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EXHIBIT 10.4a
OFFICE/SHOWROOM/WAREHOUSE
LEASE AGREEMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT, made and entered into as of the day of
December, 1989, by and between the Landlord and Tenant hereinafter named.
W I T N E S S E T H:
1. Definitions and Basic Provisions. The following definitions and
basic provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this lease:
(a) "Landlord": Centre Consolidated Properties, Ltd.
(b) "Tenant": Danvid Company, Inc.
(c) "Premises" shall mean the space outlined in red on the
plan attached hereto as Exhibit "A," said premises consisting of 51,497 square
feet of net rentable area. (In determining net rentable area, all measurements
are from the outer surfaces of walls, whether exterior walls and/or hallway
walls, except party walls where measurements are from centerline.) The Premises
are located within the Beltline Business Center Office/Showroom/ Warehouse
project (the "Project'). The net rentable area of the project is 753,984 square
feet.
(d) "Lease Term": A period of sixty (60) months, commencing on
January 1, 1990 (the "Commencement date") and ending on December 31, 1994.
(e) "Basic Rental": $13,088.82 per month.
(f) "Security Deposit": $13,088.82.
(g) "Permitted Use": Manufacturing and assembly of aluminum
windows and doors.
2. Lease Grant. Landlord, in consideration of the rent to be paid and
the other covenants and agreements to be performed by Tenant and upon the terms
and conditions hereinafter stated, does hereby lease, demise and let unto Tenant
the premises (as defined in paragraph 1(c) hereof) commencing on the
commencement date (as defined in paragraph 1(d) hereof, or as adjusted as
hereinafter provided) and ending on the last day of the lease term, unless
sooner terminated as herein provided. If this lease is executed before the
premises become vacant, or otherwise available and ready for occupancy, or if
any present tenant or occupant of the premises holds over, and Landlord cannot
acquire possession of the premises prior to the commencement date of this lease,
Landlord shall not be deemed to be in default hereunder, and Tenant agrees to
accept possession at such time as Landlord is able to tender the same and such
date shall be deemed to be the commencement date and this lease shall continue
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for the lease term described in paragraph 1(d) hereof, Landlord hereby waives
payment of rent covering any period prior to the tendering of possession of the
premises to Tenant hereunder. Likewise, should Tenant occupy the premises prior
to the commencement date specified in paragraph 1(d), the commencement date
shall be altered to coincide with said occupancy with the ending date of the
lease remaining unchanged. By occupying the premises, Tenant shall be deemed to
have accepted the same as suitable for the purpose herein intended and to have
acknowledged that the same comply fully with Landlord's covenants and
obligations.
3. Rent. In consideration of this lease, Tenant promises and agrees to
pay Landlord the basic rental (as defined in paragraph 1(e) hereof) without
deduction or set off, for each month of the entire lease term. One such monthly
installment together with the security deposit (as defined in paragraph 1(f)
hereof) shall be payable by Tenant to Landlord contemporaneously with the
execution hereof, and a like monthly installment shall be due and payable
without demand on or before the first day of each succeeding calendar month
during the term hereof. Rent for any fractional month at the beginning or end of
the lease shall be prorated. The security deposit shall be held by Landlord
without liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under this lease, it being expressly
understood that such deposit shall not be considered an advance payment of
rental or a measure of Landlord's damages in case of default by Tenant. Upon the
occurrence of any event of default by Tenant, Landlord may, from time to time,
without prejudice to any other remedy, use such deposit to the extent necessary
to make good any arrearages of rent and any other damage, injury, expense or
liability caused to Landlord by such event of default. Following any such
application of the security deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the security deposit to its original
amount. If Tenant is not then in default hereunder, any remaining balance of
such deposit shall be returned by Landlord to Tenant upon termination of this
lease. If Landlord transfers its interest in the premises during the lease term,
Landlord may assign the security deposit to the transferee and thereafter shall
have no further liability for the return of such security deposit.
4. Rental Escalation. The basic rental payable under paragraph 1(e)
hereof is based on factors existing during the calendar year in which the lease
commences ("base year"), said factors including operating expenses which include
landscape, general maintenance, repairs, real property taxes, fire, casualty and
liability insurance, and management for the project. Expenses for landscape,
general maintenance and repairs shall not exceed a five percent (5%) increase
per year during the lease term. In the event that during the lease term said
operating expenses for 1991 or any succeeding calendar year exceed 1990 base
year expenses ("base expense rate") for the net rentable areas of the project
(as defined in paragraph 1(c) hereof), Tenant within thirty (30) days after
written notification of the foregoing by Landlord, shall:
(a) Pay to Landlord as additional rental Tenant's
proportionate share (6.8%), of such excess (the "Excess") over the base expense
rate for the year in question, said proportionate share being defined to mean a
fraction, the numerator of which is the square footage of the Premises set out
in paragraph 1(c), and the denominator of which is the total net rentable area
of the Project also set out in paragraph 1(c). The product resulting from the
application of such fraction to the Excess shall constitute the amount of
additional rent Tenant shall pay. Tenant shall, on demand, pay to Landlord such
amount.
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(b) Additionally, beginning January 1 of any calendar year
following a year in which there is an Excess, the basic rental per month set out
in paragraph 1(c) shall be increased by an amount equal to the additional rent
payable during the immediately preceding year (determined in accordance with
subparagraph 4(a) above), divided by twelve. Any such additional rent collected,
pursuant to this paragraph 4(b), shall be a credit against the amount of
additional rental, if any, due from Tenant pursuant to paragraph 4(a) for such
calendar year. After the end of every calendar year Landlord will deliver to
Tenant a statement including (i) the previous calendar years operating expenses
(as defined in paragraph 4), (ii) Tenant's proportionate share of any increases,
(iii) the net additional rent due pursuant to paragraph 4(a), if any, after
crediting to Tenant amounts paid as additional rent under 4(b) or the amount due
to be reimbursed to Tenant; provided, however, in no event shall the monthly
rental ever be less than the basic rental specified in paragraph 1(e).
Notwithstanding any expiration or termination of this lease prior to
the lease expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay any and all additional rent under this
lease shall cover all periods up to the lease expiration date. Landlord shall be
entitled to estimate the amount of additional rent which shall be due from
Tenant during the last year or portion of a year of the lease term at any time
within thirty (30) days prior to the expiration of the lease term, and Tenant
shall pay such amount to Landlord upon demand (subject to adjustments when
actual expenses are known). Tenant's obligation to pay any and all additional
rent under this lease and Landlord's and Tenant's obligation to make the
adjustments referred to in this paragraph 4 shall survive any expiration or
termination of this lease Landlord shall be entitled to make.
5. Services.
(a) Landlord agrees to make available to the premises at
Landlord's sole cost and expense (i) water at those points as shown on Exhibit
"B"; (ii) air conditioning and heating units at such locations and in such
amounts as shown in Exhibit "B"; (iii) electric services and outlets as shown on
Exhibit "B"; and (iv) electrical lighting services for all common areas in the
manner and as to the extent deemed by Landlord to be standard.
(b) Tenant shall pay for the electricity, gas and water
utilized in operating any and all facilities serving the leased premises.
(c) Failure to any extent to furnish or any stoppage or
interruption of these defined services resulting from any cause shall not render
Landlord liable in any respect for damages to either person, property or
business, nor be construed as an eviction of Tenant or work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
Tenant shall have no claim for abatement of rent or damages on account of any
interruption in service occasioned thereby or resulting therefrom.
6. Leasehold Improvements. Landlord agrees to install at
Landlord's cost and expense the improvements described in Exhibit "B" attached
hereto. Landlord has made no representations as to the conditions of the
premises or the Building or to remodel, repair or decorate, except as expressly
set forth herein.
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7. Signs. Tenant shall have the right to install signs upon the
exterior of said building only when first approved in writing by Landlord in
Landlord's sole discretion and subject also to any applicable governmental laws,
ordinances, regulations and other requirements. Tenant shall remove all such
signs no later than thirty (30) days prior to the expiration of this Lease. In
the event Tenant fails to remove all such signs within the above time period,
Landlord shall be authorized to remove such signs on Tenant's behalf and at
Tenant's sole expense, and Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any and all costs, expenses, claims and other
liabilities of any type arising out of such sign removal. All sign installments
and removals by Tenant shall be made in such a manner as to avoid injury to or
defacement of the Building and other improvements.
8. Use. Tenant shall use the premises only for the permitted use (as
defined in paragraph 1(g) hereof). Tenant will not occupy or use the premises,
or permit any portion of the premises to be occupied or used, for any business
or purpose other than the permitted use or for any use or purpose which is
unlawful in part or in whole or deemed to be disreputable in any manner or
extrahazardous on account of fire, nor permit anything to be done which will in
any way increase the rate of fire insurance on the Building or contents; and in
the event that, by reason of acts of Tenant, there shall by any increase in rate
of insurance on the Building or contents created by Tenant's acts or conduct of
business then such acts of Tenants shall be deemed to be an event of default
hereunder and Tenant hereby agrees to pay to Landlord the amount of such
increase on demand and acceptance of such payment shall not constitute a waiver
of any of Landlord's other rights provided herein. Tenant will conduct its
business and control its agents, employees and invitees in such a manner as not
to create any nuisance, nor interfere with, annoy or disturb other tenants or
Landlord in management of the Building. Tenant will maintain the premises in a
clean, healthful and safe condition and will comply with all laws, ordinances,
orders, rules and regulations (state, federal, municipal and other agencies or
bodies having any jurisdiction thereof) with reference to use, condition or
occupancy of premises. Tenant will not, without the prior written consent of
Landlord, [illegible], install lighting or decoration, or install any signs,
window or door lettering or advertising media of any type on or about the
premises or any part thereof. Should Landlord agree in writing to any of the
foregoing items in the preceding sentence, Tenant will maintain such permitted
item in good condition and repair at all times.
9. Repairs and Maintenance.
(a) By Landlord: Landlord shall at its expense maintain only the
roof, foundation, underground or otherwise concealed plumbing, and the
structural soundness of the exterior walls (excluding all windows, window glass,
plate glass, and all doors) of the Building in good repair and condition, except
for reasonable wear and tear. Landlord shall not be responsible for termite
eradication. Tenant shall give immediate written notice to Landlord of the need
for repairs or corrections and Landlord shall proceed promptly to make such
repairs or corrections. Landlord's liability hereunder shall be limited to the
cost of such repairs or corrections.
Landlord represents that at the beginning date of this Lease the
plumbing, and any fire protection sprinkler system, heating system,
air-conditioning equipment, and elevators are in
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good operating condition. In addition, Landlord shall maintain the paving
outside the Building, the landscaping and regular mowing of grass and any
railroad siding.
(b) By Tenant: Tenant shall at its expense and risk maintain all
other parts of the Building and other improvements on the demised premises in
good repair and condition, including but not limited to repairs (including all
necessary replacements) to the interior plumbing, windows, window glass, plate
glass, doors, heating system, air-conditioning equipment, fire protection
sprinkler system, elevators, and the interior of the Building in general. All
warranties and guarantees in effect on any of the items mentioned above will be
for Tenant's or Landlord's use as applicable.
In event Tenant should neglect reasonably to maintain the demised
premises, Landlord shall have the right (but not the obligation) to cause
repairs or corrections to be made and any reasonable costs therefor shall be
payable by Tenant to Landlord as additional rental on the next rental
installment date.
10. Alterations and Improvements. At the end or other termination of
this lease, Tenant shall deliver up the premises with all improvements located
thereon (except as otherwise herein provided) in good repair and condition,
reasonable wear and tear excepted, and shall deliver to Landlord all keys to the
premises. The cost and expense of any repairs necessary to restore the condition
of the leased premises to said condition in which they are to be delivered to
Landlord shall be borne by Tenant. Tenant will not make or allow to be made any
alterations or physical additions in or to the premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld as
to non-structural alterations. All alterations, additions or improvements
(whether temporary or permanent in character) made in or upon the premises,
either by Landlord or Tenant, shall be Landlord's property on termination of
this lease and shall remain on the premises without compensation to Tenant. All
furniture, movable trade fixtures and equipment installed by Tenant may be
removed by Tenant at the termination of this lease if Tenant so elects, and
shall be so removed if required by Landlord, or if not so removed shall, at the
option of Landlord, become the property of Landlord. All such installations,
removals and restoration shall be accomplished in a good workmanlike manner so
as not to damage the premises or the primary structure or structural qualities
of the Building or the plumbing, electrical lines or other utilities.
11. Common Areas. The use and occupation by Tenant of the leased
premises shall include the use in common with others entitled thereto of the
common areas, parking areas, service roads, loading facilities, sidewalks, and
other facilities as may be designated from time to time by Landlord, subject,
however, to the terms and conditions of this agreement and to reasonable rules
and regulations for the use thereof as prescribed from time to time by Landlord.
All common areas described above shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in this Article.
Landlord shall have the right to construct, maintain, and operate lighting
facilities on all said areas and improvements; to police same; from time to time
to change the area, level, location and arrangement of parking areas and other
facilities hereinabove
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referred to; and to restrict parking by tenants, their officers, agents and
employees to employee parking areas.
All common areas and facilities not within the leased premises, which
Tenant may be permitted to use and occupy, are to be used and occupied under a
revocable license, and if the amount of such areas be diminished, Landlord shall
not be subject to any liability nor shall Tenant be entitled to any compensation
or diminution or abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
12. Assignment and Subletting.
(a) Tenant shall not, without Landlord's prior written
consent, assign, sublease, transfer, encumber this lease or any interest
therein. Any attempted assignment or sublease by Tenant in violation of the
terms and covenants of this paragraph shall be void.
(b) If Tenant requests Landlord's consent to an assignment of
the Lease or subletting of all or a part of the Premises, Landlord shall have
the option (without limiting Landlord's other rights hereunder) of terminating
this Lease upon thirty (30) days notice and of dealing directly with the
proposed assignee. If Landlord should fail to notify Tenant in writing of its
decision within a thirty (30) day period after Landlord shall be deemed to have
refused to consent to any assignment or subleasing, and to have elected to keep
this Lease in full force and effect.
(c) All cash or other proceeds of any assignment, sale or
sublease of Tenant's interest in this Lease, whether consented to by Landlord or
not, shall be paid to Landlord notwithstanding the fact that such proceeds
exceed the rentals called for hereunder, unless Landlord agrees to the contrary
in writing, and Tenant hereby assigns all rights it might have or ever acquire
in any such proceeds to Landlord. This covenant and assignment shall run with
the land and shall bind Tenant and Tenant's heirs, executors, administrators,
personal representatives, successors and assigns. Any assignee, sublessee or
purchaser of Tenant's interests in this Lease (all such assignees, sublessees
and purchasers being hereinafter referred to as "Successors"), by assuming
Tenant's obligations hereunder shall assume liability to Landlord for all
amounts paid to persons other than Landlord by such Successor in consideration
of any such sale, assignment or subletting, in violation of the provisions
hereof.
13. Indemnity. Landlord shall not be liable for and Tenant will
indemnify and save harmless Landlord of and from all fines, suits, claims,
demands, losses and actions (including attorneys' fees) for any injury to person
or damage to or loss of property on or about the premises caused by the
negligence or misconduct or breach of this lease by Tenant, its employees,
subtenants, invitees or by any other person entering the premises or the
Building under express or implied invitation of tenant or arising out of
Tenant's use of the premises. Landlord shall not be liable or responsible for
any loss or damage to any property or death or injury to any person occasioned
by theft, fire, Act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or other governmental body or
authority, by other tenants of the Building or any other matter beyond control
of Landlord, or for any injury or damage or inconvenience which may arise
through repair or alteration of any part of the
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Building, or failure to make repairs, or from any cause whatever except
Landlord's gross negligence.
14. Liability Insurance. Tenant shall procure and maintain through the
Lease Term a policy or policies of public liability insurance, at its own cost
and expense, relating to its respective use and/or occupancy of the Premises,
with limits of not less than $1,000,000, with respect to injuries to or death of
any one person, and in an amount not less than $1,000,000 with respect to any
one accident or disaster, and of not less than $1,000,000 with respect to
property damaged or destroyed. Tenant shall obtain a written obligation from
each insurance company issuing the insurance required to be maintained by Tenant
pursuant to this paragraph to notify Landlord at least ten (10) days prior to
the expiration or cancellation of such insurance. Such policies or duly executed
certificates of insurance shall be promptly delivered to Landlord and renewals
thereof, as required, shall be delivered to Landlord at least thirty (30) days
prior to the expiration of the respective policies.
15. Subordination. Tenant accepts this Lease subject and subordinate to
any mortgage, deed of trust or other lien presently existing or hereafter
arising upon the Premises, or upon the Project and to any renewals, refinancing
and extensions thereof, but Tenant agrees that any such mortgagee shall have the
right at any time to subordinate such mortgage, deed of trust or other lien of
this Lease on such term and subject to such conditions as such mortgagee may
deem appropriate in its discretion. Landlord is hereby irrevocably vested with
full power and authority to subordinate this Lease to any first lien mortgage,
deed of trust or other first lien now existing or hereafter placed upon the
Premises, or the Project as a whole, and Tenant agrees upon demand to execute
such further instruments subordinating this Lease or attorning to the holder of
any such liens as Landlord may request. The terms of this Lease are subject to
approval by the Landlord's lender(s), and such approval is a condition precedent
to Landlord's obligations hereunder. In the event that Tenant should fail to
execute any subordination or other agreement required by this paragraph,
promptly as requested. Tenant hereby irrevocably constitutes Landlord as its
attorney in fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest. Tenant agrees
that it will from time to time upon request by Landlord execute and deliver to
such persons as Landlord shall request a statement in recordable form certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as so modified),
stating the dates to which rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
16. Casualty Insurance. Landlord shall, at all times during this term
of this lease maintain a policy or policies of insurance with the premiums
thereon fully paid in advance, issued by and binding upon some solvent insurance
company, insuring the Building against loss or damage by fire, explosion, or
other hazards and contingencies Landlord's mortgagees may require; provided that
Landlord shall not be obligated to insure any furniture, equipment, machinery,
goods or supplies not covered by this lease which Tenant may bring or obtain
upon the leased premises, or any additional improvements which Tenant may
construct thereon.
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17. Inspection. Landlord or representatives shall have the right to
enter into and upon any and all parts of premises at reasonable hours to (i)
inspect same or clean or make repairs or alterations or additions as Landlord
may deem necessary (but without any obligation to do so, except as expressly
provided for herein), or (ii) show the premises to prospective tenants,
purchasers or lenders; and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof, nor shall such be deemed to be an actual or
constructive eviction.
18. Condemnation. If, during the term of this lease, or any extension
or renewal thereof, all of the Project should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain or by private purchase in lieu thereof, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective on the date physical possession is taken by the condemning
authority, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this lease.
In the event a portion but not all of the Project shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, by private sale in lieu thereof and
the partial taking or condemnation shall render the Project unsuitable for
continued operation, then Landlord shall have the option, in its sole
discretion, of terminating this lease or, at Landlord's sole risk and expense,
restoring and reconstructing the Project to the extent necessary to make same
reasonably tenantable. Should Landlord elect to restore, the lease shall
continue in full force and effect with the rent payable during the unexpired
portion of this lease being adjusted to such an extent as may be fair and
reasonable under the circumstances, and Tenant shall have no claim against
Landlord for the value of any interrupted portion of this lease.
In the event of any condemnation or taking, total or partial, Tenant
shall not be entitled to any part of the award or price paid in lieu thereof,
and Landlord shall receive the full amount of such award or price. Tenant hereby
expressly waiving any right or claim to any part thereof.
19. Fire and Other Casualty. In the event that (i) the premises should
be totally destroyed by fire, tornado or other casualty or (ii) in the event the
premises or the Building should be so damaged that rebuilding or repairs cannot
be completed within one hundred eighty (180) days after the date of such damage,
or (iii) in the event of a material uninsured loss to the premises or Project,
Landlord may at its option terminate this lease, in which event the rent shall
be abated during the unexpired portions of this lease effective with the date of
such damage. In the event Landlord shall within thirty (30) days after the date
of such damage commence to rebuild or repair the premises and shall proceed with
reasonable diligence to restore the premises to substantially the same condition
in which it was immediately prior to the happening of the casualty, except that
Landlord shall not be required to rebuild, repair or replace any part of the
furniture, equipment, fixtures and other improvements which may have been placed
by Tenant or other tenants within the project or the premises. Unless the
casualty was a result of Tenant's fault or neglect, Landlord shall allow Tenant
a fair diminution of rent during the time the premises are unfit for occupancy.
In the event any mortgagee under a deed of trust, security agreement or mortgage
on the premises should require that the insurance proceeds be used to retire the
mortgage debt, Landlord shall have no obligation to rebuild and this lease shall
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terminate upon notice to Tenant. Any insurance which may be carried by Landlord
or Tenant against loss or damage to the project or to the premises shall be for
the sole benefit of the party carrying such insurance and under its sole
control.
20. Holding Over. Should Tenant, or any of its successors in interest,
hold over the premises, or any part thereof, after the expiration of the term of
this lease, unless otherwise agreed in writing, such hold over shall constitute
and be construed as tenancy for month to month only, at a rental equal to the
rent payable for the last month of the term of this lease plus fifty percent
(50%) of such amount. The inclusion of the preceding sentence shall not be
construed as Landlord's consent for the Tenant to hold over.
21. Taxes On Tenant's Property. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture or fixtures placed by
Tenant in the premises. If any such taxes for which Tenant is liable are levied
or assessed against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value f Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord upon demand that part of such taxes for which Tenant is
primarily liable hereunder.
22. Events of Default. The following events shall be deemed to be
defaults by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent
hereby reserved and such failure shall continue for a period of ten (10) days.
(b) Tenant shall fail to comply with any term, provision or
covenant of this lease, other than the payment of rent, and shall not cure such
failure within ten (10) days after written notice thereof to Tenant.
(c) Tenant shall make an assignment for the benefit of
creditors.
(d) Tenant shall file a petition under any section or chapter
of the National Bankruptcy Act, as amended, or under any similar law or statute
of the United States or any State thereof; or Tenant shall be adjudged bankrupt
or insolvent in proceeding filed against Tenant thereunder and such adjudication
shall not be vacated or set aside within thirty (30) days.
(e) A receiver or Trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership shall not be
terminated or stayed within thirty (30) days.
(f) Tenant shall desert or vacate any substantial portion of
the premises for a period of five (5) or more days.
23. Remedies. Upon the occurrence of any event of default specified in
paragraph 22 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
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(a) Terminate this lease in which event Tenant shall
immediately surrender the premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession and expel or
remove Tenant and any other person who may be occupying said premises or any
part hereof, by force if necessary,without being liable for prosecution or any
claim of damages thereof; and Tenant agrees to pay to Landlord on demand the
amount of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the premises on satisfactory
terms or otherwise, including the loss of rental for the remainder of the lease
term.
(b) Enter upon and take possession of the premises and expel
or remove Tenant and any other person who may be occupying the premises or any
part thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and if Landlord so elects, relet the premises on
such terms as Landlord shall deem advisable and receive the rent thereof; and
Tenant agrees to pay to Landlord on demand any deficiency that may arise by
reason of such reletting for the remainder of the lease term.
(c) Enter upon the premises by force if necessary, without
being liable for prosecution or any claim for damages 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 for such action.
No re-entry or taking possession of the premises by Landlord shall be
construed as an election on its part to terminate this lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such reletting
or re-entry or taking possession. Landlord may at any time thereafter elect to
terminate this lease for a previous default. Pursuit of any of the foregoing
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. Landlord's acceptance of rent
following an event of default hereunder shall not be construed as Landlord's
waiver of such event of default. No waiver by Landlord of any violation or
breach of any of the terms, provisions, and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions, and covenants herein contained. 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 any other
violation of default. The loss or damage that Landlord may suffer by reason of
termination of this lease or the deficiency from any reletting as provided for
above shall include the expense of repossession and any repairs or remodeling
undertaken by Landlord following possession. Should Landlord at any time
terminate this lease for any default, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur by
reason of such default, including the cost of recovering the premises and the
loss of rental for the remainder of the lease term.
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Landlord shall be in default hereunder in the event Landlord has not
begun and pursued with reasonable diligence the cure of any failure of Landlord
to meet its obligations hereunder within thirty (30) days of the receipt by
Landlord of written notice from Tenant of the alleged failure to perform. In no
event shall Tenant have the right to terminate or rescind this Lease as a result
of Landlord's default as to any covenant or agreement contained in this Lease or
as a result of the breach of any promise or inducement hereof, whether in this
Lease or elsewhere. Tenant hereby waives such remedies of termination and
rescission and hereby agrees that Tenant's remedies for default hereunder and
for breach of any promise or inducement shall be limited to a suit for damages
and/or inunction. In addition, Tenant hereby covenants that, prior to the
exercise of any such remedies, it will give the mortgagees holding mortgages on
the Project notice and a reasonable time to cure any default by Landlord.
24. Late Charges. Tenant hereby acknowledges that late payment to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. If any rent or other sum due from Tenant is not received
by Landlord or Landlord's designated agent within ten (10) days after its due
date, then Tenant shall pay to Landlord a late charge to the maximum amount
permitted by law (and in the absence of any governing law, ten percent (10%) of
such overdue amount), plus any attorney's fees incurred by Landlord by reason of
Tenant's failure to pay rent and/or other charges when due hereunder. The
parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's late
payment. Landlord's acceptance of such late charges shall not constitute a
waiver of Tenant's default with respect to such overdue amount or estop Landlord
from exercising any of the other rights and remedies granted hereunder.
25. Surrender of Premises. No act or thing done by the Landlord or its
agents during the term hereby granted shall be deemed an acceptance of a
surrender of the premises unless Landlord expressly so indicates.
26. Attorney's Fees. In case it should be necessary or proper for
Landlord to bring any action under this lease or to consult or place said lease,
or any amount payable by Tenant thereunder, with an attorney concerning or for
the enforcement of any of Landlord's rights hereunder, then Tenant agrees in
each and any such case to pay to Landlord a reasonable attorneys' fee.
27. Landlord's Lien. In addition to the statutory landlord's lien,
Landlord shall have, at all times, a valid security interest to secure payment
of all rentals and other sums of money becoming due hereunder from Tenant, and
to secure payment of any damages or loss which Landlord may suffer by reason of
the breach by Tenant of any covenant, agreement or condition contained herein,
upon all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant presently or which may hereafter be situated on the
premises, and all proceeds therefrom, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged and all the covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant. Upon the
occurrence of any event of default by Tenant, Landlord may, in addition to any
other remedies
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provided herein, enter upon the premises and take possession of any and all
goods, wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant situated on the premises, without liability for trespass or
conversion and sell the same at public or private sale, with or without having
such property at the sale, after giving Tenant reasonable notice of the time and
place of any public sale or of the time after which any private sale is to be
made, at which sale the Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending to
exclude any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner prescribed
in paragraph 29 of this lease at least five (5) days before the time of sale.
The proceeds from any such disposition, less any and all expenses connected with
the taking of possession, holding and selling of the property (including
reasonable attorneys' fees and other expenses), shall be applied as a credit
against the indebtedness secured by the security interest granted in this
paragraph 26. Any surplus shall be paid to Tenant or as otherwise required by
law, and the Tenant shall pay any deficiencies forthwith. Upon request by
Landlord, Tenant agrees to execute and deliver to Landlord a financing statement
in form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provisions of the Uniform
Commercial Code in force in the State of Texas. The statutory lien for rent is
not hereby waived, the security interest herein granted being in addition and
supplementary thereto.
28. Mechanic's Liens. Tenant will not permit any mechanic's lien or
liens to be placed upon the premises of the Building or improvements thereon
during the term hereof caused by or resulting from any work performed, materials
furnished or obligation incurred by or at the request of Tenant, and in the case
of the filing of any such lien Tenant will promptly pay same. If default in
payment thereof shall continue for twenty (20) days after written notice thereof
from Landlord to the Tenant, the Landlord shall have the right and privilege at
Landlord's option of paying the same or any portion thereof without inquiry as
to the validity thereof, and any amounts so paid, including expenses and
interest, shall be so much additional indebtedness hereunder due from Tenant to
Landlord and shall be repaid to Landlord immediately on the rendition of xxxx
therefor, together with interest at ten percent (10%) per annum until repaid.
29. Waiver of Subrogation. Anything in this lease to the contrary
notwithstanding, the parties hereto hereby waive to the extent permitted by
their respective insurance carriers any and all rights of recovery, claim,
action or cause of action, against each other, their agents, officers, and
employees, for any loss or damage that may occur to the premises hereby demised,
or any improvements thereto, or said Building of which the premises are a part,
or any improvements thereto, by reason of fire, the elements or origin,
including negligence of the parties hereto, their agents, officers, and
employees.
30. Notices. Each provision of this Agreement, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
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(a) All rent and other payment required to be made by Tenant
to Landlord hereunder shall be payable to Landlord in Dallas County, Texas, at
the address hereinbelow set forth, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
(b) Any notice or document required to be delivered hereunder
shall be deemed to be delivered if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with or without return receipt requested) addressed to the
parties hereto at the respective addresses set out opposite their names below,
or at such other address as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: Centre Consolidated Properties, Ltd.
X.XX. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
TENANT: Danvid Company, Inc.
0000 Xxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000
31. Force Majeure. Whenever a period of time is herein prescribed for
action to be taken by Landlord, the Landlord shall not be liable or responsible
for, and there shall be excluded from the computation for any such period of
time, any delays due to strikes, riots, Acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Landlord.
32. Separability. If any clause or provision of this lease is illegal,
invalid or unenforceable under the 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 a clause or provision as may be possible and be
legal, valid and unenforceable.
33. Entire Agreement; Amendments; Binding Effect. This lease contains
the entire agreement between the parties and may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No
provision of this lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to Tenant, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms, provisions, covenants and conditions contained in this
lease shall apply to, inure to the benefit of and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided.
34. Quiet Enjoyment. Provided Tenant has performed all of the terms,
covenants, agreements and conditions of this lease, including the payment of
rent, to be performed by
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Tenant, Tenant shall peaceably and quietly hold and enjoy the premises for the
term hereof, without hindrance from Landlord, subject to the terms and
conditions of this lease.
35. Rules and Regulations. Tenant and Tenant's agents, employees, and
invitees will comply fully and all requirements of the rules and regulations of
the Building and related facilities which are attached hereto as Exhibit "C,"
and made a part hereof as though fully set out herein. Landlord shall at all
times have the right to change such rules and regulations or to promulgate other
rules and regulations in such reasonable manner as may be deemed advisable for
safety, care, or cleanliness of the Building and related facilities or premises,
and for preservation of good order therein, all of which rules and regulations,
changes and amendments will be forwarded to Tenant in writing and shall be
carried out and observed by Tenant. Tenant shall further be responsible for the
compliance with such rules and regulations by the employees, servants, agents,
visitors and invitees of Tenant.
36. Broker's or Agent's Commission. Tenant represents and warrants that
there are no claims for brokerage commissions or finder's fees in connection
with the execution of this lease, except as listed below, and Tenant agrees to
indemnify and hold harmless Landlord against all liabilities and costs arising
from such claims, including without limitation attorneys' fees in connection
therewith.
37. Gender. 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.
38. Joint and Several Liability. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be the joint and several obligations of Tenant and
such guarantors and Landlord need not first proceed against the Tenant hereunder
before proceeding against such guarantor, nor shall any such guarantor be
released from its guaranty for any reason whatsoever, including without
limitation, in case of any amendments hereto, waivers hereof or failure to give
such guarantor any notices hereunder.
39. Captions. The captions contained in this lease are for convenience
of reference only, and in no way limit or enlarge the terms and conditions of
this lease.
40. Except as otherwise herein expressly provided, time is of the
essence of this Agreement.
41. The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option, right, power
or remedy contained in this Lease shall not be construed as a waiver or a
relinquishment thereof for the future. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of rent due under this
Lease shall be deemed to be other than on account of the earliest rent due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided.
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42. Special Provisions.
EXECUTED as of the date first above written.
LANDLORD:
By:/s/ [illegible] EVP
----------------------------------------
ATTEST: TENANT:
By:/s/ Xxxx Xxxxx VP
---------------------- ----------------------------------------
(Title) (Title)
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ADDENDUM TO LEASE AGREEMENT
43. Renewal Options. If, at the end of the primary term of this Lease,
Lessee is not in default of any of the terms, conditions, or covenants of the
Lease, Lessee, but not any assignee or subtenant of Lessee, is hereby granted
one option(s) to renew this Lease for an additional term of five (5) years upon
the same terms and conditions as defined in this Lease with the following
exceptions:
(a) Renewal option term will contain no further renewal
options unless granted by Lessor in writing; and
(b) Rental for the renewed term shall be based on the then
prevailing rental rates for properties of equivalent quality, size, utility and
location, with the length of the Lease term and credit standing of Lessee to be
taken in account. If Lessee desires to renew this Lease, Lessee will notify
Lessor of its intention to renew no later than six months prior to the
expiration date of the Lease; Lessor shall, within the next fifteen (15) days,
notify Lessee in writing of its acceptance or rejection of the proposed rental
rate.
44. Right of First Refusal. If, at any time during the primary term of
this Lease, Lessee is not in default of any of the terms, conditions, or
covenants of the Lease, Lessee, but not any assignee or subtenant of Lessee, is
hereby granted the right of first refusal on any contiguous space upon the same
terms and conditions contained in this Lease with the following exceptions:
(a) Rental for the additional space shall be based on the then
prevailing rental rates for properties of equivalent quality, size, utility and
location.
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EXHIBIT "A"
0000 XXXXX XXXXXXXXX
XXXXXXXXXX, XXXXX 00000
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EXHIBIT 'B'
Landlord agrees to finished the leased space as per attached drawing to include
the following:
Electrical
Demo Repair and Install:
20 - 2 x 4 Layins
1 - 2 x 2 Layin
5 - Exit Lights with Battery Packs
4 - Exhaust Fan Hook-ups
67 - 8' Strips at 10' app
7 - 8' H.OR. Fixtures (repaired)
6 - 8' Strips (repaired)
4 - High Bay Fixtures (repaired)
7 - S/P Switches
13 - Duplex Receptacles (office)
10 - Phone Stub-ups (office)
13 - Duplex Receptacles (General in warehouse)
32 - Dedicated Quad Receptacles (warehouse)
13 - Dedicated Quad Receptacle Cord Drops
14 - Dedicated Duplex Receptacles Cord Drops
8 - Dedicated Circuit in Ceiling for future Drops
3 - Dedicated Duplex outlets for vending machines
2 - Dedicated Duplex Receptacles for Electric Water Coolers
1 - Water Heater Circuit 240 volt 1-Phase 30 amp.
1 - 150 amp. 3-Phase 240 volt machine
1 - 60 amp. 3-Phase 240 volt machine
1 - 40 amp. 3-Phase 240 volt machine
6 - 30 amp. 3-Phase 240 volt machine
4 - 30 amp. 3-Phase 240 volt Compressor Circuits
1 - 800 amp. 3-Phase 240 volt Service
Plumbing
Demo repair and install:
1-1/2" water service that includes concrete saw cut, removal and repour
of 138 square feet of concrete, also, a water fee to City of
Carrollton.
22 - Air Line Drops
70 - Quick Disconnects
2 - Hydrants inside
2 - Hydrants outside
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6 - Water Closets, Xxxxxxx #109 tank-type
2 - Handicap water closets
2 - Urinals Xxxxxxx #402
10 - Lavatories Xxxxxxx #301 Wall hung
2 - Electric water coolers, Xxxxxx Xxxxxx wm8A
1 - Electric water heater, 20 gallon state PV20
1 - Hub Drain
1 - Trap Primer, Josam #8825
0 - 0" Xxxxx Xxxxxx, Xxxxx 0000
Air piping to be sch. 40 blk steel pipe and fittings
Gas piping to be sch. 40 blk steel pipe and fittings
Domestic water to be type M copper
Sanitary waste and vent to be PBC DWV pipe and fittings
Saw Cut, removal and repour of approximately 468 square feet of
concrete.
Add approximately 000 xxxxxx xxxx xx xxxxxx xxxx to bring total AC
office to 2,004 square feet.
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EXHIBIT "C"
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas
shall not be obstructed by tenants or their officers, agents, servants, and
employees, or used for any purpose other than ingress and egress to and from the
leased premises and for going from one part of the Building to another part of
the Building.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which constructed, and no sweeping, rubbish, rags or other unsuitable
materials shall be thrown or placed therein. Any stoppage or damage resulting to
any such fixtures or appliances from misuse on the part of a tenant or such
tenant's officers, agents, servants, and employees shall be paid by such tenant.
3. No signs, posters, advertisements, or notices shall be painted or
affixed on any of the windows or doors, or other part of the Building, except of
such color, size and style and in such places, as shall be first approved in
writing by the Landlord. No nails, hooks or screws shall be driven in to or
inserted in any part of the Building, except by building maintenance personnel
or as directed by the Landlord.
4. Directories will be placed by the Landlord, at Landlord's own
expense, in conspicuous places in the Building. No other directories shall be
permitted.
5. Tenants shall not do anything, or permit anything to be done, in or
about the Building, or bring or keep anything therein, that will in any way
increase the possibility of fire or other casualty or obstruct or interfere with
the rights of, or other wise injure or annoy, other tenants, or do anything in
conflict with the valid pertinent laws, rules and regulations of any
governmental authority.
6. Landlord shall have the power to prescribe the weight and position
of safes or other heavy equipment, which may over stress any portion of the
floor. All damage done to the Building by the improper placing of heavy items
which over stress the floor will be repaired at the sole expense of the tenant.
7. A tenant shall notify the Landlord when safes or other equipment are
to be taken into or out of the Building. Moving of such items shall be done
under the supervision of the Landlord after receiving written permission from
him.
8. Each tenant shall cooperate with Building employees in keeping
premises neat and clean.
9. No birds, animals or reptiles, or any other creatures, shall be
brought into or kept in or about the building.
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10. Should a tenant require telegraphic, telephonic, annunciator or any
other communication service, the Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and none
shall be introduced or placed except as the Landlord shall direct.
11. No Access to Roof. Tenant shall have no right of access to the roof
of the Premises or the Building and shall not install, repair, place or replace
any aerial, fan, air conditioner or other device on the roof of the Premises or
the Building without the prior written consent of Landlord. Any aerial, fan, air
conditioner or device installed without such written consent shall be subject to
removal, at Tenant's expense, without notice, at any time.
12. Tenants shall not make or permit any improper noises in the
Building, or otherwise interfere in any way with other tenants, or persons
having business with them.
13. No equipment of any kind shall be operated on the leased premises
that could in any way annoy any other tenant in the Building without written
consent of the Landlord.
14. Tenants shall not use or keep in the Building any inflammable or
explosive fluid or substance, or any illuminating material, unless it is battery
powered, UL approved.
15. The Landlord has the right to evacuate the Building in event of
emergency or catastrophe.
16. The Landlord reserves the right to rescind any of these Rules and
make such other and further Rules and Regulations as in the judgment of Landlord
shall from time to time be needed for the safety, protection, care and
cleanliness of the Building, the operation thereof, the preservation of good
order therein, and the protection and comfort of its tenants, their agents,
employees and invitees, which rules when made and notice thereof given to a
tenant shall be binding upon him in like manner as if originally herein
prescribed. In the event of any conflict, inconsistency, or other differences
between the terms and provisions of these Rules and Regulations, as now or
hereafter in effect and the terms and provisions of any lease now or hereafter
in effect between Landlord and any tenant in the Building, Landlord shall have
the right to rely on the term or provision in either such lease or such Rules
and Regulations which is most restrictive on such tenant and most favorable to
Landlord.
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EXHIBIT "D"
SIGN SPECIFICATIONS
A. Type of Sign
Mounted directly onto the wall.
B. Size of Sign
Maximum letter size is 24", minimum letter size is 12". Multiple rows
are not to exceed 28" total height including space.
Overall length cannot exceed 75% of frontage measurement. Example: 40
ft. frontage is allowed 30 ft. Not to exceed 60 feet.
Size must conform to city requirements.
C. Number of Signs and Logos
If lease space fronts on more than one side, another sign may be
allowed on other wall, and size of sign will be determined by that wall
on which it is mounted. Generally speaking, one sign will be allowed.
Logs subject to landlord and architects' approval.
Important
Sign drawings must be submitted for landlord and architects' written
approval before fabrication.
Purpose
Our purpose in providing the tenants with these requirements is to
create a good business image and give the impression of quality and
professionalism.
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