consider the economic impact of leasing
such ROFR Space to Tenant with an expiration date that is coterminous with the
Term of this Lease, and modify the Rent for such ROFR Space contained in the
offer accordingly. Promptly after Tenant's exercise of its right of first
refusal as provided herein, Landlord and Tenant shall execute and deliver to
each other an amendment to this Lease setting forth (1) a description of the
ROFR Space, (2) the effective date of the inclusion of the ROFR Space, and (3)
the increase in Base Rent and Proportionate Share resulting from such inclusion.
Time is of the essence of this right of first refusal. Notwithstanding the
foregoing, Tenant's right of first refusal with respect to the XxXxxx 3
Expansion Space E shall become effective on November 1, 2002 in the event Tenant
has not exercised its rights pursuant to Section 4 of this Exhibit D.
---------
3. Right of First Offer. If at any time during the Term of this Lease, the
--------------------
ROFR Space shall become vacant and available for occupancy, then, except as
hereinafter provided, Landlord shall notify Tenant in writing (the "Offer
Notice") that the ROFR Space will be available for leasing, which Offer Notice
shall set forth the date on which the ROFR Space will be available for leasing
and Landlord's good faith determination of the market Base Rent and all other
financial considerations for such ROFR Space (including, for example, any tenant
improvements allowance). If Tenant shall desire to lease such ROFR Space,
Tenant shall notify Landlord in writing ("Tenant's Election Notice") within ten
(10) business days after receipt of the Offer Notice. If Tenant delivers a
Tenant's Election Notice, then Tenant shall be irrevocably obligated to lease
the ROFR Space in accordance with the provisions of this Section. If Tenant
shall fail to notify Landlord of such election within such ten (10) business day
period, Tenant shall be deemed to have irrevocably waived its right to lease the
ROFR Space and Landlord shall have the right to lease such ROFR Space or any
portion thereof to a third party, on such terms as Landlord may elect, but
subject to Tenant's right of first refusal set forth above. If Tenant elects to
lease the ROFR Space, then (i) the ROFR Space shall be added to and deemed part
of the Premises upon all of the terms and conditions contained in this Lease
except as otherwise set forth in this Section; (ii) the Base Rent shall be the
Base Rent set forth in the Offer Notice; (iii) Tenant's obligation to pay rent
with respect to the ROFR Space shall commence on the date Landlord makes the
ROFR Space "available" (as set forth in Paragraph B of Exhibit B hereof); (iv)
Tenant's Proportionate Share shall be proportionately increased and (v) Landlord
and Tenant shall execute and deliver to each other an amendment to this Lease
setting forth (1) a description of the ROFR Space, (2) the effective date of the
inclusion of the ROFR Space, and (3) the increase in Base Rent and Proportionate
Share resulting from such inclusion.
4. Lease Option Concerning XxXxxx 3 Expansion Space E. The parties
--------------------------------------------------
acknowledge that the XxXxxx 3 Expansion Space E is currently occupied and has a
lease termination date of April 30, 2003. At any time prior to October 31,
2002, Tenant may send written notice to Landlord of its election to lease the
XxXxxx 3 Expansion Space E commencing on July 1, 2003. In the event Tenant
elects to lease the XxXxxx 3 Expansion Space E pursuant to this paragraph, such
lease shall be (a) based upon the rental rates set forth below and in Section 2A
of this Lease, (b) for a term coterminous with the Term hereof, (c) allocated an
Allowance of $6.00 per square foot, and (d) treated as
18
"Expansion Space" and delivered in accordance with Exhibit B hereof. Promptly
after Tenant's election to lease the XxXxxx 3 Expansion Space E, Landlord and
Tenant shall execute and deliver to each other an amendment to this Lease
setting forth (1) a description of the XxXxxx 3 Expansion Space E, (2) the
effective date of the inclusion of the XxXxxx 3 Expansion Space E, and (3) the
increase in Base Rent and Proportionate Share resulting from such inclusion.
Rental Rate for the XxXxxx 3 Expansion Space E (6,000 square feet)
Months Base Rental Rate PSF/Mo. Total Monthly Rent
-------------------------------------------------------------------------------------------
July 1, 2003 - July 31, 2003 $0.00 $ 0.00
-------------------------------------------------------------------------------------------
August 1, 2003 - April 30, 2005 $0.85 $5,100.00
-------------------------------------------------------------------------------------------
5. Exterior Improvements.
---------------------
Notwithstanding any provisions of this Lease to the contrary, Tenant may
make improvements to the (a) facade of XxXxxx 4 and XxXxxx 5, (b) landscaping,
and (c) common areas, all as more particularly described on the attached
Schedule "D-1", provided, however, that under no circumstances may Tenant
contract for or perform any work that will damage or weaken the foundation,
load-bearing walls, or roof of any Building. All such work shall be done in a
good and workmanlike manner, in accordance with Schedule "D-1" and all
governmental requirements, and otherwise in accordance with Paragraph 6 of this
Lease. If Tenant is not in default, and in accordance with the draw procedure
for periodic progress payments concerning the Tenant Improvements contained
within paragraph 5 of Exhibit C hereof, Landlord shall pay to Tenant a total of
the lesser of (i) the actual cost of construction of such improvements, or (ii)
Three Hundred Thousand and No/100 Dollars ($300,000.00), provided, however, that
notwithstanding any provision of this Lease to the contrary, no portion of such
amount shall be paid by Landlord to Tenant prior to July 1, 2002.
19
SCHEDULE "D-1"
Page 1
[Diagram inserted.]
20
SCHEDULE "D-1"
Page 2
[Diagram inserted.]
21
SCHEDULE "D-1"
Page 3
[Diagram inserted.]
22
EXHIBIT "E"
Lease Commission Agreement
--------------------------
This Lease Commission Agreement (this "Agreement") is made by and between
Aetna Life Insurance Company, a Connecticut Corporation ("Owner") and Colliers
Oxford Commercial ("Broker").
Name and Address of Tenant: Luminex
00000 Xxxxxxxxxx Xxxx.
00000 Xxxxxxxxxx Xxxx.
00000 Xxxxxxxxxx Xxxx.
Xxxxxx, XX 00000
1. Registration. Broker hereby registers itself and Tenant with Owner, and
------------
Owner accepts such registration subject to the terms and conditions hereof.
2. Broker's Covenants. Broker exclusively represents and has a fiduciary
------------------
relationship with Tenant Broker shall (a) unless Owner otherwise agrees in
writing, not claim any commission or other compensation from Owner in respect of
the leasing of all or any portion of the Property other than by reason of a
Lease in accordance with the terms and conditions of this Agreement, (b) not be
entitled to any payment from Owner other than the Commission, it being
understood that Broker shall not be entitled to any interest on any deferred (as
provided for herein) payments of the Commission and that all costs and expenses
incurred by Broker in connection herewith shall be borne solely by Broker, and
(c) promptly pay the appropriate portion of the Commission to all salespersons,
brokers, finders and any other persons who are entitled to payment of a portion
thereof by reason of any agreement or understanding with Broker.
3. Broker's Representations and Warranties. Broker represents and warrants to
---------------------------------------
Owner that at all times during the term of this Agreement, (a) Broker, at the
discretion of Tenant, is representing Tenant in connection with the leasing of
all or a portion of the Property, (b) Tenant has expressed a serious interest in
negotiating a lease with Owner through Broker, (c) Broker is familiar with
Tenant's expectations concerning price and terms, space requirements, and
financial condition, and all of such matters are generally consistent with the
Property and Owner's expectations, and (d) Broker is duly licensed Texas real
estate broker and is authorized to enter into this Agreement.
4. Termination. Broker's rights and Tenant's registration under this Agreement
-----------
shall automatically terminate, and no commission or other compensation shall be
payable to Broker, if any one or more of the following events occur: (a) If
Broker fails to observe or perform any of its obligations hereunder, (b) if any
representation or warranty made by Broker in this Agreement is or at any time
becomes false or misleading in any respect, Owner gives written notice to Broker
that, in the reasonable judgment of Owner, there has been a lack of active and
substantial progress towards the consummation of a Lease for a period of sixty
(60) consecutive days or more and reasonable progress is not made within ten
(10) days after such notice to Broker, or (e) Tenant designates a person or
entity other than Broker to act as his agent or representative in connection
with the leasing of the Property or any portion thereof. Broker acknowledges and
agrees that no commission or other compensation will be payable to Broker unless
a registration is in effect for Broker in respect of Tenant, at the time the
Lease is fully executed.
5. Duplicate Registrations. If for any reason, more than one registration is
(or alleged to be) in effect for Tenant, notwithstanding anything in this
Agreement to the contrary, the total commission payable by Owner in respect of
any Lease with Tenant shall be limited to the total Commission that would have
been payable by Owner if only one registration were in effect. Unless otherwise
agreed to in writing, the Commission shall be payable only to the broker who, in
the judgment of Owner, was most instrumental in causing the consummation of the
Lease and Owner shall promptly notify Broker upon Owner's determination of any
duplicate registration of Tenant.
6. Withdrawal of Property. Broker acknowledges and agrees that (a) Owner may,
----------------------
with or without cause, withdraw the Property, or any portion thereof, from the
market or lease the Property, or any portion thereof, to a different tenant, in
each case, without liability or notice to Broker, and (b) Owner has not in any
way committed or represented to Broker that it will enter into (or attempt to
enter into) a Lease with Tenant, it being understood that any decision to enter
into (or attempt to enter into) a Lease shall be at the sole discretion of
Owner.
7. Indemnity. Broker shall indemnify and hold Owner harmless from and against
---------
any and all loss, cost, liability, and expense (including, without limitation,
all attorneys' fees) which Owner may incur by reason of (a) the failure of
Broker to observe or perform its obligations hereunder, (b) the present or
future inaccuracy of any representation or warranty made by Broker, and/or (c)
the right or claim of any other broker, finder, or other person who claims to
have earned a commission or fee in connection with any lease of all or any
portion of the Property to Tenant.
8. The Commission. Subject to the other terms and conditions of this
--------------
Agreement, Owner agrees to pay Broker the Commission if Owner and Tenant enter
into a Lease within the one hundred eighty (180) day period (the "Term")
following the date of this Agreement provided, however, that this Agreement
shall not apply to any Lease other than the next Lease which is entered into
after the date hereof, and no Commission shall be payable to Broker with respect
to any additional Lease unless Owner and Broker enter into a separate Lease
Commission Agreement with respect thereto. The Tern of this Agreement may be
extended, but only if Owner and Broker mutually agree to do so in writing. The
Broker shall be paid a 4% cash-out commission based on the aggregate Base Rent
as defined below. Commissions shall not apply to renewals, extensions, or
expansions unless the Broker is actively involved. If those conditions are met,
Broker shall be paid four percent (4%) cash-out commission on expansions and a
four percent (4%) cash-out commission on renewals.
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9. Time of Payment.
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In the case of a cash-out commission the Owner shall (provided that Tenant is
not then in default under the Lease) pay Broker such commission in two
installments, the first of which shall be 50% of the total commission and shall
be paid within thirty (30) days of full execution of the Lease Agreement and the
remainder shall be paid within thirty (30) days of (a) occupancy of the Lease
space by tenant, and if applicable (b) receipt of the first month's rental
payment after any "free rent" period.
10. Bankruptcy. Should the Tenant become insolvent or bankrupt before or
----------
during the "free rent" period, the Broker will not be entitled to any additional
----------
commission for the services rendered.
11. Miscellaneous.
a. "Base Rent" shall mean the minimum basic rental payment payable to Owner
excluding deposits, taxes, insurance, and common area maintenance charges.
c. Broker agrees that the Tenant will not be shown the Owner's properties
without an Owner's leasing representative present.
d. Time is of the essence.
e. All payments to be made hereunder and any notice required or permitted to
be delivered hereunder shall be deemed received when sent by United States Mail,
postage prepaid, addressed to Owner or Broker, as the case may be, at the
address appearing under the signature of such party. A party may change its
address for the purpose of payment or notice by written notice to the other
party pursuant to the terms hereof.
f. The failure of Owner to insist upon strict performance or compliance with
the terms and conditions of this Agreement, or the failure of Owner to avail
itself of any of its rights or remedies hereunder, shall not in any way
constitute or be deemed to be a waiver of estoppel in respect thereof or prevent
Owner from thereafter insisting on strict compliance with the terms hereof.
g. This Agreement constitutes the sole and entire Agreement of the parties and
supercedes any prior agreements (written and oral) between the parties
concerning the subject matter hereof.
h. Recourse against Owner hereunder shall be limited to proceeding against
Owner's interest in the Project or the proceeds of disposition of the Project
and shall in no event exceed the amount of the commission plus reasonable
attorney's fees.
Accepted and Agreed to this 15 day of June, 2001.
WITNESS: OWNER:
Aetna Life Insurance Company, a Connecticut Corporation
By: UBS Realty Investors, LLC (f/k/a Allegis Realty
Investors, LLC), a Massachusetts limited liability
company, its Investment Advisor and Agent
/s/
------------------- -------------------------------------------------------
By: Xxx Xxxxxx
Title: Director
WITNESS: BROKER:
Colliers Oxford Commercial
/s/ /s/
-------------------- -------------------------------------------------------
Xxxxxxxx Xxxxxx By: Xxxx X. Xxxxxxxx
Address: 0000 Xxx Xxxxxxx Xx.
Xxxxxx, XX 00000
License #: 0109397
Expiration Date: 1-31-03
Social Security #: ###-##-####
24
EXHIBIT "F"
[BLACK LINE DRAFT OF LEASE AGREEMENT
AGAINST THE FIRST DISCUSSION DRAFT OF THIS LEASE]
