LEASE AGREEMENT
Between
AEtna Life Insurance Company
as Landlord,
and
1st Tech Corporation,
as Tenant,
Covering approximately 6,180 gross square feet
of the Building known (or to be known) as
McNeil 3
located at
12201 Technology Boulevard, Suite 130
Austin, Texas, 78727
STANDARD INDUSTRIAL LEASE AGREEMENT
TRAMMEL CROW COMPANY - (AUS/91)
Approximately 6,180 gross square feet
12201 Technology Boulevard, Suite 130
Austin, Texas 78727
McNeil 3
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between AEtna Life
Insurance Company, hereinafter referred to as "Landlord", and 1st Tech
Corporation, hereinafter referred to as "Tenant."
1. PREMISES AND TERM. In consideration of the mutual obligations of Landlord
and Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes
from Landlord, certain leased premises situated within the County of Travis,
State of Texas, as more particularly described on EXHIBIT "A" attached hereto
and incorporated herein by reference (the "Premises"), to have and to hold,
subject to the terms, covenants and conditions in this Lease. The term of this
Lease shall commence on the Commencement Date hereinafter set forth and shall
end on the last day of the month that is Sixty (60) months after the
Commencement Date.
A. EXISTING BUILDING AND IMPROVEMENTS. If no material improvements are
to be constructed to the Premises, the "Commencement Date" shall be April 26,
1993. In such event, Tenant acknowledges that (i) it has inspected and accepts
the Premises in its "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 ( unless otherwise expressly
set forth in this Lease).
2. BASE RENT, SECURITY DEPOSIT AND ESCROW DEPOSITS.
A. BASE RENT. Tenant agrees to pay Landlord rent for the Premises, in
advance, without demand, deduction or set off, at the rate of SEE MONTHLY RENTAL
ON EXHIBIT "C" and /100 Dollars ($) per month during the term hereof. One such
monthly installment, plus the other monthly charges set forth in Paragraph 2C
below, shall be due and payable on the date hereof, and like monthly installment
shall be due and payable 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.
B. SECURITY DEPOSIT. In addition, Tenant agrees to deposit with Landlord
on the date hereof the sum of Four Thousand Seven Hundred Seventy-three and
60/100 Dollars ($4,773.60), which shall be held by Landlord, without obligation
for interest, as security for the performance of Tenant's obligations under this
Lease (the "Security Deposit"), 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 its original amount. The
Security Deposit shall be deemed the property of Landlord, but any remaining
balance of the Security Deposit shall be returned by Landlord to Tenant when all
of Tenant's present and future obligations under this Lease have been fulfilled.
C. ESCROW DEPOSITS. Without limiting in any way Tenant's other
obligations under this Lease, Tenant agrees to pay to Landlord its Proportionate
Share (as defined in this Paragraph 2C below) of (i) Taxes (hereinafter defined)
payable by Landlord pursuant to Paragraph 3A below, (ii) the cost of utilities
payable by Landlord pursuant to Paragraph 8 below, (iii) Landlord's cost of
maintaining insurance pursuant to Paragraph 9A below, and (iv) Landlord's cost
of maintaining the Premises pursuant to paragraph 5E below and any common area
charges payable by Tenant in accordance with Paragraph 4B below (collectively,
the "Tenant Costs"). During each month of the term of this Lease, 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 Paragraph 2C 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 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. In the event the Premises constitute a portion of a multiple
occupancy building (the "Building"), Tenant's "Proportionate Share" with respect
to the Building, as used in this Lease, shall mean a fraction, the numerator of
which is the gross rentable area contained in the Premises and the denominator
of which is the gross rentable area contained in the entire Building. In the
event the Premises or the Building is part of a project or business park owned,
managed or leased by Landlord or an affiliate of Landlord (the "Project"),
Tenant's "Proportionate Share" of the Project, as used in this Lease, shall mean
a fraction, the numerator of which is the gross rentable area contained in the
Premises and the denominator of which is the gross rentable area contained in
all of the buildings (including the Building) within the project.
3. TAXES
A. REAL PROPERTY TAXES. Subject to reimbursement under Paragraph 2C
herein, 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 Premises, the Building and/or the land of which the Premises or the
Building are a part. If at any time during the term of this Lease there shall
be levied, assessed or imposed on Landlord a capital levy or other tax directly
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on the rents received therefrom and/or a franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rents from the
Premises and/or the land and improvements of which the Premises are a part, then
all such taxes, assessments, levies or charges, or the part thereof so measured
or based shall be deemed to be included within the term "Taxes" for the purposes
hereof. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the real property within the applicable
taxing jurisdiction. Tenant agrees to pay its Proportionate Share of the cost
to such consultant.
B. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied
or assessed against any personal property or 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
fixtures and Landlord pay the increased taxes, then Tenant shall pay to
Landlord, upon demand, the amount of such taxes.
4. LANDLORD'S REPAIRS AND MAINTENANCE
A. STRUCTURAL REPAIRS. Landlord, at its own cost and expense, shall
maintain the roof, foundation and the structural soundness of the exterior walls
of the Building in good repair, reasonable wear and tear excluded. 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. 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.
B. TENANT'S SHARE OF COMMON AREA CHARGES. Tenant agrees to pay its
Proportionate Share of the cost of (i) maintenance and/or landscaping (including
both maintenance and replacement of landscaping) of any property that is a part
of the Building and/or the Project ; (ii) operating, maintaining and repairing
any property, facilities or services (including without limitation utilities and
insurance therefor) provided for the use of benefit of Tenant or the common use
or benefit of Tenant and other lessees of the Project or the Building; and (iii)
an administrative fee of fifteen percent (15%) of all common area maintenance
charges.
5. TENANT'S REPAIRS.
A. MAINTENANCE OF PREMISES AND APPURTENANCES. Tenant, at its own cost
and expense, shall (i) maintain all parts of the Premises and promptly make all
necessary repairs and replacements to the Premises (except those for which
Landlord is expressly responsible hereunder), and (ii) keep the parking areas,
driveways and alleys surrounding the Premises in a clean and sanitary condition.
Tenant's obligation to maintain, repair and make replacements to the Premises
shall cover, but not be limited to, pest control (including termites), trash
removal and the maintenance, repair and replacement of all HVAC, electrical,
plumbing, sprinkler and other systems.
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B. RAILROAD SPUR. Tenant agrees to maintain any spur track servicing the
Premises and to sign a joint maintenance agreement with the railroad company
servicing the Premises if requested by the railroad company. Landlord shall
have the right to coordinate all repairs and maintenance of any rail tracks
serving or intended to serve the Premises and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord from time to time, upon demand, for its
Proportionate Share of the costs of such repairs and maintenance and any other
sums specified in any agreement respecting such tracks to which Landlord is a
party.
C. PARKING. Tenant and its employees, customers and licenses shall have
the right to use only its Proportionate Share of any parking areas that have
been designated for such use by Landlord in writing, subject to (i) all rules
and regulations promulgated by Landlord, and (ii) rights of ingress and egress
of other lessees. 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
Premises.
D. SYSTEM MAINTENANCE. Tenant, at its own cost and expense, shall enter
into a regularly scheduled preventative 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 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.
E. OPTION TO MAINTAIN PREMISES. Landlord reserves the right to perform,
in whole or in part and without notice to Tenant, maintenance, repairs and
replacements to the Premises, paving, common area, landscape, exterior painting,
common sewage line plumbing and any other items that are otherwise Tenant's
obligations under this Paragraph 5, in which event, Tenant shall be liable for
its Proportionate Share of the cost and expense of such repair, replacement,
maintenance and other such items.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord.
Tenant, at its own cost and expense, may erect such shelves, bins, machinery and
trade fixtures as it desires, provided that (i) such items do not alter the
basic character of the Premises or the Building, (ii) such items do not overload
or damage same, (iii) such items may be removed without injury to the Premises,
and (iv) the construction, erection or installation thereof complies with all
applicable governmental laws, ordinances, regulations and with Landlord's
specifications and requirements. Tenant shall be responsible for compliance
with the Americans With Disabilities Act of 1990. Without implying any consent
of Landlord thereto, all alterations, additions, improvements and partitions
erected by Tenant shall be and remain the property of Tenant during the term of
this Lease. 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. All alterations,
installations, removals and restorations shall be performed in a good and
workmanlike manner so
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as not to damage or alter the primary structure or structural qualities of the
Building or other improvements situated on the Premises or of which the
Premises are a part.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval and shall be submitted to Landlord prior to the
Commencement Date of this Lease. 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, (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.
8. UTILITIES. Landlord agrees to provide normal water and electricity service
to the Premises. Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on or
at the Premises, together with any taxes, penalties, surcharges or the like
pertaining to the Tenant's use of the Premises and any maintenance charges for
utilities. Landlord shall have the right to cause any of said services to be
separately metered to Tenant, at Tenant's expense. Tenant shall pay its pro
rata share, as reasonably determined by Landlord, of all charges for jointly
metered utilities. Landlord shall not be liable for any interruption or failure
of utility service on the Premises, and Tenant shall have no rights or claims as
a result of any such failure. In the event water is not separately metered to
Tenant, Tenant agrees that it will not use water and sewer capacity for uses
other than normal domestic restroom and kitchen usage, and Tenant further agrees
to reimburse Landlord for the entire amount of common water and sewer costs as
additional rental if, in fact, Tenant uses water or sewer capacity for uses
other than normal domestic restroom and kitchen uses without first obtaining
Landlord's written permission, including but not limited to the cost for
acquiring additional sewer capacity to service Tenant's excess sewer use.
Furthermore, Tenant agrees in such event to install at its own expense a
submeter to determine Tenant's usage.
9. INSURANCE
A. LANDLORD'S INSURANCE. Subject to reimbursement under Paragraph 2C
herein, Landlord shall maintain insurance covering the Building in an amount not
less than eighty percent (80%) of the "replacement cost" thereof, insuring
against the perils of fire, lightning, extended coverage, vandalism and
malicious mischief.
B. TENANT'S INSURANCE. Tenant, at its own expense, shall maintain during
the term of this Lease a policy or policies of workers' compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage and One Million
Dollars ($1,000,000.00) per occurrence and One Million Dollars ($1,000,000.00)
in the
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aggregate for personal injuries or deaths of persons occurring in or about the
Premises. Tenant, at its own expense, shall also maintain during the term of
this Lease fire and extended coverage insurance covering the replacement cost of
(i) all alterations, additions, partitions and improvements installed or placed
on the Premises by Tenant or by Landlord on behalf of Tenant; and (ii) all of
Tenant's personal property contained within the Premises. Said policies shall
(i) name the Landlord as an additional insured and insure Landlord's contingent
liability under or in connection with this Lease (except for the workers'
compensation policy, which instead shall include a waiver of subrogation
endorsement in favor of Landlord); (ii) be issued by an insurance company which
is acceptable to Landlord; and (iii) provide that said insurance shall not be
cancelled unless thirty (30) days' prior written notice has been given to
Landlord. Said policy or policies or certificates thereof shall be delivered to
Landlord by Tenant on or before the Commencement Date and upon each renewal of
said insurance.
C. PROHIBITED USES. Tenant will not permit the Premises to be used for
and purposes or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance risk or 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
explosive or highly inflammable. If any increase in the cost of any insurance
on the Premises or the 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 peril, Tenant shall
immediately give written notice to Landlord of such damage or destruction. If
the Premises or the Building should be totally destroyed by any peril covered by
the insurance to be provided by Landlord under Paragraph 9A above, or if they
should be so damaged thereby that, in Landlord's estimation, rebuilding or
repairs cannot be completed within one hundred eighty (180) days after the date
of such damage or after such completion there would not be enough time remaining
under the terms of this Lease to fully amortize such rebuilding or repairs, 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 any peril covered by the insurance to be provided by Landlord
under Paragraph 9A above and, in Landlord's estimation, rebuilding or repairs
can be substantially completed within one hundred eighty (180) days after the
date of such damage, then this Lease shall not terminate and Landlord shall
substantially restore the Premises to its 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.
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
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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.
D. 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 loss or
damage that may occur to the Premises, improvements to the Building or personal
property (Building contents) within the Building and/or Premises, for any reason
regardless of cause or origin. 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 and to have the
insurance policies properly endorsed to provide that the carriers of such
policies waive all rights of recovery under subrogation or otherwise against the
other party.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of recovery
and causes of action that Landlord has released, Tenant shall hold Landlord
harmless from and defend Landlord against any and all claims or liability for
any injury or damage (i) to any person or property whatsoever occurring in, on
or about the Premises or any part thereof, the Building and/or other common
areas, the use of which Tenant may have in accordance with this Lease, if (and
only if) such injury or damage shall be caused in whole or in part by the act,
neglect, fault or omission of any duty by Tenant, its agents, servants,
employees or invitees; (ii) arising from the conduct or management of any work
done by the Tenant in or about the Premises; (iii) arising from transactions of
the Tenant; and (iv) all costs, counsel fees, expenses and liabilities incurred
in connection with any such claim or action or proceeding brought thereon. The
provisions of this Paragraph 11 shall survive the expiration or termination of
this Lease. 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. 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. Furthermore, 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 Building or the Project,
regardless of whether such loss occurs when the area is locked against entry.
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 lessees
in the Building 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 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 Building or the
Project and/or
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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,
the parking garage or other parking areas.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful purposes
as may be directly incidental thereto. Outside storage, including without
limitation storage of trucks and other vehicles, is prohibited without
Landlord's prior written consent. Tenant shall comply with all governmental
laws, ordinances and regulations applicable to the 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. The term "Hazardous Substances", as used in this Lease,
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", which term 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. Tenant hereby
agrees that: (i) no activity will be conducted on the Premises that will
produce any Hazardous Substances, except for such activities that are part of
the ordinary course of Tenant's business activities (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 in any manner for the storage of any Hazardous
Substances, except for the temporary storage of such materials that are used in
the ordinary course of Tenant's business (the "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 as a landfill or a dump; (iv) Tenant will not install
any underground tanks of any type; (v) Tenant will not allow any surface or
subsurface conditions to exist or come
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into existence that constitute, or with the passage of time may constitute, a
public or private nuisance; and (vi) Tenant will not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted Materials,
and if so brought or found located thereon, 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. Should it be determined, in Landlord's sole 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.
Should Tenant fail to take such corrective action within twenty four (24) hours,
Landlord shall have the right to perform such work and Tenant shall reimburse
Landlord, on demand, for any and all costs associated with said work. If at any
time during or after the term of this Lease, the Premises is found to be
contaminated with Hazardous Substances, Tenant shall diligently institute proper
and thorough clean-up procedures, at Tenant's sole cost. Tenant agrees to
indemnify and hold Landlord harmless from all claims, demands, actions,
liabilities, costs, expenses, damages, penalties and obligations of any nature
arising from or as a result of any contamination of the Premises with Hazardous
Substances, or otherwise arising from the use of the Premises by Tenant. The
foregoing indemnification and the responsibilities of Tenant shall survive the
termination or expiration of 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 Lease 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. Tenant shall notify
Landlord in writing at least thirty (30) days prior to vacating the Premises and
shall arrange to meet with Landlord for a joint inspection of the Premises prior
to vacating. If Tenant fails to give such notice or to arrange for such
inspection, then Landlord's inspection of the Premises shall be deemed correct
for the purpose of determining Tenant's responsibility for repairs and
restoration of the Premises.
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. 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
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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
following shall additionally constitute an assignment of this Lease by Tenant
for the purposes of this Paragraph 15: (i) if Tenant is a corporation, any
merger, consolidation, dissolution or liquidation, or any change in ownership or
power to vote of thirty percent (30%) or more of Tenant's outstanding voting
stock; (ii) if Tenant is a partnership, joint venture or other entity, any
liquidation, dissolution or transfer of ownership of any interests totaling
thirty percent (30%) or more of the total interests in such entity; (iii) the
sale, transfer, exchange, liquidation or other distribution of more than thirty
percent (30%) of Tenant's assets, other than this Lease; or (iv) the mortgage,
pledge, hypothecation or other encumbrance of or grant of a security interest by
Tenant in this Lease, or of any of Tenant's rights hereunder.
16. CONDEMNATION. If more than eighty percent (80%) of the Premises are 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 this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective on the date of such taking. If less than eighty
percent (80%) of the Premises are 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 this Lease shall not
terminate, 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. 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 one and one-half (1 1/2) times the rent if in effect
11
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, 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 an 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 five (5) days from the date
such payment was due.
B. Tenant shall (i) vacate or abandon all or a substantial portion of the
Premises or (ii) fail to continuously operate its business at the Premises for
the permitted use set forth herein, in either event whether or not Tenant is in
default of the rental payments due under this Lease.
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 22 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
D. Tenant shall default in the performance of any of its obligations
under any other lease to Tenant from Landlord, or from any person or entity
affiliated with or related to Landlord, and same shall remain uncured after the
lapsing from any applicable cure periods provided for under such other lease.
E. 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 twenty (20) days after written notice thereof from Landlord.
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;
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(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 Tenant hereby expressly agrees that
Landlord shall not be required to provide to Tenant the new key to the Premises,
regardless of hour, including Tenant's regular business hours;
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. In the
event of any violation of Section 93.002 of the Texas Property Code by Landlord
or by any agent or employee of Landlord, Tenant hereby expressly waives any and
all rights Tenant may have under Paragraph (g) of such Section 93.002.
A. DAMAGES UPON TERMINATION. If Landlord terminates this Lease at
Landlord's option, 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, plus, 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 the 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, provided that, 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 such fair market rental shall in no event
exceed seventy-five percent (75%) of the rental amount for such period set forth
in Paragraph 2 above.
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, plus all amounts
required to be paid by Tenant 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; (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
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new tenant or tenants; (iv) any and all costs and expenses incurred by Landlord
in effecting compliance with Tenant's obligation 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) 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) eighteen percent (18%) 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. No waiver by
Landlord of any violation or breach 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
14
Landlord deems undesirable or to expend any funds in connection with such
reletting or collection of rents therefrom. 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 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 Lease 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; 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 PERSONAL PROPERTY. If Landlord repossesses the Premises
pursuant to the authority herein granted, or if Tenant vacates or abandons all
or any part of the Premises, then, in addition to Landlord's rights under
Paragraph 27 hereof, Landlord shall have the right to (i) keep in place and use,
or (ii) remove and store, all of the furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant, at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. In addition to the
Landlord's other rights hereunder, Landlord may dispose of the stored property
if Tenant does not claim the property within ten (10) days after the date the
property is stored. Landlord shall give Tenant at least ten (10) 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 now or at any time hereafter constituting a lien
or charge upon the Premises
15
or the improvements situated thereon or the Building, 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. Tenant, at any time hereafter on demand, shall
execute any instruments, releases or other documents that may be required by any
mortgagee, trustee or holder for the purpose of subjecting and subordinating
this Lease to the lien of any such mortgage. 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) to make performance, at its election, for
and on behalf of Landlord.
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 save and hold Landlord harmless from any and all loss, cost or expense,
including without limitation attorneys' fees, 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.
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 and in the
Building 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.
D. FORCE MAJEURE. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by material shortages,
acts of God, labor disputes or other events beyond the control of Landlord.
16
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 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 existing under this Lease (or the absence thereof) and such other
factual or legal matters pertaining to this Lease as may be 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 or 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. 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 WARRANTY THAT THE PREMISES ARE 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. Upon the expiration or earlier termination of the term hereof, and
prior to Tenant vacating the Premises, Tenant shall pay to Landlord any amount
reasonably estimated by Landlord as necessary to put the Premises in good
condition and repair, reasonable wear and tear excluded, including without
limitation the cost of repairs to and replacements of all heating and air
conditioning systems and equipment therein. Tenant shall also, prior to
vacating the Premises, pay to Landlord the amount, as estimated by Landlord, of
Tenant's obligation hereunder for real estate taxes and insurance premiums for
the year in which the Lease expires or terminates. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant hereunder,
with Tenant being liable for any additional costs therefore upon demand by
Landlord, or with any excess to be returned to Tenant after all such obligations
have been determined and satisfied, as the case may be. Any Security Deposit
held by Landlord may,
17
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. Tenant represents and warrants that it has dealt
with and will deal with no broker, agent or other person in connection with this
transaction or future related transactions and that no broker, agent or other
person brought about this transaction, and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any broker, agent or other
person claiming a commission or other form of compensation by virtue of having
dealt with Tenant with regard to this leasing transaction.
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.
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
18
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 involve transcending the limit of validity prescribed by law,
then the obligation to be fulfilled shall be automatically reduced to the limit
of such validity, 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, 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 or, whether actually received or not, when deposited in
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.
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25. ADDITIONAL PROVISIONS. See EXHIBIT "C" attached hereto and incorporated
herein by reference.
26. GUARANTY OF LEASE. Gary Pankonien shall execute and deliver to Landlord,
upon execution of this Lease, a Guaranty of Lease in the form of EXHIBIT "D"
attached hereto.
EXECUTED BY LANDLORD, this 18 day of May, 1993.
AETNA LIFE INSURANCE COMPANY
By: /s/ JAMES G. HUGHES
Attest/Witness Title: Director
Address: c/o Trammel Crow Central Texas Inc.
- - ------------------------- 301 Congress Ave., Suite 1300, Austin, TX 78701
Title:
- - -------------------------
EXECUTED BY TENANT, this __________ day of ____________, 19___.
1ST TECH CORPORATION
By: /s/ GARY PANKONIEN
Attest/Witness Title: CEO
/s/ DONALD R. TURNER Address: 12201 Technology Boulevard, Suite 130
- - -------------------- Austin, Texas 78727
Title: CFO
EXHIBIT "A" - Description of Premises
EXHIBIT "C" - Additional Provisions
EXHIBIT "D" - Guaranty of Lease
20
EXHIBIT "A"
BUILDING: McNeil #3
LEGAL DESCRIPTION: Lot 4, McNeil Road Commercial Subdivision,
Section 2, acres 4.7429
ADDRESS: 12201 Technology Boulevard, Suite 130
Austin, Texas 78727
[Drawing of Premises, showing Leased Space, Expansion Space and
Right of First Refusal Space]
21
EXHIBIT "C"
ADDITIONAL PROVISIONS
MORTGAGEE PROTECTION CLAUSE
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by Registered
Mail, a copy of any Notice of Default served upon the Landlord, provided that
prior to such notice Tenant has been notified, in writing (by way of Notice of
Assignment of Rents and Leases, or otherwise), of the address of such Mortgagees
and/or Trust Deed Holders. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then the
Mortgagees and/or Trust Deed Holders shall have an additional thirty (30) days
within which to cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within such thirty (30)
days, any Mortgagee and/or Trust Deed Holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings, if necessary to effect such cure),
in which event this Lease shall not be terminated while such remedies are being
so diligently pursued.
TOXIC WASTE
Tenant covenants not to introduce any form of hazardous or toxic materials onto
the Premises without complying with all applicable Federal, State and local laws
or ordinances pertaining to the transportation, storage, use or disposal of such
material, including but not limited to obtaining proper permits.
If Tenant's transportation, storage, use or disposal of hazardous or toxic
materials on the Premises results in: 1) contamination of the soil or surface
or ground water; or 2) loss or damage to person(s) or property, then Tenant
agrees to respond in accordance with the following paragraph.
Tenant agrees: (i) to notify Landlord immediately of any contamination, claim
of contamination, loss or damage; (ii) after consultation and approval by
Landlord, to clean up the contamination in full compliance with all applicable
statues, regulations and standards; and (iii) to indemnify claims, suits, causes
of action, costs and fees, including attorneys' fees, arising from or connected
with any such contamination, claim of contamination, loss or damage. These
provisions shall survive termination of this Lease.
EXPANSION CLAUSE
Tenant shall expand into an additional 6,000 square feet on 9/1/93 contiguous to
Tenants' existing space a rental rate as described below.*
22
EXHIBIT "C"
ADDITIONAL PROVISIONS
CONTINUED
MONTHLY BASE RENTAL
The monthly base shall be as follows plus property taxes, common area
maintenance, and insurance as provided in the Lease:
Rental Period Original Expansion Per Total Monthly
Space Space Square Base Rent
6,180 s.f. 6,000 s.f. Foot 12,180 s.f.
4/26/93 - 8/31/93 $3,213.60 ---- 0.52 $3,213.60
9/1/93 - 4/25/95 $3,213.60 $3,120.00 0.52 $6,333.60
4/26/95- 4/25/97 $3,275.40 $3,180.00 0.53 $6,455.40
4/26/97- 4/30/98 $3,399.00 $3,300.00 0.55 $6,699.00
TENANT FINISH ALLOWANCE
Landlord shall provide a tenant finish allowance of $60,000.00 to be
applied toward interior improvements for the expansion space of 6,000 square
feet. Such construction shall commence by August 1, 1993, Tenant shall
reimburse Landlord for the amount of tenant improvements provided by Landlord in
excess of the finish-out allowance of $60,000.00. This amount shall be due and
payable within fifteen (15) days from receipt of invoice. In the event any such
amount is not paid within fifteen (15) days, the unpaid amount shall bear
interest at the rate of fifteen (15%) percent per annum from the due date until
payment is made by Tenant.
All improvements must comply with Landlords STANDARDS AND SPECIFICATIONS FOR
OFFICE/WAREHOUSE BUILDINGS and all applicable governmental regulations. Prior
to beginning construction of any improvements, Tenant shall submit architectural
drawings of the proposed improvements to Landlord and shall obtain Landlord's
written consent to begin construction.
RIGHT OF FIRST REFUSAL
Landlord is the owner of the herein demised premised and "expansion space," as
well as the adjacent 3,000 square feet of space, It is agreed that Tenant shall
have the right of first refusal to
23
EXHIBIT "C"
ADDITIONAL PROVISIONS
CONTINUED
lease the adjacent space from the Landlord subject to the existing leases in
place. In the event a prospective tenant desires to lease this space from
Landlord, Landlord shall notify Tenant thereof in the manner provided herein for
notice, whereupon Tenant shall have five (5) days after receipt of such notice
in which to elect to exercise Tenant's right of first refusal. In the event
Tenant fails to give Landlord written notice of Tenant's election to lease the
adjacent space within said five (5) day period, Tenant shall have no further
right, title or interest in the adjacent space and this right of first refusal
shall terminate and be of no further force and effect. If, on the other hand,
Tenant exercises its right of first refusal in the manner provided above, the
lease of the adjacent property shall be consummated at a fair market rental
rate.
RENEWAL OPTION
Tenant shall have the right and option to renew this Lease for one (1)
additional five (5) year term by delivering written notice thereof to Landlord
at least One Hundred Eighty (180) days prior to the expiration date of the lease
term, provided that at the time of such notice and at the end of the lease term,
Tenant is not in default hereunder. Upon the delivery of said notice and
subject to the conditions set forth in the preceding sentence, this Lease shall
be extended upon the same terms, covenants and conditions as provided in this
Lease, except that the rental payable during said extended term shall be the
prevailing market rental rate for space of comparable size, quality and location
at the commencement of such extended term. If a conflict arises in the
determination of such a FMV rental rate, a three-member committee, selected from
the Austin Board of Realtors, shall determine the FMV rental rate. The first
two members of such committee shall be selected by Landlord and Tenant
respectively, which two members shall select the third. In no event shall the
rate decrease below the rate Tenant is currently paying.
24
EXHIBIT "D"
GUARANTY OF LEASE
THIS GUARANTY given by Gary Pankonien (hereinafter called the "Guarantors,"
whether one or more) to AEtna Life Insurance Company (hereinafter called the
"Landlord"):
WITNESSETH:
In order to induce the Landlord to lease to 1st Tech Corporation (hereinafter
with its successors and assigns referred to as the "Tenant") certain premises in
the Landlord's building to be (or which has been) constructed on land situated
at 12191 Technology Boulevard, in Austin, Texas, and being described in and
pursuant to a certain Lease Agreement dated March 8, 1990 (which lease, together
with any and all present and future modifications, amendments, renewals and
extensions thereof, is hereinafter referred to as the "Lease"), the Guarantors
agree as follows:
1. The Guarantors do hereby jointly and severally unconditionally, irrevocably
and absolutely guarantee to the Landlord the full, prompt and complete payment
by the Tenant of the rent and all other sums which may now or hereafter be
payable by the Tenant under or by reason of the Lease, and the full, prompt and
complete performance by the Tenant of all and singular the terms, covenants,
conditions and provisions in the Lease required to be performed by the Tenant,
without regard to any forbearance, delay, neglect or failure on the part of the
Landlord in enforcing same up to a maximum amount of Sixty thousand and 00/100
($60,000.00). This Guarantee of Lease shall expire on April 30, 1994.
2. The Guarantors do hereby waive notice of acceptance hereof and any and all
other notices which by law or under the terms and provisions of the Lease are
required to be given to the Tenant, and also waive any demand for or notice of
default of the payment of rent and other sums which may be payable by the Tenant
under the Lease and the performance of all and singular the terms, covenants,
conditions and provisions in the Lease required to be performed by the Tenant;
and the Guarantors do further expressly hereby waive an legal obligation, duty
or necessity for the Landlord to proceed first against the Tenant or to exhaust
any remedy the Landlord may have against the Tenant, it being agreed that, in
the event of a default or Event of Default by or with respect to the Tenant
under the Lease, the Landlord may proceed and have right of action solely
against either the Guarantors (or any of them) or the Tenant or jointly against
the Guarantors (or any of them) and the Tenant.
3. If the Tenant shall become insolvent, shall be adjudicated bankrupt or
shall file a petition for reorganization, arrangement or similar relief under
any present or future provision of any federal or state bankruptcy or similar
law, or if any such petition filed by creditors of the Tenant shall be approved
by a court, or if the Tenant shall seek a judicial readjustment of the rights of
its creditors under any present or future federal or state law, or if a receiver
of all or part of its property and assets is appointed by any state or federal
court, then, in any of such events, the Guarantors' liability under this
Guaranty shall not be affected in any way thereby and, if in any
25
such proceeding the Lease shall be terminated or rejected or the obligations of
the Tenant thereunder shall be modified, then, at the option of Landlord, the
Guarantors shall immediately pay to the Landlord (a) an amount equal to all
fixed, contingent and additional rent and other payments which have accrued and
remain unpaid as of and including the date of such termination, rejection or
modification, plus (b) an amount equal to the then cash value of the fixed,
contingent and additional rent and other payments which would have been payable
under the Lease for the unexpired portion of the term thereby demised, less the
then cash rental value of the leased premises for such unexpired portion of the
term, together with interest on the amounts designated in clauses (a) and (b)
above at the highest rate of interest permitted by law from the date of such
termination, rejection or modification to the date of payment.
4. The Guarantors shall not be entitled to make any defense against any claim
asserted by the Landlord in any suit or action instituted by the Landlord to
enforce this Guaranty or the Lease or to be excused from any liability hereunder
which the Tenant could not make or invoke, and the Guarantors hereby expressly
waive any defense in law or in equity which is not or would not be available to
the Tenant, it being the intent hereof that the liability of the Guarantors
hereunder is primary and unconditional.
5. The Guarantors hereby agree that the covenants and provisions contained in
the Lease may be altered, extended, changed, modified, renewed, released or
canceled by the Landlord and/or the Tenant with or without release of the Tenant
from liability or obligation, all without the consent of the Guarantors, and the
Guarantors agree that this Guaranty and the liability of the Guarantors
hereunder shall in no way be affected, diminished or released thereby.
6. It is fully understood that until each and every one of the covenants and
agreements of this Guaranty is fully performed, the Guarantors' obligations
hereunder shall not be released, in whole or in part, by any action or thing
which might, but for this provision of this instrument, be deemed a legal or
equitable discharge of a surety or guarantor, or by reason of any waiver,
extension, renewal, modification, forbearance or delay or other act or omission
of the Landlord, or its failure to proceed promptly or otherwise or by reason of
any action taken or omitted by the Landlord, whether or not such action or
failure to act varies or increases the risk of or, affects the rights or
remedies of, the Guarantors, and the Guarantors hereby expressly waive and
surrender any defense to the Guarantors' liability hereunder based upon any of
the foregoing acts, omissions, things, agreements or waivers of any of them, it
being the purpose and intent of the parties hereto that the covenants,
agreements and all obligations of the Guarantors hereunder are absolute,
unconditional and irrevocable.
7. In the event is shall be asserted that the Tenant's obligations are void or
voidable due to illegal or unauthorized acts by the Tenant in the execution of
the Lease, the Guarantors shall nevertheless be liable hereunder to the same
extent as the Guarantors would have been if the obligations of the Tenant had
been enforceable against the Tenant.
8. On or before March 1st during the term of the Lease, the Guarantors shall
deliver to Landlord the Guarantor's financial statements for the immediately
preceding calendar year and, within
26
thirty (30) days of written request of Landlord, the Guarantors agree to deliver
to Landlord financial statements for the Guarantors dated not more than sixty
(60) days prior to the date of such request.
9. In the even suit or action be brought upon and in connection with the
enforcement of the Guaranty, the Guarantors shall pay reasonable attorneys' fees
and all court costs incurred by the Landlord.
10. This Guaranty shall be binding upon the heirs, legal representatives,
successors and assigns of the Guarantors, and shall inure to the benefit of the
heirs, legal representatives, successors and assigns of the Landlord.
11. If any of the Guarantors is a corporation, then the undersigned office of
each such corporation personally represents and warrants that the Board of
Directors of each such corporation, in a duly held meeting, has approved this
Guaranty and has determined that his Guaranty may reasonably be expected to
benefit said corporation.
12. The Guarantors agree that this contract is performable in Travis County,
Texas, and waive the right to be sued elsewhere.
EXECUTED THIS THE 9 day of April, 1993.
GUARANATORS:
/s/ GARY PANKONIEN
- - ----------------------------------
ADDRESS:
- - ----------------------------------
27
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN AETNA LIFE INSURANCE
COMPANY, AS LANDLORD, AND
1ST TECH CORPORATION, AS TENANT
WHEREAS, AEtna Life Insurance Company ("Landlord"), and 1st Tech
Corporation ("Tenant") entered into a Lease made the 18th day of May, 1993
(which together with any amendments, modifications and extensions thereof, is
hereinafter called the Lease), covering a total of 6,180 square feet and located
at 12201 Technology Boulevard, Austin, Texas, know as McNeil 3; for a period of
five years commencing April 26, 1993 and ending April 30, 1998, and
WHEREAS, Tenant needs additional space for its business purposes and
Landlord has available an area adjacent hereto;
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Effective September 1, 1993, the demised premises shall contain, in
addition to the approximately 6,180 square feet originally demised, and the
6,000 square feet called the "expansion space", a second additional area,
hereinafter called the "second expansion space", containing approximately 3,000
square feet adjacent thereto (see Exhibit "A" attached hereto), thus making the
aggregate area of the demised premises approximately 15,180 square feet.
Landlord shall provide a tenant finish allowance of $10.00 per square foot
($30,000.00) toward interior improvements for the "second expansion space" of
3,000 square feet. All improvements must comply with Landlord's STANDARDS AND
SPECIFICATIONS FOR OFFICE/WAREHOUSE BUILDINGS.
2. Effective September 1, 1993, through August 31, 1998, the monthly base
rental for the "second expansion space" shall be $.55 per square foot
($1,650.00/month) plus property taxes, common area maintenance, and insurance as
provided in the Lease, payable on the first day of each month during the balance
of the term.
3. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof and hereby ratified and confirmed.
DATED AS OF THE 5 DAY OF August, 1993.
WITNESS: AETNA LIFE INSURANCE COMPANY:
/s/ JAMES G. HUGHES
- - ------------------------------ ------------------------------
By: James G. Hughes
Title: Director
WITNESS: 1ST TECH CORPORATION
/s/ DONALD R. TURNER /s/ GARY PANKONIEN
- - ------------------------------ ------------------------------
By: Gary Pankonien
Title: CEO
SECOND AMENDMENT TO LEASE AGREEMENT BETWEEN
AETNA LIFE INSURANCE COMPANY, AS LANDLORD, AND
1ST TECH CORPORATION, AS TENANT
To be attached to and form a part of Lease made the 18th day
of May, 1995 (which together with any amendments,
modifications and extensions thereof, is herein called the
Lease), between Landlord and Tenant, covering a total of 12,
180 square feet and located at 12201 Technology Boulevard,
Austin, Texas, know as McNeil 3.
WITNESSETH that the Lease is hereby extended and renewed for a further term
of twenty-three and one half (23.5) months to commerce on September 1, 1998 and
to end on August 15, 2000 on condition and Landlord and Tenant comply with all
terms, covenants and conditions contained in the Lease, and monthly base rental
shall be as follows plus property taxes, common area maintenance, and insurance
as provided in the Lease:
Rental Period Original Space Third Expansion Total Monthly
and Expansions Space 11,135 s.f. Base Rent
15,180 s.f. 26,315 s.f.
4/26/95 - 8/14/95 $8,105.40 - $ 8,105.40
8/15/95 - 4/25/97 $8,105.40 $7,237.75 $15,343.15
4/26/97 - 8/15/2000 $8,349.00 $7,237.75 $15,586.75
The Tenant shall accept the original space in its current "as is" condition.
Effective 8/15/95 through 8/15/2000, the demised premises shall contain, in
addition to the approximately 15,180 square feet, a "third expansion space"
containing approximately 11,135 square feet (see Exhibit "A" attached hereto)
thus making the aggregate area of the demised premises approximately 26,315
square feet. Landlord shall provide a Tenant Finish Allowance of $22.07 p.s.f.
($245,749,45) toward interior improvements of the "third expansion space" of
11,135 square feet. All improvements must comply with Landlord's STANDARD AND
SPECIFICATION FOR OFFICE/WAREHOUSE BUILDING.
TERMINATION RIGHT:
Providing Tenant is not in default under any terms of the lease, Tenant shall
have the right to terminate this lease effective any time after 8/31/98 upon
sixty (60) days advance written notice
to Landlord (notice can be given to Landlord no earlier than 6/30/98) and only
upon payment of all unamortized tenant finish allowance and brokerage
commissions remaining through the lease expiration of 8/15/2000. The
amortization rate for the Tenant Finish Allowance and Brokerage Commissions
shall be 11% per annum Simple Interest.
Except as herein and hereby modified and amended the Agreement of Lease
shall remain in full force and effect and all the terms, provisions, covenants
and conditions thereof are hereby ratified and confirmed.
DATED AS OF THE 27 DAY OF JUNE, 1995.
WITNESS AETNA LIFE INSURANCE COMPANY:
/s/ DONALD R. TURNER /s/ JAMES G. HUGHES
- - ------------------------------ ------------------------------
Donald R. Turner By: James G. Hughes
Title: Director
WITNESS: 1ST TECH CORPORATION
/s/ KIM HOUSE /s/ GARY PANKONIEN
- - ------------------------------ ------------------------------
By: Gary Pankonien
Title: CEO
THIRD AMENDMENT TO LEASE AGREEMENT BETWEEN
AETNA LIFE INSURANCE COMPANY, AS LANDLORD, AND
1ST TECH CORPORATION , AS TENANT
To be attached to and from a part of Lease made the 18th day
of May, 1995 (which together with any amendments,
modifications and extensions thereof, is herein called
Lease), between Landlord and Tenant, covering a total of
26,315 square feet an located at 12201 Technology Boulevard,
Austin, Texas, known as McNeil 3.
WITNESSETH that the Lease is hereby modified and amended as follows:
RIGHT OF FIRST REFUSAL
Landlord is the owner of the herein demised premises, as well as the adjacent
7,423 square feet of space. It is agreed that Tenant shall have the right of
first refusal to lease the adjacent space from the Landlord subject to the
existing leases in place. In the event a prospective tenant desires to lease
this space from Landlord, Landlord shall notify Tenant thereof in the manner
provided herein for notice, whereupon Tenant shall have five (5) days after
receipt to such notice in which to elect to exercise Tenant's right of, title or
interest in the adjacent space and this right of first refusal shall terminate
and be of no further force and effect. If, on the other hand, Tenant exercise
it right of first refusal in the manner provided above, the lease of the
adjacent property shall be consummated at a fair market rental rate.
Except as herein and hereby modified and amended the Agreement of Lease
shall remain in full force and effect and all the terms, provisions, covenants
and conditions thereof are hereby ratified and confirmed.
DATED AS OF THE 28 DAY OF JUNE, 1995.
WITNESS: AETNA LIFE INSURANCE COMPANY:
Allegis Realty
/s/ DONALD R. TURNER /s/ JAMES G. HUGHES
- - ------------------------------ ------------------------------
Donald R. Turner By: James G. Hughes
Title: Director
WITNESS: 1ST TECH CORPORATION
/s/ KIM HOUSE /s/ GARY PANKONIEN
- - ------------------------------ ------------------------------
By: Gary Pankonien
Title: CEO
FOURTH AMENDMENT TO LEASE AGREEMENT BETWEEN
AETNA LIFE INSURANCE COMPANY, AS LANDLORD, AND
1ST TECH CORPORATION, AS TENANT
To be attached to and form a part of Lease made the 18th day
of May, 1995 (which together with any amendments,
modifications and extensions thereof, is hereinafter called
the Lease), between Landlord and Tenant, covering a total of
26,315 square feet and located at 12201 Technology
Boulevard, Austin, Texas, known as McNeil 3.
WITNESSETH, THAT WHEREAS, by Agreement of Lease dated May 18, 1995,
Landlord leased to Tenant certain space containing approximately 26,314 square
feet in the building located at 12201 Technology Boulevard, Austin, Texas, and
WHEREAS, Tenant needs additional space for its business purposes and
Landlord has available an area adjacent hereto.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Effective May 27, 1996, the demised premises shall contain, in
addition to the approximately 26,315 square feet originally demised, an
additional area, hereinafter called the "new space", containing approximately
3,150 square feet adjacent thereto (see Exhibit "A" attached hereto), thus
making the aggregate area of the demised premises approximately 29,464 square
feet. Tenant shall accept the "new space" in its current "as is" condition and
all improvements must comply with Landlord's STANDARDS AND SPECIFICATIONS FOR
OFFICE/WAREHOUSE BUILDINGS.
2. Effective May 27, 1996, the monthly base rental shall be as follows:
Term Monthly Monthly Monthly Monthly Total
- - ---- Base Rental Base Rental Base Rental Base Monthly
Rate PSF Rate Rate PSF Rental Base
Existing Existing New Space Rate New Rental
Space Space ---------- Space Rate
----- ----- ----- -----
5/27/96-4/25/97 $0.58 $15,343.15 $0.55 $1,732.50 $17,075.65
4/26/97-5/22/97 $0.59 $15,586.75 $0.55 $1,732.50 $17,319.25
5/23/97- $0.59 $15,586.75 $0.60 $1,890.00 $17,476.75
8/15/2000
These amounts shall be in addition to property taxes, common area maintenance,
and insurance as provided in the Lease, payable on the first day of each month
during the balance of the term.
3. Paragraph 9.B.(i) of the Lease Agreement is hereby amended to name the
Management Company as an additional insured on all Tenant's Liability Insurance
Policies in connection with this Lease (except for the workers' compensation
policy as stated in Paragraph 9.B.(i)).
4. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof are hereby ratified and confirmed.
EXECUTED BY LANDLORD, this 21 DAY OF JUNE, 1996.
AETNA LIFE INSURANCE COMPANY
By: AEtna Realty Investor, Inc., Its Agent:
Attest/Witness By: /s/ JAMES G. HUGHES
- - ------------------------------ ------------------------------
Title: Vice President
EXECUTED BY TENANT, this __________ day of _____________________, 19__.
1ST TECH CORPORATION:
/s/ GARY PANKONIEN
------------------------------
Attest/Witness By: Gary Pankonien
Title: CEO
- - ------------------------------
FIFTH AMENDMENT TO LEASE AGREEMENT BETWEEN
AETNA LIFE INSURANCE COMPANY, AS LANDLORD, AND
1ST TECH CORPORATION, AS TENANT
To be attached to and form a part of Lease made the 18th day
of May, 1995 (which together with any amendments,
modifications and extensions thereof, is hereinafter called
the Lease), between Landlord and Tenant, covering a total of
29,464 square feet and located at 12201 Technology
Boulevard, Austin, Texas, known as McNeil #3.
WITNESSETH, THAT:
WHEREAS, by Agreement of Lease dated May 18, 1995, Landlord leased to
Tenant certain space containing approximately 29,464 square feet in the building
located at 12201 Technology Boulevard, Austin, Texas, and
WHEREAS, Tenant needs additional space for its business purposes and
Landlord has available an area adjacent hereto.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
covenant and agree as follows:
1. Effective August 15, 1996, the demised premises shall contain, in
addition to the approximately 29,464 square feet originally demised, an
additional area, hereinafter called the "new space", containing approximately
3,712 square feet adjacent thereto (see Exhibit "A" attached hereto), thus
making the aggregate area of the demised premises approximately 33,174 square
feet. Tenant shall accept the "new space" in its current "as is" condition and
all improvements must comply with Landlord's STANDARDS AND SPECIFICATIONS FOR
OFFICE/WAREHOUSE BUILDINGS.
2. Tenant agrees to provide its own interior finish out, subject to
Landlord's approval, and shall include one hundred percent (100%) HVAC as well
as carpet and/or tile throughout the "new space".
3. Tenant shall terminate occupancy of the "new space" on August 31,
1998.
4. Effective August 15, 1996, the monthly base rental shall be as
follows:
Term Monthly Monthly Base Monthly Total
- - ---- Base Rental Rental Rate Base Rental Monthly Base
Rate PSF New Rate Rental Rate
Existing Space Space New Space ------------
-------------- ----- ---------
8/15/96-4/25/97 $17,075.65 $0.00 $0.00 $17,075.65
4/26/97-5/22/97 $17,319.25 $0.00 $0.00 $17,319.25
5/23/97-8/31/98 $17,476.75 $0.00 $0.00 $17,476.75
9/1/98- $17,476.75 N/A N/A $17,476.75
8/15/2000
These amounts shall be in addition to common area maintenance, property tax and
insurance for tenant's pro rata share of the building including the "new space".
5. The Lease expressly refers to Tenant as 1st Tech Corporation. The
Tenant's name has been changed to Tanisys Technology. The Lease and all related
documents are hereby amended such that all references to "Tenant" or "1st Tech
Corporation" will translate to mean "Tanisys Technology".
6. Except as herein and hereby modified and amended the Agreement of
Lease shall remain in full force and effect and all the terms, provisions,
covenants and conditions thereof are hereby ratified and confirmed.
EXECUTED BY LANDLORD, this 9 day of August, 1996.
AETNA LIFE INSURANCE COMPANY
By: Allegis Realty Investor, L.L.C.,
Its Investment Advisor and Agent
Attest/Witness /s/ JAMES G. HUGHES
- - ------------------------------ ------------------------------
By: James G. Hughes
------------------------------
Title: Title: Vice President
- - ------------------------------ ------------------------------
EXECUTED BY TENANT, this _____ day of _____________, 19_____.
TANISYS TECHNOLOGY, INC.
Attest/Witness /s/ JOE DAVIS
- - ------------------------------ ------------------------------
By: Joe Davis
------------------------------
Title: Title: CFO
- - ------------------------------ ------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
This Assignment and Assumption of Lease (the "Agreement") is made as of the
21 day of June, 1996 by and between Aetna Life Insurance Company ("Lessor"), 1st
Tech Corporation ("Assignor"), and Tanisys Technology, INCORPORATED, A WYOMING
CORPORATION ("Assignee").
WHEREAS:
Lessor, Assignor and Assignee mutually agree and acknowledge that on or
about April 26, 1993, Lessor, and Assignor, as Lessee, executed a Lease for the
premises located at 12201 Technology Blvd., Suite 130, Austin, Texas 78727, a
correct copy of which is attached hereto as Exhibit "A: and which is expressly
incorporated herein by this reference;
Lessor, Assignor and Assignee mutually agree and acknowledge that Assignor
desires to assign, and Assignee desires to acquire, Assignor's entire interest
in the Lease; and;
Lessor, Assignor and Assignee mutually agree and acknowledge that the Lease
prohibits and assignment of the Lease without Lessor's consent;
NOW, THEREFORE, in consideration of the sum One Dollar ($1.00) by each
party to the other, in hand paid, and other good and valuable consideration,
including without limitation, the mutual promises contained in this Agreement,
the receipt and sufficiency of which are hereby mutually acknowledged, Lessor,
Assignor and Assignee agree as follows:
1. Assignor assigns to Assignee, as of the date of this Agreement, all
Assignor's rights, title and interest in and to the Lease, together
with Assignor's interest in the security deposit previously paid by
Assignor to Lessor in the amount of $4,773.60.
2. Assignee hereby assumes the Lease and agrees to perform and observe
all covenants and conditions contained in the Lease on Assignor's part
to be performed and observed, with the same force and effect as if
Assignee was originally named in the Lease as Lessee.
3. Lessor hereby consents to the aforesaid assignment and assumption by
Assignor to Assignee, upon the express condition that no further
assignment, sublease or transfer of the Lease shall hereafter be made
without the prior written consent of Lessor.
4. Notwithstanding anything contained in this Agreement to the contrary,
Assignor shall not be released of any liability or other obligations
of the Tenant under the Lease, and Assignor hereby confirms that it
will remain responsible and liable for and will assure the payment and
performance of each and every covenant or other obligation of the
Tenant under the Lease.
5. This Agreement may not be changed, modified, discharged or terminated
except by a further agreement in writing signed by the parties hereto
or their respective successors and assigns.
IN WITNESS HEREOF, the parties hereto execute this Agreement as of the date
written above.
LESSOR: AETNA LIFE INSURANCE COMPANY
By: Allegis Realty Investors, LLC, Its Investment
Advisor and Agent
By: /s/ JAMES G. HUGHES
------------------------------------------
Printed Name: James G. Hughes
Title: Vice President
ASSIGNOR
AND LESSEE: 1ST TECH CORPORATION
By: /s/ GARY PANKONIEN
------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
ASSIGNEE: TANISYS TECHNOLOGY, INCORPORATED
A WYOMING CORPORATION
By: /s/ Joe Davis
------------------------------------------
Printed Name: Joe Davis
Title: CFO