EXHIBIT 10.51
COMMERCIAL SUBLEASE
1. PARTIES: PSC Management Limited Partnership ("SUBLESSOR") agrees to lease
to Xxxxx Services Company, LLC ("SUBLESSEE") the property described in
Section 2 below.
2. PROPERTY: A portion of the property described as Xxx 0 Xxxxx X, Xxxxxxxx
Xxxxxxxxx Subdivision and located at 0000 Xxxx Xxxxx Xxxxxxx, Xxxx of
Plano, in Collin County, Texas (the "PROJECT"), such portion being more
particularly described on the attached EXHIBIT A, together with any
improvements, furniture, fixtures, telephone equipment and any other
property located thereon. Sublessee may expand the property subleased
hereby to include the portion of the Project more particularly described on
the attached EXHIBIT B, together with any improvements, furniture,
fixtures, telephone equipment and any other property located thereon, at
the same rental rate per rentable square foot, by giving Sublessor at least
90 days prior written notice of such expansion. All property subleased by
this Sublease is hereinafter referred to as the "PROPERTY".
3. AMENITIES: Sublessee shall be entitled to (i) the use of one reserved,
secured parking space and 50 reserved, covered parking spaces located at
the Project at locations identified on the attached EXHIBIT C; (ii) secured
filing and storage space for employees of Sublessee at a location at the
Project mutually satisfactory to Sublessor and Sublessee; (iii) use of all
facilities at the Project (including without limitation, lobbies,
pedestrian ways, public corridors, the cafeteria, fitness center, jogging
track and other common areas) on the same basis as employees of Xxxxx
Systems Corporation ("PSC"); and (iv) use of the board room and theater at
the Project, subject to coordinating scheduling with PSC (it being agreed
that PSC shall have first rights with respect to the board room and
theater).
4. TERM: This Sublease is effective on the date hereof. However, the term of
Sublessee's occupancy begins on SEPTEMBER 15, 2002 (or such earlier date as
Sublessee shall occupy the Property) and ends on APRIL 30, 2005 (subject to
earlier termination as hereinafter provided). Sublessee shall use the
Property only for general office purposes. So long as Sublessee is not then
in default hereunder, and provided that Sublessor has either purchased the
Property or the Xxxxxxxxx (hereinafter defined) is renewed for a period at
least equal to the period of such renewal term, Sublessee may extend the
term of this Sublease for an additional TWO years at the same rental rate
per rentable square foot by giving written notice of such extension to
Sublessor at least 120 days prior to the expiration of the primary term. In
addition, Sublessee may terminate this Sublease for any reason upon 120
days prior written notice from Sublessee to Sublessor and payment to
Sublessor of the unamortized portion of the Allowance (hereinafter
defined), calculated on a straight-line basis over the initial term of this
Sublease.
5. RENTAL: During the term of this Sublease, Sublessee agrees to pay
Sublessor, without offset or demand, at such place as Sublessor shall
designate, a monthly amount equal to one-twelfth of $15.50 per rentable
square foot of the Property, prorated for the first month of the term of
this Sublease. Rent shall be due and payable on SEPTEMBER 15, 2002 and
thereafter on the first day of each month during the term of this Sublease.
The rentable square footage of the Project is deemed to be 729,107 square
feet. The rentable square footage of the property described in EXHIBIT A is
deemed to be 23,424 square feet and the rentable square footage of the
property described in EXHIBIT B is deemed to be 1,546 square feet.
Sublessee shall pay to Sublessor, as additional rent, the cost of
electricity used at the Property. Such calculation shall be determined by
allocating to the Sublessee its Proportionate Share (hereinafter defined)
of the electrical costs attributable to the Project. Such payment shall be
due thirty days after written invoice. Such Proportionate Share shall be a
fraction, the numerator of which is the gross square footage of the
Property and the denominator of which is 729,107. Notwithstanding the
foregoing, so long as H. Xxxx Xxxxx, Xx. ("HRP"), is chairman of the
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board of directors of PSC, no rent or electricity costs shall be payable by
Sublessee with respect to the 2,784 rentable square feet of the Property
used as the chairman's office.
6. BROKERS COMMISSION: Sublessor shall pay $10,000 to Capstar Commercial Real
Estate Services, Inc. for consulting services relating to this Commercial
Sublease.
7. SECURITY DEPOSIT: None.
8. ALTERATIONS/REPAIRS: Sublessor shall remodel the Property in accordance
with plans and specifications and using a contractor approved by Sublessee
and Sublessor. Sublessor shall pay an amount equal to $4.00 per rentable
square foot of the original Property (the "ALLOWANCE") as an allowance
toward remodeling costs of the Property. Sublessee will promptly pay the
costs of remodeling in excess of the Allowance. Sublessee shall be
responsible, at its own expense, for installation, operation and
maintenance of all servers and LANS related directly to Sublessee's tenancy
and will coordinate with Sublessor regarding all servers, LANS and other
communications and data installations. Subject to SECTION 13 below,
Sublessor agrees to promptly repair at its expense the roof, foundation,
HVAC, life safety, sprinkler, elevators, electrical, gas, plumbing and
other mechanical systems of the building and exterior walls only, excluding
all windows and doors, upon the receipt of written notice from Sublessee
requesting repairs. Sublessee shall take good care and maintain at its
expense the remainder of Property, and upon the termination of this
Sublease deliver the Property in good repair and condition, reasonable wear
and tear and damage by fire only excepted. Sublessee shall not make any
material alterations, additions or improvements to the Property without the
written permission of Sublessor. All such additions and fixtures (except
trade fixtures) shall remain and become the property of Sublessor, unless
Sublessor requests their removal, in which event Sublessee shall remove
same and restore the Property to its original condition at Sublessee's
expense. Sublessee shall keep the Property in a neat and clean condition.
9. FIRE: In the event the Property, or a portion thereof, shall be damaged by
fire, or other casualty insurable under standard fire and extended coverage
insurance, and neither Sublessor nor Sublessee elects to terminate this
Sublease as provided below, Sublessor shall proceed to rebuild and repair
at its expense. If the Property shall (a) be substantially damaged by a
casualty not covered by Sublessor's insurance, (b) be rendered untenantable
in excess of five percent of the floor area by a casualty covered by
Sublessor's insurance or (c) suffer damage to the extent that the remaining
term of this Sublease is not sufficient to amortize the cost of
reconstruction, then Sublessor or Sublessee may elect to terminate this
Sublease by giving written notice to the other within 15 days of the date
of such casualty. Sublessee shall not permit the Property to be occupied
for any purpose deemed illegal, disreputable or extra hazardous on account
of fire, nor permit any actions that will increase the fire insurance rate
on the Property. Sublessee shall not bring or store hazardous substances on
the Property.
10. EMINENT DOMAIN: If any of the parking spaces subleased hereby or more than
one percent of the floor area of the Property, or such portion thereof as
will make any portion of the Property unusable for the purposes herein
leased, shall be taken by law, ordinance or regulation for public use, this
Sublease, at the option of either Sublessor or Sublessee, shall terminate
effective the date possession is taken by the condemning authority, and
rental prorated. All compensation awarded for taking of the Property shall
belong to Sublessor. Any award to Sublessee for loss of business or
personal property shall belong to Sublessee. Neither party shall have any
right to any award to the other by any condemning authority.
11. ASSIGNMENT: Sublessee shall not assign, sublet, mortgage or pledge this
Sublease, nor permit the whole or any part of the Property to be occupied
by others without the written consent of Sublessor;
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provided, however, Sublessee, without Sublessor's consent, may sublet all
or part of the Property to entities directly or indirectly controlled by
HRP or members of his family, subject to the terms and conditions of this
Sublease.
12. LAWS/USE: Sublessee agrees, at Sublessee's expense, to comply with all
governmental laws, rules and orders relating to Sublessee's use and
occupancy of the Property. In no event shall Sublessee allow operations at
the Property to constitute a nuisance to the other tenants of the Project.
13. INDEMNITY: Sublessee agrees to keep the Property covered with liability
insurance in amounts, from underwriters and in a form reasonably acceptable
to Sublessor at the cost of Sublessee and to indemnify Sublessor and hold
it harmless from any loss, expenses or claims arising out of the use of the
Property by Sublessee, its employees, invitees, agents or visitors or any
other person whatsoever. Sublessor shall not be liable for any injury or
loss on or about the Property to Sublessee, its agents, invitees,
subtenants, licensees or concessionaires or any other person entering the
Property. Sublessor shall not be liable to Sublessee for any injury to
person or damage to property caused by defect or failure of equipment,
pipes, wiring, broken glass, backing up of drains or by water, gas,
electricity or oil leaking or by any portion of the Property becoming out
of repair. Sublessee shall keep all of its merchandise, fixtures,
equipment, leasehold improvements and other personal property insured by
fire and all risk replacement cost insurance. Sublessee's insurance shall
be primary.
14. ENTRY: Sublessor or its representatives shall have the right to enter the
Property during normal business hours upon 24 hour written notice to
inspect, make repairs or alterations to adjacent property or show the
Property to prospective purchasers, lessees or lenders. Sublessor shall
have the right to enter the Property at any time without notice if
necessary to protect persons or property from immediate threat of injury or
damage. Sublessee shall not be entitled to abatement of the rent by reason
thereof.
15. SIGNS: Except with the Sublessor's prior written permission, Sublessee
shall not place any signs or objects on the roof or any portion of the
exterior of the Property; make any changes to or paint the exterior;
install any exterior lighting, paintings, signs or displays; or place any
sign or display on fences, sidewalks, parking lots or driveways of any type
that may be viewed from the exterior of the Property. Use of the roof above
the Property is reserved to Sublessor.
16. DEFAULT: The following events shall be deemed to be a default by Sublessee:
1) failure to pay any installment of rent and the continuation of such
failure for at least ten days after written notice to Sublessee or 2)
failure to comply with any provision of this Sublease, other than the
payment of rent and the continuation of such failure for at least 15 days
after written notice is sent to Sublessee. Upon the occurrence of either of
the above, Sublessor may pursue any remedy available at law or in equity.
17. LIENS: Sublessor waives its statutory landlord's lien on the personal
property of Sublessee.
18. TAXES: Sublessor is responsible for rendering and paying real estate taxes
on the Property. Sublessee is responsible for rendering and paying all
personal property taxes on Sublessee's personal property, trade fixtures
and inventory placed on the Property.
19. UTILITIES/TELECOMMUNICATIONS/JANITORIAL SERVICES: Except as provided
herein, Sublessor agrees to provide without additional charge all utilities
used on the Property (including light bulb replacement) and to provide
janitorial services considered standard by Sublessor. Sublessee shall have
the right to interview and approve personnel used by Sublessor for
janitorial services, such approval not to be unreasonably withheld.
Sublessor shall xxxx Sublessee certain telecommunications costs (including
without limitation, the cost of certain multi-line handsets,
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specific use circuits, long distance fees and maintenance) pursuant to a
separate agreement. Internet connections will be provided pursuant to a
separate agreement. Sublessee shall pay for its cost of telephone and
security service.
20. SEVERABILITY/SUBLEASE: In the event a court declares any part of this
Sublease invalid, the remaining portion shall remain in full force and
effect. Sublessee hereunder agrees that this Sublease is subject and
subordinate to the lease under which the Sublessor hereunder occupies the
Property (the "XXXXXXXXX," and the lessor and its successors in interest
thereunder being herein called the "OVERLANDLORD") and that Sublessee
hereunder will, upon the request of the Overlandlord (or its Lender),
attorn to the Overlandlord (or its Lender) and pay the Overlandlord (or its
Lender) all of the rents and other monies required to be paid by the
Sublessee under this Sublease, and perform all of the terms, covenants,
conditions and obligations contained in this Sublease; provided that, as a
condition to and if Overlandlord (or its Lender) requests such attornment
by Sublessee, the Overlandlord (and if its Lender requires such attornment,
then also such Lender) shall agree to recognize Sublessee hereunder, and
this Sublease shall continue as a direct lease between Sublessee and
Overlandlord (or such Lender, its successors or assigns, if it or such
successor or assign becomes the owner of the Property) upon all of the
terms and conditions hereof; and provided, further that in no event shall
Overlandlord (or any successor owner of the Property) have any obligation
to perform any obligation of the Sublessor hereunder with respect to
obligations of the Sublessor accruing prior to the date that Overlandlord
(or such successor owner of the Property) becomes the Sublessor hereunder,
and that any obligations of Overlandlord (or such successor owner of the
Property) hereunder arising after such date shall be without recourse to
Overlandlord (or such successor owner of the Property), other than the
interest of Overlandlord (or such successor owner of the Property) in the
property demised by this Sublease. The term "LENDER" shall initially mean
the holder of any mortgage or deed of trust or similar lien against the
Property from Overlandlord or its predecessor in interest, but upon any
judicial or non-judicial foreclosure sale or deed in lieu thereof, "LENDER"
shall mean the purchaser at such sale or transferee by deed in lieu
thereof. A termination of the Xxxxxxxxx shall cause a termination of this
Commercial Sublease.
21. RISK OF LOSS: Sublessee assumes all risk of loss to items that it places on
the Property. Sublessor bears no risk of loss for Sublessee's property.
22. NOTICES: All notices required or permitted herein must be in writing and
may be delivered in person, or by mailing to the addresses shown herein, or
to the address of the Property for Sublessee, by certified mail, return
receipt requested. Such notices shall be deemed to be delivered as of the
date of posting, whether actually received or not. This Sublease contains
the entire agreement between the parties hereto, and no agreements,
inducements or promises, oral or otherwise, not a part of this agreement,
shall be binding on the parties hereto.
23. WAIVER OF SUBROGATION: Anything in this Sublease to the contrary
notwithstanding, Sublessor and Sublessee hereby waive and release each
other of and from any and all rights of recovery, claim, action or cause of
action, against each other, their agents, officers and employees, for any
loss or damage that may occur to the Property, or merchandise, fixtures,
equipment, leasehold improvements and other personal property within the
Property (or within any storage areas), by reason of casualty loss, fire or
the elements regardless of cause of origin, INCLUDING NEGLIGENCE OF
SUBLESSOR OR SUBLESSEE AND THEIR AGENTS, OFFICERS AND EMPLOYEES, but only
to the extent that such claims are covered by insurance or, by the terms of
this Sublease, are required to be insured. Because this section will
preclude the assignment of any claim mentioned in it by way of subrogation
or otherwise, each party agrees immediately to give to each insurance
company which has issued to it policies of insurance coverage relating to
the Property, written notice of the terms of the mutual waivers contained
in this section, and to have the insurance
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policies properly endorsed, if necessary, to prevent the invalidation of
the insurance coverages by reason of the mutual waivers contained in this
section. THIS SECTION RELEASES A PARTY FOR ITS OWN NEGLIGENCE.
EXECUTED in multiple originals this the _________ day of
__________________, 2002.
SUBLESSOR: SUBLESSEE:
--------- ---------
PSC Management Limited Partnership, Xxxxx Services Company, LLC,
a Texas limited partnership a Texas limited liability company
By: PSC GP Corporation, a Delaware By:
corporation, its general partner ------------------------------
Its:
By: -----------------------------
------------------------------------
Its:
-----------------------------------
Address: 0000 Xxxx Xxxxx Xxxxxxx Address: 00000 Xxxxx Xxxxx, #0000
------- Xxxxx, Xxxxx 00000 ------- Xxxxxx, Xxxxx 00000
Exhibit A: - Leased Premises
Exhibit B: - Expansion Premises
Exhibit C: - Parking Location
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