EXHIBIT 10.31
LEASE AGREEMENT
Between
Met 10 W-97, Ltd., a Texas limited partnership
as Landlord,
and
Metrowerks Corporation
as Tenant.
Covering approximately 97,200 gross square feet of the Building known (or to be
known) as
Metric 10 A
located at
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▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
STANDARD INDUSTRIAL LEASE AGREEMENT
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY - (AUS/9 1)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between Met IOW-97, Ltd.
referred to as "Landlord," and Metrowerks Corporation, hereinafter referred to
as "Tenant."
Approximately 97,200 gross square feet
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(Metric 10A)
a Texas limited partnership, hereinafter
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 ▇▇▇▇▇▇, 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 seventy-two (72) months after the Commencement
Date.
A. Building or Improvements to be Constructe . If the Premises or part thereof
are to be constructed, the "Commencement Date" shall be deemed to be April 1,
1998, except that such date shall be extended for one (1) day for each day
caused by a Landlord delay. Tenant shall have the right to enter (but not
occupy) the Premises not less than ten (10) days prior to Commencement Date to
perform punch list items, cabling/telephone installation, move coordination and
furniture installation.
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 as shown below. One such
monthly installment, plus the other monthly charges set forth in ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, shall be due and payable on the date hereof, and a 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.
Months Base Rental Rate Per Square Foot Total Base Rental
1- 4 $0.40 $39,000.00
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5-72 $0.65 $63,180.00
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B. Security Deposit. See Exhibit C, Number 5.
C. Escrow Deposit5. Tenant shall not be required to pay any operating
expenses on 37,200 square feet for months I - 4 of the Lease Term. Otherwise
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 ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇) of (i) Taxes (hereinafter defined) payable by Landlord pursuant to
Paragraph 3A below, and the cost of any tax consultant, not to exceed five
hundred dollars ($500) per year, to assist Landlord in determining the fair tax
valuation of the Building and land (ii) the cost of utilities payable by
Landlord pursuant to ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, (▇▇▇) Landlord's cost of maintaining any
insurance or insurance related expense applicable to the Building and Landlord's
personal property used in connection therewith including, but not limited to,
insurance pursuant to Paragraph 9A below, and (iv) Landlord's cost of
maintaining the Premises which include but are not limited to (a) maintenance
and repairs, (b) landscaping, (c) common area utilities, (d) water and sewer,
(e) roof repairs, (f) management fees, (g) exterior painting, and (h) parking
lot maintenance and repairs (collectively , the "Tenant Costs"). Escrow deposits
shall not include the following expenses: (a) any costs for interest,
amortization, or other payments on loans to Landlord; (b) expenses incurred in
leasing or procuring tenants, (c) legal expenses other than those incurred for
the general benefit of the Building's tenants, (d) allowances, concessions, and
other costs of renovating or otherwise improving space for occupants of the
Building or vacant space in the Building, (e) rents under ground leases, and (f)
costs incurred in selling, syndicating, financing, mortgaging, or hypothecating
any of Landlord's interests in the Building.
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. These expenses are estimated to equal $0.1342 per square foot
per month during 1998. See Exhibit D for a detailed estimate of Basic Operating
Costs for 1998. Tenant authorizes Landlord to use the funds deposited with
Landlord under this ▇▇▇▇▇▇▇▇▇ ▇▇ 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.
At any time during the Term and within one (1) year after the expiration of the
Term, upon five (5) days prior written notice and during normal business hours
at Landlord's office or such other place as Landlord shall reasonably designate,
Tenant shall be entitled to inspect and examine those books and records of
Landlord relating to the determination of any item of Basic Operating Costs paid
in the preceding calendar year of the Term. If, after inspection and examination
of such books and records, Tenant disputes the amounts of Basic Operating Costs
charged by Landlord, Tenant, by written notice to Landlord, may request an
independent audit of such books and records. The independent audit of the books
and records shall be conducted by a certified public accountant designated by
Tenant and reasonably acceptable to Landlord. If, within ten (10) days after
Landlord's receipt of Tenant's notice requesting an audit, Landlord and Tenant
are unable to agree on the certified public accountant to conduct such audit,
then Tenant may designate a reputable accounting firm not then employed by
Landlord and Tenant to conduct such audit. The audit shall be limited to the
determination of the amount of any or all items of Basic Operating Costs for the
subject Adjustment Period and the Adjustment Period immediately prior thereto.
Adjustment Period shall be defined as any 12-month period during which
additional rent was billed to Tenant. If the audit discloses that any item of
Basic Operating Costs billed to Tenant was incorrect, the appropriate party
shall pay the other party the deficiency or overpayment, as applicable. All
costs and expenses of the audit shall be paid by the Tenant unless the audit
shows that Landlord overstated Basic Operating Costs by more than two and
one-half percent (2.5%), but less than five percent (5%), in which event
Landlord and Tenant shall share equally the cost of such audit; provided that if
the overstatement is five percent (5%) or More, Landlord shall pay the costs and
expenses of the audit up to $2,500 per annual audit.
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 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
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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.
If at any time during the term of this Lease there shall be levied, assessed
or imposed on the Landlord a franchise tax, business tax, income tax, or other
levy relating to this Lease or the Premises, such levy being in lieu of all or a
portion of the local property tax for schools, a reasonable allocation of such
amount shall be deemed to be included within the term "Taxes" for purposes of
determining Tenant's share of Taxes to be reimbursed to Landlord.
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
pays the increased taxes, then Tenant shall pay to Landlord, within thirty (30)
days of receipt of written demand, the amount of such taxes.
4. LANDLORD'S REPAIRS AND MAINTENANCE.
Structural Repairs. Landlord, at its own cost and expense, shall maintain the
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.
5. TENANTS REPAIRS.
A. Maintenance of Premises and Appurtenances. Tenant, at its own cost and
expense, shall pay its prorata share to (i) maintain all non-structural parts of
the interior of the Premises and promptly make all necessary repairs and
replacements to the interior of the Premises (except those for which Landlord is
expressly responsible hereunder), and (ii) keep the parking areas, driveways and
alleys surrounding the Premises free of trash and debris from Tenant's use.
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 mechanical systems.
C. Parking. Tenant and its employees, customers and licensees 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, however, Landlord shall use its reasonable
efforts to assistant Tenant to enforce parking rules and regulations. Tenant
agrees not to park on any public streets or private roadways adjacent to or in
the vicinity of the Premises. Tenant shall be provided a total parking ratio of
not less than 4 spaces per 1,000 square feet leased at no cost throughout the
term of the Lease or any Renewals. Landlord shall stripe the truck court at
Landlord's cost to accommodate the 4: 1,000 square foot parking ratio. All
parking locations shall be designated in Exhibit F of this Lease Agreement.
D. System Maintenance. Landlord shall service HVAC equipment within thirty
(30) days of Tenant's occupancy to ensure such HVAC equipment is in good working
order. Tenant, at its own cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
reasonably approved by Landlord for servicing all hot water, heating and air
conditioning systems and equipment within the Premises. The service contract
must include the replacement of filters on a regular basis and all services
suggested by the equipment manufacturer in its operations/maintenance manual and
must become effective within thirty (30) days of the date Tenant takes
possession of the Premises.
E. Option to Maintain Premise5. Landlord reserves the right to perform, in
whole or in part, after written notice to Tenant and Tenant's failure to so
perform after reasonable opportunity to do so has elapsed, 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 obligation to pay its prorata share of costs under this
Paragraph 5, in which event, Tenant
Proportionate Share of the cost and expense of such repair, replacement,
maintenance and other such items.
shall be liable for its
6. ALTERATIONS. Tenant shall not make any alterations, additions or improvements
to the Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned. Tenant shall not
make any alterations, additions or improvements which would modify the
structural, mechanical, or electrical systems of the building without Landlord
consent. Notwithstanding the foregoing, Tenant may make alterations which do not
impact the structural, mechanical, or electrical systems of the building, and
cost less than or equal to twenty five thousand dollars ($25,000), without
Landlord consent.
However, Tenant must notify Landlord of all alterations to the building prior to
the commencement of such alterations. Landlord shall not be required to notify
Tenant of whether it consents to any alteration, addition or improvement until
it (a) has received plans and specifications in a CAD disk format therefor which
are sufficiently detailed to allow construction of the work depicted thereon to
be performed in a good and workmanlike manner, and (b) has had a reasonable
opportunity to review them. If the alteration, addition or improvement will
affect the Building's structure, HVAC system, or mechanical, electrical, or
plumbing systems, then the plans and specifications therefor must be prepared by
a licensed engineer reasonably acceptable to Landlord and provided to Landlord
in a CAD disk format. Landlord's approval of any plans and specifications shall
not be a representation that the plans or the work depicted thereon will comply
with law or be adequate for any purpose, but shall merely be Landlord's consent
to performance of the work. Upon completion of any alteration, addition, or
improvement, Tenant shall deliver to Landlord accurate, reproducible as-built
plans therefor in a CAD disk format. Tenant may erect shelves, bins, machinery
and trade fixtures provided that such items (1) do not alter the basic character
of the Premises or the Building; (2) do not overload or damage the same; and (3)
may be removed without damage to the Premises. Unless Landlord specifies in
writing otherwise at the time of consent, all alterations, additions, and
improvements shall be Landlord's property when installed in the Premises. All
shelves, bins, machinery and trade fixtures installed b y Tenant shall be
removed on or before the later 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 condition as of the Commencement Date of this Lease. All work
performed by a Tenant in the Premises (including that relating to the
installations, repair replacement, or removal of any item) shall be performed in
accordance with all applicable governmental laws, ordinances, regulations, and
with Landlord's specifications and requirements, in a good and workmanlike
manner, and so as not to damage or alter the Building's structure or the
Premises. Tenant shall be responsible for compliance with The Americans With
Disabilities Act of 1990. In connection with any such alteration, addition or
improvement, Tenant shall pay to Landlord an administration fee of two and
one-half percent (2.5%) of all costs incurred for such work. Tenant shall only
be required to perform modifications or restoration to the Premises upon
vacating the Building that exceed normal wear and tear. Not withstanding the
foregoing, in the event Tenant elects to modify the Premises after Commencement,
Landlord shall have the right to cause Tenant to restore the portion of the
Premises being modified to its original condition upon Occupancy provided
Landlord includes such requirement in its consent to such modifications.
Landlord shall be responsible for compliance with the American with Disabilities
Act (ADA) on the exterior of the Building and all common areas upon Comencement
of the Lease. Such costs for compliance shall be construed as costs incurred by
the Landlord, which will not be amortized as operating expenses of the Building
and passed through to the Tenant. Tenant shall, at its sole cost and expense, be
responsible for compliance with the ADA for matters within its Premises,
excluding matters pertaining to the Building. Landlord represents and warrants
upon Substantial Completion, complete compliance with ADA codes.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval, which approval shall not be unreasonably delayed,
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
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all respects to the criteria established by Landlord or shall be
installations visible from outside the Premises shall conform in otherwise
subject to Landlord's prior written consent, which shall not be unreasonably
withheld. Tenant shall have the right to place its logo on the facia of the
Building and on a monument sign in front of the Building, subject to approval by
the Landlord, such approval not to be unreasonably withheld. All signs shall
comply with all applicable governmental codes.
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 the full "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 aggregate for personal injuries or deaths of person
occurring in or about the Premises. Tenant, at its own expense, shall also
maintain during the ten-n 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 and management company
as additional insured and insure Landlord's and management company'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 licensed t do business in the State of Texas; and (iii) Provide that said
insurance shall not be canceled 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 Use5. Tenant will not permit the Premises to be used for any
purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance 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. Tot I 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 after the
Commencement Date of this Lease 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 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, reasonable counsel fees, expenses and liabilities incurred in connection
with any such claim or action or proceeding brought thereon. The provisions of
this Paragraph I I 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 except when due to the gross negligence or willful misconduct of
Landlord, its agents or contractors. 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 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
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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.
Landlord will indemnify and hold Tenant harmless from all suits, actions,
damages, liability and expense in connection with loss of life, bodily or
personal injury or property damage arising from any gross negligence or willful
misconduct of Landlord, its agents, contractors, employees or invitees. In
addition, if Tenant should, without fault on its part, be made a party to any
action against Landlord and related to the foregoing indemnification, Landlord
shall pay all costs, expenses and reasonable attorney's fees of Tenant.
12. USE. The Premises shall be used only for the purpose of sales,
manufacturing, distribution, administrative offices, and software development 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, which consent
shall not be unreasonably withheld. 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. Landlord encourages Tenant to consult an
architect or other CONSULTANT REGARDING THE DETERMINATION of racking
requirements imposed by any governmental or regulatory entity.
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 have been approved in advance in writing by Landlord 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 have been approved in
advance in writing by Landlord, 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 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 udertaken 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 reasonable 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 due to
Tenant's use or occupancy of the Premises, 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.
To the best of Landlord's knowledge (i) no Hazardous Substances are located in,
on or under the Land or the Building in violation of any applicable law, (ii)
the Land and Building are not in violation of any applicable laws as stated
above, and (iii) no underground tanks used to store any Hazardous Substance are
located on, in or under the Land. To the best of Landlord's knowledge, Landlord
has not disposed of, stored, treated, processed or handled, or caused, suffered
or permitted the disposal, storage, treatment, processing or handling of, any
Hazardous Substance on, in or under the Land or the Building in violation of any
applicable law, and Landlord will not do, or cause, suffer or permit, any of the
foregoing to occur on, in, under or upon the Land or the Building except in
accordance with applicable law. To the best of Landlord's knowledge, information
and belief, there is no asbestos, formaldehyde insulation and/or concentrations
of radon gas on or about the Land or Building except in accordance with
applicable law. In the event that Hazardous Substances are located in, on or
under the Land or the Building, Landlord, at Landlord's sole cost and expense,
shall take all necessary action to cause the Land and the Building to comply
with all such applicable laws.
14. INSPECTION. Landlord's agents and representatives shall have the right to
enter the Premises at any reasonable time, upon prior notice to Tenant, during
business hours (or at any time in case of emergency), provided Tenant does not
reasonably refuse such entry, (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 have the right to sublet or assign
its space to any affiliate or subsidiary without the consent of Landlord. Tenant
shall also have the right to sublet or assign its space to any other entity with
the consent of Landlord, whose consent will not be unreasonably withheld,
delayed, or conditioned. Landlord reserves the right to reject an assignee or
sublessee on the basis of financial credit worthiness at its sole option.
However, Tenant may sublease or assign the approximately 37,200 square feet on
the south side of the building to any Tenant without Landlord's consent. In the
event that Tenant requests Landlord to consent to any assignment or sublease,
Landlord shall notify Tenant in writing of Landlord's decision with regard to
such requested consent within fifteen (15) business days after Tenant gives
Landlord a written request for such consent. Any profits in excess of Tenant's
rental obligation received from an assignment/sublease shall be divided equally
between Landlord and Tenant after deducting for Tenant's marketing expenses
(which shall include all concessions such as rental abatement, leasehold
improvements, brokerage commissions, etc.) No assignment or subletting shall be
construed as a novation or a release of Tenant from the further performance of
Tenant's obligations 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, in the sole opinion of Tenant, 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
or an award to Tenant for its contribution to the Tenant Improvements of
Premises, if a separate award for such items is made to Tenant.
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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
Notwithstanding the foregoing, any holding over by the Tenant after the
expiration of the Terrn shall be construed as tenancv from month-to-month and
rent shall be increased to one hundred fifty percent (150%) thereafter at the
Base Rent in effect at the time of such holdover and otherwise upon all terms
and conditions set forth in the Lease. Notwithstanding the foregoing, in the
event Tenant provides Landlord four (4) months prior written notice, Tenant's
Base Rent shall be increased to one hundred twenty five percent (125%) of its
then current Base Rent for up to the initial three (3) months of holdover. This
penalty shall compensate Landlord for any liquidated damages as a result of such
holdover. Either Landlord or the Tenant may terminate such month-to-month
tenancy only upon thirty (30) days written notice to the other party.
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 terrns and
provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to as
an "Event of Default") each shall be deemed to be a default in or breach of
Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved when
due, or any other payment or reimbursement to Landlord required herein when due,
and such failure shall continue for a period of ten (10) five (5) days from
Tenant's receipt of written notice of such failure from Landlord.
B. Tenant shall (i) vacate or abandon all or a substantial portion of the
Premises or (it) 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. Tenant shall have the right
to vacate up to seventy-five percent (75%) of the Premises, at any time, and
from time to time during the Term. In the event that Landlord desires to retake
possession of the Premises during a period that Tenant has vacated greater than
seventy-five percent (75%) of the Premises, then Landlord shall deliver written
notice thereof to Tenant, and if Tenant shall fail to re-occupy the Premises
within sixty (60) days thereafter, then Landlord may retake possession of the
Premises by delivering written notice thereof, and this Lease shall terminate as
of such date.
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 22 hereof within thirty (30) days after Tenant's receipt
of written notice that any such lien or encumbrance has BEEN FILED AGAINST THE
Premises.
D. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than those listed above in this paragraph) and shall not Cure such
failure within thirty (30) days after receipt of written notice thereof from
Landlord; provided, however, if such failure is incapable of being cured within
such thirty (30) day period, Tenant shall not be deemed to be in default if
Tenant shall commence to cure such failure within such thirty (30) day period
and diligently continue until completion.
20. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand:
(a) Terminate this Lease;
(b) Enter upon and take possession of the Premises without terminating this
Lease;
(c) Make such payments and/or take such action and pay and/or perform whatever
Tenant is obligated to pay or perform under the terms of this Lease, and Tenant
agrees that Landlord shall not be liable for any damages resulting to Tenant
from such action; and/or
(d) Alter all locks and other security devices at the Premises, with or
without terminating this Lease, and pursue, at Landlord's option, one or more
remedies pursuant to this Lease, and Tenant hereby expressly agrees that
Landlord shall not be requited 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, The
provisions of this Lease are intended to supersede Section 93.002 of the Texas
Property Code and Tenant hereby expressly waives any and all rights and remedies
Tenant may have under Paragraph (g) of such Section 93.002.
A. Damages Upon Termination. If Landlord terminates this Lease 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 Relenting. 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 new tenant or tenants utilizing Building-standard materials or
their equivalent; (iv) any and all costs and expenses incurred by Landlord in
effecting compliance with Tenant's obligations under this Lease; and (v) all
reasonable expenses incurred by Landlord in enforcing or defending Landlord's
rights and/or remedies hereunder, including without limitation all reasonable
attorneys' fees and all court costs incurred in connection with such enforcement
or defense.
D. Late Charae. In the event Tenant fails to make any payment due hereunder
within ten (10) 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 of ten
percent (10%).
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 6
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 pail 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 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 fai Is 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.
1. Tenant's Persgnal Prop. 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 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 obligation 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. The Landlord's rights hereunder are subject and
subordinate to any prior lein rights held by any creditor of Tenant on the
personal property within the Premises.
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 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 provided, however, such mortgagee, trustee or holder executes and
delivers to Tenant an agreement not to disturb Tenant's use or occupancy of the
Premises under this Lease Agreement upon any foreclosure or conveyance in lieu
thereof. 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 perforinance, at its election, for and on behalf of
Landlord. Landlord shall obtain, as Exhibit E to the Lease Agreement, a Non-
Disturbance Agreement executed by holders of any mortgages on the Premises in a
form mutually agreeable to both parties.
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 reasonable 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
under the terms of this Lease.
23. MISCELLANEOUS.
in the Premises or
A. Interpretation. The captions inserted in this Lease are for convenience
only and in noway 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. Neither Landlord nor Tenant shall 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
such obligated party. Notwithstanding anything contained herein before to the
contrary, Tenant's obligation to pay Rent hereunder shall not be extended or
excused due to force majeure.
E. Payments Constitute Rent. Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as rent, shall constitute rent.
F. Estoppel Certificates. Tenant agrees, from time to time, within ten (10)
days after request of Landlord, to deliver to Landlord, or Landlord's designee,
an estoppel certificate stating, to the extent of Tenant's knowledge and to the
extent true, 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 famish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
Tenant agrees, from time to time, but not more than once per calendar year,
within ten (10) days after request from Landlord, to deliver to Landlord copies
of Tenant's most recent financial statements, including an income statement, a
balance sheet and related footnotes.
7
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 mav not
be altered, changed or amended except by an instrument in writing signed by both
parties hereto.
H. Survival of Obligation. 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 either 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 or make such repairs,
including without limitation the cost of repairs to all heating and air
conditioning systems and equipment therein and if necessary in the opinion of an
independent certified HVAC contractor, replacement thereof.
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 up
to the date of expiration or termination of this Lease. 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, at Landlord's option, be credited against any
amounts due from Tenant under this Paragraph 23H.
1. 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, other than ▇▇▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇ Commercial, agent
or other person in connection with this transaction or future related
transactions and that no other 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 other 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. Landlord and Broker shall mutually
execute a separate Broker Commission Agreement which shall be incorporated as
Exhibit G of the Lease Agreement.
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 LighLlity. 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 Right. Nothing herein expressed or implied is intended, or
shall be construed, to confer upon or give to any person or entity, other than
the parties hereto, any right or remedy under or by reason of this Lease.
O. Exhibits and Attachments. All exhibits, attachments, riders and addenda
referred to in this Lease, and the exhibits listed herein below and attached
hereto, are incorporated into this Lease AND MADE A PART HEREOF FOR ALL intents
and purposes as if fully set out herein. All capitalized terms used in such
documents shall, unless otherwise defined therein, have the same meanings as are
set forth herein.
P. Applicable Lease - 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 VALIDATION, and if from any such Circumstance Landlord shall ever
receive as interest or otherwise an amount in excess of THE MAXIMUM THAT CAN be
legally collected, then such amount which would BE EXCESSIVE INTEREST SHALL BE
APPLIED TO THE REDUCTION OF RENT HEREUNDER, AND IF SUCH AMOUNT which would be
excessive interest exceeds such rent, then such additional amount shall be
refunded to Tenant.
24. NOTICES. Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(i) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth
below or at such other address within the continental United States 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 (i)
personally delivered, (ii) delivered by commercial courier service, or (iii)
three business days after being 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 within the
continental United States as they have theretofore specified by written notice
delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See EXHIBIT "C" attached hereto and incorporated
herein by reference.
8
EXECUTED BY LANDLORD, this 22 dav of December 1997
LANDLORD:
MET 1OW-97, LTD., a Texas LIMITED PARTNERSHIP
By: ORI, Inc., a Texas Corpration, General Partner
By: ▇▇▇▇▇▇▇ ▇.▇ ottesman
Title:
Address- ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attest Witness
Title:
EXECUTED BY TENANT, this 19 day of December 1997
Tenant, Metrowerks Corporation, a Texas corporation
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:CEO and Chairman
Address
Attest
EXHIBIT "A" - Description of Premises
EXHIBIT "B" - Plans
EXHIBIT "C" - Additional Provisions
EXHIBIT "D" - Detailed Basic Operating Costs for 1998
EXHIBIT "E" Non-Disturbance and Attornment Agreement
EXHIBIT "I" Parking Location Designation
EXHIBIT "G" Broker Commission Agreement
9
1. LEASEHOLD IMPROVEMENTS:
A.
EXHIBIT "C"
ADDITIONAL PROVISIONS
Landlord shall provide a $972,000 ($10.00 x 97,200) allowance ("Leasehold
Improvement Allowance). This includes a $0.50 per square foot allowance for
insulation. Landlord shall withhold $353,400 ($9.50 x 37,200) of the Leasehold
Improvement Allowance in an account that will bear interest to the benefit of
Tenant until Tenant elects to commence construction of the 37,200 square feet
withheld as shown above.
B. Tenant and Landlord agree to competitively bid the Leasehold Improvements
to the
open market [not less than four (4) qualified bids], agreeing that all
participating contractors, subcontractors and suppliers will be
properly qualified and insured to reasonable market levels. As an
alternative, Tenant may choose to conduct a negotiated bid on the
Leasehold Improvements. In the event Tenant selects ▇▇▇▇▇▇▇▇ ▇▇▇▇
Company to act as its general contractor, the fee to ▇▇▇▇▇▇▇▇ ▇▇▇▇
Company shall be $80,000, which shall include all profit, overhead,
and general conditions (other than costs directly attributable
to the construction project). ▇▇▇▇▇▇▇▇ ▇▇▇▇ agrees to competitively
bid each task to not less than three (3) subcontractors, and
Tenant shall maintain the right to select each winning bid.
Should Tenant utilize ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company as its general contractor,
the construction management fee referenced in paragraph 9.d.
below shall be eliminated.
C.
Should Tenant require renovation work after Commencement of the Lease, Tenant
may, at its sole discretion, competitively bid such work or may elect to
contract with a chosen contractor. Qualifications for such vendors will be as
stated above. Any such renovation shall require Landlord's reasonable approval
subject to the provisions in Paragraph 6 of this Lease Agreement.
▇. ▇▇▇▇▇▇▇▇ Crow Central Texas, Ltd. shall receive a construction management
fee
equal to $25,000 pursuant to a mutually agreed upon scope of services between
▇▇▇▇▇▇▇▇ ▇▇▇▇ Central Texas, Ltd. and Tenant.
E.
In the event Tenant elects to install windows instead of overhead doors, Tenant
shall only be required to pay for any premium associated with the installation
of said windows that is in excess of the amount budgeted for the overhead doors.
2. OPTION TO RENEW:
Tenant shall have the right to renew the Term of this Lease for one (1) period
of five (5) years; provided that Tenant is not, at the time of exercising the
first Option to Renew, in default of the Lease. In the event the Tenant
exercises its Option to Renew, the Lease Term shall be extended for the duration
of such option, subject to all terms and conditions of this Lease, excepting the
Market Terms as herein defined.
Tenant shall exercise its Option to Renew by giving written notice thereof to
Landlord of its desire to determine the Market Terms no later than seven (7)
months prior to the expiration of the then current Lease Term. If Tenant
exercises an Option to Renew, the rent payable by Tenant shall be equal to the
prevailing fair Market Terms. Market Terms is defined as being the average
rental rate, priced on a comparable basis, in effect for new leases signed by an
approximately like-size, third party tenant, with full consideration of
concessions, such as tenant improvements, term, free rent, moving allowances,
architectural allowances, operating expenses and brokerage fees offered in a
Comparable Building (as in hereinafter defined) in the vicinity. Comparable
Buildings shall be comparable size, quality, location, view and submarket.
12
If the Market Terms cannot be determined pursuant to the preceding paragraph
within thirty (30) days after Tenant gives notice of its desire to determine the
Market Terms for the renewal period, then, unless Tenant by the end of such
period withdraws the exercise of the Option to Renew, the Market Terms shall
be determined by a process of "baseball arbitration," with each party appointing
a licensed real estate broker with not less than five (5) years experience in
the Austin, Texas real estate market who shall have general familiarity with the
rental rates for properties similar to the Premises, in the vicinity of the
Premises. The two brokers so selected shall choose a third broker with similar
qualifications, with each of said brokers to make their own independent
determination as to the Market Terms. The Market Terms to be established shall
be the average of the two values closest to each other, with the value
determined by the remaining broker disregarded. The brokers shall complete their
determinations no more than thirty (30) days prior to the end of the Lease Term;
however, failure to complete said determination within said period shall not
invalidate the appraisal. In the event of termination of the renewal option, the
renewal option shall thereafter be null and void and of no further force and
effect, and the Lease Agreement shall expire at the expiration of its original
Lease Tenn. Any termination of the Lease Agreement shall also terminate the
renewal option. The determination of the Market Terms by said brokers shall be
binding upon both Landlord and Tenant. The cost of the arbitration shall be
divided equally between Landlord and Tenant.
LATENT DEFECTS:
Landlord shall assign any and all warranties for latent defects in materials or
workmanship for one (1) year following substantial completion, even if Tenant
contributes in any way to the design or to the cost of construction. Landlord
shall assist Tenant in enforcing any and all contracts or warranties on
construction related to the Premises.
4.
CONFIDENTIALITY:
Landlord, Tenant, Landlord's Agent and Tenant's Broker agree that the terms and
conditions contained within the Lease and Commission Agreement shall be held in
strict confidentiality.
5. SECURITIZATION OF LEASE:
Tenant shall be required to post a lease securitization instrument (letter of
credit or certificate of deposit) in a form and with an institution acceptable
to Landlord for the following purpose:
Security for Rent:
$400,000 which shall retire at an annual rate of $54,000 per year over the six
(6) years of the Lease Term (but not less than $130,000) provided that the
following events occur based on Tenant's most recent Annual Report.
1 Tenant achieves audited net income equal to $500,000.
2. Tenant's Net Worth is equal to or greater than $20 million.
3. Tenant maintains a current ratio of 2: 1.
The Letter of Credit or Security Deposit must be received by Landlord within
three (3) business days of the execution of this Lease by both parties.
The Securitization of Lease shall be waived in its entirety if Tenant receives
an A credit rating from Standards & Poors (or ▇▇▇▇▇'▇ equivalent) or Tenant is
acquired by a company with the above credit ratings and such company guarantees
Tenant's lease.
13
EXHIBIT "D"
ESTIMATED BASIC OPERAUNG COSTS FOR 1998
Cost per Month Cost per Year
Common Area Maintenance $0.0295 $0.3534
Insurance $0.0022 $0.0263
Property Tax $0.0797 $0.9568
Management Fee $0.0228 $0.2741
14
Initial Date
EXHIBIT "E"
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement") is made and entered into as of the day of
199 , by and between the insurance company affilidated of AEGON USA Realty
Advisors, Inc. that has executed the Agreement below as lender ("Lender"), and
METROWERKS CORPORATION a Texas (corporation]
("Tenant").
WHEREAS, Lender intends to fund a commercial mortgage loan (the "Loan") to
MET 1OA-98, Ltd. , a Texas limited Partnership ("Landlord") secured
by a mortgage or deed . of trust (the "Mortgage") on the land described on
Exhibit
"A," together with present or future improvements (the "Real Property"); and
WHEREAS, by a certain lease between Landlord and Tenant dated as of
Dec. 22, 1997 (together with all amendments, options, extensions and
renewals, the "Le ), Landlord has dernised to Tenant all or a portion of the
Real
Property and a Memorandum of the Lease has been recorded in the land records of
County, State of in Deed Book
Page ; and
WHEREAS, as a condition of the Loan's funding, Landlord will assign its interest
in the Lease to Lender as part of Lender's security; and
WHEREAS, the Tenant's execution and delivery of this Agreement and of an
estoppel certificate providing the Lender with current information on the status
of the Lease (the "Estoppel") are conditions precedent to Lender's obligation to
fund the Loan; and
WHEREAS, Tenant desires to enter into this Agreement in order to benefit from
the promises by Lender that are set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
herein contained, the parties agree as follows:
1 . If, upon the closing of the Loan, the Lease would not by its terms be
subordinate to the lien of Lender on the Real Property, Tenant so subordinates
the Lease.
2. The Tenant consents to the assignment of the Lease to Lender in support of
the Loan.
3. If Landlord defaults under the Lease and, upon notice, fails to cure its
default within the cure period provided under the Lease, Tenant will notify
Lender of the default and afford Lender a reasonable opportunity to cure it
before terminating the Lease or exercising any self-help rights from which a
right of setoff would arise.
4. If Lender forecloses the Loan or acquires title to the Real Property by
deed in lieu of foreclosure, the following terms and conditions will govern the
respective rights and obligations of Tenant and Lender or other new owner of the
Real Property (in either case, the "New Owner"):
(a) The New owner shall not disturb Tenant's quiet enjoyment and possession of
its demised premises for so long as Tenant faithfully performs its
obligations under the Lease and under this Agreement.
(b) The New owner shall not be bound by any purchase option 1100
contained in the Lease.,
(c) The New Owner shall not be requitred to assume any of the landlord's
liabilities to Tenant under indemnification or hold harmless agreements in the
Lease arising from any Landlord default, act or omission occurring prior to the
date New Owner acquires title to the Real Property, or for damages caused by
any Landlord default, act or omission occurring prior to date New Owner
acquires title to the Real Property, and, following the acquisition of title,
the New Owner's Liability to the Tenant shall never exceed the value of its
interest in the Real Property and any insurance available to satisify such
liability
(d) This Agreement will not vary the terms of the Lease that condition opb
Tenant's obligation to pay rent on Landlord's performance of its
covenants under the Lease in respect of the habitability and quiet
enjoyment of the Real Property, which Lender agrees shall apply to
the New Owner as they have to the Landlord, provided Tenant has
performed its obligation under paragraph 3 of this Agreement.
(e) Subject to the other terms of this Agreement, Tenant will, upon notice
of the transfer, attorn to the New Owner (that is, recognize the New
Owner as the landlord under the Lease from the time of transfer of the
Real Property forward).
(f) The New Owner will not be bound by any modification of the Lease
made without Lender's consent.
The New Owner will not be bound by any rent paid more than one
month in advance unless it actually receives it, or unless Lender has
consented to the advance payment in writing.
(h) The New Owner will assume liability for the return of security or
other lease deposits, but only for those that it actually receives.
5. No Modification. No modification shall be valid unless in writing and
executed by the party against whom enforcement is sought.
6. Notices. Any notice under this Agreement may be delivered by hand or sent
by commercial delivery service or United States Postal Service express mail, in
either case for overnight delivery with proof of receipt, or sent by certified
mail, return receipt requested, to the following addresses:
To Tenant: Metrowerks Corporation
To Lender: Monumental Life Insurance Company
Director, Mortgage Loan Servicing
AEGON USA Realty Advisors, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
The notice shall be deemed to have been given on the date it was actually
received.
7. Successors and Assigns. This Agreement shall be binding on, and shall inure
to the the parties' successors and assigns.
8. Counterparts. This Agreement may be executed and delivered in
counterparts for the-convenience of the parties.
9. The liens security interested and assignments of the Mortgages and the
credit. Documents shall not encumber any trade fixtures, equipment, inventory
or other owned by tenant.
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
4. Legal description of land:
Lot One (1), Block "C", METRIC CENTER EAST, a subdivision in ▇▇▇▇▇▇ County,
Texas, according to the map or plat thereof, recorded in Volume 98, Page(s)
95-97 of the Plat Records of ▇▇▇▇▇▇ County, Texas. SAVE AND EXCEPT those
portions conveyed to the City of Austin in Volume 12999, Page 1781 of the Real
Property Record
Initial Date
EXHIBIT "G "
Broker Commission Agreement
(Attached)
17
Lease Commission Agreement
This Lease Commission Agreement (this "Agreement") is made by and between
Met 10 W97, Ltd. ("Owner") and Term Commercial Brokerage, Inc. ("Broker").
Name and Address of Tenant:
Metrowerks Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Metric 10 West)
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
1. Registration. Broker hereby registers itself and Tenant with Owner, and
Owner accepts such registration subject to the terms and conditions hereof
2. Broker's Covenants. Broker agrees that it shall (a) use its best efforts to
assist Owner and Tenant in their efforts to enter into a Lease, and (b) arrange
and coordinate a meeting (the "Meeting") between appropriate authorized
representatives of Owner and Tenant at which the form and substance of a Lease
is discussed, which Meeting must occur within the thirty (30) day period (the
"Meeting Period") which follows the date of this Agreement, (c) unless Owner
otherwise agrees in writing, not claim any commission or other compensation from
Owner in respect of the leasing of all or any portion of the Property other than
by reason of a Lease in accordance with the terms and conditions of this
Agreement, (d) not be entitled to any payment from Owner other than the
Commission, it being understood that Broker shall not be entitled to any
interest on any deferred (as provided for herein) payments of the Commission and
that all costs and expenses incurred by Broker in connection herewith shall be
borne solely by Broker, and (e) promptly pay the appropriate portion of the
Commission to all salespersons, brokers, finders and any other persons who are
entitled to payment of a portion thereof by reason of any agreement or
understanding with Broker. Owner acknowledges the meeting referenced in (b)
above has already occurred.
3. Broker's Representations and Warranties. Broker represents and warrants to
Owner that at all times during THE TERM of this Agreement, (a) Broker, at the
direction of Tenant, is representing Tenant in connection with the leasing of
all or a portion of the Property, (b) Tenant has expressed a serious interest in
negotiating a Lease with Owner through Broker, (c) Broker is familiar with
Tenant's expectations concerning price and terms, space requirements, and
financial condition, and all of such matters are generally consistent with the
Property and Owner's expectations, and (d) Broker is duly licensed Texas real
estate broker and is authorized to enter into this Agreement.
4. Termination. Broker's rights and Tenant's registration under this Agreement
shall automatically terminate, and no commission or other compensation shall be
payable to Broker, if any one or more of the following events occurs: (a) If
Broker fails to observe or perform any of its obligations hereunder, (b) if any
representation or warranty made by Broker in this Agreement is or at any time
becomes false or misleading in any respect, (c) if the Meeting has not occurred
prior to the expiration of the Meeting Period, (d) if at any time after the
Meeting, Owner gives written notice to Broker that, in the reasonable judgment
of Owner, there has been a lack of active and substantial progress towards the
consummation
of a Lease for a period of sixty (60) consecutive days or more and reasonable
progress is not made within ten (10) days after such notice to Broker, or (e)
Tenant designates a person or entity other than Broker to act as his agent or
representative in connection with the leasing of the Property or any portion
thereof. Broker acknowledges and agrees that no commission or other compensation
will be payable to Broker unless a registration is in effect for Broker in
respect of Tenant, at the time the Lease is fully executed.
5. Duplicate Registrations. If for any reason, more than one registration is (or
alleged to be) in effect for Tenant, notwithstanding anything in this Agreement
to the contrary, the total commission payable by Owner in respect of any Lease
with Tenant shall be limited to the total Commission that would have been
payable by Owner if only one registration were in effect. In the event two (2)
or more registrations are in effect for Tenant and unless otherwise agreed to in
writing, the Commission shall be payable only to the broker who, been designated
in writing by Tenant as
representing Tenant in the consummation of the Lease, and Owner shall promptly
notify Broker upon Owner's determination of any duplicate registration of
Tenant.
6. Withdrawal of Property. Broker acknowledges and agrees that (a) Owner may,
with or without cause, withdraw the Property, or any portion thereof, from the
market or lease the Property, or any portion thereof, to a different tenant, in
each case, without liability or notice to Broker, and (b) Owner has not in any
way committed or represented to Broker that it will enter into (or attempt to
enter into) a Lease with Tenant, it being understood that any decision to enter
into (or attempt to enter into) a Lease shall be at the sole discretion of
Owner.
7. Indemnity. Broker shall indemnify and hold Owner harmless from and against
any and all loss, cost, liability and expense (including, without limitation,
all attorneys' fees) which Owner may incur by reason of (a) the failure of
Broker to observe or perform its obligations hereunder, (b) the present or
future inaccuracy of my representation or warranty made by Broker.
8. The Commission. Subject to the other terms and conditions of this Agreement,
Owner agrees to pay Broker the Commission if Owner and Tenant enter into a Lease
within the one hundred eighty (180) day period (the "Term") following the date
of this Agreement; provided, however, that this Agreement shall not apply to any
Lease other than the next Lease which is entered into after the date hereof, and
no Commission shall be payable to Broker with respect to any additional Lease
unless Owner and Broker enter into a separate Lease Commission Agreement with
respect thereto. The Term of this Agreement may be extended, but only if Owner
and Broker mutually agree to do so in writing. The Broker shall be paid a 4%
cash-out commission based on the aggregate Gross Rent as defined below.
Commissions shall not apply to renewals, extensions, or expansions unless the
Broker is actively involved in the renewal, extension, or expansion documents.
If those conditions are met, broker shall be paid four percent (4%) cash-out
commission on expansions (one-half at the time of execution of the expansion
document, and one half upon occupancy of the expansion space) and a two percent
(2%) cash-out commission on renewals (100% upon execution of the renewal or
extension documents).
9. Time of Payment .
----------------
In the case of a cash-out commission the Owner shall pay Broker such commission
in one installment, ten (10) days of full execution of the Lease Agreement and
the receipt of the Letter of Credit or Certificate of Deposit by Landlord. In
the event Tenant does not occupy Premises, then one-half of the commission shall
be repaid in full upon demand by Landlord.
Miscellaneous.
--------------
a. "Base Rent" shall mean the minimum basic rental payment payable to Owner
excluding deposits, amortization of excess tenant improvements, taxes,
insurance, and common area maintenance charges. For the purposes of the initial
commission, the commission shall be $178,089.60.
b. Owner's Leasing representative may deal directly with prospective tenant
providing Broker is copied on all correspondence and provided all information
that is given to tenant either verbally or in writing.
c. Broker agrees that the Tenant will not be shown the Owner's properties
without an Owner's Leasing representative present.
d. Time is of the essence.
c. All payments to be made hereunder and any notice required or permitted to be
delivered hereunder shall be deemed received when sent by United States Mail,
postage prepaid, addressed to
Owner or Broker, as the case may be, at the address appearing under the
signature of such party. A party may change its address for the purpose of
payment or notice by written notice to the other party pursuant to the terms
hereof
f. The failure of either party to insist upon strict performance or compliance
with the terms and conditions of this Agreement, or the failure of either party
to avail itself of any of its rights or remedies hereunder, shall not in any way
constitute or be deemed to be a waiver or estoppel in respect thereof or prevent
such party from thereafter insisting on strict compliance with the terms hereof
g. This Agreement constitutes the sole and entire Agreement of the parties and
supersedes any prior agreements (written and oral) between the parties
concerning the subject matter hereof
h. Recourse against Owner hereunder shall be limited to proceeding against
Owners' interest in the Project or the proceeds of disposition of the Project
and shall in no event exceed the amount of the commission plus reasonable
attorney's fees.
i. if Owner or Broker brings any action under this Agreement, the non-prevailing
party agrees in each case to pay the prevailing party's reasonable attorney's
fees and other costs and expenses incurred by the prevailing party in connection
therewith.
Accepted and Agreed to this day of
WITNESS:
WITNESS:
LANDLORD:
MET I OW-97, Ltd., a Texas limited partnership
By: ORI, Inc., a Texas Corporation, General Partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
BROKER: TERREN COMMERCIAL BROKERAGE, INC.
By: ▇▇▇▇▇ ▇▇▇▇
Address: Terren Commercial
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
License #: 0400580-34 Expiration Date:
