Exhibit 10.12
Industrial Lease
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between DPW
Nine, a California limited partnership, hereinafter referred to as
Lessor' ,and Xxxxxxxxxx Laboratories. Inc., a Texas corporation,
hereinafter referred to as Lessee.
WITNESSETH:
1. PREMISES AND TERM
A. In consideration of the mutual obligations of Lessor and
Lessee set forth herein, Lessor leases to Lessee, and Lessee hereby
takes from Lessor, the Leased Premises containing approximately
35,050 rentable square feet located at 0000 Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxx, situated within the County of Dallas, State of Texas, located
on the real property more particularly described on EXHIBIT "A"
attached hereto and incorporated herein by reference. (the Leased
Premises), together with all rights, privileges, easements,
appurtenances, and amenities belonging to or in any way pertaining to
the Leased Premises, to have and to hold, subject to the terms,
covenants and conditions in this Lease.
B. The term of this Lease shall commence on the Commencement
Date (herein so called) hereinafter set forth and shall end on the
last day of the month that is Eighty Six (86) months after the
Commencement Date.
C. EXISTING BUILDING If no improvements are to be constructed to
the Leased Premises, the Commencement Date shall be August 1, 1994.
Lessee acknowledges that: (it has inspected and accepts the Leased
Premises, (ii) the buildings and improvements comprising Use same are
suitable for the purpose for which the Leased Premises are leased
(iii) the Leased Premises are in good and satisfactory condition, and
(iv) no representations as to the repair of the Leased Premises, nor
promises to alter, remodel or improve the Leased Premises, have been
made by Lessor (unless otherwise expressly set forth in this Lease).
D. INTENTIONALLY DELETED.
E. The occupancy of the Leased Premises by Lessee shall
constitute the acknowledgement and agreement of Lessee that Lessee
has inspected the Leased Premises, that Lessee is fully familiar with
the physical condition of the Leased Premises, that Lessee has
received same in good order and condition and that the Leased
Premises comply in all respects with the requirements of this Lease
arid are specifically suitable to Lessee's purpose. LESSOR AND LESSEE
AGREE THAT LESSOR MAKES NO WARRANTIES WHATSOEVER. WHETHER EXPRESS OR
IMPLIED, CONCERNING THE REPAIR OR CONDITION OF THE LEASED PREMISES OR
THE FITNESS OR SUITABILITY OF THE LEASED PREMISES FOR LESSEE'S
INTENDED USE, OTHER THAN AS EXPRESSLY SET FORTH IN THIS LEASE. LESSEE
HEREBY EXPRESSLY AND SPECIFICALLY WAIVES ALL SUCH WARRANTIES.
2. BASE RENT, SECURITY DEPOSIT, AND ESCROW PAYMENTS.
A. Lessee agrees to pay to Lessor Base Rent for the Leased
Premises, in advance, and except as expressly provided herein,
without demand, deduction or set off, at the rate of See Exhibit "C"
Special Provisions. One such monthly installment, plus the other
monthly charges set forth in Xxxxxxxxx 0X xxxxx, shall be due and
payable on the date hereof and a like monthly installment shall be
due and payable on or before the first day of each calendar month
succeeding the Commencement Date, except that all payments due
hereunder for any fractional calendar month shall be prorated.
B. In addition, Lessee agrees to deposit with Lessor on the
date hereof the sum of Twelve Thousand Five Hundred Dollars
($12,500.00), which shall be held by Lessor, without obligation for
interest, as Security for the performance of Lessee's obligations
under this Lease. Lessor and Lessee expressly agree that this
deposit is not an advance rental deposit or a measure of Lessor's
damages in case of Lessees default. Upon each occurrence of an event
of default, Lessor may, at its option, use all or part of the
deposit to pay past due rent or other payments due Lessor under this
Lease, or the cost of any other damage, injury, expense or liability
caused by such event of default, without prejudice to any other
remedy provided herein or provided by law. On demand, Lessee shall
pay Lessor the amount that will restore the security deposit to its
original amount. The security deposit shall be deemed the property
of Lessor, but any remaining balance of such deposit shall be
returned by Lessor to lessee when Lessee's obligations under this
Lease have been fulfilled.
C. Lessee agrees to pay its Proportionate Share (as defined in
Paragraph 23B) of (i) taxes payable by Lessor pursuant to xxxxxxxxx
0X, (xx) the cost of maintaining insurance pursuant to paragraph 9,
and (iii) all common area charges including, without limitation, the
cost of repairs pursuant to Paragraph 4, the cost of utilities
pursuant to Paragraph S. and the cost of security service pursuant
to Paragraph 24, All such charges listed in this xxxxxxxxxxxx 0X
(xxx) are collectively referred to in this Lease, and particularly
in this Xxxxxxxxx 0X, as Common Area Charges. During each month of
the term of this Lease, on the same day that rent is due hereunder.
Lessee shall escrow with Lessor an amount equal to 1/12 of the
estimated annual cost of its Proportionate Share of such items.
Lessee authorizes Lessor to use the funds deposited with Lessor
under this Xxxxxxxxx 0X to pay such costs. The initial monthly
escrow payments are based upon the estimated amounts for the
calendar year in which the Lease commences, and shall be increased
or decreased annually to reflect the projected actual cost of all
such items. If the Lessee's total escrow payments are less than
Lessee's actual Proportionate Share of all such items, Lessee shall
pay the difference to Lessor within ten (10) days after demand. If
the total escrow payments of Lessee ate more than Lessees actual
proportionate share of all such items, Lessor shall retain such
excess and credit it against Lessees next annual escrow payments.
Upon reasonable request from Lessee, Lessor shall furnish an
operating statement for the Leased Premises for the prior year. The
amount of the initial monthly rental and the initial escrow payments
are collectively denominated in this Lease as "Rent", and is
itemized as follows:
(1) Base Rent as set forth in Paragraph 2A 59,201.00
(2) Tax Escrow Payment 1,402.00
(3) Insurance Escrow Payment 175.00
(4) Common Area Charges 730.00
(5) Other .00
Total Initial Monthly Rent 11,508.00
3.TAXES.
A.Lessor agrees to pay all taxes, assessments and governmental
charges of any kind and nature (collectively referred to herein as
Taxes) that accrue against the Leased Premises, and/or the land and/or
improvements of which the Leased Premises are a part. If at any time
during the term of this Lease, there shall be levied, assessed or
imposed on lessor a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in pan. upon such rents from the
Leased Premises, then all such taxes, assessments, Levies or charges,
or the pan thereof so measured or based, excluding any federal or state
income tax, shall be deemed to be included within the term Taxes for
the purposes hereof. The Lessor shall have the right to employ a tax-
consulting firm to attempt to assure a fair tax burden on the building
and grounds within the applicable taxing jurisdiction. Lessee agrees to
pay its Proportionate Share of the cost of such consultant.
B. Lessee shall be liable for all taxes levied or assessed
against any personal property or fixtures placed in the Leased
premises. If any such taxes are levied or assessed against Lessor or
Lessor's property and (i) Lessor pays the same or (ii) the assessed
value of Lessor's property is increased by inclusion of such personal
property and fixtures and Lessor pays the increased taxes, then upon
demand, Lessee shall pay to Lessor such taxes.
4. LESSOR'S REPAIRS
A. Lessor, at its own cost and expense, shall maintain only the
roof, foundation and the structural soundness of the exterior walls
of the building of which the Leased Premises are a part in good
repair, reasonable Wear and tear excluded. The term "walls" as used
herein, shall not include windows, glass or plate glass, doors,
special store fronts or office entries. Lessee shall immediately
advise Lessor written notice of defect or need for repairs, after
which Lessor shall have reasonable opportunity to repair same or cure
same. Repairs required to be made by Lessor shall be performed while
not unreasonably interfering with Lessee's business operation.
X. Xxxxxx reserves the right to perform the paving, common area
and landscape replacement and maintenance, exterior painting, common
sewage line plumbing and any other items that are otherwise Lessee's
obligations under Paragraph SA, in which event, Lessee shall be
liable for its Proportionate Share of the cost and expense of such
repair, replacement, maintenance and other such items.
C. Lessee agrees to pay its Proportionate Share of the cost of
i) maintenance and/or landscaping of any property that is a pan of
the building and/or project of which the Leased Premises are a part,
(ii) maintenance and/or landscaping of any property that is
maintained or landscaped by any property owner or community owner
association that is named in the restrictive covenants or deed
restrictions to which the Leased Premises are subject, and (iii)
operating and maintaining any property, facilities or services
provided for the common use of Lessee and other lessees of any
project or building of which the Leased Premises are a part.
5. LESSEE'S REPAIRS
A. Lessee, at its own cost and expense, shall (I) maintain all
parts of the Leased Premises, (which Lessor is expressly responsible
hereunder) in good condition, (ii) promptly make all necessary
repairs and replacements, (iii) keep the parking areas, driveways and
alleys surrounding the Leased Premises in a clean and sanitary
condition.
B. Lessee and its employees, customers and licensees shall have
the exclusive rights to use any parking areas on the leased premises.
Lessor shall not be responsible for enforcing Lessees parking rights
against any third parties.
C. Lessee, at its own cost and expense, shall enter into a
regularly scheduled preventive maintenance/service contract with a
maintenance contractor approved by Lessor for servicing all hot
water, heating and air conditioning systems and equipment within the
Leased Premises. The service contract must include all services
suggested by the equipment manufacturer in its operations/maintenance
manual and must become effective within thirty (30) days of the date
Lessee takes possession of the Leased Premises. Upon Commencement
Date, Lessor, at its sole cost and expense, shall have all HVAC
systems, plumbing, sprinkler systems and lighting in proper working
condition.
6. ALTERATIONS.
A. Lessee shall not make any structural alterations, additions
or improvements to the Leased Premises without the prior written
consent of Lessor. Lessee, at its own cost and expense, may erect
such shelves, bins, machinery and trade fixtures as it desires
provided that: I) such items do not alter the basic character of the
Leased Premises or the building and/or improvements of which the
Leased Premises are a part; (II) such items do not overload or
damage the same: (iii) such items may be removed without mien to the
Leased Premises; and (iv) the construction, erection or installation
thereof complies with all applicable governmental laws, ordinances,
regulations and with Lessors specifications and requirements. All
alterations, additions, improvements and partitions erected by
Lessee shall be and remain the property of Lessor. All shelves,
bins, machinery and trade fixtures installed by Lessee shall remain
the property of Lessee and shall be removed on or before time
earlier to occur of the date of termination of this Lease or
vacating the Leased Premises, at which time Lessee shall restore the
Leased Premises to their original condition. All alterations,
installations, removals and restoration shall be performed in a good
and workmanlike manner so as not to damage or alter the primary
structure or structural qualities or the buildings and other
improvements situated on the Leased Premises or of which the Leased
Premises are a part.
7.SIGNS.
A. Any signage Lessee desires for the Premises shall be
subject to written approval of the Las Colinas Association. Lessee
shall repair. paint, and/or replace the building facia surface to
which its signs are attached upon vacation of the Leased Premises, or
the removal or alteration of its signage. Lessee shall not: (I) make
any changes to the exterior of the Leased Premises, (ii) install any
exterior lights, decorations, balloons, flags, Pennants, banners or
painting, or (iii) erect Or install any signs, windows or door
lettering, placards, decorations or advertising media at any type
which can be viewed from the exterior of the Leased Premises, without
Lessor's prior written consent. All signs, decorations, advertising
media or bars or other security installations visible from the
outside of the Leased Premises shall conform in all respects to the
criteria established by the Lessor,
8.UTILITIES
A. Lessor agrees to provide normal water, and electricity
service to the Leased Premises. Lessee shall pay for all water. gas,
heat, light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or at the Leased Premises, together
with any taxes, penalties, surcharges or the like pertaining to the
Lessee's use of the Leased Premises, and any maintenance charges for
utilities. Lessor shall have the right to cause any of said services
to be separately metered to Lessee, at Lessee's expense.
B. No interruption or malfunction of any utility service, or if
either the quantity or character of any utility service is changed
or is no longer available to or is no longer suitable for Lessee's
requirements, unless caused by Lessor's breach of this Lease, shall
constitute an eviction or disturbance of Lessee's use or possession
of the Leased Premises or a breach by Lessor of any of Lessor's
obligations hereunder or render Lessor liable or responsible to
Lessee for any damage which Lessee may sustain or incur or entitle
Lessee to be relieved from any of Lessee's obligations hereunder,
including, without limitation, the obligation to pay Rent, or grant
Lessee any right to set-off, abatement, or recoupment. The failure
by Lessor to furnish, or any slowdown, stoppage, or interruption of.
any utility service resulting from causes beyond the control of
Lessor, including without limitation. Lessor's compliance with any
voluntary or similar governmental or business guidelines now or
hereafter published or any requirements now or hereafter established
by any governmental agency, board, or bureau having jurisdiction
over the operation of the Building, shall not render Lessor liable
in any respect for damages to either persons, property. or business.
or be construed as an eviction of Lessee or work an abatement of
Rent, nor relieve Lessee of Lessee's obligations for fulfillment of
any covenant or agreement hereof. Should any equipment or machinery
furnished by Lessor break down or for any cause cease to function
properly, Lessor shall use reasonable diligence to repair same
promptly, but Lessee shall have no claim for abatement of Rent or
damages on account of any interruption of service occasioned thereby
or resulting therefrom.
9. INSURANCE.
A. Lessor shall maintain replacement cost broad form fire and
extended coverage insurance on the Leased Premises or on the
building of which the Leased Premises are a pan in such amount as
may be required by Lessor's mortgagee,
B. Lessee, at its own expense, shall maintain during the term
of this Lease Commercial general liability Insurance, including
personal injury and property damage, with contractual liability
endorsement, in the amount of One Million Dollars ($1,000,000) for
property damage and One Million Dollars ($1,000,000.00) per
occurrence for personal injuries or deaths of persons occurring in
or about the Leased Premises. Lessee, at its own expense, also shall
maintain during the term of this Lease broad form fire and extended
coverage insurance covering the replacement cost of: (i) all
alterations, additions, partitions and improvements installed or
placed on the Leased Premises by Lessee or by Lessor on behalf of
Lessee and (ii) be issued by an insurance company which is rated "A"
XI or better by Best's Rating Service and, (iii) provide that said
insurance shall not be cancelled or modified unless thirty (30) days
prior written notice shall have been given to Lessor. Said policy or
policies or certificates thereof shall be delivered to Lessor by
Lessee upon commencement of the term of the Lease and upon each
renewal of said insurance.
C. Lessee will not permit the Leased Premises to be used for
any purpose, or in ally manner that would (i) void the insurance
thereon, (ii) increase the insurance risk or the premiums for
insurance, or (iii) cause thc disallowance of any sprinkler credits,
including without limitation, use of the Leased Premises for the
receipt, storage or handling of any product, material or merchandise
that is explosive or highly inflammable with the exception of
aerosol products. If any increase in the cost of any insurance on
the Leased Premises or the building of which the Leased Premises are
a part is fused by Lessee's use of the Leased Premises, or because
l.essee vacates the Leased Premises, then Lessee shall pay the
amount of such increase to Lessor.
10. FIRE AND CASUALTY DAMAGE
A. If the Leased Premises or the building, of which the Leased
Premises are a part should be damaged or destroyed by fire or other
peril, Lessee immediately shall give written notice to Lessor. If the
buildings situated upon the Leased Premises or of which the Leased
Premises are a part should be totally destoryed, or if they should be
so damaged hereby that, in Lessor's estimation, rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the
date of such damage, this Leased shall terminate and the Rent shall
be abated during the unexpired portion of this Lease, effective upon
the date of the occurrence of such damage.
B. If the buildings situated upon the Leased Premises or of
which the Leased Premises are a part should be damaged by any peril
covered by the insurance to be provided by Lessor under Paragraph 9A
above, and in Lessor's estimation, rebuilding or repairs can be subst-
antially completed within one hundred eighty (180) days after the date
of such damage, this Lease shall not terminate, and Lessor shall
restore the Leased Premises to substantially its previous condition,
except that Lessor shall not be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other improvements
that may have been constructed, erected or installed in, on or about
the Leased Premises or for the benefit of, or by or for Lessee. It
such repairs and rebuilding have not been substantially completed
within one hundred eighty (180) days after the date of such damage,
Lessee, as Lessee's exclusive Meridian Point lease Revised 11/18/92
remedy, may terminate this Lease by delivering written notice of
termination to Lessor. In which event the rights and obligations
hereunder shall cease and terminate effective upon the date of the
occurrence of such damage.
C. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust
covering the Leased Premises requires that the insurance proceeds be
applied to such indebtedness, then Lessor shall have the right to
terminate this Lease by delivering written notice of termination to
Lessee within fifteen (15) days after such requirement is made known
by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate, effective upon the date of the occurrence
of such damage.
D. Anything in this Lease to the contrary notwithstanding.
INCLUDING NEGLIGENCE, Lessor and Lessee hereby waive and release each
other of any from 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 Leased
Premises, improvements to the building of which the Leased Premises
are a part, or personal property (building contents) within the
building and/or Leased Premises, for any reason regardless of cause
or origin, Each party to this Lease agrees immediately after
execution of this Lease to give each insurance company which has
issued to it policies of fire and extended coverage insurance,
written notice of the terms of the mutual waivers contained in this
subparagraph, and if necessary, to have the insurance policies
properly endorsed.
11. LIABILITY AND IDEMNIFICATION
LESSOR AND LESSEE AGREE THAT THE OBLIGATIONS AND COVENANTS
CONTAINED IN THIS PARAGRAPH ARE SPECIFICALLY PART OF THE
CONSIDERATION FOR THE LESSOR'S EXECUTION OP THIS LEASE, LESSOR SHALL
NOT BE LIABLE TO LESSEE OR LESSEE'S EMPLOYEES. AGENTS, PATRONS OR
VISITORS, OR TO ANY OTHER PERSON WHOMSOEVER, FOR ANY INJURY TO PERSON
OR DAMAGE TO PROPERTY ON OR ABOUT THE LEASED PREMISES, THE COMMON
AREAS OR THE PROPERTY UPON WHICH THE LEASED PREMISES IS LOCATED,
RESULTING FROM AND/OR CAUSED IN PART OR WHOLE BY THE ACT, OMISSION,
NEGLIGENCE OR MISCONDUCT OF LESSEE, ITS AGENTS, SERVANTS OR
EMPLOYEES, OR ANY OTHER PERSON ENTERING UPON THE LEASED PREMISES. OR
CAUSED BY THE BUILDING AND/OR IMPROVEMENTS LOCATED ON THE LEASED
PREMISES BECOMING OUT OF REPAIR, OR CAUSED BY LEAKAGE OF GAS, OIL,
WATER OR STEAM OR BY ELECTRICITY EMANATING FROM THE LEASED PREMISES.
OR DUE TO THE CONDUCT OF LESSEE'S BUSINESS AT THE LEASED PREMISES OR
DUE TO A DEFAULT BY LESSEE IN ITS OBLIGATIONS HEREUNDER. AND LESSEE
HEREBY COVENANTS AND AGREES THAT IT WILL AT ALL TIMES INDEMNIFY AND
HOLD SAFE AND HARMLESS THE LEASED PREMISES, THE LESSOR. LESSOR'S
AGENTS AND EMPLOYEES. FROM ANY LOSS, LIABILITY, CLAIMS, SUITS. COSTS
AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES AND
DAMAGES, BOTH REAL AND ALLEGED, ARISING OUT OF ANY SUCH DAMAGE OR
INJURY; EXCEPT INJURY TO PERSONS OR DAMAGE TO PROPERTY THE SOLE CAUSE
OF WHICH IS THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR
THE FAILURE OF LESSOR TO REPAIR ANY PART OF THE LEASED PREMISES WHICH
LESSOR IS OBLIGATED TO REPAIR AND MAINTAIN HEREUNDER WITHIN A
REASONABLE TIME AFTER THE RECEIPT OP WRITTEN NOTICE FROM LESSEE OF
NEEDED REPAIRS. LESSEE ACKNOWLEDGES THAT THIS WAIVER AND INDEMNITY
INCLUDE, WITHOUT LIMITATION, INJURY AND/OR DAMAGE WHICH IS THE RESULT
OF THE NEGLIGENCE OF LESSOR, AND/OR ITS AGENTS OR EMPLOYEES. THE
PROVISIONS OF THIS PARAGRAPH II SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS LEASE WITH RESPECT TO ANY CLAIMS OR LIABILITY
OCCURRING PRIOR TO SUCH EXPIRATION OR TERMINATION.
12. USE.
The Leased Premises shall be used only for the purpose of
manufacturing, receiving, storing, shipping and selling (other than
retail) products, materials and merchandise made and/or distributed
by Lessee and for such other lawful purposes as may be incidental
thereto. Any use that would cause the Leased Premises to be deemed a
"place of public accommodation" under the Americans with
Disabilities Act of 1990 is expressly prohibited. Outside storage,
including without limitation, storage of trucks and other vehicles,
is prohibited without Lessor's prior written consent. Lessee shall
comply with all governmental laws, ordinances and regulations
applicable to the use of the Leased Premises, and promptly shall
comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances in or upon, or
connected with, the Leased premises, all at Lessee's sole expense.
Lessee shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the Leased
Premises, nor take any other action that would constitute a nuisance
or would disturb, unreasonably interfere with, or endanger Lessor or
any other lessees of the building or project in which the Leased
Premises are a part.
13. INSPECTION
Lessor and Lessor's agents and representatives shall have
the right to enter the Leased Premises at any reasonable time during
business hours, to inspect the Leased Premises, with 72 hours notice
except in case of emergency, and to make such repairs as may be
required or permitted pursuant to this Lease. During the period that
is six (6) months prior to the end of the Lease term, upon
telephonic notice to Lessee. Lessor and Lessor's representatives may
enter the Leased Premises during business hours for the purpose of
showing the Leased Premises. In addition, Lessor shall have the
right to erect a suitable sign on the Leased Premises stating the
Leased Premises are available, Lessee shall notify Lessor in writing
at least thirty (30) days prior to vacating the Leased Premises and
shall arrange to meet with Lessor for a joint inspection of the
Leased Premises prior to vacating. If Lessee fails to give such
notice or to arrange for such inspection, then Lessor's inspection
of the Leased Premises shall be deemed correct for the purpose of
determining Lessee's responsibility for repairs and restoration of
the Leased Premises. Lessor, or parties on its behalf, shall be
required to execute a confidentiality agreement, prior to
inspection, as required by Lessee.
14. ASSIGNMENT AND SUBLETTING
A. Except for mergers, consolidations, purchase of its own
stock or transferring of stock to an affiliated corporation. Lessee
shall not: (0 assign this Lease or ally interest therein; nor (ii)
sublease the Leased Premises or any portion (hereof, without the
prior written consent. If Lessee is not a natural person, the
acquisition of a controlling interest in Lessee shall be deemed an
assignment for purposes hereof. As used herein, the phase
"controlling interest" shall mean ownership in excess of forty-nine
percent (49%) of the voting interest of Lessee. Any attempted
assignment or sublease by Lessee in violation of the terms and
covenants of this paragraph shall be void.
B. If Lessee requests Lessor's consent to an assignment of the
Lease or a subletting of all or part of the Leased Premises. Lessor
shall either (i) approve such sublease or assignment (but no approval
of an assignment or sublease shall relieve Lessee of any liability
hereunder), or (ii) negotiate directly with the proposed sublessee or
assignee provided that, unless otherwise agreed by Lessee, the terms
and conditions of such third party lease agreement are not more or
less favorable to such proposed sublessee or assignee than the
corresponding terms and conditions of the proposed assignment or
sublease between Lessee and such third party) arid (in tile event
Lessor is able to reach agreement with such proposed sublessee or
assignee) upon execution of a lease with such proposed sublessee or
assignee, terminate this Lease (in part or in whole, as appropriate)
upon thirty (30) days' notice, or (iii) if Lessor shall fail to
notify Lessee in writing of its decision within a thirty (30) day
period after Lessor has received notice in writing of the proposed
assignment or sublease. Lessor shall be deemed to have refused to
consent to such assignment or sublease, 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 Lessee's interest in the Lease and/or the Leased
Premises, whether consented to by Lessor or not, shall be paid to
Lessor notwithstanding the fact that such proceeds exceed the Rent
called for hereunder, unless Lessor agrees to the contrary in
writing, and Lessee hereby assigns all rights it might have or ever
acquire in any such proceeds to Lessor, This covenant and assignment
shall benefit Lessor and its successors in ownership of the Leased
Premises and shall bind Lessee and Lessee's heirs, executors,
administrators, personal representatives, successors and assigns. Any
assignee, sublessee or purchaser of Lessee's interest in this Lease
(all such assignees, sublessees or purchasers being hereinafter
referred to as "Successors"), by occupying the Leased Premises and/or
assuming Lessee's obligations hereunder, shall be deemed to have
assumed liability to Lessor for all amounts paid to persons other
than Lessor by such Successor in consideration of any such sale,
assignment or subletting, in violation of the provisions hereof.
D. No assignment or subletting, whether or not with Lessors
consent, shall ever relieve Lessee of any liability hereunder.
E. It this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 ct.seq.,
(the "Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Lessor, shall be and remain
the exclusive property of Lessor and shall not constitute property of
Lessee or of the estate of Lessee within the meaning of the
Bankruptcy Code. Any and all monies or other considerations
constituting Lessor's property under the preceding sentence not paid
or delivered to Lessor shall be held in trust for the benefit of
Lessor and be promptly paid or delivered to Lessor. The inclusion of
this subparagraph in this Lease is not intended as, and shall not be
construed as, the Landlord's consent to an assignment and/or
assumption of this Lease.
F. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed, without
further act or deed, to have assumed all of the obligations arising
under this Lease on and after the date of such assignment. Any such
assignee shall upon demand execute and deliver to Lessor an
instrument confirming such assumption. The inclusion of this
subparagraph in this Lease is not intended as, and shall not be
construed as, the Landlord's consent to an assignment and or
assumption of this Lease.
G. This Lease is a contract under which applicable law excuses
Lessor from accepting performance from (or rendering performance to)
any person or entity other than 1essee within the meaning of
sections 365(c) and 365(e)(2) of the Bankruptcy Code, II U.S.C
Sections 365(c), 365(e)(2),
15. CONDEMNATION
If any portion of the Leased Premises are taken for any
public or quasi-public use tinder governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking prevents or materially interferes with
the use of the Leased Premises for the purpose for which they were
leased to Lessee, this Lease shall terminate and the Rent shall be
abated during the unexpired portion of this Lease, effective on the
date of such, taking, If such taking does not materially interfere
with the use of the Leased Premises, this Lease shall not terminate,
but the Rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable
under all of the circumstances, All compensation awarded in
connection with or as a result of any of the foregoing proceedings
shall be the property of Lessor and Lessee hereby assigns any
interest in any such award to Lessor; provided, however, Lessor
shall have no interest in any award made to Lessee for loss of
business or good will or for the taking of Lessee's fixtures and
improvements, if a separate award for such items is made to Lessee.
16. HOLDING OVER.
At the termination of this Lease by its expiration or
otherwise. Lessee immediately shall deliver possession to Lessor
with all repairs and maintenance required herein to be performed by
Lessee completed. If, for any reason, Lessee retains possession of
the Leased Premises after the expiration or termination of this
Lease, unless the parties hereto otherwise agree in writing, such
possession shall be subject to termination by either Lessor or
Lessee at any time upon not less than ten (10) days advance written
notice, and all of the other terms and provisions of this Lease
shall be applicable during such period, except that Lessee shall pay
Lessor from time to time, without demand, as rental for the period
of such possession, an amount equal to one and one half times the
rent in effect on the termination date, computed on a daily basis
for each day of such period. No holding over by Lessee, whether with
or without consent of Lessor, shall operate to extend this Lease
except as otherwise expressly provided, The preceding provisions of
this Paragraph 16 shall not be construed as consent for Lessee to
retain possession of the Leased Premises in the absence of written
consent thereto by Lessor,
17. QUIET ENJOYMENT
Lessor represents that it has good title to the Leased
Premises, free and clear of all liens and encumbrances, excepting
only the lien for current taxes not yet due, such mortgage or
mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and tire ordinances and governmental
regulations relating to the use of such property, and easements,
restrictions and other conditions of record, If this Lease is a
sublease, then Lessee agrees to take the Leased Premises subject to
the provisions or all prior Leases. Lessor represents that it has the
authority to enter into this Lease and that so long as Lessee pays
all amounts due hereunder and performs all other covenants and
agreements herein set forth, Lessee shall peaceably and quietly have,
hold and enjoy the Leased Premises for the term hereof without
hindrance or molestation from Lessor, subject to the terms and
provisions of his Lease.
18. EVENTS OF DEFAULT
The following events shall be deemed to be events of default
by Lessee under this Lease: (Lessee shall fall to pay any Rent or
other sum of money due hereunder and such failure shall continue for
a period of five (5) days after written notice that such sum is due;
(ii) Lessee shall fail to comply with any provision of this Lease
other than those listed in this paragraph 18. or any other written
agreement between Lessor and Lessee, all of which terms, provisions
and covenants shall be deemed material, and such failure shall
continue for a period of thirty (30) days after written notice of
such default is given to Lessee; (iii) the Leased Premises shall be
taken on execution or other process of law in any action against
Lessee; (iv) Lessee notifies Lessor, at any time prior to the
Commencement Date, that Lessee does not intend to take occupancy of
the Leased Premises upon the Commencement Date of the Lease term or
Lessee shall fail to promptly move into and take possession of the
Leased Premises when the Leased Premises are ready for occupancy or
shall cease to continuously do business in. vacate or abandon any
portion of the Leased Premises; (v) Lessee shall become insolvent or
unable to pay its debts as they become due; (vi) Lessee takes any
action to file a petition under any section or chapter of the
national Bankruptcy Code, as amended from time to time, or under any
similar law or statute of the United States or any State thereof; or
a petition shall be tiled against Lessee under any such statute;
(vii) a receiver or trustee shall be appointed for Lessee's leasehold
interest in the Leased Premises or for all or a substantial part of
the assets of Lessee.
19. REMEDIES.
A. Upon each occurrence of an event of default, Lessor shall
have the option to pursue any one or more of the following remedies
without notice or demand:
1. Terminate this Lease, with or without re-entering the
Leased Premises; and/or
2. Enter upon and take possession of the Leased Premises,
with or without terminating this Lease: and/or
3. Alter all locks and other security devices at the
leased Premises with or without terminating this Lease,
and pursue, at Lessor's option, one or more remedies
pursuant to this Lease, Lessee hereby specifically
waiving any state or federal law to the contrary;
and in any such event Lessee immediately shall surrender the Leased
Premises to Lessor, and if Lessee fails so to do, Lessor, without
waiving any other remedy it may have, may enter upon and take
possession of the Leased Premises and expel or remove Lessee and any
other person who may be occupying the Leased Premises or any pan
thereof, without being liable for prosecution or any claim of damages
therefore.
B. If Lessor terminates this Lease, with or without re-entry of
the Leased Premises at Lessor's option. Lessee shall be liable for
and shall pay to Lessor, the sum of all rental and other payments
owed to Lessor hereunder accrued to the date of such termination,
plus, as liquidated damages, an amount equal to (I) the present
value of the total Rent and other payments owed hereunder for the
remaining portion of the Lease term, calculated as if such term
expired on the date set forth in Paragraph 1, less (2) the then
present fair market rental value of the Leased Premises for such
period.
C. If Lessor repossesses the Leased Premises, without
terminating the Lease, as an alternate measure of damages, at
Lessor's option, Lessee shall be liable for and shall pay Lessor on
demand all rental and other payments owed to Lessor hereunder,
accrued to the date of such repossession, plus all amounts required
to be paid by Lessee to Lessor until the date of expiration of die
term as stated in Paragraph I, diminished by all amounts received by
Lessor through reletting the Leased Premises during such remaining
term. Actions to collect amounts due by Lessee to Lessor under this
subparagraph may be brought from time to time, on one or more
occasions, without the necessity of Lessor's waiting until expiration
of the Lease term.
D. Upon an event of default, in addition to any sum provided to
be paid herein, Lessee also shall be liable for and shall pay to
Lessor (I) brokers' fees incurred by Lessor in connection with
reletting the whole or any part of the Leased Premises: (ii) the
costs of removing and storing Lessee's or other occupant's property;
(iii) the costs of repairing, altering, remodeling or otherwise
putting the Leased Premises into condition acceptable to a new lessee
or lessees; and (iv) all reasonable expenses incurred by Lessor in
enforcing or defending Lessor's rights and/or remedies, If either
party hereto institutes any action or proceeding to enforce any
provision hereof by reason of any alleged breach of ally provision of
this Lease, the prevailing party shall he entitled to receive from
the losing party all reasonable attorneys' fees and all court costs
in connection with such proceeding.
E. In the event Lessee fails to make any payment due hereunder
when payment is due, to help defray the additional cost to Lessor
for processing such late payments. Lessee shall pay to Lessor on
demand a late charge in an amount equal to five percent 5%) of such
installment: and the failure to pay such amount within ten days)
days after demand therefore shall be an additional event of default
hereunder. The provision for such late charge shall he in addition
to all of Lessor's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Lessor's
remedies in any manner. Lessor and Lessee agree that the late charge
provided for in this subparagraph is not interest.
F. No act or omission of Lessor, or exercise by lessor of any
one or more remedies hereunder granted or otherwise available, shall
be deemed to be an acceptance of surrender of the Leased Premises by
Lessor, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written
agreement of Lessor and Lessee. Lessee and Lessor further agree that
forbearance by Lessor to enforce its rights pursuant to the Lease at
law or in equity shall not be a waiver of Lessor's right to enforce
one or more of its rights in connection with any subsequent default.
G. This paragraph shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability at any portion
thereof shall not thereby render unenforceable any other portion. No
re-entry or taking of possession of the Leased Premises by Lessor
shall be construed as an election on Lessors pan to terminate this
Lease unless a written notice of such termination is given to Lessee.
H. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Lessee to or on behalf of Lessor under his Lease,
whether or not expressly denominated as Rent, shall constitute Rent
for the purposes of section 502(b)(7) of the Bankruptcy Code. II
U.S.C. Section 502(b)(7).
I. Lessor shall be in default hereunder in the event Lessor has
not begun and pursued with reasonable diligence the cure of any
failure of Lessor to meet its obligations hereunder within thirty
(30) days of the receipt by Lessor of written notice from Lessee of
the alleged failure to perform. Whether in this Lease or elsewhere,
in no event shall Lessee have the right to terminate or rescind this
Lease as a result of Lessor's default as to any covenant or agreement
contained in this Lease. Lessee hereby waives such remedies of
termination and rescission. If Lessor fails to perform any of its
obligations hereunder within thirty (30) days after written notice
from Lessee specifying such failure, Lessee's remedy shall be an
action for damages or Lessee shall have the right to offset against
the rent, the reasonable cost of performing Lessor's obligations:
provided however, if Lessor's cure of it failure of its obligations
hereunder cannot be cured within thirty (30) days after receipt of
1essee's notice of such failure, and Lessor is diligently pursuing
such cure to completion, Lessor shall not be in default hereunder and
Lessee shall have no right to offset the rent. Unless and until
Lessor falls to 50 cure any default after such notice, Lessee shall
not have any remedy or cause of action by reason thereof. Lessee
hereby covenants that, prior to the exercise of any such remedy, it
will give the mortgagee(s) holding mortgages on the Leased Premises
or the building in which the Leased Premises are located notice and a
reasonable time to cure any default by Lessor. All obligations of
Lessor hereunder will be construed as covenants, not conditions; and
all such obligations will be binding upon Lessor only during the
period of its possession of the Leased Premises and not thereafter.
The term "Lessor shall mean only the owner, for the time being of the
Leased Premises, and in the event of the transfer by such owner of
its interest in the Leased Premises, such owner shall thereupon be
released and discharged from all covenants and obligations of the
Lessor thereafter accruing, but such covenants and obligations shall
be binding during the Lease term upon each new owner for the duration
of such owner's ownership. Notwithstanding any other provision
hereof, Lessor shall not have any personal liability hereunder. in
the event of any breach or default by Lessor in any term or provision
of this Lease. Lessee agrees to look solely to the equity or interest
then owned by Lessor in the Leased Premises or of the building of
which the Leased Premises are a part; however, in no event, shall any
deficiency judgement or any money judgment of any kind be sought or
retained against any Lessor.
J. If Lessor repossesses the Leased Premises pursuant to the
authority herein granted, then Lessor shall have the right to (i)
keep in place and use or (ii) remove and store all of the furniture,
fixtures and equipment at the Leased Premises, including that which
is owned by or leased to Lessee at all times prior to any foreclosure
thereon by Lessor or repossession thereof by any lessor thereof or
third party having a lien thereon. Lessor also shall have the right
to relinquish possession of all or any portion of such furniture,
fixtures, equipment and other property to any person ("Claimant") who
presents to Lessor a copy of any instrument represented by Claimant
to have been executed by Lessee (or any predecessor Lessee) granting
Claimant the right under various circumstances to take possession of
such furniture, fixtures, equipment or other property, without the
necessity on the part of Lessor to inquire into the authenticity or
legality of said instrument. The rights of Lessor herein stated shall
be in addition to any and all other rights that Lessor has or may
hereafter have at law or in equity; and Lessee stipulates and agrees
that the rights herein granted Lessor are commercially reasonable.
20. ATTORNEY'S FEES.
In the event Lessor/Lessee retains counsel in connection
with, or files suit to enforce the performance of or to obtain
damages caused by a default concerning any of the terms of this Lease
by Lessor/Lessee and obtains a judgement on its behalf. Lessor/Lessee
shall be responsible for and shall pay Lessor's/Lessee's reasonable
attorneys fees.
21. MORTGAGES.
Lessee accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter
constituting a lien or charge upon the Leased Premises or the
improvements situated thereon or the building of which the Leased
Premises are a part, provided, however, that if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to
have Lessee's interest in this Lease superior to any such instrument,
then by notice to Lessee from such mortgagee, trustee or holder, this
Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust, Lessee, at
any time hereafter on demand, shall execute any instruments, releases
or other documents that may be required by any mortgagee for the
purpose of subjecting and subordinating this Lease to the lien of any
such mortgage. Lessor agrees to use its best efforts to obtain a non-
disturbance agreement.
22. MECHANIC'S LIENS.
Lessee has no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor in the Leased
Premises or to charge the Rent payable hereunder or any claim in
favor of any person dealing with lessee, including those who may
furnish materials or perform labor for any construction or repairs.
Lessee covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed
or materials furnished in connection with any work performed on the
Leased Premises and that it will save and hold Lessor harmless from
any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the
right, title and interest of the Lessor in the Leased Premises or
under the terms of this Lease. Lessee agrees to give Lessor
Immediate written notice of the placing of any lien or encumbrance
against the Leased Premises. Lessee reserves the right to contest
disputed claims at its sole cost and expense.
23. MISCELLANEOUS
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise
requires. The captions inserted in this Lease are or convenience only
and in no way define, limit or otherwise describe the scope or intent
of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
B. In the event the Leased Premises constitute a portion of a
multiple occupancy building, Lessee's "Proportionate share", as used in
this Lease, shall mean a fraction, the numerator of which is the space
contained in the Leased Premises and the denominator of which is the
entire space contained in the building.
C. The terms, provisions, covenants and conditions contained in
this Lease shall run with the land and shall apply to. inure to the
benefit of, and be binding upon, the parties hereto and upon their
respective, heirs, executors, personal representatives, legal
representatives, successors and assigns, except as otherwise herein
expressly provided. Lessor shall have the right to transfer and assign,
in whole or in part, its rights and obligations in the Lease and in the
building and property that are the subject of this Lease. each party
agrees to furnish to the other, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such
party to enter into this Lease.
D. Whenever a period of time is herein prescribed for the taking
of any action by lessor/Lessee, Lessor/Lessee shall not be liable or
responsible for, and there shall be excluded from the computation of
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 cause whatsoever beyond the control of
Lessor/Lessee.
E. Lessee agrees, from time to time, within ten (10) days after
request of Lessor, to deliver to Lessor, or Lessor's designee, an
estoppel certificate stating that this Lease is in full force and
effect, the date to which Rent has been paid, the unexpired term of
this Lease and such other factual matters pertaining to this Lease as
may be requested by Lessor.
F. This Lease constitutes the entire understanding and agreement
of the Lessor and Lessee with respect to the subject matter of this
Lease, and contains all of the covenants and agreements of Lessor and
Lessee with respect thereto, Lessor and Lessee each acknowledge that
no representations, warranties, inducements, promises or agreements,
oral or written, have been made by Lessor or Lessee, or anyone acting
on behalf of Lessor or Lessee, which are not contained herein, and
any prior agreements, promises, negotiations, representations or
warranties not expressly set forth in this Lease are of no force or
effect. This Lease may not be altered, changed or amended except by
an instrument in writing signed by both panics hereto. The covenant
contained in this paragraph is a material inducement to Lessor and
Lessee to execute this Lease.
G. All obligations of Lessee hereunder not fully performed as of
the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof,
including without limitation, all payment obligations with respect to
taxes and insurance and all obligations concerning the condition and
repair of the Leased Premises. Upon the expiration or earlier
termination of the term hereof, and prior to Lessee vacating the
Leased Premises, Lessee shall pay to Lessor any amount reasonably
estimated by Lessor as necessary to put the Leased Premises,
including without limitation, all heating and air conditioning
systems and equipment therein, in good condition and repair,
reasonable wear and tear excluded. Lessee shall also, prior to
vacating the Leased Premises, pay to Lessor the amount, as estimated
by Lessor, of Lessee's obligation hereunder for real estate taxes and
insurance premiums for the year in which the Lease expires or
terminates. All such amounts shall be used and held by Lessor for
payment of such obligations of Lessee hereunder, with Lessee being
liable for any additional costs therefore upon demand by Lessor, or
with any excess to be returned to Lessee after all such obligations
have been determined and satisfied as the case may be.
H. If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the
term of this Lease, then and in that event, it is the intention of
the parties hereto that the remainder of this Lease shall not be
affected thereby, and it is also the intention of the parties to this
Lease that in lieu of each clause or provision of this Lease that is
illegal, Invalid or unenforceable, there be added, as a part of this
Lease, a cause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and
be legal, valid and enforceable.
I. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance
with the laws of the State of Texas. This Lease is performable in
Dallas County, Texas.
J. The voluntary or other surrender of this Lease by Lessee or a
mutual cancellation thereof, shall not constitute a merger; and upon
such surrender or cancellation of this Lease, Lessor shall have the
option, in Lessor's sole discretion, to either (i) terminate all or
any existing subleases or subtenancies, or (ii) assume Lessee's
interest in any or all subleases or subtenancies.
K. All references in this Lease to "the date thereof" or
similar references shall he deemed to refer to the last date, in
point of time, on which all Parties hereto have executed this Lease.
L. Lessee represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction or
that no broker, agent or other person brought about his transaction,
other than Xxxxxx and Associates, or other than as may be referred
in a separate written agreement executed by Lessee, and delivered to
Lessor and Lessee agrees to indemnify and hold Lessor harmless from
and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of
having dealt with Lessee with regard to this leasing transaction.
M. If and when included within the term "Lessor", as used in
this instrument, there is more than one person, firm or corporation,
all shall jointly arrange among themselves for their joint execution
of a notice specifying some individual at some specific address for
the receipt of notices and payments to Lessor. If and when included
within the term "Lessee", as used in this instrument, there it more
than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of a notice specifying
some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All
parties included within the terms "Lessor" and "Lessee",
respectively shall be bound by notices given in accordance with
provisions of Paragraph 25 hereof to the same effect as if each had
received such notice.
24. SECURITY SERVICE.
Lessee agrees to pay its Proportionate Share of the cost of
monitoring, repair and maintenance of the water flow detection
systems installed on the Leased Premises and/or the building of which
the Leased Premises are a pan, including the cost at any license or
permit or user charge required for such security systems. Lessor, at
its option, may enter into an agreement with third party for the
monitoring, maintenance and repair of any such system, Lessor shall
not be liable to Lessee for any damages, costs or expense which occur
for any reason iii the event such security system is not properly
installed, monitored or maintained.
25. NOTICES.
Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements
regarding the sending, mailing or delivering of notice or the making
of any payment by Lessor to Lessee or regarding the sending, mailing
or delivering of any notice or the making of any payment by Lessee to
Lessor shall be deemed to be complied with when and if the following
steps are taken.
a) All Rent and other payments or notices required to be made
by Lessee to Lessor hereunder shall be delivered to lessor at the
address for Lessor set forth below or at such other address as Lessor
may specify from time to time by written notice delivered in
accordance herewith. Lessees obligation to pay Rent and any other
amounts to Lessor under the terms of this Lease shall not be deemed
satisfied until such Rent and other amounts have been actually
received by Lessor.
b) All payments required to be made by Lessor to Lessee
hereunder shall be delivered to Lessee at the address set forth
below, or at such other address within the continental United States
as lessee may specify from time to time by written notice delivered
in accordance herewith.
c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States Mail, postage
prepaid, Certified or Registered Mail, addressed to the Parties hereto
at the respective addresses as set out below, or at such other
address as they have theretofore specified by written notice
delivered in accordance herewith.
26. HAZARDOUS SUBSTANCES
A. Lessee shall not use. store, dispose, handle, transport,
release, discharge or generate any Hazardous Substances (as defined
in subparagraph (below), in, on, to,. under, from or about the
Leased Premises or Building in violation of Environmental Laws.
Lessee warrants and agrees that Lessee's use, storage, disposal,
handling, release, discharge, generation or transport shall be
conducted in strict accordance with all Environmental Laws (as
defined in subparagraph (f) below). Any consent or approval by
Lessor of Lessee's use, storage, disposal, transport, handling,
discharge, release or generation of Hazardous Substances shall not
constitute an assumption of risk respecting the same nor a warranty
or certification by Lessor that Lessee's proposed use, storage,
disposal, handling, release, discharge, generation or transport of
any such Hazardous Substances is safe or reasonable or in compliance
with Environmental Laws. Lessee shall maintain current all permits
required for its operations, including, without limitation, those
for the use, storage, handling, transport, discharge, release,
generation, and/or disposal of Hazardous Substances.
B. Release or discharge of a detectable amount of Hazardous
Substances into the soil or into ground water shall constitute a
material default under this Lease, Lessee acknowledges that a Lessee
of nonresidential property who knows or has reason to know that a
material amount of a hazardous substance has been released on or
beneath its premises is to promptly notify the Lessor. Failure to
provide such notice to Lessor shall constitute a material default
under this Lease. In the event of such default, Lessor shall have
the right to (i) terminate this Lease and collect damages, inclusive
of the cost of cleanup, required under Environmental Law, of any
Hazardous Substances released into the soil or groundwater; or (ii)
require the cleanup of contamination, required under Environmental
Law, while still enforcing the remaining terms of this Lease.
C. Lessee expressly agrees that Lessor shall have the right to
enter the Leased Premises to inspect the Leased Premises and/or to
perform through a reputable, qualified environmental consulting
firm, an environmental investigation and assessment of the Leased
Premises (the "Environmental Assessment") upon reasonable notice to
Lessee (not less than 72 hours), and that this right of entry shall
include the right to test for soil and groundwater contamination.
Lessee shall comply or bear the risk of noncompliance, at its sole
cost and expense, with all reasonable recommendations contained in
any Environmental Assessment delivered to Lessor to Lessee,
including. without limitation, any reasonable recommendation with
respect to the precautions that should be taken with respect to
activities on the Leased Premises or Building or any reasonable
recommendations for additional testing and studies to detect the
presence of Hazardous Substances.
D. Lessee shall indemnify, defend, (by counsel
reasonably acceptable to Lessor), protect and hold Lessor, and each
of Lessor's officers, directors, shareholders, employees, agents,
attorneys, successors and assigns, free and harmless from and
against any and all claims, liabilities, penalties, forfeitures,
losses or expenses (including, without limitation, reasonable
attorneys' fees and costs and court costs) or death of Or injury to
any person or damage to any property whatsoever, including without
limitation (a) personal injury claims, (b) the payment of liens, (c)
diminution in the value of the Leased Premises or Building or the
property on which they are located, (d) damages for the loss or
restriction on use of the Leased Premises or Building, (e) sums paid
in settlement of claims, with the approval of Lessee, which shall
not be unreasonably withheld, (f) reasonable attorneys' fees and
costs, consulting tees and costs and expert fees and costs, (g) the
cost of any investigation of site conditions, and (h) the cost of
any repair, clean-up, health or other environmental assessments,
remedial, closure, removal, or restoration work, decontamination or
detoxification if required by any governmental or quasi-governmental
agency or body having jurisdiction from or are caused its whole or
in part, directly or indirectly, by Lessee's use, storage, handling,
transportation, disposal, release, threatened release, discharge or
generation of Hazardous Substances to, in, on, under, about or from
the Leased Premises or Building, in violation of Environmental Laws,
or Lessee's failure otherwise to comply with any Environmental Law.
For purposes of the indemnity provisions hereof, any acts or
omissions of Lessee, or by employees, agents, assignees, contractors
or subcontractors of Lessee or others acting for or on behalf of
lessee (whether or not they are negligent, intentional, willful or
unlawful) shall be strictly attributable to Lessee, The
indemnification contained herein shall survive the expiration or
earlier termination of this Lease. This indemnification is intended
to constitute an indemnity agreement within the meaning of Section
9607(e)(1) of the Comprehensive Environmental Response. Compensation
and Liability Act of 1980 (42 USC 9607(e)(l).
E. Upon the expiration or earlier termination of this Lease,
Lessee shall remove from the Leased Premises any trade fixtures,
furnishings and/or equipment, associated with the use, storage,
handling, transport, discharge, release, generation or disposal of
Hazardous Substances and perform any closure work, investigation and
environmental remedial work required by an Environmental Laws or by
any other applicable laws, ordinances, regulations, or permits by
any governmental authority having jurisdiction. Removal and disposal
of any and all such equipment or fixtures shall be performed in
strict accordance with all Environmental Laws and all other
applicable laws, regulations and government orders. The Lessor has
no actual knowledge of the foregoing procedures not being adhered to
by prior tenants it the Leased Premises.
F. As used in this Lease, the term "Hazardous Substances" shall
mean hazardous wastes, hazardous chemicals, radioactive materials,
toxic materials or any other waste, chemical, substance or material
now or hereafter determined by any federal, state or local
governmental agency of authority having jurisdiction to be hazardous
to human health or the environment or that is or becomes regulated
by such agency or authority by reason of such determination that
were released to the environment, including, without limitation, the
soil, groundwater and/or air, at the Leased Premises or Building. As
used in this Lease, the term "Environmental Laws" shall mean any and
all present and future federal, state and local laws (whether under
common law, statute, rule, regulation or otherwise) requirements
under permits issued with respect thereto, and other requirements of
governmental authorities relating to the environment or to any
Hazardous Substance (including, without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
X.X.X 0000, et seq.), as heretofore or hereafter amended from time
to time.
G. Lessee/Lessor shall immediately advise Lessor/Lessee in
writing of, and provide Lessor/Lessee with a copy of: (i) any
notices of violation or potential or alleged violation of any
Environmental Law that are received by Lessee/Lessor from any
governmental agency; (ii) any and all inquiry, investigation,
enforcement, clean-up, removal or other governmental or regulatory
actions instituted or threatened in writing relating to
Lessee/Lessor or the Leased Premises or Building; and (iii) all
written claims made or threatened by any third-party against
Lessee/Lessor or the Leased Premises or Building relating to any
Hazardous Substances.
H. with reference to Article 12 Of this Lease, if the proposed
assignee's or sublessee's activities in, on or about the Leased
Premises or Building involve the use, handling, storage, transport,
discharge, release generation or disposal of any Hazardous
Substances other than those used by Lessee or in quantities and
processes different from Lessee's uses permitted hereunder, it shall
be reasonable for Lessor to withhold its consent to such assignment
or sublease in light of the risk of contamination posed by such
activities unless Lessee established beyond a reasonable doubt that
such assignee's or sublessee's activities pose no greater risk of
contamination to the Leased Premises and Building than Lessee's
permitted activities and use of the Leased Premises and Building in
view of the (a) quantities, toxicity and other properties of the
Hazardous Substances to be used by such assignee or sublessee, (b)
the precautions against a release of Hazardous Substances such
assignee or sublessee agrees to implement, (c) such assignee's or
sublessee's financial condition as it relates to its ability to pay
for the cost to clean up a major release of Hazardous Substances,
and (d) such assignee's or sublessee's policy and historical record
respecting its willingness to respond to and clean up a release of
Hazardous Substances.
I. To the actual knowledge of Lessor, the Leased Premises is
not impaired by any contamination of Hazardous Substances into or on
the soil or ground water.
J. With respect to use or discharge of Hazardous Substances on
the Leased Premises prior to the Commencement Date, and the same not
being caused by Lessee, its employees, agents, assignees,
contractors, subcontractors or invitees, Lessor shall indemnify,
defend, (by counsel reasonably acceptable to Lessee), protect and
hold Lessee, and each of Lessee's officers, directors, shareholders,
employees, agents, attorneys, successors and assigns, free and
harmless from and against any and all claims, liabilities,
penalties, forfeitures, losses or expenses (including, without
limitation, reasonable attorneys' fees and costs and court costs) or
death of or injury to any person or damage to any property
whatsoever, including without limitation (a) personal injury claims,
(b) the payment of liens, (c) diminution in the value of the Leased
Premises or Building or the property on which they are located, (d)
damages for the loss or restriction on use of the Leased Premises or
Building. (e) sums paid in settlement of claims, with the approval
of Lessor, which shall not be unreasonably withheld, (f) reasonable
attorneys' fees and costs, consulting fees and costs and expert fees
and costs, (g) the cost of any investigation of site conditions, and
(h) the cost of any repair, clean-up, health or other environmental
assessments, remedial, closure, removal, or restoration work,
decontamination or detoxification if required by any governmental Or
quasi-governmental agency or body having jurisdiction, from or are
caused in whole or in part, directly or indirectly, by Lessor's or
prior tenant's of the Leased Premises use, storage, handling,
transportation, disposal, release, threatened release, discharge or
generation of Hazardous Substances to, in, on, under, about or from
the Leased Premises or Building, in violation of Environmental Laws,
or Lessor's Or prior tenant's of the Leased Premises failure
otherwise to comply with any Environmental Law. For purposes of the
indemnity provisions hereof, any acts or omissions of Lessor or
prior tenants of the Leased Premises, or by employees, agents,
assignees, contractors or subcontractors of Lessor or prior tenants
of the Leased Premises or others acting for or on behalf of Lessor
or prior tenants of the Leased Premises (whether or not they are
negligent, intentional, willful or unlawful) shall be strictly
attributable to Lessor or prior tenants of the Leased premises. The
indemnification contained herein shall survive the expiration of
earlier termination of this lease. This indemnification is intended
to constitute an indemnity agreement within the meaning of Section
9607(e)(I) of the Comprehensive Environmental Response, Compensation
and liability Act of 1980 (42 USC 9607(e)(I).
27. INTENTIONALLY DELETED.
28. EXHIBITS.
The following numbered exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" Legal Description
Exhibit "B" Floor Plan
Exhibit "C" Special Provisions
29. EFFECT OF DELIVERY OF THIS LEASE.
Lessor has delivered a copy of this Lease to Lessee for
Lessee's review only, and the delivery hereof to Lessee does not
constitute an offer to Lessee or option. This Lease shall not be
effective until a copy executed by both Lessor and Lessee is delivered
to and accepted by Lessor, and if applicable, this Lease has been
approved by Lessor's mortgagee(s).
30. NO IMPLIED WAIVER.
The failure of Lessor to insist at any time upon the strict
performance of any covenant or agreement herein or to exercise any
option, right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof. The failure of
Lessor to exercise any right, power or remedy with respect to a default
by Lessee as to any term, condition or covenant of this Lease is not
intended to be, and shall not operate as. a waiver of any right, power
or remedy with respect to that default or as to any other or subsequent
default of Lessee's obligations under this Lease. The exercise by
Lessor of any certain right, power or remedy with respect to a default
by Lessee as to any term, condition or covenant of this Lease is not
intended to be and shall not operate as, a waiver of any other right,
power or remedy of Lessor contained in this Lease, with respect to that
default or as to any other or subsequent default by Lessee of its
obligations pursuant to this Lease. No payment by Lessee or receipt by
Lessor 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 Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of
such Rent or pursue any other remedy provided in this Lease.
31. INTENTIONALLY DELETED.
EXECUTED BY LESSEE, this 25th EXECUTED BY LESSOR this 15th
day of May, 1994 day of June, 1994
LESSEE: LESSOR
Xxxxxxxxxx Laboratories, Inc., DFW Nine,
a Texas corporation a California Limited Partnership
By: Meridian Point Properties, Inc..
as Agent
By: /S/ By: /S/
---------------------- ----------------------
Title: ___________________ Title: ___________________
ADDRESS OF LESSSEE: ADDRESS OF LESSOR:
Xxxxxxxxxx Laboratories c/x Xxxxxx Realty Group, Inc.
0000 Xxxxxx Xxxx Xxxx 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000 Dallas. Texas 00000
Xxxxxxxx Xxxxx Lease Revised 11/18/92
Exhibit "A"
All that certain tract or parcel of land being a part of Tract D of
Las Colinas Walnut Hill Distribution Center in Irving, Texas and
being more particularly described as follows:
Beginning at a point in the West line of Hereford Drive 667.20 feet
South 00 degrees 16'40" East from the South line of Brangus Drive.
Thence South 89 degrees 43'20" West 200.0 feet.
Thence South 00 degrees 16' 40" East 412.0 feet.
Thence North 89 degrees 43'20 East 202.8 feet.
Thence in a Northerly direction 54.24 feet with a curve to the right
of central angle of 5 degrees 55'24" and a radius of 524.7 feet,
Thence North 00 degrees 16'40" West 357.85 feet to the point of
beginning. Containing 1.8929 acres of land.
EXHIBIT "B"
[FLOOR PLAN APPEARS HERE]
Exhibit "C"
Special Provisions
Base Rent
Base Rent pursuant to paragraph 2.A shall be paid in accordance with
the following schedule:
Month 1 $9,201,00/rnonth
Months 2-3 $0.000.00/month
Months 4-62 $9,201.00/month
Months 63-86 $11,041.00/month
Tenant Improvements
Lessor shall provide an allowance of $35,050 for working drawings,
and tenant improvements for the Leased Premises. Construction
management shall be handled by Xxxxxx Realty Group, Inc. If such
costs exceed $35,050, Lessee shall pay the excess costs to Lessor and
drawing revisions upon demand. Any unused portion of the allowance
shall be applied to the Base rent hereunder at a maximum amount of
$5,000 per month.
During 1994, Lessor, at its sole cost and expense shall repair the
parking lot to a reasonably aesthetically acceptable level, repaint
the building exterior, repair major cracks in the warehouse area, and
provide a ramp from the parking area to the front door.
Renewal Option
If, at the end of the primary term of this Lease, Lessee is not in
default in any of the terms, conditions or covenants of the Lease,
Lessee, but not any assignee or subtenant of Lessee, is hereby
granted an option to renew this Lease for an additional term of 9j
months upon the same terms and conditions contained in this Lease
with the following exceptions:
A. The renewal option term will contain no further renewal
options unless expressly granted by Lessor in writing; and
B. The rental for the renewed term shall be based upon 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 the Lessee to be
taken into 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 this Lease; Lessor shall, within the next fifteen
days notify Lessee in writing of the proposed renewal rate and the
Lessee shall, within the next fifteen days following receipt of the
proposed rate, notify the Lessor in writing of its acceptance or
rejection of the proposed rental rate, Rejection of the proposed
rental rate terminates any renewal option pursuant to this paragraph.
See attached.
The Lease is contingent upon Lessee's reasonable approval of a Phase
One Environmental Report. In the event that the Lessee does not
notify the Lessor in writing of an unacceptable Environmental
Inspection by June 10, 1994, this Lease shall remain in full force
and effect.
