Exhibit 10.66
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF XXXXXX
This lease agreement ("Lease"), made and entered into by and between
Westwood Venture Limited Partnership, hereinafter referred to as "Landlord", and
Lark Technologies, Inc., hereinafter referred to as "Tenant", upon the following
terms and conditions:
A G R E E M E N T
1. LEASED PREMISES.
In consideration of the rents reserved and the covenants and agreements
herein contained on the part of Tenant to be observed and performed, Landlord
hereby demises, lets and leases unto Tenant, and Tenant hereby rents from
Landlord, those certain premises consisting of a space containing an area of
approximately 15,544 square feet (hereinafter called the "Leased Premises") and
constituting a part of the office/warehouse building (hereinafter called the
"Building") located at 0000 Xxx Xxxxxxx Xxxxxxx #000, Xxxxxxx, Xxxxx 00000,
Houston, Xxxxxx County, Texas which Building is located upon the lot, tract or
parcel of land more particularly described by metes and bounds on Exhibit "A"
attached hereto and made a part hereof for all purposes. If the Building is in a
development containing one or more other buildings, such buildings together with
all related site land, improvements, parking facilities, common areas, driveways
and landscaping, together with the Building, shall be referred to as the
"Project".
The purpose of the site plan attached as Exhibit "B" is to show the
approximate location of the Leased Premises. Landlord reserves the right at any
time to relocate, vary and adjust the size of the various buildings, covenants,
automobile parking areas, and other common areas as shown on said site plan so
long as not to materially affect Tenant. The use and occupancy by Tenant of the
Leased Premises shall include the use, in common with others entitled thereto,
of the common service areas, loading facilities, pedestrian walks, automobile
driveways and reasonable pro-rata use of the parking areas, all as shown on the
site plan attached hereto as Exhibit "B".
In determining the number of square feet of area of the Leased Premises,
Tenant acknowledges that the Leased Premises includes the usable area, without
deduction for columns or projections, multiplied by a load factor to reflect a
share of certain areas, which may include lobbies, corridors, mechanical,
utility, janitorial, boiler and service rooms and closets, restrooms and other
public, common and service areas of the Building.
2. TERM.
To have and to hold the Leased Premises for a term commencing on the
earlier of substantial completion of the leasehold improvements by Tenant's
contractor or January 1, 2000 ("Commencement Date") and ending ten (10) years
thereafter on December 31, 2009. In no event shall the Commencement Date begin
after January 1, 2000 unless agreed to by the parties.
3. ACCEPTANCE OF LEASED PREMISES.
Tenant acknowledges that Landlord has not made any representations or
warranty with respect to the condition or quality of the Leased Premises or
Building. Tenant has inspected and accepts the Leased Premises and Building in
their present condition as suitable for the purposes for which the Leased
Premises are leased. Taking of possession by Tenant shall be deemed conclusively
to establish that the Leased Premises, Building and common areas are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the repair of the Leased Premises or
Building nor promises to alter, remodel or improve the Leased Premises or
Building have been made by Landlord, unless such are expressly set forth in this
Lease. After the Commencement Date Tenant shall, upon demand, execute and
deliver to Landlord a letter of acceptance of delivery of the Leased Premises.
4. BASE RENT AND SECURITY DEPOSIT.
a) Tenant agrees to pay to Landlord rent for the Leased Premises in
advance, without demand, deduction or set off, for the entire term hereof at the
rate of See Addendum One, Item 1 Dollars ($-----) per month. One such monthly
installment shall be due and payable on the Commencement Date and a like monthly
installment shall be due and payable on or before the first day of each calendar
month succeeding the Commencement Date recited above during the hereby demised
term, except that the rental payment for any fractional calendar month at the
commencement or end of the Lease period shall be prorated.
b) In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of Eleven Thousand One Hundred Ninety One and no/100 Dollars
($11,191.00), which sum shall be held by Landlord, without obligation for
interest, as security for the performances of Tenant's covenants and obligations
under this Lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use such fund to the extent necessary to make good
any arrears of rent or other payments due Landlord hereunder, and any other
damage, injury, expense or liability caused by such event of default; and Tenant
shall pay to Landlord demand the amount so applied in order to restore the
security deposit to its original amount. Although the security deposit shall be
deemed the property of Landlord any remaining balance of such deposit shall be
returned by Landlord to Tenant at such time after termination of this Lease that
all of Tenant's obligations under this Lease have been fulfilled.
5. USE.
The Leased Premises shall be used only for the purpose of general office,
laboratory facilities and receiving, storing, shipping and selling (other than
retail) products, materials and merchandise made and or distributed by Tenant
and for such other lawful purposes as may be incidental thereto. Outside
storage, including without limitation, trucks and other vehicles, is prohibited
without Landlord's prior written consent. Tenant shall at its own costs and
expense obtain any and all licenses and permits necessary for any such use.
Tenant shall comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances in or upon, or connected with,
the Leased Premises all at Tenant's sole expense. Tenant shall not
- 2 -
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Leased Premises, nor take any other action which
would constitute a nuisance or would disturb or endanger any other tenants of
the Building or Project or unreasonable interfere with the use of their
respective premises. Without Landlord's prior written consent, Tenant shall not
receive, store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable. Tenant will not permit the Leased Premises to
be used for any purpose or in any manner (including without limitation any
method of storage) which would render the insurance thereon void or the
insurance risk more hazardous or cause the State Board of Insurance or other
insurance authority to disallow any sprinkler credits.
6. OPERATING EXPENSE STOP.
In the event the operating expenses (as defined below) of Landlord for the
Building or Project if applicable, in any calendar year during the term of this
Lease, exceed the sum of the 1999 base year level, Tenant agrees to pay as
additional rental Tenant's proportionate share of such excess operating
expenses. Tenant's proportionate share as used in this Lease shall mean a
fraction, the numerator which is the space contained in the Leased Premises and
the denominator of which is the entire space contained in the Project. Landlord
shall, within six (6) months following the close of any calendar year for which
additional rental is due under this paragraph, invoice Tenant for the additional
rent. The invoice shall include in reasonable detail all computations of the
additional rental, and Tenant agrees to pay the additional rental within ten
days following receipt of the invoice upon receipt. Landlord's failure to
invoice Tenant shall not relieve Tenant of payment. If this Lease shall
terminate on a day other than the last day of a year, the amount of any
additional rental payable by Tenant applicable to the year in which such
termination shall occur shall be prorated on the ratio that the number of days
from the commencement of such year to and including such termination date bears
to 365. If at any time during the term of this Lease but no more often than once
per calendar year, Landlord has reason to believe the per square foot operating
expenses for the calendar year will exceed the sum set forth above, Landlord may
by invoice direct Tenant to prepay monthly one-twelfth of an amount equal to the
additional rental paid in the previous year, or if no additional rental was paid
in the previous year, then Tenant shall prepay monthly one-twelfth of the amount
Landlord reasonably estimates for Tenant's additional rental for such calendar
year. If the invoice delivered within six (6) months following the close of a
calendar year in accordance with this subparagraph shows an amount owing by
Tenant that is less than the sum of the monthly payments made by Tenant in the
previous calendar year, the invoice shall be accompanied by a refund of the
excess by Landlord to Tenant. If such invoice shows an amount owing by Tenant
which is more than the sum of the monthly payments made by Tenant in the
previous calendar year, Tenant shall pay such deficiency to Landlord within ten
days after receipt of the invoice. Tenant shall have the right, at its own
expense and at a reasonable time, but not more than once per calendar year, to
audit Landlord's books relevant to the additional rentals due under this
paragraph.
The term "operating expenses" as used above includes all reasonable
expenses incurred with respect to the maintenance and operation of the Project,
including but not limited to, maintenance and repair costs, management fees,
wages and fringe benefits payable to employees of Landlord whose duties are
connected with the operation and maintenance of the Building and common areas,
all service supplies, repairs, replacements or other expenses for maintaining
and operating the Project. The term "operating expenses" also includes all taxes
and installments of
- 3 -
special or general assessments (excluding any assessments for municipal or
county street repairs, widening or replacement) upgrades, changes in, or
additions to water and sewage, including special assessments due to deed
restrictions and/or owners' associations, which accrue against the Project of
which the Leased Premises are a part during the term of this Lease as well as
all insurance premiums Landlord is required to pay or deems is reasonably
appropriate to pay, including public liability insurance, with respect to the
Project. The term "operating expenses" shall include the annual cost of all
capital improvements directly incurred on the Project which although capital in
nature, will reduce the normal operating costs of the Project, as well as
capital improvements promulgated by any governmental authority due to any
changes in the laws enacted after the Commencement Date, as amortized over the
useful economic life of the improvement as determined by Landlord in it's
reasonable discretion. Except as stated herein, the term "operating expenses"
shall not include any other capital improvement to the Project of which the
Leased Premises are a part, nor shall it include repairs, restoration or other
work occasioned by fire, windstorm or other casualty covered by applicable
insurance, income and franchise taxes of Landlord, expenses incurred in leasing
to or procuring of tenants, leasing commissions, advertising expenses, expenses
for the renovating of space for new tenants, interest or principal payments on
any mortgage or other indebtedness of Landlord, compensation paid to any
employee of Landlord above the grade of building superintendent nor any
depreciation allowance or expense.
Notwithstanding the foregoing, Tenant shall be responsible for and shall
pay to Landlord a monthly common area maintenance reimbursement which includes
Tenant's proportionate share of landscape maintenance, parking lot maintenance,
security (if any), pest control, water, sewer and general project utilities.
These monthly reimbursement expenses shall be excluded from the general expense
calculations for determining "base year level" expenses as discussed above. This
amount shall be adjusted at the end of the year to reflect actual expenses.
The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the Building and/or Project within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from
time to time, as additional rent, the amount of Tenant's "proportionate share"
of the reasonable costs of such service.
7. LANDLORD'S REPAIRS.
Landlord shall at his expense maintain only the roof, foundation and the
structural soundness of the Building in good repair, reasonable wear and tear
excepted. Tenant shall repair and pay for any damage caused by Tenant, or
Tenant's employees, agents or invitee, or caused by Tenant's default hereunder.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Tenant shall immediately give
Landlord written notice of defect or need for repairs, after which Landlord
shall have reasonable opportunity to repair same or cure such defect. Landlord's
liability with respect to any defects, repairs or maintenance for which Landlord
is responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
- 4 -
8. TENANT'S REPAIRS.
a) Tenant shall at its own cost and expenses keep and maintain all parts
of the Leased Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all necessary
repairs and replacements, including but not limited to, windows, glass, plate
glass doors, any special office entry, interior walls and finish work, floors
and floor covering, down spout, gutters, heating and air conditioning systems,
lighting, electrical systems, dock boards, truck doors, door bumpers, paving,
plumbing lines, equipment, and fixtures, termite and pest extermination, regular
removal of trash and debris, including rail spur areas, keeping the theses
areas, parking areas, driveways, alleys and the whole of the Leased Premises in
a clean and sanitary condition, and maintaining any spur track serving the
Leased Premises (Tenant agrees to sign a joint maintenance agreement with the
railroad company servicing the Leased Premises, if requested by the railroad
company). Tenant shall not be obligated to repair any damage caused by fire,
tornado or other casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 12(a) below, except that Tenant shall be obligated to
repair all wind damage to glass except with respect to tornado or hurricane
damage.
b) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at is sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitee.
c) In the event the Leased Premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers licensees shall have the
exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights if ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's exclusive parking rights against any third parties. Further, in
multiple occupancy buildings, Landlord shall perform the paving and landscape
maintenance, and reserves the right to perform exterior painting and common
sewage line plumbing which are otherwise Tenant's obligations under subparagraph
(a) above with respect to such items, and Tenant shall be liable for its
proportionate share (as defined in subparagraph 4(b) above) of the reasonable
cost and expense of the care for the grounds around the Building, including but
not limited to the mowing of grass, care of shrubs, general landscaping,
maintenance of parking areas, driveways, and alleys, exterior repainting and
common sewage line plumbing; provided, however, that Landlord shall have the
rights to require Tenant to pay such other reasonable proportion of said mowing,
shrub care and general landscaping costs as may be determining by Landlord in
its sole discretion; and further provided that if Tenant or any other particular
tenant of the Building can be clearly identified as being responsible for
obstructions or stoppage of the common sanitary sewage line, then Tenant, if
Tenant is responsible, or such other responsible tenant, shall pay the entire
cost thereof, upon demand, as additional rent. Tenant shall pay when due its
share, determine as aforesaid, of such costs and expenses in the event Landlord
elects to perform or caused to be performed such work.
d) In the event the Leased Premises constitute a portion of a multiple
occupancy building, Landlord shall have the right to coordinate any repairs and
other maintenance of any rail tracks serving or to serve the Building, and if
Tenant uses the rail tracks, Tenant shall
- 5 -
reimburse Landlord from time to time upon demand, as additional rent, for a
share of the costs of the repairs and maintenance and any other sums specified
in any agreement to which Landlord is a party respecting the tracks, such share
to be a fraction, the numerator of which is the space contained in the Leased
Premises, and the denominator of which is the entire space occupied by rail
users in the Building.
e) Tenant shall, at its own costs and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Leased Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within the operation/maintenance manual and must
become effective (and a copy thereof delivered to Landlord) within thirty (30)
days of the date Tenant takes possession of the Leased Premises.
9. TENANT IMPROVEMENTS AND ALTERATIONS.
Tenant shall not make any alterations, additions or improvements to the
Leased Premises (including but not limited to roof and wall penetrations) or
Building without the prior written consent of Landlord. All Tenant alterations,
additions and/or improvements shall comply with insurance requirements and with
all applicable laws, ordinances, and regulations. Additionally, all Tenant
alterations, additions, and/or improvements shall be in accordance with the
Landlord's specifications. All Tenant alterations, additions and/or improvements
shall be constructed in a good and workmanlike manner. All plans and
specifications for Tenant's alterations, additions and/or improvements shall be
submitted to Landlord for Landlord's written approval. Tenant agrees that
Landlord may monitor all phases of Tenant's construction. Tenant shall reimburse
Landlord for Landlord's reasonable expenses for reviewing plans and documents
and in monitoring construction. Landlord's review of plans and monitoring
construction shall be solely for Landlord's own benefit and shall impose no duty
or obligation on Landlord to confirm that the plans and specifications and/or
construction comply with applicable laws, codes, rules, or regulations. Tenant
shall obtain payment and performance bonds approved by Landlord, for any Tenant
construction which bonds shall be delivered to Landlord prior to commencement of
construction. Upon completion of Tenant's construction, Tenant shall deliver to
Landlord sworn statements setting forth the names of all contractors and
subcontractors who performed work along with final lien waivers from such
contractors and subcontractors. Tenant may, without the consent of Landlord, but
at its own cost and expense and in a good workmanlike manner erect such shelves,
bins, machinery, and trade fixtures as it may deem advisable, without altering
the basic character of the Building or improvements and without overloading or
damaging such Building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations and other requirements.
All alterations, additions, improvements and partitions erected by Tenant shall
be and remain the property of the Tenant during the term of this Lease and
Tenant shall, unless Landlord otherwise elects as hereinafter provided, remove
all alterations, additions, improvements and partitions erected by Tenant and
restore the Leased Premises to its original condition, exclusive of the initial
leasehold improvements included in the allowance outlined herein, by the date of
termination of this Lease or upon earlier vacating of the Leased Premises;
provided, however, that if Landlord so elects prior to termination of this Lease
or upon earlier vacating of the Leased Premises, such alterations, additions,
improvements and partitions shall become the property of Landlord as of the date
of termination of this Lease or
- 6 -
upon earlier vacating of the Leased Premises and shall be delivered up to the
Landlord with the Leased Premises. All shelves, bins, machinery and trade
fixtures installed by Tenant may be removed by Tenant prior to the termination
of this Lease if Tenant so elects, and shall be removed by the date of
termination of this Lease or upon earlier vacating of the Leased Premises if
required shall be accomplished in a good workmanlike manner so as not to damage
the primary structure or structural qualities of the buildings and other
improvements situated on the Leased Premises.
10. SIGNS.
Tenant shall have the right to install signs upon the Leased Premises only
when first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations, Landlord's architectural controls,
and other requirements. Tenant shall remove all such signs by the termination of
this Lease. Such installations and removals shall be made in such manner as to
avoid injury or defacement of the Building and other improvements, and Tenant
shall repair any injury or defacement, including without limitation
discoloration, caused by such installation and/or removal.
11. INSPECTION.
Landlord and Landlord's agents and representatives shall have the rights to
enter and inspect the Leased Premises and Building at any reasonable time during
business hours, for the purpose of ascertaining the condition of the Leased
Premises or in order to make such repairs as may be required or permitted to be
made by Landlord under the terms of this Lease, any such entry shall be subject
to Tenant's reasonable security measures. In the event of an emergency as
reasonably determined by Landlord, Tenant will provide Landlord immediate entry
into the Premises. During the period that is six (6) months prior to the end of
the term hereof, Landlord and Landlord's agents and representatives shall have
the right to enter the Leased Premises at any reasonable time during business
hours for the purpose of showing the Leased Premises and shall have the right to
erect on the Leased Premises a suitable sign indicating the Leased Premises are
available. Tenant shall give written notice to Landlord at least thirty (30)
days prior to vacating the Leased Premises and shall arrange to meet with
Landlord for a joint inspection of the Leased Premises prior to vacating. In the
event of Tenant's failure to give such notice or arrange to meet with Landlord
for a joint inspection of the Leased Premises prior to vacating, Landlord's
inspection at or after Tenant's vacating the Leased Premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
12. UTILITIES.
Landlord agrees to provide at Landlord's cost water, electricity and
telephone service connections into the Leased Premises; but Tenant shall pay for
all water (included in the operating expense reimbursement outlined herein),
gas, heat, light, power, telephone, sewer, sprinkler charges and other utilities
and services used on or from the Leased Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto and any maintenance charges
for utilities as well as shall furnish all electric light bulbs and tubes. If
any such services are not separately metered to Tenant, Tenant shall pay
Tenant's reasonable proportion as determined by Landlord of all charges jointly
metered with other premises. In the event that Landlord
- 7 -
determines in its reasonable discretion that Tenant's use of water is excessive,
Landlord may separately meter the premises and Tenant shall pay Landlord for the
actual cost of such water use on a monthly basis. Landlord shall in no event be
liable for any interruption or failure of utility services on the Leased
Premises.
13. ASSIGNMENT AND SUBLETTING.
Tenant will not assign this Lease, or allow same to be assigned by
operation of law or otherwise, or sublet the Leased Premises or any part thereof
without the prior written consent of Landlord. Notwithstanding any permitted
assignment or subletting, Tenant shall at all times remain directly, primarily
and fully responsible and liable for the payment of the rent herein specified
and for compliance with all or its other obligations under the terms, provisions
and covenants of this Lease. Upon the occurrence of an "event of default" as
hereinafter defined, if the Leased Premises or any part thereof are then
assigned or sublet, Landlord, in addition to any other remedies herein provided
or provided by law, may at its option collect directly from such assignee or
subtenant all rents becoming due to Tenant under such assignment or sublease and
apply such rent against any sums due to Landlord from Tenant hereunder, and no
such collection shall be construed to constitute a novation or a release of
Tenant from the further performance of Tenant's obligations hereunder.
If Tenant shall propose to sublet or assign this Lease, it shall so notify
Landlord in writing not less than thirty (30) days prior to the date of the
proposed assignment or subletting. The notice setting forth the name of the
proposed subtenant or assignee, the term, use, rental rate and other particulars
of the proposed subletting or assignment, including without limitation, proof
satisfactory to Landlord that the proposed subtenant or assignee is financially
responsible and will immediately occupy and hereafter use the entire Leased
Premises (or any sublet portion thereof) for the remaining term of this Lease
(or for the entire term of the sublease, if shorter).
Landlord agrees to approve any assignment by Tenant to any corporation
succeeding to substantially all the business and assets of Tenant by merger,
consolidation, purchase of assets or otherwise, or the any assignment or
subletting to a corporation which is an affiliate of Tenant. In other cases,
Landlord agrees not to unreasonably withhold approval of any proposed subletting
or assignment provided the proposed transaction is consummated within thirty
(30) days after Landlord's approval, is upon the same terms and conditions
disclosed to Landlord in Tenant's notice, and the assignment or subletting is
with another financially responsible party whose use of the Leased Premises will
not depreciate the value of the Leased Premises, or the value of the property
adjacent thereto, or will not be extra hazardous with reference to the risk of
fire or other hazards. Any assignment or subletting without Landlord's approval,
where required hereunder, shall be void and of no effect.
Landlord shall have the right to transfer and assign, in whole or in part,
any of its rights under this Lease, and in the Building or Project referred to
herein; and to the extent that such assignee assumes Landlord's obligations
hereunder, Landlord shall by virtue of such assignment be released from such
obligation.
- 8 -
14. FIRE AND CASUALTY DAMAGE.
a) Landlord agrees to maintain standard fire and extended coverage
insurance covering the Building of which the Leased Premises are a part in an
amount not less than 80% (or such greater percentage as may be necessary to
comply with the provisions of any co-insurance clauses of the policy) of the
"replacement cost" thereof as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against the perils of Fire,
Lighting and Extended Coverage, such coverage's and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State in which the Leased Premises are
situated for use by insurance companies admitted in such state for the writing
of such insurance on risks located within such state. Subject to the provisions
of subparagraphs 12(c), 12(d) and 12(e) below, such insurance shall be for the
sole benefit of Landlord and under its sole control.
b) If the Building situated upon the Leased Premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
c) If the Building situated upon the Leased Premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged,
thereby that rebuilding or repairs cannot in Landlord's reasonable estimation be
completed within one-hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, 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.
d) If the Building situated upon the Leased Premises should be damaged by
any peril covered by the insurance to be provided by Landlord under subparagraph
12(a) above, but only to such extent that rebuilding or repairs can in
Landlord's reasonable estimation be completed within one-hundred twenty (120)
days after the date upon which Landlord is notified by Tenant of such damage,
this Lease shall not terminate, and Landlord shall at its sole costs and expense
thereupon proceed with reasonable diligence to rebuild and repair such buildings
to substantially the condition in which they existed prior to such damage,
except that Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements which may
have been placed in, on or about the Leased Premises by Tenant. If the Leased
Premises are untenantable, the rent owed by Tenant shall not be abated but shall
be reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord shall fail to complete such repairs
and rebuilding within one-hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this Lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate.
e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Leased Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord or Tenant shall have the right to terminate this
Lease by delivering written notice of termination to the other within fifteen
(15) days after such requirement is made by any such holder, whereupon all
rights and obligations hereunder shall cease and terminate.
- 9 -
f) Each of Landlord and Tenant hereby releases the other from any loss or
damage to person or property caused by fire or any other perils insured through
or under them by way of subrogation or otherwise for any loss or damage to
person or property caused by fire or any other perils insured in policies of
insurance covering the loss to the extent of the insurance, even if such loss or
damage shall have been caused by the fault or negligence of the other party, or
anyone from whom such party may be responsible; provided, however, that this
release shall be applicable and in force and effect only with respect to loss or
damage occurring during such times as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant agree that it will request its insurance
carriers to include in its policies as such a clause or endorsement. If extra
cost shall be charged therefor, each party shall advise the other thereof and of
the amount of the extra cost, and the other party, at its election, may pay the
same, but shall not be obligated to do so.
15. LIABILITY.
Tenant agrees that Landlord shall not be liable to Tenant or Tenant's
employees, agents, patron or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Leased Premises,
resulting from and/or caused in part or whole by the negligence or misconduct of
Tenant, its agents, servants or employees, or of any other person entering upon
the Leased Premises, Building or Project, or caused by the Buildings and
improvements located on the Project becoming out of repair, or caused by leakage
of gas, oil, water or steam or by electricity emanating from the Leased
Premises, or due to any cause whatsoever, and Tenant hereby covenants and agree
that it will at all times indemnify and hold safe and harmless Landlord
(including without limitation the trustee and beneficiaries if Landlord is a
trust), Landlord's agents and employees from any loss, liability, claims,
lawsuits, costs, expenses, including without limitation attorney's fees and
damages, both real and alleged, arising out of any such damage or injury; except
injury to persons or damage to property resulting from the sole cause of which
is the negligence of Landlord or the failure of Landlord to repair any part of
the Leased Premises which Landlord is obligated to repair and maintain hereunder
after a reasonable time after the receipt of written notice from Tenant of
needed repairs. Tenant shall procure and maintain throughout the term of this
Lease a policy or policies of insurance, at is sole cost and expense, insuring
both Landlord and Tenant against all claims, demands or actions arising out of
or in connection with: (i) the Leased Premises; (ii) the condition of the Leased
Premises; (iii) Tenant's operations in and maintenance and use of the Leased
Premises; and (iv) Tenant's liability assumed under this Lease, the limits of
such policy or policies to be in the amount of not less than $1,000,000 per
occurrence in respect of injury destruction, including loss of use thereof. All
such policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing payment or premiums therefor, shall be delivered to Landlord
prior to the Commencement Date of this Lease. Not less than fifteen (15) days
prior to the expiration date of the policies, certified copies of the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Tenant's policies shall further provide that not less
than thirty (30) days written notice shall be given to Landlord before the
policy may be canceled or changed to reduce insurance provided thereby.
- 10 -
16. CONDEMNATION.
a) If the whole or any substantial part of the Leased Premises should be
taken from any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Leased Premises for the purposes for which they are being used, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective when the physical taking of the Leased Premises shall occur.
b) If part of the Leased Premises shall be taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and this Lease is not
terminated as provided in the subparagraph above, 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.
c) In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests and any condemnation proceedings.
17. HOLDING OVER.
Tenant agrees that at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant holds over after
the expiration or termination of this Lease, unless the parties hereto otherwise
agree in writing on the terms of such holding over, the hold over tenancy shall
be subject to termination by Landlord at any time upon not less than five (5)
days advance written notice, or by Tenant at any time upon not less than thirty
(30) days advance written notice. During the hold over, all of the other terms
and provisions of this Lease shall be applicable during that period, except that
Tenant shall pay Landlord from time to time upon demand, as rental for the
period of any holdover, an amount equal to one and one half (1 1/2) times the
rent in effect on the termination date, computed on a daily basis for each day
of the hold over period. No holding over by Tenant, whether with or without
consent of Landlord shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this paragraph shall not be
construed as Landlord's consent for Tenant to hold over.
18. QUIET ENJOYMENT.
Landlord covenants that it now has, or will acquire before Tenant takes
possession of the Leased Premises, good title to the Leased Premises, free and
clear of all liens and encumbrances, excepting only the lien for current taxes
not yet due, such mortgage or mortgages as are permitted by the terms of this
Lease, zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of such property, and easements, restrictions
and other conditions of record. In the event this Lease is a sublease, then
Tenant agrees to take the Leased Premises subject to the provisions of the prior
leases. Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, upon paying the rentals herein set forth
and performing its other covenants and agreements herein set forth,
- 11 -
shall peaceably and quietly have, hold and enjoy the Leased Premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
19. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default by Tenant
under this Lease:
a) Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or
any other payment or reimbursement to Landlord required herein when,
due, and such failure shall continue for a period of five (5) days
from the date such payment was due.
b) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
c) Tenant shall be adjudged bankrupt or insolvent in proceedings filed
against Tenant.
d) A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
e) Tenant shall desert or vacate any substantial portion of the Leased
Premises and be in monetary default and default of the terms and
conditions of this Lease.
f) Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph), and shall not
cure such failure within thirty (30) days after written notice thereof
to Tenant.
20. REMEDIES.
Upon the occurrence of any such events of default described in Paragraph 19
hereof, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever;
a) Terminate this Lease, or terminate Tenant's rights under this Lease
(but not Tenant's obligations), and in either event Landlord shall have the
right to immediate possession of the Leased Premises and may reenter the Leased
Premises, change the locks and remove all persons and property therefrom using
all force necessary for this purpose without being guilty in any manner of
trespass or otherwise; and any and all damages to Tenant, or persons holding
under Tenant, by reason of such re-entry are herby expressly waived; and any
such termination or re-entry on the part of Landlord shall be without prejudice
to any remedy available to Landlord for arrears of rent, breach of contract,
damages or otherwise, nor shall the termination of this Lease or of Tenant's
rights under this Lease by Landlord acting under this subsection be deemed in
any manner to relieve Tenant from the obligation to pay the rent and all other
amounts due or to become due as provided in this Lease for and during the entire
unexpired portion then remaining of the Lease term. In the event of termination
of this Lease or of Tenant's rights under this Lease by Landlord as provided in
this subsection, Landlord shall have the further right to relet the Leased
Premises upon such terms, conditions and covenants as are deemed commercially
reasonable for the account of Tenant, and in such event, Tenant shall pay to
Landlord all costs of renovating and altering the Leased Premises for a new
tenant or tenants in addition to all brokerage and/or legal fees incurred in
connection therewith. Landlord shall credit Tenant only for such amounts as are
actually received from such reletting during the then
- 12 -
remaining Lease term. Alternatively, at the election of Landlord, Tenant
covenants and agrees to pay as damages to Landlord, upon any such termination by
Landlord of this Lease or of Tenant's rights under this Lease, such sum as at
the time of such termination equals the amount of the excess, if any, of the
then present value of all the rent which would have been due and payable
hereunder during the remainder of the full Lease term (had Tenant kept and
performed all agreements and covenants of Tenant set forth in this Lease) over
and above the then present rental value of the Leased Premises for said
remainder of the Lease term. For purposes of present value calculations,
Landlord and Tenant stipulate and agree to a discount rate of eight (8) percent
per annum.
b) Without terminating this Lease, to enter upon the Leased Premises and
without being guilty in any manner of trespass or otherwise and without
liability for any damage to Tenant or persons holding under Tenant by reason of
such re-entry, all of which are hereby expressly waived, and to do or perform
whatever Tenant is obligated hereunder to do or perform under the terms of this
Lease; and Tenant shall reimburse Landlord on demand for any expenses or other
sums which Landlord may incur or expend, and Landlord shall not be liable for
any damages resulting to Tenant from such action, whether caused by the
negligence of Landlord or otherwise; provided, however, nothing in this
subsection shall be deemed an obligation or undertaking by Landlord to remedy
any such defaults of Tenant.
c) Without waiving such Event of Default, apply all or any part of the
security deposit to cure the Event of Default or to any damages suffered as a
result of the Event of Default to the extent of the amount of damages suffered.
Tenant shall reimburse Landlord for the amount of such depletion of the security
deposit on demand.
d) Enter upon the Leased Premises without being liable for prosecution of
any claim for damage therefor, and do whatever Tenant is obligated to do under
the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, and Tenant further agrees that Landlord shall not
be liable for any damages resulting to the Tenant from such action, whether
caused by the negligence of Landlord or otherwise.
e) In addition to any of the remedies noted above or hereinafter,
Landlord is entitled and authorized to enter upon and take possession of the
Leased Premises and remove any property that may be found within the Leased
Premises. Landlord shall have the right to change any and all locks and other
security devices restricting access to the Leased Premises. To the extent
permitted by law, Tenant hereby waives: (i) any notices of Landlord's intent to
re-entry or re-take possession of the Leased Premises; (ii) any notice provided
by statute or otherwise of such re-entry or repossession or changing of locks;
(iii) any claim or cause of action, whether based on trespass, conversion, or
otherwise, against landlord or landlord's agents, employees, officers, or
contractors for any damages caused by the alteration of any locks or re-entry or
repossession by Landlord, whether or not caused by the negligence of Landlord or
otherwise; and (iv) any right of redemption, re-entry, or repossession of tenant
and any notice of legal proceeding for re-entry, including actions for forcible
detainer and entry.
Provided that Landlord has not terminated the Lease in writing or
permanently excluded Tenant from the Leased Premises, Landlord shall not be
obligated to provide a new key to
- 13 -
Tenant except during Landlord's normal business hours, and only after the
following: (1) Tenant cures all events of default existing at the time of
lock-out, including payment of the late charges and reasonable expenses of
lock-out (which shall include the cost of security services and removal of old
locks and installation of new locks), and (2) Tenant has provided Landlord
additional security or further assurances of Tenant's future performance of all
Tenant's obligations arising under the Lease, such security or assurances to be
satisfactory to Landlord in the exercise of Landlord's sole and absolute
discretion, which security may include, but is not limited to, a requirement
that the security deposit be increased to an amount equal to three (3) months
rent. Such lock-out should not be deemed to be a termination of the Lease unless
Landlord gives a written notice of termination to Tenant. It is agreed that if
Tenant abandons or vacates the Leased Premises, Landlord may take such steps as
Landlord deems necessary, appropriate, or desirable to protect the Leased
Premises and the property therein from deterioration, including but not limited
to, the lock-out of Tenant as described herein.
Pursuit of any of the forgoing remedies shall not preclude pursuit of any
of the other remedies 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 accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by the Landlord or its agents during the term
hereby granted shall be deemed a termination of this Lease or an acceptance of
the surrender of the Leased Premises, and no agreement to terminate this Lease
or accept a surrender of the Leased Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of any of
the terms, provisions and covenants herein contained. Landlord's acceptance of
the payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default or of Landlord's
right to enforce any such remedies with respect to such default or any
subsequent default. If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this Lease, it shall
become necessary or appropriate for Landlord to employ or consult with any
attorney concerning or to enforce of defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any reasonable attorney's fees so incurred.
All sums due and owing by Tenant to Landlord under this Lease shall bear
interest from the date due until paid at the greater of (i) two percent (2%)
above the "prime rate" per annum of Texas Commerce Bank National Association or
its successor in effect on said due date or (ii) eighteen percent (18%) per
annum. In either case, such interest to be compounded daily; provided, however,
in no event shall the rate of interests hereunder exceed the maximum
non-usurious rate of interest (hereinafter called the "Maximum Rate") permitted
by the applicable laws of the State of Texas or the United States of America,
whichever shall permit the higher non-usurious rate, and as to which Tenant
could not successfully assert a claim of defense of usury; and to the extent
that the Maximum Rate is determined by reference to the laws of the State of
Texas, the Maximum Rate shall be the indicated rate ceiling (as defined and
described in Texas Revised Civil Statutes, Article 5069-1.04, as amended at the
applicable time in effect.
- 14 -
21. LANDLORD'S LIEN.
In addition to any statutory lien for rent in Landlord's favor, Landlord
shall have and Tenant hereby grants to Landlord a continuing security interest
for all rentals and other sums of money becoming due hereunder from Tenant, upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, receivables, chattel paper and other personal property of Tenant
situated on the Leased Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearage in rent as well as
any and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged. In the event of a default under this Lease, Landlord
shall have, in addition to any other remedies provided herein or by law, all
rights and remedies under the Uniform Commercial Code, including without
limitation the right to sell the property described in this paragraph at public
or private sale upon five (5) days notice to Tenant. Tenant hereby agrees to
execute such financing statements and other instruments necessary or desirable
in Landlord's discretion to perfect the security interest hereby created. Any
statutory lien for rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto.
22. SUBORDINATION.
This Lease and all rights of Tenant hereunder are subject and subordinate
(i) to any mortgage or deed of trust, blanket or otherwise, which does now or
may hereafter affect the building (and which may also affect other properties)
and (ii) to any and all increases, renewals, modifications, consolidations,
replacements and extensions of any such mortgage or deed of trust. This
provision is hereby declared by Landlord and Tenant to be self-operative and no
further instruments shall be required to effect such subordination of this
Lease. Tenant shall, however, upon demand at any time or times execute,
acknowledge and deliver to Landlord any and all instruments and certificates
that may be necessary or proper to more effectively subordinate this Lease and
all rights of Tenant hereunder to any such mortgage or deed of trust or to
confirm or evidence such subordination. Such power of attorney shall not
terminate on disability of the principal. Tenant covenants and agrees, in the
event any proceedings are brought for the foreclosure of any such mortgage or if
the Building is sold to any purchaser, to recognize such purchaser as the
Landlord under this Lease. Tenant agrees to execute and deliver at any time and
from time to time, upon the request of Landlord or of any holder(s) of any of
the indebtedness or other obligations secured by any of the mortgages or deeds
of trust be necessary or appropriate in any such foreclosure proceeding or
otherwise to evidence such attainment. Such power of attorney shall not
terminate on disability of the principal. Tenant further waives the provisions
of any statute or rule of law, now or hereafter in effect, which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligation of Tenant hereunder in the event any such
foreclosure proceedings is brought or trustee's sale occurs and agrees that this
Lease shall not be affected in any way whatsoever by any such foreclosure
proceeding or trustee's sale unless the holder(s) of the indebtedness or other
obligations secured by said mortgages and/or deeds of trust shall declare
otherwise.
23. LANDLORD'S DEFAULT.
Landlord shall only be deemed to be on default an the terms of the Lease in
the event Landlord shall violate, neglect, or fail to observe, keep or perform
any covenant or agreement
- 15 -
which is not observed, kept, or performed by Landlord within thirty (30) days
after the receipt by Landlord of Tenant's written notice of such breach which a
notice shall specifically set out the breach. Landlord shall not be considered
in default so long as Landlord commences to cure the breach in a diligent and
prudent manner and is allowed such additional time as reasonably necessary to
correct the breach up to forty-five (45) days from the date of written notice
from Tenant.
24. MECHANIC'S LIENS.
Tenant shall have 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 in the Leased Premises or to charge the rentals
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any construction
or repairs, and each such claim shall affect and each such lien shall attach to,
if at all, only the leasehold interest granted to Tenant by this instrument.
Tenant covenants and agrees that it will pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or materials
furnished in connection with any work performed on the Leased Premises on which
any lien is or can be validly and legally asserted against its leasehold
interest in the Leased Premises or the improvements thereon and that it will
save and hold Landlord harmless from any and all loss, cost or expense based on
or arising out of asserted claims or liens against the leasehold estate or
against the right, title and interest of the Landlord in the Leased Premises or
under the terms of this Lease.
25. NOTICE.
Each provision of this instrument or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the sending,
mailing or delivery of any notice or the making of any payment by Landlord to
Tenant or with reference to the sending, mailing or delivery 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:
a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address herein below set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent and any
other amounts to Landlord under the terms of this Lease shall not be deemed
satisfied until such rent and other amounts have been actually received by
Landlord.
b) All payments requited to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address herein below set forth, 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.
c) Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not, when deposited
in the United States Mail, postage prepaid, Certified or Registered Mail,
addressed to the parties hereto at the
- 16 -
respective addresses set out below, or at such other address as they have
heretofore specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
Westwood Venture Limited Partnership Lark Technologies, Inc.
c/o Transwestern Commercial Services 0000 Xxx Xxxxxxx Xxxxxxx #000
0000 Xxxx Xxxx Xxxxx #0000 Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for their receipt of notices
and payments to Landlord; if and when included within the term "Tenant" as used
in this instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address within the
continental United States for the receipt of notices and payments to Tenant. All
parties included within the terms "Landlord" and "Tenant", respectively, shall
be bound by notices given in accordance with the provisions of this paragraph to
the same effect as if each had received such notice.
26. MISCELLANEOUS.
a) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
b) The terms, provisions and covenants and conditions contained in this
Lease shall apply to, insure to the benefit of, and be bindings upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided,
Landlord shall have the right to assign any of its rights and obligations under
this Lease. Each party agrees to furnish to the other, 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.
c) The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof or in any way affect the interpretation of this Lease.
d) Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
e) This Lease may not be altered, changed or amended by an instrument in
writing signed by both parties hereto.
- 17 -
f) 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 payments obligations with respect to taxes and insurance and all
obligations concerning the condition of the Leased Premises. Upon the expiration
or earlier termination of the term hereof, and prior to Tenant vacating the
Leased Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Leased Premises, including without limitation
all heating and air conditioning systems and equipment therein, in good
condition and working order and to the condition Tenant is obligated to maintain
herein. Tenant shall also, prior to vacating the Leased Premises, pay Landlord
the amount, as REASONABLY ESTIMATED BY LANDLORD, OF TENANT'S obligation
hereunder for real estate taxes and insurance premises for the year in which the
Lease expires or terminates. All such amounts shall be used and held by Landlord
for payment of such obligations of Tenant hereunder, with Tenant being liable
for any additional costs therefor 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 shall be
created against the amount payable by Tenant under this Paragraph.
g) 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 and in that 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 contract 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.
h) Because the Leased Premises are on the open market and are presently
being show, this Lease shall be treated as an offer with the Leased Premises
being subject to prior lease and such offer to withdrawal or non-acceptable by
Landlord or to other use of the Leased Premises without notice, and this Lease
shall not be valid or binding unless and until accepted by Landlord in writing.
i) All referenced in this Lease to "the date hereof" or similar
referenced shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
27. EXHIBITS AND ATTACHMENT.
All Exhibits, attachments, riders and addenda referred to in this Lease are
incorporated in this Lease and made a part hereof for all intents and purposes.
28. HAZARDOUS MATERIALS.
a) Tenant shall not, without Landlord's prior written consent, cause or
permit any Hazardous Materials (hereinafter defined) to be stored, used or
disposed of in or about the Leased Premises or Project by Tenant, its agents,
employees, contractors or invitees, nor shall the use which Tenant makes of the
Leased Premises result in any Hazardous Materials
- 18 -
Contamination (hereinafter defined). For purposes of this Lease, the following
terms shall have the meanings herein specified.
(1) "Hazardous Materials" shall mean (i) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 (42
U.S.C.A. Sections 6901 et seq.), as amended from time to time,
and regulations promulgated thereunder ("RCRA"); (ii) and
"hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C.A. Sections 9601 et seq.), as amended from time to
time, and regulations promulgated thereunder ("CERCLA"); (iii)
any hazardous substances as defined by the Texas Natural Resource
Conservation Commission ("TNRCC"); (iv) asbestos, polychlorinated
biphenyls or other substances specifically regulated under the
Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.),
as amended from time to time, and regulations promulgated
thereunder ("TSCA"); (v) pesticides specifically regulated under
the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C.A. Sections 135 et seq.), as amended from time to time, and
regulations promulgated thereunder ("FIFRA"); (vi) storage tanks,
whether or not underground and whether empty, filled or partially
filled with any substance; (vii) the presence of oil, petroleum
products, and their by-products; (viii) any substance the
presence of which in or about the Property is prohibited by any
governmental authority or which is hereafter classified by any
governmental authority as a hazardous or toxic waste, material,
substance or similar phraseology; and (ix) any other substance
which by any governmental authority requires special handling or
notification of any governmental authority in its collection,
storage, treatment, or disposal.
(2) "Hazardous Materials Contamination" shall mean the spillage,
leakage, emission or disposal of Hazardous Materials (whether
presently existing or hereafter occurring) in or about the
buildings, facilities, soil, groundwater, air or other elements
in or about the Property or any other property as a result of
Hazardous Materials at any time emanating from the Leased
Premises.
b) Notwithstanding the foregoing, Tenant shall be permitted to store,
use and dispose of deminimis amounts of Hazardous Materials which are incidental
to Tenant's business so long as such amounts does not increase the Landlord's
insurance or change the occupancy class of the Building. Such Hazardous
Materials and all containers therefore, shall be stored, used and disposed of in
a manner that complies with all federal, state and local laws or regulations
applicable to such Hazardous Materials. Tenant shall be liable for all costs and
expenses related to the storage, use and disposal of such deminimis amounts of
Hazardous Materials incidental to Tenant's business.
c) At the commencement of each "Lease Year" (the term "Lease Year" as
used in this Lease shall mean any twelve (12) month period beginning with the
Commencement Date and each twelve (12) month period beginning on any anniversary
date thereof), Tenant shall
- 19 -
disclose to Landlord the names and approximate amounts of all Hazardous
Materials which Tenant intends to store, use or dispose of in or about the
Leased Premises in the coming Lease Year. In addition, at the commencement of
each Lease Year (beginning with the second Lease Year), Tenant shall disclose to
Landlord the names and amounts of all Hazardous Materials that to Tenant's
knowledge were actually stored, used or disposed of in or about the Leased
Premises, if such materials were not previously identified to Landlord at the
commencement of the previous Lease Years.
d) Tenant shall give written notice to Landlord immediately upon Tenant's
acquiring knowledge of the presence of any Hazardous Materials in or about the
Leased Premises (subject to the provisions of paragraph B. hereof) or of any
Hazardous Materials Contamination with a full description thereof. Landlord
shall have the right, but not the obligation, without in any way limiting
Landlord's other rights and remedies under the Lease, to enter onto the Leased
Premises or to take such other actions as it deems necessary or advisable to
cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any
Hazardous Materials or Hazardous Materials Contamination on the Project
following receipt of any notice from any person or entity asserting the
existence of any Hazardous Materials or Hazardous Materials Contamination
pertaining to the Leased Premises or any part of the Project which, if true,
could result in an order, suit, imposition of a lien on the Project, or other
action and/or which, in Landlord's sole opinion, could jeopardize Landlord's
security under the Lease.
e) TENANT HEREBY AGREES THAT TENANT SHALL DEFEND, INDEMNIFY AND HOLD
HARMLESS LANDLORD, ITS AGENTS AND EMPLOYEES FROM AND AGAINST ANY CLAIMS,
DEMANDS, PENALTIES, FINES, LIABILITIES, SETTLEMENTS, DAMAGES, COSTS OR EXPENSES
(INCLUDING WITHOUT LIMITATION, ATTORNEYS' AND CONSULTANTS' FEES, COURT COSTS AND
LITIGATION EXPENSES) OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, CONTINGENT OR
OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE PRESENCE, DISPOSAL,
RELEASE OR THREATENED RELEASE AND SUBSEQUENT REMEDIATION OF ANY HAZARDOUS
MATERIALS OR ANY HAZARDOUS MATERIALS CONTAMINATION FROM THE LEASED PREMISES
CAUSED BY TENANT OR TENANT'S AGENTS, EMPLOYEES, CONTRACTORS, INVITEES, OR
LICENSEES; (B) ANY PERSONAL INJURY (INCLUDING WRONGFUL DEATH) OR PROPERTY DAMAGE
(REAL OR PERSONAL) ARISING OUT OF OR RELATED TO SUCH HAZARDOUS MATERIALS OR
HAZARDOUS MATERIALS CONTAMINATION; OR (C) THE APPLICABILITY OF ANY LAWS RELATING
TO HAZARDOUS MATERIALS ON THE LEASED PREMISES OR CAUSED BY TENANT. THE
PROVISIONS OF THIS PARAGRAPH E. SHALL BE IN ADDITION TO ANY OTHER OBLIGATIONS
AND LIABILITIES TENANT MAY HAVE TO LANDLORD AT LAW OR IN EQUITY AND SHALL
SURVIVE THE EXPIRATION OF THIS LEASE OR THE TERMINATION THEREOF.
THE PARTIES EXECUTING this Lease represent and warrant that each such party
possesses all lawful rights and authority to enter into this Lease; that there
are no judgments, decrees, or outstanding orders of any court prohibiting the
execution of this Amendment; and that all required approvals, consents and
resolutions necessary to effectuate the terms and provisions of this Lease have
been obtained.
- 20 -
Executed on the dates indicated below. Effective on the latter of the dates
indicated below.
LANDLORD: WESTWOOD VENTURE LIMITED PARTNERSHIP
By: /s/ J Xxxx
-------------------------------
Its: General Partner
------------------------------
Date: 11-18-99
-----------------------------
TENANT: LARK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Its: Vice President & CFO
------------------------------
Date: 11-12-99
-----------------------------
- 21 -
ADDENDUM ONE
TO LEASE AGREEMENT BETWEEN
WESTWOOD VENTURE LIMITED PARTNERSHIP
AND
LARK TECHNOLOGIES, INC.
1. The monthly base rent shall be as follows:
Months 1 - 6 $8,257.00/month
Months 7 - 36 $9,793.00/month
Months 37 - 60 $10,567.00/month
Months 61 - 120 $ 11,191.00/month
2. Landlord will provide an allowance of $77,720.00, or $5.00 per square foot,
to be used specifically for leasehold improvements to the Premises. It is
agreed that Landlord will provide an additional allowance of up to
$170,984.00, or $11.00 per square foot, if required for leasehold
improvements and such additional allowance will be amortized over the Term
at an interest rate of 10.5% per annum and paid to Landlord in addition to
the Base Rent described in paragraph 4 of this
Lease Agreement and outlined
above in paragraph 1. Tenant shall pay the cost of all leasehold
improvements that exceed the aggregate leasehold improvement allowance of
$248,704.00, or $16.00 per square foot.
3. It is further agreed that Tenant or Tenant's contractor shall be
responsible for the construction of all leasehold improvements to the
premises, and Tenant agrees to obtain, at its expense, all necessary
permits (including a new Certificate of Occupancy permit, as a result of
Tenant's improvements and occupancy of premises) that are required by all
governmental laws, ordinances and regulations and applicable for the use of
the premises by Tenant. In constructing the leasehold improvements, Tenant
will utilize the services of Valued Engineered Construction or other
contractor reasonably acceptable to Landlord. Plans and specifications for
such improvements shall be prepared by Yong Architects or other architect
reasonably acceptable to Landlord. The plans and specifications for
Tenant's leasehold improvements shall be subject to Landlord's approval,
which shall not be unreasonably withheld, conditioned or delayed, although
such leasehold improvements shall be constructed by Tenant, utilizing the
aforesaid contractor. Tenant shall have the right to contract with Trione &
Xxxxxx to provide additional construction supervision services. The
allowance outlined above shall be due and payable from Landlord to Tenant,
periodically during the course of construction of such leasehold
improvements within ten (10) days after receipt by Landlord of a progress
draw request therefor (prepared and certified by the aforesaid architect),
together with lien releases for the amount of such payment from Tenant's
general contractor. There shall be ten percent (10%) retainage withheld
from each such payment. There shall be no more than one (1) such progress
payment made every thirty (30) days together with one (1) final payment of
the ten percent (10%) retainage payable within thirty (30) days after
substantial completion of the leasehold improvements, accompanied by an
unconditional lien release from Tenant's general contractor. Except for the
above specified allowance,
Tenant agrees to accept the premises in its "As Is", "Where Is" condition
and Landlord shall not be required to pay for any leasehold improvements
that exceed such allowance.
4. Provide there is not an event of default on any terms, covenants and
conditions thereof, Tenant shall have a one-time option to cancel the
Lease
Agreement after the eighty-fourth (84th) month of the lease term. Tenant
shall provide Landlord with six (6) months advance written notice and shall
pay in full, at the time of notification, all straight line unamortized
lease costs, which shall consist of all leasing commissions payable to
Tenant's Broker and the Landlord's Broker and the aggregate leasehold
improvement allowance incurred by Landlord outlined above in paragraph 2
above, at an interest rate of 10.5% per annum.
5. It is agreed and acknowledged that Xxxx Xxxxxx of Trione and Xxxxxx is the
broker of record (hereinafter referred to as "Broker) and has represented
Tenant in this lease transaction. In consideration for the execution of
this Lease, it is agreed that Broker shall be paid a commission of 4% of
the base rental consideration of this Lease outlined in Paragraph One of
this Addendum One to the Lease, such amount being $50,736.00. One-half of
such commission payment shall be made to Broker by Landlord within fifteen
(15) days from the date of the execution of this Lease and shall be in the
form of a lump sum payment, and the balance (25,368.00) shall be paid upon
Tenant's occupancy. Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any claim 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 lease transaction.
- 23 -
ADDENDUM TWO TO
LEASE AGREEMENT
This Addendum is incorporated by reference into and is a party of that
certain
Lease Agreement (the "Lease") between Westwood Venture Limited
Partnership, as Landlord, and Lark Technologies, Inc., as Tenant. The term
"Premises" as used in this Addendum shall mean the Leased Premises described in
Paragraph 1 of the Lease, and the term "Building" as used herein shall mean the
building described in the Lease and of which the Premises are a part. Except as
otherwise indicated herein, all defined terms in the Lease shall have the same
meaning in this Addendum.
1. OPERATING EXPENSES EXCLUSIONS. Notwithstanding anything contained in
Paragraph 6 of the Lease to the contrary, the following shall be excluded from
operating expenses for the purposes of the Lease:
a. Costs incurred in renovating or otherwise improving or decorating
or redecorating space for tenants or other occupants in the Building or vacant
leasable space in the Building.
b. Landlord's costs of electricity and other services sold to
tenants and which are not standard for the Building, or for which Landlord is
reimbursed by tenants as an additional charge or rental.
c. Except as otherwise expressly permitted in Paragraph 6, the cost
of any improvements, additions, changes, replacements, equipment, which under
generally accepted accounting principles are required to be classified as
capital expenditures (whether incurred directly or through a lease or service
contract or otherwise).
d. Depreciation of the Building and all equipment, fixtures,
improvements and facilities used in connection therewith.
e. Material expenses in connection with services or other benefits
of a type which are not standard for the Building and which are not available to
Tenant without specific charge therefor, but which are provided to another
tenant or occupant.
f. Costs (including penalties, fines and associated legal expenses)
incurred due to the violation by Landlord of the terms and conditions of the
Lease, or any applicable federal, state, and local governmental laws,
ordinances, orders, rules and regulations, which costs would not have been
incurred but for such violation by Landlord.
g. Overhead and profit increments paid to subsidiaries, partners or
other affiliates of Landlord for services on or to the Building, to the extent
that the costs of such services exceed competitive costs for such services
rendered by persons or entities of similar skill, competence and experience,
other than a subsidiary of Landlord. Management fees charged to operating
Expenses shall not exceed similar fees charged in connection with the operation
of projects of like location, size, character and quality.
h. Costs of Landlord's general corporate overhead and general
administrative expenses, which would not be chargeable to operating expenses of
the Building, determined in
accordance with generally accepted accounting principles, consistently applied;
and all costs related to maintaining Landlord's existence as a corporation,
partnership or other entity.
i. All services for which Tenant (or any other tenant of the
Building) specifically reimburses Landlord or for which Tenant pays directly to
third persons.
j. Advertising and promotional expenses incurred to publicize the
Building primarily for leasing purposes.
k. Repairs or other work occasioned by the exercise of the right of
eminent domain.
l. Attorney's fees, costs and disbursements, and other expenses
incurred in connection with negotiations or disputes with tenants, other
occupants, or past or prospective tenants or other occupants.
m. Interest and principal on rental under any ground or underlying
leases or lease.
n. Management fees relating directly to the management of the
Building in excess of four (4%) percent of the lease income derived from the
Building.
o. Any costs, fines or penalties incurred in connection with the
late payment by Landlord of taxes or other costs, or due to violations by
Landlord of any governmental rule or authority so long as Tenant is not in
default on the terms of the Lease.
Landlord agrees to reimburse Tenant for the cost of any audit conducted by
or for it in the event the inspection proves that the operating expense charges
charged to Tenant by Landlord hereunder for the period of time covered by such
inspection shall have been overstated by three percent (3%) or more. Any such
inspection must cover a period within two (2) calendar years prior to the then
current calendar year, any objections to charges prior thereto being
conclusively presumed to have been waived.
2. DEFAULT BY LANDLORD. Any provision in the Lease to the contrary
notwithstanding, if Landlord fails to perform its obligations under the Lease
(including, without limitation, delivery of utility services) and such failure
(a) is the result of a condition within the Landlord's control, (b) interferes
substantially with the normal use of the Premises by Tenant as allowed herein,
and (c) continues for more than ten (10) consecutive business days, then the
rental shall be proportionately abated until such interference is eliminated or
the Premises are otherwise rendered tenantable again. Additionally, if such
interference continues for a period of 30 or more consecutive days, then Tenant
shall have, as Tenant's sole remedy, the right and option to cancel the Lease by
giving written notice to Landlord within five (5) days after the end of such
30-day period.
3. TENANT'S RIGHT TO PERFORM LANDLORD'S OBLIGATIONS. Tenant shall have
the right to remedy any default of an emergency nature in the event Landlord
fails to commence curing any default creating an emergency situation promptly
upon being given notice which is reasonable under the circumstances, and Tenant
shall have the right to remedy such a default without notice
- 25 -
(if the giving of notice is not reasonably practicable) in the event of an
emergency. All reasonable sums expended incurred by Tenant in connection with
the foregoing shall be paid by Landlord to Tenant upon demand.
4. INDEMNIFICATION; INSURANCE. Anything in Paragraph 15 of the Lease to
the contrary notwithstanding, the indemnification by Tenant shall be only for
claims by third parties and not for claims by Tenant. Additionally, Landlord
shall indemnify and hold Tenant harmless from and against claims by third
parties for any loss or damage to property or person to the extent caused by the
acts or omissions of Landlord or its agents or employees. Neither party, nor its
officers, directors, employees, agents or invitees, nor, in case of Tenant, its
subtenants, shall be liable to the other for loss or damage to its respective
property to the extent of the insurance amounts for the claim. Moreover,
Landlord and Tenant shall be relieved of their respective obligations of
indemnity to the extent of the amount actually recovered by Landlord or Tenant
from one or more of the insurance carriers of Tenant or Landlord. The
indemnities and releases set forth in the Lease as modified and supplemented by
this Paragraph 4 shall survive the expiration of the term of this Lease.
5. TENANT DEFAULT. Notwithstanding the provisions of Paragraph 19(f) of
the Lease, Landlord shall not be entitled to exercise its rights under that
Paragraph 19(f) in the event Tenant takes action to cure a default within such
thirty (30) day period, but is unable, by reason of the nature of the work
involved, to cure the same within such period, provided Tenant continues to work
thereafter diligently and without unnecessary delays but no longer than
forty-five (45) days.
6. SUBORDINATION OF LANDLORD'S LIEN. Landlord hereby subordinates all
statutory and contractual landlord's liens (and, provided Tenant is not in
default at the time, agrees to sign documents so indicating, upon Tenant's
request) to any liens or security interests covering Tenant's inventory, or
financed fixtures, furniture or equipment of Tenant in favor of bona-fide
third-party lenders providing financing to Tenant (including purchase-money
financing).
7. NON-DISTURBANCE OF TENANT. The subordination provided for in Paragraph
22 of the Lease shall extend only to such mortgages or deeds of trust under
which the mortgagee by agreement in the mortgage or deed of trust or in a
separate instrument contracts in substance not to disturb Tenant's occupancy so
long as Tenant performs its obligations in the Lease on condition that Tenant,
which requested by the mortgagee, shall execute an, attornment agreement to the
mortgagee should the mortgagee succeed to the rights of the Landlord under the
Lease.
8. LANDLORD'S APPROVALS. Notwithstanding anything to the contrary
contained in the Lease, it is specifically understood and agreed that as regards
any approvals or matters to be performed to the satisfaction of Landlord, the
Landlord shall not unreasonably withhold or delay its approval or indication of
satisfaction and shall approve or be satisfied as to any matter so long as any
deviation from the requirements of Landlord are of a minor and insubstantial
nature such that Landlord will realize substantially the benefits to which it is
entitled.
9. TENANT SECURITY SYSTEMS; LANDLORD'S RIGHT OF ENTRY. Notwithstanding
anything to the contrary contained in the Lease, the Tenant shall be entitled to
install and maintain a burglar alarm system or other surveillance system
designed to protect the Premises from
- 26 -
unauthorized entry and shall be entitled at any time to change or re-key any and
all locks used in connection with the Premises; provided, however, that in the
event any lock is replaced or re-keyed, Tenant shall promptly provide Landlord
with keys enabling Landlord to enter the Premises pursuant to the terms of the
Lease. Landlord agrees to give Tenant at least 24 hours prior notice of
Landlord's intent to enter the Premises to the extent the giving of such notice
is reasonably practicable.
10. MECHANIC'S LIENS. Tenant shall have the right, after written notice to
Landlord, to contest in good faith and all due diligence any such mechanic's
lien and shall not be required to pay any claim secured by such mechanic's lien
provided that such lien would not be satisfied out of the interest of Landlord
in the Premises or the Building by reason of such delay, and further provided
that Tenant will, at Tenant's expense, defend Landlord and pay all costs
reasonably incurred by Landlord relating to the contest in the event Landlord is
joined in any suit pertaining thereto or in the event any lien affidavit is
filed claiming a lien upon Landlord's interest in the Premises or in the
Building. The foregoing sentence shall not imply any right on the part of Tenant
to affect Landlord's interest in the Premises or the Building.
11. COMPLIANCE WITH LAWS. Landlord and Tenant agree to comply with
applicable laws, with their respective responsibilities to be allocated as
follows:
a. Tenant will be responsible for compliance with all applicable
laws, statutes, ordinances and governmental rules, regulations or requirements
now in force or that may hereafter be in force with respect to the operation of
Tenant's business or the Premises, including, without limitation, any
accommodations or alterations that need to be made within the Premises to
accommodate disabled employees and customers of Tenant pursuant to requirements
under the Americans With Disabilities Act (Public Law 101-336 (July 26, 1990)]
and the Texas Architectural Barriers Act (Tex. Civ. Stat. Art. 9102)
(collectively, the "Disability Statutes"). Any alterations made to the Premises
in order to comply with any such statutes must be made solely at Tenant's
expense and such alterations must also comply with the requirements of Paragraph
9 of the Lease.
b. Except for the obligations of Tenant under clause (a) above,
Landlord shall be responsible for compliance with all applicable laws, statutes,
ordinances and governmental rules, regulations or requirements now in force or
which may be thereafter be in force that affect the Building, including without
limitation, the Disability Statutes and local building or fire code requirements
applicable to the Building. If Landlord is required to make any installation in
the Building pursuant to the Disability Statues or local building or fire codes,
the cost of such installation shall be a part of Operating Expenses if such
installation constitutes a day-to-day operational expense. However, if such
installation constitutes a capital improvement item under generally accepted
accounting principles, such installation shall be accomplished at Landlord's
sole cost and expense and shall not be charged to Tenant as a part of the
Operating Expenses of the Building.
12. CERTAIN REPRESENTATIONS OF LANDLORD. Landlord represents to Tenant as
follows:
a. To the best of Landlord's knowledge, the Building does not
contain any material quantities of asbestos. To the best of Landlord's knowledge
neither the Building nor the
- 27 -
land on which it is located contain any substance deemed hazardous under
federal, state, or local environmental statues, ordinances, rules, regulations,
or orders ("Hazardous Materials"), other than negligible quantities of such
Hazardous Materials as may typically be found in commercial construction or
cleaning products used and disposed of in accordance with applicable laws.
b. The roofs, foundations and all structural components of the
Building are in good working order and conditions, are fit for their intended
purposes.
c. Tenant will not be deemed to be a holdover tenant (and holdover
rents will not apply) unless the Landlord is entitled to possession under the
terms of the Lease and Tenant fails to vacate the Premises within 30 days after
Tenant receives a written demand for possession from the Landlord.
13. RIGHT OF FIRST REFUSAL. Tenant shall be entitled to a Right of First
Refusal as provided in Rider 1 attached hereto.
LANDLORD:
WESTWOOD VENTURE LIMITED
PARTNERSHIP
By:
-------------------------------
Name:
Title:
TENANT:
LARK TECHNOLOGIES, INC.
By:
-------------------------------
Name:
Title:
- 28 -
RIDER NO. 1
RIGHT OF FIRST REFUSAL
If Landlord receives a proposal outlining the rent and all other material
business terms upon which another prospective tenant desires to lease all or any
portion of the space on the Suite 100 (approximately 3,664 square feet), Suite
102 (approximately 2,640 square feet), the space between Suites 100 and 102
(approximately 1,000 square feet), or Suite 110 (approximately 3,853 square
feet) of the Building (collectively the "ROFR Space"), and/or if Landlord
intends to make a proposal to a prospective tenant outlining the rent and all
other material business terms upon which Landlord is willing to lease all or any
portion of the ROFR Space to the prospective tenant, and if on the basis of
either such proposal (the "Proposal") Landlord intends to enter into further
negotiations for a more definitive
lease agreement with the prospective tenant,
then Landlord shall, prior to executing the more definitive
lease agreement at
any time during the Term of this Lease, submit the Proposal to Tenant with an
offer to lease the portion of the ROFR Space covered by the Proposal (the
"Applicable Space") to Tenant on the Proposed Terms (as defined below). (For
clarification, Tenant acknowledges that "Proposal," as used herein, does not
necessarily mean a proposal or preliminary offer submitted to Landlord by
another prospective tenant, but rather may mean a counterproposal that Landlord
intends to make to the other prospective tenant in response to the other
tenant's proposal or a preliminary offer.) If Tenant fails to accept the offer
from Landlord in writing within five (5) business days after receipt of the
Proposal and the offer, Landlord shall be entitled to lease the Applicable Space
to the other prospective tenant (subject to Tenant's remaining rights, if any,
under the Options set out below) on the terms set forth in the Proposal or on
other terms which are generally more favorable to Landlord in all material
respects. If Tenant accepts Landlord's offer within such five (5) business day
period, Landlord shall cause an amendment (the "ROFR Amendment") to this Lease
to be prepared, adding the Applicable Space to the Premises and otherwise
providing for the lease of such Applicable Space on the Proposed Terms. Tenant's
right of first refusal as to Suite 110 is subordinate to prior rights of KVM
Technologies.
- 29 -
Exhibit "A"
Three (3) buildings containing 94,118 square feet further described as Westwood
Business Center, situated on that 6.1887 acres of land out of Block 2,
Unrestricted Reserve "B", as recorded in Westwood Center, Section One, Volume
221, Page 19, Xxxxxx County Map Records, in the W. E. Xxxxxxx Survey, A-1137,
the X. X. Xxxx Survey, A-607, and the X. X. Xxxx Survey, A-210, Xxxxxx County,
Texas, more specifically described as 0000 Xxx Xxxxxxx Xxxxxxx Xxxxx #000,
Xxxxxxx, Xxxxx 00000.
- 30 -
[image]
- 31 -
[image]
- 32 -
