Lease Agreement between Woodlands Office Equities-'95 Limited and Telxon Corporation for Venture Technology Center III, The Woodlands, Texas
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This lease agreement is between Woodlands Office Equities-'95 Limited (landlord) and Telxon Corporation (tenant) for 25,857 square feet of office space at 8701 New Trails Drive, The Woodlands, Texas. The lease starts on February 15, 2000, or when the tenant takes possession, and lasts for 18 months. The tenant pays a monthly base rent of $18,854.06 plus a share of operating expenses. The space is for office use only, and the tenant has rights to parking and the loading dock. The agreement outlines payment terms, use restrictions, and audit rights for operating expenses.
EX-10.2.6 3 ex10-2_6.txt EXHIBIT 10.2.6 1 EXHIBIT 10.2.6 LEASE AGREEMENT VENTURE TECHNOLOGY CENTER III BUILDING 8701 NEW TRAILS DRIVE, SUITE W THE WOODLANDS, MONTGOMERY COUNTY, TEXAS THIS LEASE AGREEMENT (the "Lease"), effective January 20th, 2000, is, between WOODLANDS OFFICE EQUITIES-'95 LIMITED, a Texas limited partnership ("Lessor"), and TELXON CORPORATION, a Delaware corporation ("Lessee"). l. PREMISES. Lessor hereby leases to Lessee and Lessee hereby takes from Lessor, 25,857 net rentable square feet of floor space ("Premises"), together with all appurtenances thereto, in a building known and referred to as Venture Technology Center III Building ("Building"), located at 8701 New Trails Drive, The Woodlands, Montgomery County, Texas. The Building is located on that certain 7.8500 acre tract of land, being all of Restricted Reserve "B", The Woodlands Medical Research Park Section 3, according to the map or plat thereof recorded in Cabinet F, Sheet 110-B of the Map Records of Montgomery County, Texas, ("Land"). The Premises is shown on the floor plan attached hereto as Exhibit "A". Lessor reserves the right to change the name of the Building whenever it desires without any liability or consent of Lessee. 2. LOADING DOCK AND PARKING. In addition to the Premises, Lessee and its invitees are hereby granted the non-exclusive right to use the loading dock for the Building. Lessee shall also have the right to park 52 automobiles in the parking areas provided by Lessor on the Land. Lessor shall keep in good condition throughout the Term described below the parking areas for and vehicular access ways to the Premises. The use of such loading dock and parking and access areas shall at all times be subject to such reasonable rules and regulations as Lessor may promulgate. 3. TERM. The term of this Lease ("Term") shall commence on the date ("Commencement Date") which is the earlier of (a) February 15, 2000, or (b) the day upon which Lessee takes occupancy of the Premises, and shall expire on the last day of the 18th full calendar month following the Commencement Date, subject to earlier termination as hereinafter provided. Lessee accepts the Premises on the terms of Exhibit "B" attached hereto. Lessor shall not be liable or responsible for any claims, damages or liabilities of any nature whatsoever in connection with or by reason of any delayed occupancy. Within 15 days following Lessee's receipt from Lessor of a memorandum of this Lease specifying the Commencement Date and date of expiration of the Term, Lessee agrees to execute the memorandum. 4. USE. Lessee shall use the entire Premises solely for office use and for no other use. 5. ACCEPTANCE OF THE PREMISES. Upon taking possession of all or any portion of the Premises, Lessee shall be deemed to have accepted the Premises, to have acknowledged that the same are in the condition called for hereunder and to have agreed that the obligations of the Lessor imposed by Exhibit "B" attached hereto have been fully performed. Lessee hereby waives any implied warranty of Lessor that the Premises are suitable for their intended commercial purpose and acknowledges and agrees that all of Lessee's obligations hereunder (including without limitation, the obligation to pay rent) are independent of any such implied warranty and agrees to perform all such 2 obligations and pay rent notwithstanding any breach or allegation of breach by Lessor of any such implied warranty (which implied warranty as aforesaid is hereby waived by Lessee). 6. SECURITY DEPOSIT. INTENTIONALLY DELETED 7. BASE RENT. The Base Rent, which Lessee hereby agrees to pay to Lessor monthly, in advance, at Lessor's address stated above, shall be the sum per month set forth below, due and payable on the first day of each calendar month during the Term hereof, without offset or deduction, with a pro rata portion being due and payable in advance for any partial month occurring at the beginning of the Term: Months of Term Base Rent Amount -------------- ---------------- 1 - 18 $18,854.06 A late charge of l0% shall be added to any payment of Base Rent or Additional Rent which is more than l0 days past due, except that the first 2 times during the Term that a payment is past due by more than 10 days, Lessor shall give Lessee written notice thereof and the late charge will not be imposed provided Lessee pays the sum due within 5 days after receipt of said notice. 8. ADDITIONAL RENT. Lessee agrees to pay its pro-rata share of Operating Expenses (as defined in Section 10 below) (which includes the Management Fee described in Section 10) each Fiscal Year. The term "Fiscal Year", as used herein, shall mean Lessor's fiscal year for accounting purposes which currently is the 12-month period beginning January 1 and ending December 31. Lessor shall have the right to change the Fiscal Year, from time to time, and, in such event, Lessor shall notify Lessee in writing of such change. Lessee's pro rata share shall be determined by multiplying the Operating Expenses by a fraction, the numerator of which shall be the number of net rentable square feet in the Premises, and the denominator of which shall be the net rentable square footage in the Building, which may change from time to time utilizing BOMA (Building Owners and Managers Association) standards. Within 90 days following the completion of each Fiscal Year, Lessor will provide to Lessee a statement showing in reasonable detail the Operating Expenses for the preceding Fiscal Year, the Additional Rent due with regard to Lessee's share of the Operating Expenses, and Lessor's reasonable estimate of Operating Expenses for the then current Fiscal Year. Lessee shall, on or before 30 days following receipt of said statement, pay to Lessor the amount of Additional Rent due as provided herein, less the amount of Additional Rent paid in advance (if any) during the preceding Fiscal Year. Any overpayment will be credited by Lessor to Lessee's next Base Rent payment(s). Lessee agrees to pay Additional Rent each month thereafter, in addition to Base Rent, in an amount necessary to amortize the estimated Operating Expenses for the then current Fiscal Year (or the pro rata portion thereof, if applicable) over a period equal to the lesser of (i) the number of months remaining in the Term or (ii) the number of months remaining in the current Fiscal Year. Notwithstanding that the Term has expired or been terminated, Lessee shall remain liable for and agrees to pay to Lessor within 30 days following receipt of an invoice therefor, its pro rata portion of Operating Expenses for the Fiscal Year (or portion thereof) during which the Term expired or was terminated. Lessee shall have the right, at its expense and at a reasonable time, to audit Lessor's books relevant to the Additional Rent due under this Section. 2 3 Within 90 days (the "Audit Election Period") after Lessor furnishes its statement for any Fiscal Year, Lessee may, at its expense during Lessor"s normal business hours, elect to audit Lessor"s Operating Expenses for such Fiscal Year only, subject to the following conditions: (i) the audit shall be prepared by a certified public accounting firm of reputable standing; (ii) in no event shall any audit be performed by a firm retained on a "contingency fee" basis; (iii) the audit shall commence within 30 days after Lessor makes Lessor"s books and records available to Lessee"s auditor and thereafter proceed reasonably to conclusion within 60 additional days; (iv) the audit shall be conducted where Lessor maintains its books and records and shall not unreasonably interfere with the conduct of Lessor"s business; (v) Lessee and its accounting firm shall treat any audit in a confidential manner and shall each execute a confidentiality agreement for Lessor"s benefit prior to commencing the audit; and (vi) the accounting firms audit report shall, at no charge to Lessor, be submitted in draft form for Lessor"s review and approval before the final approved audit report is delivered to Lessor. This subsection shall not be construed to limit or abate Lessee"s obligation to pay Additional Rent when due. Lessor shall credit any overpayment determined by the approved audit against the next sums due and owing by Lessee or refund said overpayment to Lessee, upon Lessee"s request, or, if no further Additional Rent is due, refund such overpayment directly to Lessee. Likewise, Lessee shall pay Lessor any underpayment determined by the approved audit within 30 days of determination. The foregoing obligations shall survive the termination date of the Lease. If Lessee does not give written notice of its election to audit Lessor"s Operating Expenses during the Audit Election Period, Lessor"s Operating Expenses for the applicable Fiscal Year shall be deemed approved for all purposes, and Lessee shall have no further right to review or contest the same. If Lessee"s audit determines a discrepancy of 5% or more, Lessor shall also pay to Lessee the costs of the audit not to exceed $2,000.00. 9. PAYMENT OF RENTALS. Lessee covenants to promptly pay all rentals when due and payable. A late charge of 10% per cent shall be added to any payment of Base Rent or Additional Rent which is more than 10 days past due in order to compensate Lessor for the extra administrative expenses incurred. If Lessor shall pay any monies or incur any expenses in correction of violations of the covenants herein set forth, the amounts so paid or incurred shall, on notice to Lessee, be considered additional rent payable by Lessee with the first installment of Base Rent thereafter to become due and payable, and may be collected or enforced as by law provided in respect of rentals 10. OPERATING EXPENSES. The term "Operating Expenses" means all of Lessor's costs, expenses and disbursements (but not acquisition of capital investment items, except as hereinafter expressly provided or specific costs billed to specific lessees) to operate and maintain the Land, the Building, and all improvements on the Land from time to time (to the extent and only to the extent same are Lessor's obligation to pay or furnish under the other provisions of this Lease), including, but not limited to, Lessor's costs of providing utilities, including, but not limited to lighting; porter services and supplies; refuse removal (if Lessor elects to furnish this service); landscaping, including irrigation; and general maintenance and repairs, including, but not limited to, repairs to roof surface and preventive maintenance, parking area restriping, exterior painting and other activities. Operating Expenses shall also include a reasonable amortization charge on account of any capital expenditure incurred to effect a reduction of Operating Expenses and a reasonable charge for amortization of all capital items Lessor installs (a) to reduce Operating Expenses, or (b) to promote safety, or (c) which 3 4 Lessor is required to install on or for the benefit of the Building by any governmental law, code or regulation passed or enacted on or after the Commencement Date, or (d) which is a replacement (as opposed to additions or new improvements) of items located in the common areas adjacent to the Building, the parking area and other facilities used in connection with the Building, or involving the exterior of the Building, including, but not limited to, the roof and structural elements. Additionally, Operating Expenses shall include all ad valorem taxes or assessments, and Annual Assessments of The Woodlands Community Association, Inc. and The Woodlands Commercial Owners Association, whichever is applicable, which accrue against the Building or the Land during the Term, together with all insurance premiums which Lessor is required to pay or deems necessary to pay with respect to the Building or the Land, including, but not limited to, casualty insurance and liability insurance, and a management fee ("Management Fee") of 5% of Lessee"s annual Base Rent. It is understood and agreed that the Management Fee will not change during the initial Lease Term. Notwithstanding anything contained herein to the contrary, it is agreed that in the event not more than 95% of the rentable area in the Building is occupied during any Fiscal Year or in the event not more than 95% of the rentable area in the Building is provided with building standard services during any Fiscal Year, an adjustment shall be made in computing the Operating Expenses for such year so that the Operating Expenses shall be computed for such year as though the Building had been 95% occupied during such year and as though 95% of the Building had been provided with building standard services during such year. Notwithstanding anything contained herein to the contrary, it is understood and agreed that Operating Expenses shall not include those items set forth on Exhibit "D" attached hereto. Further, Notwithstanding anything contained herein to the contrary, if at the end of the Fiscal Year, the Land, WITH the Building thereon, has not yet been placed on the tax rolls, the Fiscal Year ad valorem taxes and assessment shall be adapted and increased as if it had been. 11. UTILITIES. Lessor shall make available to the Building gas, electricity, water and sewer facilities. Lessee agrees to assume all costs and expenses for water and sewer, except as herein provided, gas, electricity, telephone, and any other service needed for its use at the Premises, including any license or deposit required to establish or maintain such services, and the costs of installation, hook-up and metering. Lessor agrees to pay all costs and expenses for water and sewer service. The cost of these services shall be included with Operating Expenses as defined in Section 10 hereof. Lessor, however, reserves the right to submeter, at Lessee's cost and expense, Lessee's water and sewer usage, charging Lessee at cost plus 10% overhead. Lessee shall promptly pay for all utility services furnished to the Premises during the term of this Lease. Lessor shall under no circumstances be liable to Lessee in damage or otherwise for any interruption in service of water, electricity, heating, air conditioning or other utilities or services caused by governmental regulation, emergencies, Acts of God, by the making of any necessary repairs or improvements, or by any cause beyond Lessor's reasonable control. Lessor shall endeavor in good faith to give at least 24 hours notice to Lessee when any necessary interruption in service will be made by Lessor. 12. PEACEFUL ENJOYMENT. Lessee shall and may peacefully have, hold and enjoy the Premises for the Term, subject to the terms and conditions of this Lease, provided that Lessee pays the rentals and other sums herein recited and performs all of its covenants and agreements herein contained. It is understood and agreed that this covenant and any and all other covenants of Lessor 4 5 contained in this Lease shall be binding upon Lessor and its successors and assigns, but only with respect to breaches occurring during its and their respective ownership of Lessor's interest hereunder. 13. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Lessee shall not make or allow to be made any alterations or physical additions in or to the Premises without first obtaining the written consent of Lessor, which consent shall not be unreasonably withheld or delayed, except that Lessee may make alterations or improvements under $5,000.00 without Lessor consent provided said alterations or improvements (i) do not affect the structural integrity or exterior appearance of the Building or its mechanical systems, (ii) do not interfere with construction in progress or other lessees in the Building, and (iii) are not visible from the exterior of the Premises or the Building and there is no uncured default by Lessee in any of the terms and conditions of the Lease. Lessor shall not be liable as a result of any such consent for completeness, design sufficiency, or compliance with any law, ordinance, order, rule, or regulation and Lessee shall indemnify, defend and hold Lessor harmless from all claims, demands, damages, causes of action or litigation, arising out of or resulting from such consent. Any and all alterations, additions or improvements, other than that portion of the initial Tenant improvements which are to be provided by Lessor pursuant to the terms of Exhibit "B" hereto, shall be made at Lessee's sole expense. All such alterations, additions or improvements upon the earlier to occur of (i) the termination date of the Lease or (ii) Lessor"s termination of Lessee"s right of possession of the Premises pursuant to Section 29 of the Lease, shall become the property of Lessor and shall be surrendered to Lessor upon the termination of this Lease by lapse of time or otherwise; provided, however this clause shall not apply to removable equipment or furniture owned by Lessee and which can be removed without damage to the Building or the Premises, provided there is no default by Lessee in any of the terms and conditions of the Lease. Unless Lessee has made prior arrangements with Lessor and Lessor has agreed in writing to permit Lessee to leave such equipment, furniture and supplies prior to such termination, then, in addition to its other remedies at law or in equity, Lessor shall have the right to have such items removed and stored at Lessee"s expense and all damage to the Premises or Building resulting therefrom repaired at the cost of Lessee or the right to elect that such movable equipment, furniture and supplies automatically become the property of Lessor upon termination of this Lease, and Lessee shall not have any further right with respect thereto or reimbursement therefor. Lessor shall notify Lessee of its requirement to remove such alterations, additions, and improvements prior to the time of Lessor"s approval. 14. EXTERIOR REPAIRS. Lessor will keep the exterior of the Building, including any doors, windows, or glass, in repair, provided Lessee shall give Lessor written notice of the necessity for such repairs, and provided that the damage thereto shall not have been caused by the negligence of Lessee, its agents, employees, licensees or invitees, in which event Lessee shall be responsible therefor for the cost. Lessor shall be under no liability for repair, maintenance, alteration or any other action with reference to any plumbing, electrical or other mechanical installation within or serving the Premises or any part thereof, except for the service lines leading to the Premises. 15. OPERATION BY LESSEE. Lessee agrees to (a) keep the inside of all glass in the doors and windows of the Premises clean; (b) keep all interior surfaces of the Premises clean; (c) replace promptly, at its expense, any cracked or broken window glass inside the Premises with glass of like kind and quality; (d) maintain the Premises in a clean, orderly and sanitary condition and free of 5 6 insects, rodents, vermin and other pests; (e) keep any garbage, trash, rubbish or refuse in rat-proof containers within the interior of the Premises until removed from the area; (f) have such garbage, trash, rubbish and refuse removed at its expense on a regular basis from location points and at such times as designated by Lessor, if said service is not provided by Lessor; (g) keep all mechanical apparatus free of vibration, noise or pollution which may be transmitted beyond the Premises; (h) comply with all laws, ordinances, rules and regulations of the Fire Underwriters Rating Bureau now or hereafter in affect; and (i) conduct its business in all respects in a dignified manner in accordance with high standards of business operation. In addition, Lessee shall not (a) place or maintain any merchandise or other articles in any vestibule or entry of the Premises, on the footwalks adjacent thereto or elsewhere on the exterior of the Premises or Building without the written consent of Lessor; (b) permit undue accumulation of garbage, trash, rubbish or other refuse within or without the Premises; (c) cause or permit objectionable odors to emanate or be dispelled from the Premises; (d) cause or permit the parking of vehicles so as to interfere with the use of any driveway, walk, parking area, dock or other common facility in the area; (e) occupy, use or permit the use or occupancy of any portion of the Premises for any business or purpose which is immoral, disreputable or in violation of any legal direction of any public officer; or (f) occupy, use or permit the use or occupancy of any portion of the Premises for any business or purpose which, in the opinion of Lessor, reasonably formed, constitutes a public or private nuisance or unduly disturbs the business of other tenants in the Building. Lessor shall have the right, upon written notice to Lessee, to provide for rubbish and refuse removal services as required of Lessee above, and Lessee agrees to reimburse Lessor for the cost incurred in providing such service within 30 days after receipt of a statement setting forth the cost of such service. Lessee agrees to discharge all waste materials from the Premises in compliance with the rules and regulations as set forth in The Woodlands Metro Center Municipal Utility District Policy Manual - Industrial Waste Discharges - Permits and Charges - No. R&S-50, issued July 12, 1979, with an effective date of July 12, 1979, as it may be amended from time to time. Lessee shall haul away for disposal at its own expense, any waste material not meeting the standards for discharge set forth in the above-referenced manual. Lessee shall comply, at Lessee's cost and expense, with all private restrictions encumbering the Land and all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, and municipal governments, including all municipal and road utility districts and municipal utility districts, and all departments, commissions, boards and officers thereof, and any other body exercising similar functions, which now or hereafter may be applicable to the Premises, the improvements in the Premises, or to the use or manner of use of the Premises or the improvements, including but not limited to, all environmental laws and the Americans With Disabilities Act ("Applicable Law"). In the event of a violation of any environmental law by Lessee and cleanup of contamination is required, in addition to all other remedies of Lessor under this Lease or at law or in equity, Lessee shall conduct a Standard 1 cleanup so that there is a total and complete removal of all contaminates from the Premises. Lessee agrees that no such cleanup shall be subject to a risk reduction standard and no deed recordation notice shall be recorded against the Premises. 6 7 Lessee shall not be deemed responsible for any environmental contamination occurring prior to the Commencement Date or subsequent to the Commencement Date if caused by Lessor or its agents. Lessor, as part of Operating Expenses shall comply with all Applicable Laws. Lessee also agrees to comply with the Rules and Regulations of the Building, a copy of which is attached as Exhibit "C". Lessor may amend said Rules and Regulations, from time to time, if reasonably necessary for the safety, care, or cleanliness of the Building, provided that no amendment shall alter any covenant or provision contained in this Lease. Lessee agrees to comply with any amendment which is made to said rules and Regulations in compliance with the terms of this subsection. Lessee shall promptly pay directly to the taxing authority all sales and/or ad valorem taxes now or hereafter levied by separate bill on Lessee"s personal property and leasehold improvements. Lessee waives all rights under applicable law to protest appraised values or receive notice of reappraisal regarding the Land and Building (including Lessor"s personality), irrespective of whether Lessor contests same. To the extent such waiver is prohibited, Lessee appoints Lessor as Lessee"s attorney-in-fact, coupled with an interest, to appear and take all actions which Lessee would otherwise be entitled to take under applicable law. 16. INTERIOR REPAIRS AND MAINTENANCE. Lessee will, at Lessee's cost and expense, keep the interior of the Premises, together with all electrical, plumbing and other mechanical installations therein, all heating and air conditioning equipment, and all interior windows or doors serving the Premises, in good order and repair, and will make all replacements thereto as its expense. Lessee will surrender the Premises at the expiration or earlier termination of this Lease, in as good condition as when received, excepting depreciation caused by ordinary wear and tear. Lessee will not overload the electrical wiring serving the Premises or within the Premises, and will install at its expense, but only after obtaining Lessor's written approval, any additional electrical service which may be required in connection with Lessee's use or occupancy. Notwithstanding anything herein to the contrary, Lessor, and not Lessee, shall be liable for any and all interior repairs which may result from any structural failure of the Building, unless caused by Lessee, its agents, employees or invitees. Lessee will repair promptly, at its expense, any damage to the Premises caused by bringing into the Premises any property for Lessee's use, or by the installation or removal of such property, regardless of fault or by whom such damage was caused, unless caused by Lessor, its agents, employees or contracts. Upon execution of this Lease, Lessee, at its own cost and expense, shall enter into a regularly scheduled preventative maintenance/service contract with Lessor, or a maintenance contractor approved by Lessor, for servicing all hot water, heating, and air-conditioning systems and equipment within the Premises. If Lessee fails to make such repairs and/or to perform the maintenance and repairs to the Premises which are Lessee's obligation under this Lease, Lessor may make same, and Lessee agrees to pay, as additional rent, the cost thereof, plus 10% overhead, to Lessor promptly upon Lessor's demand therefor. 17. ROOF AND WALLS. Lessor or its designee shall have the exclusive right (a) to use all or any part of the roof of the Building for any purpose including to erect additional stories or other structures over all or any part of the Premises, and to erect in connection with the construction thereof temporary scaffolds and other aids to construction on the exterior of the Premises, provided 7 8 that access to the Premises shall not be denied; and (b) to install, maintain, use, repair and replace within the Premises, pipes, ducts, conduits, wires and all other mechanical equipment serving other parts of the Building, the same to be in locations within the Premises as will not materially interfere with Lessee's use thereof. Lessee shall have no right to penetrate or erect improvements on the roof without the prior written consent of Lessor. Lessee shall be liable in damages to Lessor for any breach of this provision, including damages for loss of any and all warranties. 18. SIGNS AND ADVERTISING. Lessee will not place or suffer to be placed or maintained on or displaced to the exterior of the Premises, any sign, advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Premises without first obtaining the written approval of Lessor. Lessee will maintain any approved sign, decoration, lettering, advertising matter or other thing in good condition and repair at all times. 19. ENTRY BY LESSOR. Lessee shall permit Lessor or Lessor's agents, representatives, or employees to enter upon the Premises at reasonable times, and upon having given Lessee 24 hours advance notice, except in the case of an emergency, when no notice shall be required, (a) to inspect the Premises, to determine whether Lessee is in compliance with the terms of this Lease; (b) to show the Premises to prospective purchasers, lessees, mortgagees, beneficiaries under trust deeds, or insurers (but as to prospective lessees only during the last 6 months of the Term), and (c) to make repairs, improvements, additions and alterations thereto, as Lessor is permitted to make according to the terms of the Lease. Any inspections of the Premises pursuant to this subsection shall be at Lessor's cost and expense; provided, however, in the event it is determined by Lessor that an environmental study should be conducted on the Premises and said environmental study determines that Lessee has not complied with all then existing environmental laws, Lessee shall reimburse Lessor for the cost of the study within 15 days after receipt of an invoice setting forth the cost, and Lessee shall promptly take all action necessary, at Lessee's sole expense, to remedy any noncompliance by Lessee discovered by such study in accordance with Section 15 above. 20. LIENS. In the event that any mechanic's, materialman's, or other lien shall at any time be filed against the Premises, the Building or the Land purporting to be for work, labor, services or materials performed for or furnished to Lessee or anyone holding the Premises through or under Lessee, or arising out of any alleged act or omission of Lessee, Lessee shall forthwith cause the same to be properly bonded or released. If Lessee shall fail to cause such lien to be bonded or released within 15 days after being notified of the filing thereof, then, in addition to any other right or remedy of Lessor, Lessor may, but shall not be obligated to, discharge the same by posting a bond or paying the amount claimed to be due, and the amount so paid by Lessor, and all costs and expenses incurred by Lessor in procuring the discharge of such lien, including reasonable attorney's fees, shall be due and payable by Lessee to Lessor as additional rent on the first day of the next succeeding month. Lessor shall not be liable for any labor or materials furnished to Lessee upon credit, and that no mechanics', materialman's or other liens for any such labor or materials shall attach to or affect the estate or interest of Lessor in and to the Land or Building. 21. SUBORDINATION. Lessee agrees that this Lease is and shall be subordinate to any mortgage or deed of trust which may now or hereafter encumber the Building or the Land, and to all 8 9 renewals, modifications, consolidations, replacements and extensions thereof, provided, however, that the holder of any such mortgage or deed of trust shall agree that Lessee shall not be disturbed in its possession of the Premises or its rights hereunder terminated or amended by the mortgagee, any purchaser at or in lieu of foreclosure or other party so long as Lessee is not in default under this Lease. In confirmation of such subordination, Lessee shall at Lessor's request execute promptly any appropriate certificate or instrument that Lessor may reasonably request. In the event of the enforcement by the trustee or the beneficiary under a mortgage or deed of trust of the remedies provided for by law or by such mortgage or deed of trust, Lessee will, upon request of any person or party succeeding to the interest of Lessor as a result of such enforcement, automatically become the lessee of such successor in interest without change in the terms or other provisions of this Lease; provided, however, that such successor in interest shall not be bound by (i) any payment of Base Rent or Additional Rent for more than one month in advance except prepayments in the nature of security for the performance by Lessee of its obligations under this Lease; (ii) any amendment or modifications under this Lease made without the written consent of such trustee, beneficiary, or successor in interest; (iii) any default by the prior owner or Landlord in the observance or performance of any of its covenants or obligations hereunder, or (iv) any right of offset which Lessee may have had against the prior owner or Landlord. Upon request by any successor in interest, Lessee shall execute and deliver an instrument or instruments confirming the attornment herein provided for. Within 15 days after Lessor's request, Lessee agrees to execute an estoppel certificate or other agreement certifying to Lessor and/or any mortgagee of the Building such facts and agreeing to such reasonable notice provisions as such mortgagee may request in connection with Lessor's financing, subject, however, to the non-disturbance rights of Lessee above-described. If Lessee fails or refuses to give a certificate hereunder within the time period herein specified, then the information contained in such certificate as submitted by Lessor shall be deemed correct for all purposes, and all notice provisions and other matters in the certificate shall be deemed agreed to, but Lessor shall have the right to treat such failure or refusal as a default by Lessee. This Lease and all rights of Lessee hereunder are further subject and subordinate to the extent that the same relate to the Premises to all ground or underlying leases covering the Land/or any part thereof which may now or hereinafter affect the Land or the Building, and any renewals or modifications thereof; provided, however that the holder of any ground lease or underlying leases covering the Land or the Building shall agree that Lessee shall not be disturbed in its possession of the Premises or its rights hereunder terminated or amended by such holder as long as Lessee is not in default under this Lease. Within 45 days after Lessor places a mortgage on the Building, Lessor will deliver to Lessee a commercially reasonable Nondisturbance, Attornment, and Subordination Agreement executed by the beneficiary of the mortgage or deed of trust. 22. CONDEMNATION. If the whole or any part of the Premises shall be taken under the power of eminent domain, this Lease shall terminate as to the part so taken on the date Lessee is required to yield possession thereof to the condemning authority. Lessor shall, with reasonable diligence, make such repairs and alterations as may be necessary in order to restore the part not taken 9 10 to a useful condition, and the Base Rent shall be reduced proportionately to the portion of the Premises so taken. If the amount of the Premises so taken substantially impairs the usefulness of the Premises for the purposes set forth in Section 4, either party may terminate this Lease within 30 days after Lessor gives Lessee notice that it will be dispossessed, effective as of the date when Lessee is required to yield possession, at which time all Lessor's and Lessee's rights and obligations under the Lease, including Lessee's obligation to pay rent shall terminate. All compensation awarded for any taking shall belong to and be the property of Lessor. 23. FIRE AND CASUALTY. In the event of a fire or other casualty in the Premises, Lessee shall immediately give notice thereof to Lessor. If the Premises, through no fault or neglect of Lessee, its agents, employees, invitees, licensees or visitors, shall be destroyed by fire or other casualty so as to render the Premises untenantable, the rental herein shall be reduced proportionally as of the date of such casualty to the portion of the Premises rendered untenantable until such time as the Premises are made tenantable by Lessor. If from such cause the same shall be so damaged that Lessor shall decide not to rebuild, then all rent and other sums owed hereunder up to the time of such destruction or casualty shall be paid by Lessee, and thenceforth this Lease shall cease and come to an end. If (i) the repairs or restoration will take more than 275 days after Lessee has given Lessor notice of the loss or damage, in Lessor"s opinion reasonably formed or (ii) if Lessor has not given Lessee notice of its decision to repair and restore the Premises within 75 days of the date Lessee has given Lessor notice of the loss or damage, then Lessee may terminate the Lease. 24. CASUALTY INSURANCE. Lessor shall, at all times during the Term, maintain a policy or policies of insurance with the premiums thereon fully paid in advance, issued by and binding upon, (i) an insurance company or companies rated "A-" or higher under the current edition of A.M. Best"s Key Rating Guide, (ii) Lloyds of London underwriter, or (iii) an insurance company agreed to by Lessee, insuring Lessor's interest in the Building against loss or damage by fire and other hazards within the coverage of a Texas standard special form extended coverage policy, for the full replacement value thereof, with payments for losses thereunder payable solely to Lessor or its designee. Lessee shall maintain in force a like policy insuring Lessee's interest in any improvements which Lessee may construct thereon. 25. LIABILITY INSURANCE. Lessee shall maintain, at its expense, at all times during the Term, a policy or policies of commercial general liability insurance, with the premiums thereon fully paid in advance, issued by (i) an insurance company or companies rated "A-" or higher under the most current edition of A.M. Best's Key Rating Guide, (ii) a Lloyds of London underwriter, or (iii) an insurance company agreed to by Lessor. All insurers must be licensed to do business in the State of Texas. The insurance shall afford protection of not less than $1,000,000 combined single limit bodily injury and property damage per occurrence. The policy or policies shall name Lessor as an additional insured. As to any injury or damage occurring in or on the Premises, Lessee's insurance shall be primary. Lessor agrees not to make a claim against Lessee's insurer in excess of $1,000,000.00 combined single limit bodily injury and property damage per occurrence. Lessee's policy shall contain an agreement by the insurer that such policy, or policies may not be canceled or materially modified without 30 days' prior notice to Lessor. Lessee shall provide Lessor a copy of the required policy or policies, or a certificate evidencing the required coverage, before beginning 10 11 any work in the Premises or taking occupancy of same. Additionally, Lessee shall provide Lessor evidence of the renewal of each policy at least 30 days before the expiration of the policy. 26. RELEASE OF CLAIMS; WAIVER OF SUBROGATION. ANYTHING IN THIS LEASE TO THE CONTRARY NOTWITHSTANDING, LESSOR AND LESSEE EACH WAIVE ANY AND ALL RIGHT OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION AGAINST THE OTHER AND ITS PARTNERS (IF ANY), AND THE AGENTS, OFFICERS, AND EMPLOYEES OF THE OTHER PARTY OR ITS PARTNERS, FOR ANY LOSS OR DAMAGE: (i) TO THE PREMISES, THE BUILDING, OR ANY IMPROVEMENTS THERETO, OR ANY PERSONAL PROPERTY OF SUCH PARTY THEREIN, BY REASON OF FIRE, THE ELEMENTS OR ANY OTHER CAUSE WHICH COULD HAVE BEEN INSURED AGAINST UNDER A TEXAS STANDARD SPECIAL FORM EXTENDED COVERAGE INSURANCE POLICY, OR (ii) ARISING OUT OF ANY BUSINESS INTERRUPTION, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BY REASON OF FIRE, THE ELEMENTS OR ANY OTHER CAUSE, REGARDLESS OF CAUSE OR ORIGIN, INCLUDING THE SOLE OR CONCURRENT NEGLIGENCE OF THE OTHER PARTY OR ITS PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF THE OTHER PARTY OR ITS PARTNERS. LESSOR AND LESSEE COVENANT THAT NO INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST THE OTHER PARTY FOR LOSSES WHICH MUST BE INSURED AGAINST BY THE TERMS OF THIS LEASE. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS LEASE. 27. RELEASE AND INDEMNIFICATION BY LESSEE. SUBJECT TO SECTION 26 ABOVE, LESSEE RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD LESSOR AND ITS PARTNERS, AND THE AGENTS, OFFICERS AND EMPLOYEES OF LESSOR OR ITS PARTNERS, HARMLESS FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR DAMAGE OR INJURY OR DEATH TO PERSONS OR PROPERTY OCCURRING ON OR IN THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OR CAUSES OF ACTION CAUSED BY OR RESULTING FROM (I) THE SOLE OR CONCURRENT NEGLIGENCE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR ITS PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR OR ITS PARTNERS, OR (II) STRICT LIABILITY OR PRODUCT LIABILITY. LIKEWISE, SUBJECT TO SECTION 17 ABOVE, LESSOR RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD LESSEE AND ITS PARTNERS, AND THE AGENTS, OFFICERS AND EMPLOYEES OF LESSEE OR ITS PARTNERS, HARMLESS FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR DAMAGE OR INJURY OR DEATH TO PERSONS OR PROPERTY OCCURRING ON OR IN THE BUILDING, OTHER THAN THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OR CAUSES OF ACTION CAUSED BY OR RESULTING FROM (I) THE SOLE OR CONCURRENT NEGLIGENCE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE OR ITS PARTNERS, OR THE AGENTS, OFFICERS, OR EMPLOYEES OF LESSEE OR ITS PARTNERS, OR (II) STRICT LIABILITY OR PRODUCT LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS LEASE. 28. HOLDING OVER. In the event of holding over by Lessee after the expiration or termination of the Term and without the written consent of Lessor, Lessee shall be a Tenant at will and shall pay monthly rent equal to 150% the amount of all Base Rent, and Additional Rent payable during the last month of the Term. Further, Lessee shall indemnify Lessor against all actual claims for damages by any other lessee to whom Lessor may have leased all or any part of the Premises. Lessor may terminate the tenancy by giving written notice to Lessee. No holding over by Lessee, either with or without the consent and acquiescence of Lessor, shall operate to extend the Lease for a 11 12 longer period than l month. Any holding over with the consent of Lessor in writing shall thereafter constitute this Lease a lease from month to month. 29. DEFAULT BY LESSEE. If (a) Lessee fails to timely pay any sum to be paid by Lessee under this Lease. (Lessor shall endeavor, but shall not be obligated, to deliver written notice to Lessee within 15 days after the occurrence of any such failure to timely pay; Lessor shall not be in default of this Lease, or be deemed to waive Lessee"s failure to pay, if Lessor fails to deliver such notice); (b) Lessee fails to perform any of its other duties or obligations under this Lease and such default continues for 20 days after Lessor delivers written notice to Lessee or deposits written notice in the U. S. Mail addressed to Lessee's address above, except that said 20 day period shall be extended up to 10 additional days if Lessee commences to cure within the 20 day period and is diligently pursuing to cure the default; (c) any of the following actions occur and Lessee fails to contest same using Lessee"s best reasonable efforts, and cause same to be removed, dismissed, or vacated within 30 days from the date of entry or filing: (i) Lessee's interest under this Lease is levied on under execution or other legal process, or (ii) any petition is filed by or against Lessee to declare Lessee a bankrupt or to delay, reduce or modify Lessee's debts or obligations, or (iii) any petition under the Bankruptcy Code is filed or other action taken to reorganize or modify Lessee's capital structure, or (iv) Lessee is declared insolvent according to law, or (v) any general assignment of Lessee's property is made for the benefit of creditors, or (vi) a receiver or trustee is appointed for Lessee or its property; (d) if Lessee is a corporation, Lessee ceases to exist as a corporation in good standing in the State of Texas; or (e) if Lessee is a partnership or other entity, Lessee is dissolved or otherwise liquidated, then Lessor may treat the occurrence of any one or more of the foregoing events as a breach of this Lease. Upon the occurrence of any of the foregoing events, at Lessor's option, Lessor shall have any one or more of the following described remedies, in addition to all other rights and remedies provided at law or in equity: A. Lessor may terminate this Lease and forthwith repossess the Premises and recover damages in a sum of money equal to the total of (i) the cost of recovering the Premises, including the cost of the removal and storage of any of Lessee's possessions left within the Premises, (ii) the unpaid Base Rent and Additional Rent earned at the time of termination, plus interest thereon at the lesser of 18% or the then maximum interest rate permitted to be charged by applicable law ("Interest") from the due date until paid, (iii) the balance of the Base Rent and Additional Rent for the remainder of the Term, discounted to its present value at the rate of 6% per annum, less the fair market rental value (allowing a reasonable period for reletting) of the Premises for said period (provided said sum shall not be less than zero), and (iv) any other sum of money and damages owed by Lessee to Lessor. B. Without terminating this Lease, Lessor may terminate Lessee's right of possession and repossess the Premises by forcible detainer suit or otherwise, without demand or notice of any kind to Lessee. If Lessor pursues this remedy, Lessor shall use reasonable efforts to relet the Premises for Lessee's account, for such rent and upon such terms and conditions as Lessor deems satisfactory. Lessor shall be deemed to have used "reasonable efforts" to relet the Premises if Lessor offers the Premises as "for lease" and entertains in good faith, bona fide offers to lease submitted to Lessor. In no event shall Lessor be obligated to lease the Premises in priority of other space in the Building or adjacent buildings owned by Lessor or any affiliate thereof. For the purpose of such 12 13 reletting, Lessor is authorized to make any repairs, changes, alterations or modifications in or to the Premises as it deems necessary to prepare the Premises to relet at Lessee's expense, including building standard buildout. If Lessor fails to relet the Premises, then Lessee shall pay to Lessor as damages a sum equal to the amount of the Base Rent and Additional Rent provided for in this Lease for such period or periods. If Lessor relets the Premises and fails to realize a sufficient sum from such reletting after deducting (a) the due and unpaid Base Rent and Additional Rent, (b) the accrued Interest thereon, (c) the cost of recovering possession, (d) the costs and expenses of all repairs, changes, alterations and modifications, and any building standard buildout, and (e) the expense of such reletting and the collection of the rent accruing therefrom, then Lessee shall pay to Lessor any such deficiency upon demand from time to time. Lessor may file one or more suits to recover any sums falling due under this Section from time to time. Any reletting shall not be an election by Lessor to terminate this Lease unless Lessor gives a written notice of such intention to Lessee. Notwithstanding any such reletting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous default. C. Lessor may change the locks on the Premises. The Lessor will not have to give the Lessee a new key unless the Lessee cures the default(s); the new key will be provided only during Lessor's regular business hours. 30. WAIVER. Failure of Lessor or Lessee to declare any default by the other immediately upon occurrence thereof, or delay in taking any action in connection therewith, shall not waive such default, but the non-defaulting party shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or at equity. 31. LIEN FOR RENT. INTENTIONALLY DELETED. 32. ASSIGNMENT BY LESSOR. Lessor shall have the right to sell, transfer or assign, in whole or in part, all of its rights and obligations hereunder and in the Building and the Land. In such event and upon the assumption by such transferee of Lessor's obligations hereunder, no further liability or obligation shall thereafter accrue against Lessor hereunder. 33. ASSIGNMENT BY LESSEE. Lessee shall not assign this Lease or any interest therein, nor sublet the Premises or any part thereof or any right or privilege appurtenant thereto, nor permit any other person, firm or entity to occupy or use the Premises or any portion thereof without first obtaining the written consent of Lessor, which consent shall not be unreasonably withheld or delayed, Lessor shall have the right, at its option, to terminate this Lease as to any portion of the Premises covered by a proposed assignment or sublease, or to reasonably approve any such assignment or sublease only upon the condition that (a) 50% of all rentals paid by the assignee or sublessee in excess of the rentals due from Lessee hereunder, shall be paid directly to Lessor after deducting all reasonable out-of-pocket expenses incurred by Lessee as a result of the assignment or sublease, (b) the proposed assignee or sublessee is financially capable of assuming Lessee's obligations hereunder, in the judgment of Lessor, and (c) the proposed assignee or sublessee agrees to use the Premises only for the uses permitted by Lessee under this Lease, and to comply with all of the other 13 14 terms and conditions of this Lease. Consent by Lessor to one assignment, subletting, occupation or use by another person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by the same or another person. Consent to an assignment or sublease shall not release Lessee from liability for the continued performance of the terms and provisions to be kept and performed by Lessee hereunder, unless Lessor specifically and in writing releases Lessee from said liability. In addition, an amendment, modification or extension of the Lease after the assignment or sublease shall not release Lessee from liability for the continued performance of the terms and provisions to be performed by Lessee hereunder. Any assignment or subletting by operation of law or otherwise, (including without limitation, a transfer of controlling interest in Lessee to any other person, firm or entity, except to an Affiliate as described below) without the prior written consent of Lessor, which consent shall not be unreasonably withheld or delayed, shall be void and shall, at the option of Lessor, terminate this Lease. Lessee covenants and agrees that when the prior written consent of Lessor is obtained, and in the event the subletting or assignment is to be arranged through public advertisement or listing of any kind, Lessee will treat all applications for sublease or assignment in a uniform manner and will award leases according to objective standards. No decision on any application shall be made on the grounds of the applicant's race, color, religion, sex, handicap, familial status, or national origin. Notwithstanding anything contained herein to the contrary, provided Lessee is not in default hereunder and all Base Rent and Additional Rent due and owing as of the date of such assignment have been paid in full, Lessee shall have the right at any time and from time to time, as many times as may be convenient, a) to sublease the Premises to a licensed franchisee of Lessee, b) to sublet or assign all or part of the Premises to (i) a partially or wholly owned corporation subsidiary of Lessee, to its parent company, or an Affiliate of Lessee, as described below, (ii) any corporation which acquires all or substantially all of the assets or operations of Lessee, or (iii) any corporation into which or with which Lessee has merged or consolidated, other than an Affiliate, so long as the surviving entity has a net worth not less than Lessee"s prior to the merger, consolidation or acquisition; provided, (a) Lessee gives prior written notice of the assignment or transfer to Lessor and presents evidence to Lessor of the assignees ability to perform Lessee's financial obligations hereunder, (b) the assignee assumes in writing the duties and obligations of Lessee hereunder, and (c) Lessee remains directly and primarily liable for the performance of all the covenants, duties and obligations of Lessee hereunder (including, without limitation, the obligation to pay all rent and other sums herein provided to be paid), and Lessor shall be permitted to enforce the provisions of this instrument against the undersigned Lessee and/or any assignee without demand upon or proceeding in any way against any other person. As used in this Lease, the term "Affiliate" shall mean and refer to any person or entity controlling, controlled by, or under common control with another such person or entity. "Control" as used herein shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such controlled person or entity; ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities of, or possession of the right to vote, in the 14 15 ordinary direction of its affairs, more than fifty percent (50%) of the voting interest in, any person or entity shall be presumed to constitute such control. Notwithstanding anything contained herein to the contrary, Lessor shall not be obligated to entertain or consider any request by Lessee to consent to any proposed assignment of this Lease or sublease of all or any part of the Premises unless each request by Lessee is accompanied by a nonrefundable fee payable to Lessor in the amount of $ 500.00 to cover Lessor's administrative, legal, and other costs and expenses incurred in processing each of Lessee's requests. Neither Lessee's payment nor Lessor's acceptance of the foregoing fee shall be construed to impose any obligation whatsoever upon Lessor to consent to Lessee's request. 34. TRANSFER OF CONTROL. If Lessee is a corporation, and if at any time during the Term of this Lease, corporate shares of Lessee shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to result in a change in the present control of said corporation by the person or persons now owning a majority of said corporate shares, Lessee shall be in default of this Lease and Lessor may exercise its rights in respect of default hereunder. Notwithstanding anything contained herein to the contrary, this provision will not apply to a transfer of Lessee's corporate shares as described in Section 24 above to an Affiliate or to an entity other than an Affiliate so long as the surviving entity has a net worth no less than Lessee"s on the date of this Lease. 35. NOTICES. Any notice required or permitted to be given pursuant to the terms of this Lease shall be sent by certified or registered U.S. mail to Lessor at 2201 Timberloch Place, The Woodlands, Texas 77380, Attn: Property Management, with a copy to Crescent Real Estate Equities Limited Partnership, 777 Main Street, Suite 2100, Fort Worth, Texas 76102, Attn: Legal Department, and to Lessee at 3330 West Market Street, Akron, Ohio 44333, Attn: Chip Whitten. The place to which such notices shall be sent may be changed by either party giving notice of such change to the other party in the manner hereinabove provided. A notice shall be deemed given and received on the 3rd business day following deposit in the U. S. Mail as provided above. 36. SEVERABILITY. If any of the provisions of this Lease shall contravene or be invalid under the laws of the particular state, county, or jurisdiction where applied, such contravention or invalidity shall not invalidate the Lease or any other portions thereof and the remainder of this Lease or the application thereof to other persons or circumstances shall not be affected thereby. 37. CORPORATE AUTHORITY. If Lessee signs as a corporation, each of the persons executing this Lease on behalf of Lessee represents and warrants that Lessee is a duly organized and existing corporation, that Lessee has and is qualified to do business in Texas, that the corporation has full right and authority to enter into this Lease, and that all persons signing on behalf of the corporation were authorized to do so by appropriate corporate actions. 38. TITLE. This Lease is subject to all matters of record in the Real Property Records of Montgomery County, Texas. By execution of this Lease, Lessee consents to all plats and replats of the Land, if any, in compliance with all applicable laws. 15 16 39. NOT AN OFFER. The submission of this Lease to Lessee shall not be construed as an offer, nor shall Lessee have any rights with respect thereto unless Lessor executes a copy of this Lease and delivers the same to Lessee. 40. EXHIBITS, RIDERS AND ADDENDA. This Lease also includes and incorporates herein for all purposes all attached Exhibits, Riders, and Addenda, if any. 41. JOINT AND SEVERAL TENANCY. If more than one person executes this Lease as Lessee, their obligations hereunder are joint and several, and any act or notice of or to, or refund to, or the signature of, any one or more of them, in relation to the renewal or termination of this Lease, or under or with respect to any of the terms hereof shall be fully binding on each and all of the persons executing this Lease as a Lessee. 42. BINDING EFFECT. This Lease shall be binding upon and inure to the benefit of the heirs, successors or assigns of Lessor and Lessee, subject to the limitation on subleasing and assignment herein contained. 43. ENTIRE AGREEMENT. This Lease shall constitute the sole and only agreement of Lessor and Lessee with regard to the Lease of the Premises, and shall supercede any prior or contemporaneous oral or written agreements. This Lease may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 44. PRONOUNS. Pronouns which refer to either Lessor or Lessee shall be construed to mean the appropriate number and gender intended. 45. FORCE MAJEURE. If either party shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws or regulations or other cause without fault and beyond the control of the party obligated (Lessee's financial inability, such as inability to obtain financing or lack of capital, excepted), performance of such act shall be excused for the period of the delay, and the period for the performance of any such act shall be extended by a period equal to the period of such delay; provided, however, nothing in this Section shall excuse Lessee from the prompt payment of any rental or other charge required of Lessee hereunder, except as may be expressly provided elsewhere in this Lease. 46. NO PERSONAL LIABILITY OF LESSOR. ANY JUDGMENT RECOVERED BY ANY LESSEE PARTY AGAINST ANY LESSOR PARTY SHALL BE SATISFIED SOLELY OUT OF PROCEEDS RECEIVED AT JUDICIAL SALE UPON EXECUTION ANY LEVY MADE AGAINST LESSOR"S RIGHT, TITLE AND INTEREST IN THE BUILDING AND IN THE RENTS THEREFROM RECEIVABLE BY LESSOR. THE LESSEE PARTIES ARE LESSEE, ITS SHAREHOLDERS, MEMBERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBLESSEES, LICENSEES AND INVITEES. THE LESSOR PARTIES ARE LESSOR, THE MANAGER OF THE BUILDING, LESSOR'S MORTGAGEE(S) AND ANY AFFILIATES OR SUBSIDIARIES OF THE FOREGOING, 16 17 AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, PARTNERS, AGENTS AND CONTRACTORS. THE LESSOR'S MORTGAGEES ARE ANY MORTGAGEE, GROUND LESSOR, TRUSTEE UNDER A DEED OF TRUST, OR BUYER AT A FORECLOSURE OR TRUSTEE'S SALE. NO LESSOR PARTY SHALL OTHERWISE HAVE ANY PERSONAL, CORPORATE OR OTHER LIABILITY UNDER THIS LEASE. FOLLOWING ANY TRANSFER BY LESSOR OF ANY INTEREST IN THE PREMISES, LESSOR SHALL BE RELEASED FROM ALL OBLIGATIONS OF "LESSOR" THEREAFTER ARISING UNDER THIS LEASE, AND LESSEE SHALL ATTORN AND LOOK SOLELY TO LESSOR"S SUCCESSOR-IN-INTEREST FOR PERFORMANCE OF SUCH OBLIGATIONS. 47. RIGHT TO RELOCATE. Lessor shall have the right to require Lessee, upon 60 days notice, to relocate the Premises to any other premises within the Building ('Relocated Premises") on a date of relocation (the "Relocation Date") specified therein. In such event, all reasonable expenses of moving Lessee and decorating the Relocated Premises with substantially the same leasehold improvements shall be at the expense of Lessor, including the physical move, telephone installation and stationery costs. Within 5 business days following receipt of Lessor's relocation notice, Lessee shall have the option, effective as of the Relocation Date, either to enter into an appropriate lease amendment relocating the Premises, or to terminate the Lease. Failure of Lessee to choose either option shall constitute Lessee's election to relocate. If Lessee elects to relocate, Lessor shall have the option to tender the Relocated Premises to Lessee on any date within a 30 day period prior to or after the Relocation Date, in which event the Relocation Date shall become the date of tender of possession of the Relocated Premises. From the Relocation Date through the termination date of the Lease, the aggregate Base Rent for the Relocated Premises shall be the same as for the original Premises. 17 18 48. GENERAL. Time is of the essence of this Lease. All rights and remedies of Lessor and Lessee under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Lease shall be declared to be a Texas lease, and all of the terms hereof shall be construed according to the laws of the State of Texas. Said Lease shall be performable only in Montgomery County, Texas, and venue for any action hereunder shall lie exclusively in Montgomery County, Texas or in the Southern District of Texas, Houston Division, as appropriate. IN TESTIMONY WHEREOF, the parties hereto have executed this Lease in multiple counterparts, each of which shall constitute an original but collectively shall constitute only one document. Notwithstanding anything contained herein to the contrary, the terms of this Lease shall not be binding on Lessor until it has been signed by Lessor and a fully executed copy is delivered to Lessee. LESSOR: WOODLANDS OFFICE EQUITIES-'95 LIMITED, a Texas limited partnership, By: THE WOODLANDS COMMERCIAL PROPERTIES COMPANY, L.P., a Texas limited partnership Its General Partner By: The Woodlands Operating Company, L.P., a, Texas limited partnership Its Authorized Agent By: /s/ Eric H. Wojner ---------------------------------- Name: Eric H. Wojner -------------------------------- Title: V.P., Commercial Division ------------------------------- LESSEE: TELXON CORPORATION a Delaware corporation By: /s/ W.M. McGee 1/11/00 --------------------------------------------------- Name: W.M. McGee ------------------------------------------------- Title: VP/CPO ------------------------------------------------ 18 19 EXPANSION, MODIFICATION AND RATIFICATION OF LEASE ------------------------------------------------- This Expansion, Modification and Ratification of Lease Agreement ("Agreement"), effective the 1st day of May 2000, is between WOODLANDS OFFICE EQUITIES-'95 LIMITED ("Lessor"), a Texas limited partnership and TELXON CORPORATION, a Delaware Corporation ("Lessee"), for and in consideration of $1.00, and other good and valuable consideration. W I T N E S S E T H: 1. Lessor and Lessee hereby confirm and ratify (as modified below) all of the terms, conditions and covenants in that certain Lease Agreement ("Lease") between the parties dated January 31, 2000; under which Lessee has leased from Lessor approximately 25,857 square feet of net rentable area in that building located at 8701 New Trails Drive, Suite W, The Woodlands, Montgomery County, Texas ("Building"). 2. Lessor and Lessee agree that effective April 1, 2000 ("Expansion Area Effective Date"), the area of the Premises shall be increased by 10,041 square feet of net rentable area ("Expansion Area") which Expansion Area is outlined on attached Exhibit "A", changing the size of the Premises to 35,898 square feet of net rentable area. Lessee agrees to accept the Expansion Area on the terms of the Exhibit "B" attached to the Lease. 3. Lessor and Lessee agree that beginning on the Expansion Area Effective Date through the remainder of the Term, the Base Rent, as set out in Section 7 of the Lease, shall be $26,175.63 per month. 4. Lessee agrees to accept the Expansion Area on the terms of the Exhibit "B" attached to the Lease. 1 20 The parties hereto have executed this Agreement in multiple counterparts, each of which shall constitute and original, but collectively shall constitute only one document. Notwithstanding anything contained herein to the contrary, the terms of this Agreement shall not be binding on Lessor until it has been signed by Lessor and a fully executed copy is delivered to Lessee. LESSOR: LESSEE: WOODLANDS OFFICE EQUITIES-`95 TELXON CORPORATION, LIMITED, A Delaware Corporation A Texas limited partnership, By: The Woodlands Commercial Properties Company, L. P., By: /s/ W.M. McGee ---------------------------- A Texas limited partnership Name: W.M. McGee Its General Partner Title: Vice President/CFO By: The Woodlands Operating Company, L.P., a Texas limited partnership Its Authorized Agent By: /s/ Eric H. Wojner -------------------------------- Name: Eric H. Wojner Title: Vice President, Commercial Division 2
