CB Xxxxxxx Xxxxx, Inc.
North Texas Commercial Association Of Realtorsr
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS EXHIBITS AND ADDENDA. Any exhibit
or addendum attached
Article Page to this Lease is incorporated as a
part of this Lease for all purposes.
1. Defined Terms 1 Any term not specifically defined
in the Addenda shall have the same
2. Lease and Lease Term 2 meaning given to it in the body of
this Lease. to the extend any
3. Rent and Security Deposit 2 provisions in the body of this
Lease conflict with the Addenda, the
4. Taxes 3 Addenda shall control.
5. Insurance and Indemnity 3
6. Use of Demised Premises 4 [Check all boxes which apply.
Boxes not checked do not apply.]
7. Property Condition,
Maintenance, Repairs and
Alterations 5 X Exhibit A Survey and/or Legal
Description of the
Property
8. Damage or Destruction 6 X Exhibit B Floor Plan and/or Site
Plan
9. Condemnation 7
10. Assignment and Subletting 7 X Addendum A Expense Reimbursement
11. Default and Remedies 7 X Addendum B Renewal Options
12. Landlord's Contractual Lien 9 Addendum C Right of First Refusal
for Additional Space
13. Protection of Lenders 9 Addendum D Percentage Rental/Gross
Sales Reports
14. Environmental Representations
and Indemnity 10 Addendum E Guarantee
15. Professional Service Fees 10 X Addendum F Construction of
Improvements
16. Miscellaneous 11 Addendum G Rules and Regulations
17. Additional Provisions 13 Addendum H Other
IN CONSIDERATION of the terms, provisions and agreements contained in this
Lease, the parties agree as follows:
ARTICLE ONE: DEFINED TERMS. As used in this Commercial Lease Agreement
(the "Lease"), the terms set forth in this Article One have the following
respective meanings:
1.01. Effective Date: The last date beneath the signatures of Landlord
and Tenant on page 13 below.
1.02. Landlord: Stag Properties, LLC
Address: 0000 Xxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
Telephone: 000-000-0000 Fax: 000-000-0000
1.03. Tenant: Ace Hardware Corporation
Address: 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000-0000
Telephone: 000-000-0000 Fax: 000-000-0000
1.04. Demised Premises:
A. Street Address: 0000 XxXxxx, Xxxx Xxxxx, Xxxxx 00000
in Tarrant County, Texas.
B. Legal Description: The property on which the Demised Premises is
situated (the "Property") is more particularly described as:
See Exhibit A or is described on Exhibit A, SURVEY AND/OR LEGAL
DESCRIPTION.
C. Floor Plan or Site Plan: Being a floor area of approximately
10,915 square feet and being approximately
N/A feet by
N/A feet (measured to the exterior of outside walls and
to the center of the interior walls)
and being more particularly shown in outline form on Exhibit B, FLOOR
PLAN AND/OR SITE PLAN.
D. Tenant's pro rata share of the Property is 100 %. [See
Addendum A, EXPENSE REIMBURSEMENT, if applicable]
1.05. Lease Term: 5 years and 0 months beginning on See addendum F
(The "Commencement Date") and ending on December 31st, 2005 (the "Expiration
Date").
1.06. Base Rent: $510,000.00 total Base Rent for the Lease Term payable
in monthly installments of $8,500.00 per month in advance. (The total amount
of Rent is defined in Section 3.01.)
1.07. Percentage Rental Rate: N/A %. [See Addendum D, PERCENTAGE
RENTAL/GROSS SALES REPORTS, if applicable]
1.08. Security Deposit: [Intentionally Left Blank]
1.09. Permitted Use: Trucking, warehousing, general office, and
incidental uses thereto
.
[See Section 6.01]
1.10. Party to whom Tenant is to deliver payments under this
Lease [check one]:Landlord, Principal Broker, or Other Landlord may
designate in writing the party authorized to act on behalf of Landlord to
enforce this Lease. Any such authorization will remain in effect until it
is revoked by Landlord in writing.
1.11. Principal Broker: Xxxxxxx-Xxxxxx, acting as [check one]: agent
for Landlord exclusively, agent for Tenant exclusively, an
intermediary.
Principal Broker's Address: 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx,
Xxxxx 00000
Telephone: 000-000-0000 Fax: 000-000-0000
1.12. Cooperating Broker: CB Xxxxxxx Xxxxx, Inc., acting as [check one]:
agent for Landlord exclusively, agent for Tenant exclusively, an
intermediary.
Cooperating Broker's Address: 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000
Telephone: 000-000-0000 Fax: 000-000-0000
1.13. The Fee: The Professional Service Fee shall be as set forth in
[check one]: Paragraph A, or Paragraph B of Section 15.01.
A. The percentage applicable for leases in Sections 15.01 and shall be
six and one-half percent ( 6.5 %).
B. The percentage applicable in Section 15.04 in the event of a sale
shall be percent ( %).
1.14. Acceptance: The number of days for acceptance of this offer is
days. [See Section 16.14]
ARTICLE TWO: LEASE AND LEASE TERM
2.01. Lease of Demised Premises for Lease Term. Landlord leases the
Demised Premises to Tenant and Tenant leases the Demised Premises from
Landlord for the Lease Term stated in Section 1.05. The Commencement Date
is the date specified in Section 1.05, unless advanced or delayed under
any provision of this Lease.
2.02. Delay in Commencement. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Demised Premises to Tenant on
the Commencement Date specified in Section 1.05 above. Landlord's
non-delivery of possession of the Demised Premises to Tenant on the
commencement Date will not affect this Lease or the obligations of Tenant
under this Lease. However, the Commencement Date shall be delayed until
possession of the Demised Premises is delivered to Tenant. The Lease Term
shall be extended for a period equal to the delay in delivery of possession
of the Demised Premises to Tenant, plus the number of days necessary for
the Lease Term to expire on the last day of a month. If Landlord does not
deliver possession of the Demised Premises to Tenant within sixty (60) days
after the Commencement Date specified in Section 1.05, Tenant may cancel
this Lease by giving written notice to Landlord within ten (10) days
after the 60-day period ends. If Tenant gives such notice, this Lease
shall be canceled effective as of the date of its execution, and no party
shall have any obligations under this Lease except that the Landlord shall
return the first months rent to the Tenant per 3.02. If Tenant does not
give such notice within the time specified, Tenant shall have no right to
cancel this Lease, and the Lease Term shall commence upon the delivery of
possession of the Demised Premises to Tenant. If delivery of possession of
the Demised Premises to Tenant is delayed, Landlord and Tenant shall, upon
such delivery, execute an amendment to this Lease setting forth the revised
Commencement Date of the Lease Term. except that the Landlord shall return
the first months rent to the Tenant per 3.02.
2.03. Early Occupancy. If Tenant occupies the Demised Premises prior to
the Commencement Date, Tenant's occupancy of the Demised Premises shall be
subject to all of the provisions of this Lease. Early occupancy of the
Demised Premises shall not advance the Expiration Date. Unless otherwise
provided herein, Tenant shall pay Base Rent and all other charges specified
in this Lease for the period of occupancy.
2.04. Holding Over. Tenant shall vacate the Demised Premises immediately
upon the expiration of the Lease Term or earlier termination of this
Lease. Tenant shall reimburse Landlord for and Indemnify Landlord against
all damages incurred by Landlord as a result of any delay by Tenant in
vacating the Demised Premises. If Tenant does not vacate the Demised
Premises upon the expiration of the Lease Term or earlier termination of
this Lease, Tenant's occupancy of the Demised Premises shall be a day-
to-day tenancy, subject to all of the terms of this Lease, except that the
Base Rent during the holdover period shall be increased to an amount
which is one-and-one-half (1-1/2) times the Base Rent in effect on the
expiration or termination of this Lease, computed on a daily basis for each
day of the holdover period, plus all additional sums due under this Lease.
This paragraph shall not be construed as Landlord's consent for Tenant to
hold over or to extend this Lease.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. Manner of Payment. All sums payable under this Lease by Tenant (the
"Rent") shall be made to the Landlord at the address designated in Section
1.02, unless another person is designated in Section 1.10, or to any other
party or address as Landlord may designate in writing. Any and all
payments made to a designated third party for the account of the Landlord
shall be deemed made to Landlord when received by the designated third
party. All sums payable by Tenant under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of
Section 502(b)(6) of the Bankruptcy Code and for all other purposes. The
Base Rent is the minimum rent for the Demised Premises and is subject to
the terms and conditions contained in this Lease, together with the
attached Addenda, if any.
3.02. Time of Payment. Upon execution of this Lease, Tenant shall pay the
installment of Base Rent for the first month of the Lease Term. On or
before the first day of the second month of the Lease Term and of each
month thereafter, the installment of Base Rent and other sums due under
this Lease shall be due and payable, in advance, without off-set deduction
or prior demand. Tenant shall cause payments to be properly mailed or
otherwise delivered so as to be actually received by the party identified
in 1.10 above on or before the due date (and not merely deposited in the
mail). If the Lease Term commences or ends on a day other than the first
or last day of a calendar month, the rent for any fractional calendar month
following the Commencement Date or preceding the end of the Lease Term
shall be prorated by days.
3.03. Late Charges. Tenant's failure to promptly pay sums due under this
Lease may cause Landlord to incur unanticipated costs. The exact amount of
those costs is impractical or extremely difficult to ascertain. The costs
may include, but are not limited to, processing and accounting charges and
late charges which may be imposed on Landlord by any ground lease or deed
of trust encumbering the Demised Premises. Payments due to Landlord under
this Lease are not an extension of credit. Therefore, if any payment under
the Lease is not actually received on or before five (5) days after the due
date (and not merely deposited in the mail), Landlord may, at Landlord's
option and to the extent allowed by applicable law, impose a Late Charge on
any late payments in an amount equal to one-half of one percent (.5%) of
the amount of the past due payment (the "Late Charge") per day for each day
after the due date, until the past due amount in Good Funds is received by
Landlord, up to a maximum of ten percent (10%) of the past due amount. A
Late Charge may be imposed only once on each past due payment. Any Late
Charge will be in addition to Landlord's other remedies for nonpayment of
rent. If any check tendered to Landlord by Tenant under this Lease is
dishonored for any reason, Tenant shall pay to the party receiving payments
under this Lease a fee of twenty-five dollars ($25.00), plus (at Landlord's
option) a Late Charge as provided above until good funds are received by
Landlord. The parties agree that any Late Charge and dishonored check fee
represent a fair and reasonable estimate of the costs Landlord will incur
by reason of the late payment or dishonored check. Payments received from
Tenant shall be applied first to any Late Charges, second to Base Rent, and
last to other unpaid charges or reimbursements due to Landlord.
Notwithstanding the foregoing, Landlord will not impose a Late Charge as to
the first late payment in any calendar year, unless Tenant fails to pay the
late payment to Landlord within three (3) business days after the delivery
of a written notice from Landlord to Tenant demanding the late payment be
paid. However, Landlord may impose a Late Charge without advance notice to
Tenant on any subsequent late payment in the same calendar year.
3.04 [Intentionally Left Blank]
3.05 Good Funds Payments. If, for any reason whatsoever, any two or more
payments by check from Tenant to Landlord for Rent are dishonored and
returned unpaid, thereafter Landlord may, at Landlord's sole option, upon
written notice to Tenant, require that all future payments of Rent for the
remaining term of the Lease must be made by cash, certified check,
cashier's check, or money order ("Good Funds") and that the delivery of
Tenant's personal or corporate check will no longer constitute payment of
Rent under this Lease. Any acceptance by Landlord of a payment for Rent by
Tenant's personal or corporate check thereafter shall not be construed as a
waiver of Landlord's right to insist upon payment by Good Funds as set
forth herein.
ARTICLE FOUR: TAXES
4.01. Payment by Landlord. Landlord shall pay the real estate taxes on the
Demised Premises during the Lease Term.
4.02. Improvements by Tenant. If the real estate taxes levied against
the Demised Premises for the real estate tax year in which the Lease Term
commences are increased as a result of any alterations, additions or
improvements made by Tenant or by Landlord at the request of Tenant, Tenant
shall pay to Landlord upon demand the amount of the increase and continue
to pay the increase during the Lease Term. Landlord shall use reasonable
efforts to obtain from the tax assessor or assessors a written statement of
the total amount of the increase.
4.03. Joint Assessment. If the real estate taxes are assessed against the
Demised Premises jointly with other property not constituting a part of the
Demised Premises, the real estate taxes applicable to the Demised Premises
shall be equal to the amount bearing the same proportion to the aggregate
assessment that the total square feet of building area in the Demised
Premises bears to the total square feet of building area included in the
joint assessment.
4.04. Personal Property Taxes. Tenant shall pay all taxes assessed
against trade fixtures, furnishings, equipment, inventory, products or any
other personal property belonging to Tenant. Tenant shall use reasonable
efforts to have Tenant's property taxed separately from the Demised
Premises. If any of Tenant's property is taxed with the Demised Premises,
Tenant shall pay the taxes for its property to Landlord within fifteen (15)
days after Tenant receives a written statement from Landlord for the property
taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. Casualty Insurance. During the Lease Term, Landlord shall maintain
policies of insurance covering loss of or damage to the Demised Premises
in an amount or percentage of replacement value as Landlord deems reasonable
in relation to the age, location, type of construction and physical
condition of the Demised Premises and the availability of insurance at
reasonable rates. The policies shall provide protection against all perils
included within the classification of fire and extended coverage and any
other perils which Landlord deems necessary. Landlord may, at Landlord's
option, obtain insurance coverage for Tenant's fixtures, equipment or building
improvement installed by Tenant in or on the Demised Premises. Tenant
shall, at Tenant's expense, maintain insurance on its fixtures, equipment
and building improvements as Tenant deems necessary to protect Tenant's
interest. Tenant shall not do or permit to be done anything which
invalidates any insurance policies. Any casualty insurance carried by
Landlord or Tenant shall be for the sole benefit of the party carrying the
insurance and under its sole control.
5.02. Increase in Premiums. Tenant shall not permit any operation or
activity to be conducted, or storage or use of any volatile or any other
materials, on or about the Demised Premises that would cause suspension or
cancellation of any fire and extended coverage insurance policy carried by
Landlord, or increase the premiums therefore, without the prior written
consent of Landlord. If Tenant's use and occupancy of the Demised
Premises causes an increase in the premiums for any fire and extended coverage
insurance policy carried by Landlord, Tenant shall pay to Landlord, as
additional rent, the amount of the increase within ten days after demand
and presentation by Landlord of written evidence of the increase.
5.03. Liability Insurance. During the Lease Term, Tenant shall maintain
a commercial general liability policy of insurance, at Tenant's expense,
insuring Landlord against liability arising out of the ownership, use,
occupancy, or maintenance of the Demised Premises. The initial amounts
of the insurance must be at least; $1,000,000 for Each Occurrence,
$2,000,000 General Aggregate per policy year, $100,000 Property Damage
for the Demised Premises, and $10,000 Medical Expense; plus a $5,000,000
commercial general liability umbrella; and shall be subject to periodic
increases based upon economic factors as Landlord may determine, in Landlord's
discretion, exercised in good faith. However, the amounts of the insurance
shall not limit Tenant's liability nor relieve Tenant of any obligation under
this Lease. The policies must contain cross-liability endorsements, if
applicable, and must insure Tenant's performance of the indemnity
provisions of Section 5.04. the policies must contain a provision
which prohibits cancellation or modification of the policy except upon
thirty (30) days' prior written notice to Landlord. Tenant may discharge
Tenant's obligations under this Section by naming Landlord as an additional
insured under a comprehensive policy of commercial general liability insurance
maintained by Tenant and containing the coverage and provisions described in
this Section. Tenant shall deliver a copy of the policy or certificate
(or a renewal) to Landlord prior to the commencement Date and prior to the
expiration of the policy during the Lease Term. If Tenant fails to
maintain the policy, Landlord may elect to maintain the insurance at
Tenant's expense. Tenant may, at Tenant's expense, maintain other
liability insurance as Tenant deems necessary.
5.04. Indemnity. Landlord shall not be liable to Tenant or to Tenant's
employees, agents, invitees or visitors, or to any other person, for any
injury to persons or damage to property on or about the Demised Premises or
any adjacent area owned by Landlord caused by the negligence or misconduct of
Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires
or any other person entering the Demised Premises under express or implied
invitation of Tenant, or arising out of the use of the Demised Premises
by Tenant and the conduct of Tenant's business, or arising out of any
breach or default by Tenant in the performance of Tenant's obligations
under this Lease; and Tenant hereby agrees to indemnify and hold Landlord
harmless from any loss, expense or claims arising out of such damage or
injury. Tenant shall not be liable for any injury or damage caused by
the negligence or misconduct of Landlord, or Landlord's employees or
agents, and Landlord agrees to indemnify and hold Tenant harmless from any
loss, expense or damage arising out of such damage or injury.
5.05. Comparative Negligence. Tenant and Landlord hereby unconditionally
and irrevocably agree to indemnify, defend and hold each other and their
officers, agents, directors, subsidiaries, partners, employees, licenses and
counsel harmless, to the extent of each party's comparative negligence, if
any, from and against any and all loss, liability, demand, damage, judgment,
suit, claim, deficiency, interest, fee, charge, cost or expense
(including, without limitation, interest, court costs and penalties,
reasonable attorney's fees and disbursements and amounts paid in settlement,
or liabilities resulting from any change in federal, state or local law or
regulation or interpretation of this Lease) of whatever nature, on a
comparative negligence basis, even when caused in part by Landlord's or
Tenant's negligence or the joint or concurring negligence of Landlord,
Tenant, and any other person or entity, which may result or to which
Landlord or Tenant and/or any of their officers, agents, directors, employees,
subsidiaries, partners, licensees and counsel may sustain, suffer, incur or
become subject to in connection with or arising in any way whatsoever out of
the leasing, operation, promotion, management, maintenance, repair, use or
occupation of the Demised Premises, or any other activity of whatever
nature in connection therewith, or arising out of or by reason of any
investigation, litigation or other proceedings brought or threatened,
arising out of or based upon the leasing, operation, promotion, management,
maintenance, repair, use or occupancy of the Demised Premises, or any other
activity on the Demised Premises. This provision shall survive the expiration
or termination of this Lease.
5.06. Waiver of Subrogation. Each party to this Lease waives any and
every claim which arises or may arise in its favor against the other party
during the term of this Lease or any renewal or extension of this Lease for
any and all loss of, or damage to, any of its property located within or
upon, or constituting a part of, the Demised Premises, which loss or damage is
covered by valid and collectible fire and extended coverage insurance
policies, to the extent that such loss or damage is recoverable under
such insurance policies. These mutual waivers shall be in addition to, and
not in limitation or derogation of, any other waiver or release contained in
this Lease with respect to any loss of, or damage to, property of the parties.
Inasmuch as these mutual waivers will preclude the assignment of any
aforesaid claim by way of subrogation or otherwise to an insurance company
(or any other person), each party hereby agrees to give immediately to each
insurance company (which has issued to such party policies of fire and
extended coverage insurance) written notice of the terms of such mutual
waivers, and to cause such policies to be properly endorsed to prevent the
invalidation of the insurance coverage by reason of these waivers.
ARTICLE SIX: USE OF DEMISED PREMISES
6.01. Permitted Use. Tenant may use the Demised Premises only for the
Permitted Use stated in Section 1.09. The parties to this Lease
acknowledge that the current use of the Demised Premises or the improvements
located on the Demised Premises, or both, may or may not conform to the
city zoning ordinance with respect to the permitted use, height, setback
requirements, minimum parking requirements, coverage ratio of improvements
to total area of land, and other matters which may have a significant
economic impact upon the Tenant's intended use of the Demised Premises.
Tenant acknowledges that Tenant has or will independently investigate and
verify to Tenant's satisfaction the extent of any limitations or
non-confirming uses of the Demised Premises. Tenant further acknowledges
that Tenant is not relying upon any warranties or representations of
Landlord or the Brokers who are participating in the negotiation of this
Lease concerning the Permitted Use of the Demised Premises, or with
respect to any uses of the improvements locate on the Demised Premises.
6.02. Compliance with Law. Tenant shall comply with all governmental
laws, ordinances and regulations applicable to the use of the Demised
Premises, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances
and other activities in or upon, or connected with the Demised Premises,
except for ADA compliance.
6.03. Certificate of Occupancy. If required,
Tenant shall obtain a Certificate of Occupancy from the municipality in
which the Property is located prior to occupancy of the Demised Premises.
Tenant may apply for a Certificate of Occupancy prior to the Commencement
Date and, if Tenant is unable to obtain a Certificate of Occupancy, Tenant
shall have the right to terminate this Lease by written notice to Landlord
if unable to obtain a Certificate of Occupancy, Tenant shall have the right
to terminate this Lease by written notice to Landlord if Landlord or Tenant
is unwilling or unable to cure the defects which prevented the issuance of
the Certificate of Occupancy. Landlord may, but has no obligation to, cure
any such defects, including any repairs, installations, or replacements of
any items which are not presently existing on the Demised Premises, or
which have not been expressly agreed upon by Landlord in writing.
6.04. Signs. Any signs installed by Tenant must conform with applicable
laws, deed restrictions on the Property, and other applicable requirements.
Tenant must remove all signs, decorations and ornaments at the expiration
or termination of this Lease and must repair any damage and close any holes
caused by the removal.
6.05. Utility Services. Tenant shall pay the cost of all utility
services, including but not limited to initial connection charges, all
charges for gas, water, sewerage, storm water disposal, communications and
electricity used on the Demised Premises, and for replacing all electric
lights, lamps and tubes.
6.06. Landlord's Access. Landlord and Landlord's agents shall have the
right to, during normal business hours and upon reasonable advance notice, and
without unreasonably interfering with Tenant's business, enter the Demised
Premises: (a) to inspect the general condition and state of repair of the
Demised Premises, (b) to make repairs required or permitted under this Lease,
(c) to show the Demised Premises or the Property to any prospective tenant or
purchaser, and (d) for any other reasonable purpose. If Tenant changes the
locks on the Demised Premises, Tenant must provide Landlord with a copy of
each separate key. During the final one hundred fifty (150) days of the
Lease Term, Landlord and Landlord's agents may erect and maintain on or
about the Demised Premises signs advertising the Demised Premises for lease
or for sale.
6.07. Possession. If Tenant pays the rent, properly maintains the Demised
Premises, and complies with all other terms of this Lease, Tenant may
occupy and enjoy the Demised Premises for the full Lease Term, subject to
the provisions of this Lease.
6.08. Exemptions From Liability. Landlord shall not be liable for any
damage or injury to the persons, business (or any loss of income), goods,
inventory, furnishings, fixtures, equipment, merchandise or other property
of Tenant, Tenant's employees, invitees, customers or any other person in or
about the Demised Premises, whether the damage or injury is caused by
or results from: (a) fire, steam, electricity, water, gas or wind; (b)
the breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures or any
other cause; (c) conditions arising on or about the Demised Premises or
upon other portions of any building of which the Demised Premises is a part,
or from other sources or places; or (d) any act or omission of any other
tenant of any building on the Property. Landlord shall not be liable for
any damage or injury even though the cause of or the means of repairing the
damage or injury are not accessible to Tenant. The provisions of this
Section 6.08 shall not, however, exempt Landlord from liability for
Landlord's gross negligence or willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01. Property Condition. Except as disclosed in writing by Landlord to
Tenant contemporaneously with the execution of this Lease, to the best of
Landlord's actual knowledge the Demised Premises has no known latent
structural defects, construction defects of a material nature, and to the
best of Landlord's actual knowledge none of the improvements has been
constructed with materials known to be a potential health hazard to
occupants of the Demised Premises. Tenant acknowledges that neither the
Principal Broker nor any Cooperating Broker has made any warranty or
representation to Tenant with respect to the condition of the Demised
Premises, and that Tenant is relying exclusively upon Tenant's own
investigations and the representations of Landlord, if any, with respect to
the condition of the Demised Premises. Landlord and Tenant agree to hold
the Brokers harmless of and from any and all damages, claims, costs and
expenses of every kind and character resulting from or related to
Landlord's furnishing to the Brokers any false, incorrect or inaccurate
information with respect to the Demised Premises, or Landlord's concealing
any material information with respect to the condition of the Demised
Premises. Other than as expressly set forth in this Lease, Landlord
represents that on the Commencement Date (and for a period of thirty (30)
days thereafter) the building fixtures and equipment, plumbing and plumbing
fixtures, electrical and lighting system, any fire protection sprinkler
system, ventilating equipment, heating system, air conditioning equipment,
roof, skylights, doors, overhead doors, windows, dock levelers, elevations,
and the interior of the Demised Premises in general are in good operating
condition. Tenant shall have a period of thirty (30) days following the
Commencement Date in which to inspect the Demised Premises and to notify
Landlord in writing of any defects and maintenance, repairs or replacements
required to the above named equipment, fixtures, systems and interior.
Within a reasonable period of time after the timely receipt of any such
written notice from Tenant, Landlord shall, at Landlord's expense, correct
the defects and perform the maintenance, repairs and replacements.
7.02. Acceptance of Demised Premises. [Intentionally Left Blank]
7.03. Maintenance and Repair. Except as otherwise provided in this
Lease, Landlord shall be under no obligation to perform any repair,
maintenance or management service in the Demised Premises or adjacent
common areas. Tenant shall be fully responsible, at its expense, for all
repair, maintenance and management services other than those which are
expressly assumed by Landlord.
A. Landlord's Obligation.
(1) Subject to the provisions of Article Eight (Damage or
Destruction) and Article Nine (Condemnation) and except for damage caused
by any act or omission of Tenant, Landlord at Landlord's sole cost and
expense, shall keep the roof, skylights, foundation, structural components
and the structural portions of exterior walls of the Demised Premises in
good order, condition and repair. Landlord shall not be obligated to
maintain or repair windows, doors, overhead doors, plate glass or the
surfaces of walls. In addition, Landlord shall not be obligated to make
any repairs under this Section until a reasonable time after receipt of
written notice from Tenant of the need for repairs. If any repairs are
required to be made by Landlord, Tenant shall, at Tenant's sole cost and
expense, promptly remove Tenant's furnishings, fixtures, inventory
equipment and other property, to the extent required to enable Landlord to
make repairs. Landlord's liability under this Section shall be limited to
the cost of those repairs or corrections. Tenant waives the benefit of any
present or future law which might give Tenant the right to repair the
Demised Premises at Landlord's expense or to terminate the Lease because of
the condition.
(2) All repair, maintenance, management and other services to be
performed by Landlord or Landlord's agents involve the exercise of
professional judgment by service providers, and Tenant expressly waives any
claims for breach of warranty arising from the performance of those
services.
B. Tenant's Obligation.
(1) Subject to the provisions of Section 7.01, Section 7.03.A,
Article Eight (Damage or Destruction) and Article Nine (Condemnation),
Tenant shall, at all times, keep all other portions of the Demised Premises
in good order, condition and repair, ordinary wear and tear excepted,
including but not limited to maintenance, repairs and all necessary
replacements of the windows, plate glass, doors, overhead doors, heating
system, ventilating equipment, air conditioning equipment, electrical and
lighting systems, fire protection sprinkler system, dock levelers,
elevators, interior and exterior plumbing, the interior of the Demised
Premises in general, pest control and extermination, down spouts, gutters,
paving railroad siding, care of landscaping and regular mowing of grass,
and including the exterior of the Demised Premises. In addition, Tenant
shall, at Tenant's expense, repair any damage to any portion of the
Property, including the roof, skylights, foundation, or structural
components and exterior walls of the Demised Premises, caused by Tenant's
acts or omissions. If Tenant fails to maintain and repair the Property as
required by this Section, Landlord may, on ten (10) day's prior written
notice, enter the Demised Premises and perform the maintenance or repair on
behalf of Tenant, except that no notice is required in case of emergency,
and Tenant shall reimburse Landlord immediately upon demand for all costs
incurred in performing the maintenance or repair, plus a reasonable service
charge.
(2) HVAC Service. Tenant shall, at Tenant's own cost and expense,
enter into a regularly scheduled preventative maintenance and service
contract for all refrigeration, heating, ventilating, and air conditioning
systems and equipment within the Demised Premises during the Lease Term.
If Tenant fails to enter into such a service contract acceptable to
Landlord, Landlord may do so on Tenant's behalf and Tenant agrees to pay
Landlord the cost and expense thereof, plus a reasonable service charge,
regularly upon demand.
7.04. Alterations, Additions and Improvements. Tenant shall not create any
openings in the roof or exterior walls, or make any alterations, additions
or improvements to the Demised Premises without the prior written consent
of Landlord. Consent for non-structural alterations, additions or
improvements shall not be unreasonably withheld by Landlord. Tenant may
erect or install trade fixtures, shelves, bins, machinery, heating,
ventilating and air conditioning equipment and, provide that Tenant
complies with all applicable governmental laws, ordinances, codes, and
regulations. At the expiration or termination of this Lease, Tenant shall,
subject to the restrictions of Section 7.05 below, have the right to remove
items installed by Tenant, provided Tenant is not in default at the time of
the removal and provided further that Tenant shall, at the time of removal
of the items, repair in a good and workmanlike manner any damage caused by
the installation or removal. Tenant shall pay for all costs incurred or
arising out of alterations, additions or improvements in or to the Demised
Premises and shall not permit any mechanic's or materialman's lien to be
filed against the Demised Premises or the Property. Upon request by
Landlord, Tenant shall deliver to Landlord proof of payment reasonably
satisfactory to Landlord of all costs incurred or arising out of any
alterations, additions or improvements.
7.05. Condition Upon Termination. Upon the expiration or termination of
this Lease, Tenant shall surrender the Demised Premises to Landlord broom
clean and in the same condition as received, except for ordinary wear and
tear which Tenant is not otherwise obligated to remedy under any provision
of this Lease. Tenant shall not be obligated to repair any damage which
Landlord is required to repair under Article Seven (Property Condition) or
Article Eight (Damage or Destruction). In addition, Landlord may require
Tenant to remove any alterations, additions or improvements (whether or not
made with Landlord's consent) prior to the expiration or termination of
this Lease and to restore the Demised Premises to its prior condition, all
at Tenant's expense. All alterations, additions and improvements which
Landlord has not required Tenant to remove shall become Landlord's property
and shall be surrendered to Landlord upon the expiration or termination of
this Lease. In no event, however, shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent; (i)
electrical wiring or power panels; (ii) lighting or lighting fixtures;
(iii) wall coverings, drapes, blinds or other window coverings; (iv)
carpets or other floor coverings; (v) heating, ventilating, or air
conditioning equipment; (vi) fencing or security gates; or (vii) any other
fixtures, equipment or items which, if removed, would affect the operation
or the appearance of the Property.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01. Notice. If any buildings or other improvements situated on the
Property are damaged or destroyed by fire, flood, windstorm, tornado or
other casualty, Tenant shall immediately give written notice of the damage
or destruction to Landlord.
8.02. Partial Damage. If the building or other improvements situated
on the Demised Premises are damaged by fire, tornado, or other casualty,
but not to such an extent that rebuilding or repairs cannot reasonably be
completed within one hundred twenty (120) days from the date Landlord
receives written notification by Tenant of the occurrence of the
damage, this Lease shall not terminate, but Landlord shall proceed with
reasonable diligence to rebuild or repair the building and other
improvements on the Demised Premises (other than leasehold improvements
made by Tenant or any assignee, subtenant or other occupant of the Demised
Premises) to substantially the condition in which they existed prior to the
damage. If the casualty occurs during the final eighteen (18) months of
the Lease Term, Landlord shall not be required to rebuild or repair the
damage unless Tenant exercises Tenant's renewal option (if any) within
fifteen (15) days after the date of receipt by Landlord of the
notification of the occurrence of the damage. If Tenant does not exercise
its renewal option, or if there is no renewal option contained in this
Lease, Landlord may, at Landlord's option, terminate this Lease by promptly
delivering a written termination notice to Tenant, in which event the Rent
shall be abated for the unexpired portion of the Lease Term, effective from
the date of receipt by Landlord of the written notification of the damage.
To the extent the Demised Premises cannot be occupied (in whole or in part)
following the casualty, the Rent payable under this Lease during the period
in which the Demised Premises cannot be fully occupied shall be adjusted
equitably.
8.03. Substantial or Total Destruction. If the building or other
improvements situated on the Demised Premises are substantially or
totally destroyed by fire, tornado, or other casualty, or so damaged that
rebuilding or repairs cannot reasonably be completed within one hundred
twenty (120) days from the date Landlord receives written notification
by Tenant of the occurrence of the damage, either Landlord or Tenant may
terminate the Lease by promptly delivering a written termination notice to
the other party, in which event the monthly installments of Rent shall be
abated for the unexpired portion of the Lease Term, effective from the date
of the damage or destruction. If neither party promptly terminates
this Lease, Landlord shall proceed with reasonable diligence to rebuild and
repair the building and other improvements (except that Tenant shall
rebuild and repair Tenant's fixtures and improvements in the Demised
Premises). To the extent the Demised Premises cannot be occupied (in whole
or in part) following the casualty, the Rent payable under this Lease
during the period in which the Demised Premises cannot be fully occupied
shall be adjusted equitably.
ARTICLE NINE: CONDEMNATION
If, during the Lease Term or any extension thereof, all or a substantial
part of the Demised Premises are taken for any public or quasi-public use
under any governmental law, ordinance or regulation or by right of eminent
domain, or are conveyed to the condemning authority under threat of
condemnation, this Lease shall terminate and the monthly installments of
Rent shall be abated during the unexpired portion of the Lease Term,
effective from the date of the taking. If less than a substantial part of
the Demised Premises is taken for public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain,
or is conveyed to the condemning authority under threat of condemnation,
Landlord, at its option, may by written notice terminate this Lease. If
Landlord does not terminate this Lease, Landlord shall promptly, at
Landlord's expense, restore and reconstruct the buildings and improvements
(other than leasehold improvements made by Tenant or any assignee,
subtenant or other occupant of the Demised Premises) situated on the
Demised Premises in order to make the same reasonably tenantable and
suitable for the use for which the Demised Premises is leased as defined in
Section 6.01. The monthly installments of Rent payable under this Lease
during the unexpired portion of the Lease Term shall be adjusted equitably.
Landlord and Tenant shall each be entitled to receive and retail such
separate awards and portions of lump sum awards as may be allocated to
their respective interests in any condemnation proceeding. The termination
of this Lease shall not affect the rights of the parties to such awards.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, assign this Lease or sublet the
Demised Premises or any portion thereof. Any assignment or subletting shall
be expressly subject to all terms and provisions of this Lease, including
the provisions of Section 6.01 pertaining to the use of the Demised
Premises. In the event of any assignment or subletting, Tenant shall remain
fully liable for the full performance of all Tenant's obligations under
this Lease. Tenant shall not assign its rights under this Lease or sublet
the Demised Premises without first obtaining a written agreement from the
assignee or sublessee whereby the assignee or sublessee agrees to assume
the obligations of Tenant under this Lease and to be bound by the terms of
this Lease. If an event of default occurs while the Demised Premises is
assigned or sublet, Landlord may, at a Landlord's option, in addition to
any other remedies provided in this Lease or by law, collect directly from
the assignee or subtenant all rents becoming due under the terms of the
assignment or subletting and apply the rent against any sums due to
Landlord under this Lease. No direct collection by Landlord from any
assignee or subtenant will release Tenant from Tenant's obligations under
this Lease.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. Default. Each of the following events is an event of default under
this Lease:
A. Failure of Tenant to pay any installment of the Rent or other sum
payable to Landlord under this Lease on the date that it is due and the
continuance of that failure for a period of five (5) days after Landlord
delivers written notice of the failure to Tenant. This clause shall not be
construed to permit or allow a delay in paying Rent beyond the due date and
shall not affect Landlord's right to impose a Late Charge as permitted in
Section 3.03.
B. Failure of Tenant to comply with any term, condition or covenant of
this Lease, other than the payment of Rent or other sum of money, and the
continuance of that failure for a period of thirty (30) days after Landlord
delivers written notice of the failure to Tenant;
C. Failure of Tenant or any guarantor of Tenant's obligations under
this Lease to pay its debts as they become due or an admission in writing
of inability to pay its debts, or the making of a general assignment for
the benefit of creditors;
D. The commencement by Tenant or any guarantor of Tenant's obligations
under this Lease of any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property;
E. The commencement of any case, proceeding or other action against
Tenant or any guarantor of Tenant's obligations under this Lease seeking to
have an order for relief entered against it as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property, and Tenant or any guarantor; (i)
fails to obtain a dismissal of such case, proceeding, or other action
within sixty (60) days of its commencement; or (ii) converts the case from
one chapter of the Federal Bankruptcy code to another chapter; or (iii) is
the subject of an order of relief which is not fully stayed within seven
(7) business days after the entry thereof; and
F. Vacancy or abandonment by Tenant of any substantial portion of the
Demised Premises or cessation of the use of the Demised Premises for the
purpose leased.
11.02. Remedies. Upon the occurrence of any of the events of default
listed in Section 11.01, Landlord shall have the option to pursue any one
or more of the following remedies without any prior notice or demand.
A. Terminate this Lease, in which event Tenant shall immediately
surrender the Demised Premises to Landlord. If Tenant fails to so
surrender the Demised Premises, Landlord may, without prejudice to any
other remedy which it may have for possession of the Demised Premises or
Rent in arrears, enter upon and take possession of the Demised Premises and
expel or remove Tenant and any other person who may be occupying the
Demised Premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim for damages. Tenant shall pay to
Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of the termination, whether through inability to re-let
the Demised Premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the Demised Premises, by force if
necessary, without terminating this Lease and without being liable for
prosecution or for any claim for damages, and expel or remove Tenant and
any other person who may be occupying the Demised Premises or any part
thereof. Landlord may re-let the Demised Premises and receive the rent
therefore. Tenant agrees to pay to Landlord monthly or on demand from time
to time any deficiency that may arise by reason of any such re-letting. In
determining the amount of the deficiency, the professional service fees,
attorneys' fees, court costs, remodeling expenses and other costs of re-
letting shall be subtracted from the amount of rent received under the re-
letting.
C. Enter upon the Demised Premises, by force if necessary, without
terminating this Lease and without being liable for prosecution or for any
claim for damages, and do whatever Tenant is obligated to do under the
terms of this Lease. Tenant agrees to pay Landlord on demand for expenses
which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, together with interest thereon at the rate of
twelve percent (12%) per annum from the date expended until paid. Landlord
shall not be liable for any damages resulting to Tenant from such action,
whether caused by negligence of Landlord or otherwise.
D. [Intentionally Left Blank]
E. In addition to the foregoing remedies, Landlord shall have the right
to change or modify the locks on the Demised Premises in the event Tenant
fails to pay the monthly installment of Rent when due. Landlord shall not
be obligated to provide another key to Tenant or allow Tenant to regain
entry to the Demises Premises unless and until Tenant pays Landlord all
Rent which is delinquent. Tenant agrees that Landlord shall not be liable
for any damages resulting to the Tenant from the lockout. At such time
that Landlord changes or modifies the lock, Landlord shall post a "Notice
of Change of Locks" on the front of the Demised Premises. Such Notice
shall state that:
(1) Tenant's monthly installment of Rent is delinquent, and therefore,
under authority of Section 11.02.E of Tenant's Lease, the Landlord has
exercised its contractual right to change or modify Tenant's door locks;
(2) The Notice has been posted on the Tenant's front door by a
representative of Landlord and Tenant should make arrangements with the
representative to pay the delinquent installments of Rent when Tenant picks
up the key; and
(3) The failure of Tenant to comply with the provisions of the Lease
and the Notice and/or tampering with or changing the door lock(s) by Tenant
may subject Tenant to legal liability.
F. No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as an election to terminate this Lease, unless a written
notice of that intention is given to Tenant. Notwithstanding any such re-
letting 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 other
remedies provided by law, nor shall pursuit of any remedy provided in this
Lease constitute a forfeiture or waiver of any monthly installment of Rent
due to Landlord under this Lease or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants
contained in this Lease. Failure of Landlord to declare any default
immediately upon its occurrence, or failure to enforce one or more of
Landlord's remedies, or forbearance by Landlord to enforce one or more of
Landlord's remedies upon an event of default shall not be deemed or
construed to construed to constitute a waiver of default or waiver of any
violation or breach of the terms of this Lease. Pursuit of any one of the
above remedies shall not preclude pursuit by Landlord of any of the other
remedies provided in this Lease. The loss or damage that Landlord may
suffer by reason of termination of this Lease or the deficiency from any re-
letting as provide for above shall include the expense of repossession and
any repairs or remodeling undertaken by Landlord following possession. If
Landlord terminates this Lease at any time for any default, in addition to
other Landlord's remedies, Landlord may recover from Tenant all damages
Landlord may incur by reason of the default, including the cost of
recovering the Demised Premises and the Rent then remaining unpaid.
11.03. Notice of Default. Tenant shall give written notice of any failure
by Landlord to perform any of Landlord's obligations under this Lease to
Landlord and to any ground lessor, mortgagee or beneficiary under any deed
of trust encumbering the Demised Premises whose name and address have been
furnished to Tenant in writing. Landlord shall not be in default under
this Lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure the nonperformance within thirty (30) days after
receipt of Tenant's notice. However, if the nonperformance reasonably
requires more than thirty (30) days to cure, Landlord shall not be in
default if the cure is commenced within the 30-day period and is thereafter
diligently pursued to completion.
11.04. Limitation of Landlord's Liability. As used in this Lease, the
term "Landlord" means only the current owner or owners of the fee title to
the Demised Premises or the leasehold estate under a ground lease of the
Demised Premises at the time in question. Each Landlord is obligated to
perform the obligations of Landlord under this Lease only during the time
such Landlord owns such interest or title. Any Landlord who transfers its
title or interest is relieved of all liability with respect to the
obligations of Landlord under this Lease accruing on or after the date of
transfer, and Tenant agrees to recognize the transferee as Landlord under
this Lease. However, each Landlord shall deliver to its transferee the
Security Deposit held by Landlord if such Security Deposit has not been
applied under the terms of this Lease.
ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN
[Intentionally Left Blank]
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. Subordination and Attornment. Landlord shall have the right to
subordinate this Lease to any future ground Lease, deed of trust or
mortgage encumbering the Demised Premises, and advances made on the
security thereof and any renewals, modification, consolidations,
replacements or extensions thereof, whenever made or recorded. Landlord's
right to obtain such a subordination is subject to Landlord's providing
Tenant with a written Subordination, Non-disturbance and Attornment
Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant's
right to peaceable possession of the Demised Premises during the Lease Term
shall not be disturbed if Tenant pays the Rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default, in which case
Tenant shall attorn to the transferee of or successor to Landlord's
interest in the Demised Premises and recognize the transferee or successor
as Landlord under this Lease. If any ground lessor, beneficiary or
mortgagee elects to have this Lease superior to the lien of its ground
lease, deed of trust or mortgage and gives Tenant written notice thereof,
this Lease shall be deemed superior to the ground lease, deed of trust or
mortgage or the date of recording thereof. Tenant's rights under this
Lease, unless specifically modified at the time this Lease is executed, are
subordinated to any existing ground lease, deed of trust or mortgage
encumbering the Demised Premises.
13.02. Signing of Documents. Tenant shall sign and deliver any
instruments or documents necessary or appropriate to evidence any
attornment or subordination or any agreement to attorn or subordinate. If
Tenant fails to do so within ten (10) days after written request, Tenant
hereby makes, constitutes and irrevocably appoints Landlord, or any
transferee or successor of Landlord, the attorney-in-fact of Tenant to
execute and deliver the attornment or subordination document or agreement.
13.03. Estoppel Certificates.
A. Upon Landlord's written request, Tenant shall execute and deliver to
Landlord a written statement certifying: (1) whether Tenant is an assignee
or subtenant; (2) the expiration date of the Lease; (3) the number of
renewal options under the Lease and the total period of time covered by the
renewal option(s); (4) that none of the terms or provisions of the Lease
have been changed since the original execution of the Lease, except as
shown on attached amendments or modifications; (5) that no default by
Landlord exists under the terms of the Lease (or if Landlord is claimed to
be in default, stating why); (6) that the Tenant has no claim against the
Landlord under the Lease and has no defense or right of offset against
collection of Rent or other charges accruing under the Lease; (7) the
amount and date of the last payment of Rent; (8) the amount of any security
deposits and other deposits, if any; and (9) the identity and address of
any guarantor of the Lease. Tenant shall deliver the statement to Landlord
within ten (10) days after Landlord's request. Landlord may forward any
such statement to any prospective purchaser or lender of the Demised
Premises. The purchaser or lender may rely conclusively upon the statement
as true and correct.
B. If Tenant does not deliver the written statement to Landlord within
the ten (10) day period, Landlord, and any prospective purchaser or lender,
may conclusively presume and rely upon the following facts: (1) that the
terms and provisions of this Lease have not been changed except as
otherwise represented by Landlord; (2) that this Lease has not been
canceled or terminated except as otherwise represented by Landlord; (3)
that not more than one monthly installment of Base Rent and other charges
have been paid in advance; (4) there are no claims against Landlord nor any
defenses or rights of offset against collection of Rent or other charges;
and (5) that Landlord is not in default under this Lease. In such event,
Tenant shall be estopped from denying the truth of the presumed facts.
13.04. Tenant's Financial Condition. Within
ten (10) days after written request from Landlord, Tenant shall deliver to
Landlord its most recent financial statement to verify the net worth of
Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition,
Tenant shall deliver to any lender designated by Landlord its most recent
financial statement required by the lender to facilitate the financing or
refinancing of the Demised Premises. Tenant represents and warrants to
Landlord that each financial statement is a true, complete, and accurate
statement as of the date of the statement. All financial statements shall
be confidential and shall be used only for the purposes set forth in this
Lease.
ARTICLE FOURTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
14.01. Tenant's Compliance with Environmental Laws. Tenant, at Tenant's
expense, shall comply with all laws, rules, orders ordinances, directions,
regulations and requirements of Federal, State, county and municipal
authorities pertaining to Tenant's use of the Property and with the
recorded covenants, conditions and restrictions, regardless of when they
become effective, including, without limitation, all applicable Federal,
State and local laws, regulations or ordinances pertaining to air and water
quality, Hazardous Materials (as defined in Section 14.05), waste disposal,
air emissions and other environmental matters, all zoning and other land
use matters, and with any direction of any public officer or officers,
pursuant to law, which impose any duty upon Landlord or Tenant with respect
to the use or occupancy of the Property.
14.02. Tenant's Indemnification. If the presence of Hazardous Materials
on the Property caused or permitted by Tenant results in contamination of
the Property or any other property, or if contamination of the Property or
any other property by Hazardous Materials otherwise occurs for which Tenant
is legally liable to Landlord for damage resulting therefrom, then Tenant
shall indemnify, defend and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities or losses
(including without limitation, diminution in value of the Property, damages
for the loss or restriction on use of rentable or unusable space or of any
amenity or appurtenance of the Property, damages arising from any adverse
impact on marketing of building space or land area, sums paid in settlement
of claims, reasonable attorneys' fees, court costs, consultant fees and
expert fees) which arise during or after the Lease Term as a result of the
contamination. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any investigation of
site conditions or any clean-up, remedial work, removal or restoration work
required by any Federal, State or local government agency because of
Hazardous Materials present in the soil or ground water on or under the
Property. Without limiting the foregoing, if the presence of any Hazardous
Materials on the Property (or any other property) caused or permitted by
Tenant results in any contamination of the Property, Tenant shall promptly
take all actions at Tenant's sole expense as are necessary to return the
Property to the condition existing prior to the introduction of any such
Hazardous Materials, provided that Landlord's approval of such actions is
first obtained. The foregoing indemnity shall survive the expiration or
termination of this Lease.
14.03. Landlord's Representations and Warranties. Landlord represents and
warrants, to the best of Landlord's actual knowledge, that (i) any
handling, transportation, storage, treatment or usage of Hazardous
Materials that has occurred on the Property to date has been in compliance
with all applicable Federal, State, and local laws, regulations and
ordinances; and (ii) no leak, spill, release, discharge, emission or
disposal of Hazardous Materials has occurred on the Property to date and
that the soil or groundwater on or under the Property is free of Hazardous
Materials as of the Commencement Date, unless expressly disclosed by
Landlord to Tenant in writing.
14.04. Landlord's Indemnification. Landlord hereby indemnifies, defends
and holds Tenant harmless from any claims, judgments, damages, penalties,
fines, costs, liabilities, (including sums paid in settlements of claims)
or loss, including, without limitation, attorneys' fees, court costs,
consultant fees, and expert fees, which arise during or after the term of
this Lease from or in connection with the presence or suspected presence of
Hazardous Materials in the soil or groundwater on or under the Property,
unless the Hazardous Material is released by Tenant or is present solely as
a result of the negligence or willful conduct of Tenant. Without limiting
the generality of the foregoing, the indemnification provided by this
Section 14.04 shall specifically cover costs incurred in connection with
any investigation of site conditions or any clean-up, remedial work,
removal or restoration work required by any Federal, State or local
governmental authority.
14.05. Definition. For purposes of this Lease, the term "Hazardous
Materials" means any one or more pollutant, toxic substance, hazardous
waste, hazardous material, hazardous substance, solvent or oil as defined
in or pursuant to the Resource Conservation and Recovery Act, as amended,
the Comprehensive Environmental Response, Compensation and Liability Act,
as amended, the Federal Clean Water Act, as amended, or any other Federal,
State or local environmental law, regulation, ordinance, or rule, whether
existing as of the date of this Lease or subsequently enacted.
14.06. Survival. The representations and indemnities contained in the
Article 14 shall survive the expiration or termination of this Lease.
ARTICLE FIFTEEN: PROFESSIONAL SERVICE FEES
15.01. Amount and Manner of Payment. Professional service fees due to the
Principal Broker shall be calculated and paid as follows:
A. [Internally Left Blank]
B. Landlord agrees to pay to the Principal Broker a lump sum
professional service fee (the "Fee") for negotiating this Lease, plus any
applicable sales taxes, equal to the percentage stated in Section 1.13.A of
the total Rent to become due to Landlord during the Lease Term. The Fee
shall be paid to the Principal Broker (i) one-half on the date of final
execution of this Lease, and (ii) the balance on the commencement Date of
this Lease.
15.02. Other Brokers. Both Landlord and Tenant represent and warrant to
the other party that they have had no dealings with any person, firm or
agent in the negotiation of the Lease other than the Broker(s) named in
this Lease, and no other broker, agent, person, firm or entity other than
the Broker(s) is entitled to any commission or fee in connection with this
Lease.
15.03. Payments on Renewal, Expansion, Extension or New Lease. If during
the Lease Term (as may be renewed or extended) or within ten (10) years
from the Commencement Date, whichever is the greater period of time,
Tenant, Tenant's successors or assigns: (a) exercises any right or option
to renew or extend the Lease Term (whether contained in this Lease or in
any amendment, supplement or other agreement pertaining to this Lease) or
enters into a new lease or rental agreement with Landlord covering the
Demised Premises; or (b) enters into any lease, extension, renewal,
expansion or other rental agreement with Landlord demising to Tenant any
premises located on or constituting all or part of any tract or parcel of
real property adjoining, adjacent to or contiguous to the Demised Premises
and owned by Landlord on the Commencement Date, Landlord shall pay to the
Broker an additional Fee covering the full period of the renewal,
extension, lease, expansion or other rental agreement which shall be due on
the date of exercise of a renewal option, or the date of execution in the
case of an extension, new lease, expansion or other agreement provided that
the Broker provides evidence of tenant representation. The additional Fee
shall be computed under Section 15.01A or 15.01.B above (whichever has been
made applicable under Section 1.13), as if a new lease had been made for
such period of time.
15.04. Payments on Sale. If Tenant, Tenant's successors or assigns,
purchases the Demised Premises at any time, pursuant to a purchase option
contained in this Lease (or any lease, extension, renewal, expansion or
other rental agreement) or, in the absence of any purchase option or
exercise thereof, purchases the Demised Premises within ten (10) years from
the Commencement Date, Landlord shall pay to the Principal Broker a
Professional Service Fee in cash equal to the percentage stated in Section
1.13.B of the purchase price, payable at closing. Upon closing of a sale
to Tenant, all monthly lease Fees shall terminate upon payment of the
Professional Service Fee on the sale.
15.05. Landlord's Liability. If this Lease is negotiated by Principal
Broker in cooperation with another broker, Landlord shall be liable for
payment of all Professional Service Fees to Principal Broker only,
whereupon Landlord shall be protected from any claims from a Cooperating
Broker. The Principal Broker may pay a portion of the Fee to any
Cooperating Broker pursuant to a separate agreement between the Brokers.
15.06. Joint Liability of Tenant. If Tenant enters into any new lease,
extension, renewal, expansion, or other agreement to rent, occupy, or
purchase any property described in Section 15.03 within the time specified
in that Section, the agreement must be handled by the Principal Broker,
otherwise Tenant shall be severally liable with Landlord for any payments
due or to become due to the Principal Broker.
15.07. Assumption on Sale. In the event of a sale of the Demised Premises
or the assignment of this Lease by Landlord, Landlord shall obtain from the
purchaser or assignee an Assumption Agreement in recordable form whereby
the purchaser or assignee agrees to pay the Principal Broker all
Professional Service Fees payable under this Lease and shall deliver a
fully executed original counterpart thereof to Principal Broker on the date
of closing of the sale of the Demised Premises or assignment of this Lease.
Landlord shall be released from personal liability for subsequent payments
only upon the delivery to Principal Broker of that counterpart of the
Assumption Agreement.
15.08. Termination. The termination of this Lease by the mutual agreement
of Landlord and Tenant shall not affect the right of the Principal Broker
to continue to receive the Fees agreed to be paid under this Lease, just as
if Tenant had continued to occupy the Demised Premises and had paid the
Rent during the entire Lease Term. Termination of this Lease under Article
Eight or Article Nine shall not terminate the Principal Broker's right to
collect the Fees.
15.09. [Intentionally Left Blank]
ARTICLE SIXTEEN: MISCELLANEOUS
16.01. Disclosure. Landlord and Tenant understand that a real estate
broker is qualified to advise on matters concerning real estate and is not
expert in matters of law, tax, financing, surveying, hazardous materials,
engineering, construction, safety, zoning, land planning, architecture or
the ADA. The Brokers hereby advise Tenant to seek expert assistance on
such matters. Brokers do not investigate a property's compliance with
building codes, governmental ordinances, statutes and laws that relate to
the use or condition of a property and its construction, or that relate to
its acquisition. If Brokers provide names of consultants or sources for
advice or assistance, Tenant acknowledges that the Brokers do not warrant
the services of the advisors or their products and cannot warrant the
suitability of property to be acquired or leased. Furthermore, the Brokers
do not warrant that the Landlord will disclose any or all property defects,
although the Brokers will disclose to Tenant any actual knowledge possessed
by Brokers regarding defects of the Demised Premises and the Property. In
this regard, Tenant agrees to make all necessary and appropriate inquiries
and to use diligence in investigating the Demised Premises and the Property
before consummating this Lease. Landlord and Tenant hereby agree to
indemnify, defend, and hold the Brokers harmless of and from any and all
liabilities, claims, debts, damages, costs, or expenses, including but not
limited to reasonable attorneys' fees and court costs, related to or
arising out of or in any way connected to representations concerning
matters properly the subject of advice by experts. In addition, to the
extent permitted by applicable law, the Brokers' liability for errors or
omissions, negligence, or otherwise, is limited to the return of the Fee,
if any, paid to the Brokers pursuant to this Lease.
16.02. Force Majeure. If performance by Landlord of any term, condition
or covenant in this Lease is delayed or prevented by any Act of God,
strike, lockout, shortage of material or labor, restriction by any
governmental authority, civil riot, flood, or any other cause not within
the control of Landlord, the period for performance of the term, condition
or covenant shall be extended for a period equal to the period Landlord is
so delayed or prevented.
16.03. Interpretation. The captions of the Articles or Sections of this
Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Tenant shall be responsible for the
conduct, acts and omissions of Tenant's agents, employees, customers,
contractors, invitees, agents, successors or others using the Demised
Premises with Tenant's expressed or implied permission. Whenever required
by the context of this Lease, the singular shall include the plural and the
plural shall include the singular, and the masculine, feminine and neuter
genders shall each include the other.
16.04. Waivers. All waivers to provisions of the Lease must be in writing
and signed by the waiving party. Landlord's delay or failure to enforce
any provisions of this Lease or its acceptance of late installments of Rent
shall not be a waiver and shall not prevent Landlord from enforcing that
provision or any other provision of this Lease in the future. No statement
on a payment check from Tenant or in a letter accompanying a payment check
shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate, cash, or endorse the check without being bound to the
conditions of any such statement.
16.05. Severability. A determination by a court of competent jurisdiction
that any provision of this Lease is invalid or unenforceable shall not
cancel or invalidate the remainder of that provision or this Lease, which
shall remain in full force and effect.
16.06. Joint and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant.
16.07. Amendments or Modifications. This Lease is the only agreement
between the parties pertaining to the lease of the Demised Premises and no
other agreements are effective unless made a part of this Lease. All
amendments to this Lease must be in writing and signed by all parties. Any
other attempted amendment shall be void.
16.08. Notices. All notices and other communications required or
permitted under this Lease must be in writing and shall be deemed
delivered, whether actually received or not, on the earlier of: (i) actual
receipt if delivered in person or by messenger with evidence of delivery;
or (ii) receipt of an electronic facsimile transmission ("Fax") with
confirmation of delivery; or (iii) upon deposit in the United States Mail
as required below. Notices may be transmitted by Fax to the Fax telephone
numbers specified in Article One on the first page of this Lease, if any.
Notices delivered by mail must be deposited in the U.S. Postal Service,
first class postage prepaid, and properly addressed to the intended
recipient as set forth in Article One. After possession of the Demised
Premises by Tenant, Tenant's address for notice purposes will be the
address of the Demised Premises unless Tenant notifies Landlord in writing
of a different address to be used for that purpose. Any party may change
its address for notice by delivering written notice of its new address to
all other parties in the manner set forth above. Copies of all notices
should also be delivered to the Principal Broker, but failure to notify the
Principal Broker will not cause an otherwise properly delivered notice to
be ineffective.
16.09. Attorneys' Fees. If on account of any breach or default by any
party to this Lease in its obligations to any other party to this Lease
(including but not limited to the Principal Broker), it becomes necessary
for a party to employ an attorney to enforce or defend any of its rights or
remedies under this Lease, the non-prevailing party agrees to pay the
prevailing party its reasonable attorneys' fees and court costs, if any,
whether or not suite is instituted in connection with the enforcement or
defense.
16.10. Venue. All obligations under this Lease, including but not limited
to the payment of Fees to the Principal Broker, shall be performed and
payable in the county in which the Property is located. The laws of the
State of Texas shall govern this Lease.
16.11. Survival. All obligations of any party to this Lease which are not
fulfilled at the expiration or the termination of this Lease shall survive
such expiration or termination as continuing obligations of the party.
16.12. Binding Effect. This Lease shall inure to the benefit of, and be
binding upon, each of the parties to this Lease and their respective heirs,
representatives, successors and assigns. However, Landlord shall not have
any obligation to Tenant's successors or assigns unless the rights or
interests of the successors or assigns are acquired in accordance with the
terms of this Lease.
16.13. Consult an Attorney. This Lease is an enforceable, legally binding
agreement. Read it carefully. The Brokers involved in the negotiation of
this Lease cannot give you legal advice. The parties to this Lease
acknowledge that they have been advised by the Brokers to have this Lease
reviewed by competent legal counsel of their choice before signing this
Lease. By executing this Lease, Landlord and Tenant each agree to the
provisions, terms, covenants and conditions contained in this Lease.
16.14. Offer: The execution of this Lease by the first party to do so
constitutes an offer to lease the Demised Premises. Unless within the
number of days stated in Section 1.14 above after the date of its execution
by the first party to do so, this Lease is signed by the other party and a
fully executed copy is delivered to the first party, such offer to lease
shall be automatically withdrawn and terminated.
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS
A.
At Tenant's expense, a videotape of the leased Premises shall be taken at
the commencement of the Lease Term, a copy of which will be held by Tenant
and Landlord. Tenant will notify Landlord as to when the videotape is to
be made, and Landlord may be in attendance at that time. This video will
be used to document any deficiencies in the condition of the Premises and
its improvements, and will be used in lieu of a written description or list
of deficiencies. It is understood by Landlord that the Tenant shall have
no responsibility or liability with respect to repair or replacement of any
such deficiency, unless the same shall have been repaired or replaced by
Landlord during the Term hereof.
B.
Not withstanding anything to the contrary in exhibit A (Survey), Landlord
represents and warrants to Tenant that there are no underground fuel tanks
on the Demised Premises.
LANDLORD TENANT
By [Signature]: XXXXX XXXXXXXXXX By [Signature]: XXXXX X. XXXXX
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Sr. VP, Retail Support and Logistics
Date of Execution: 11/27/00 Date of Execution: 11/22/00
PRINCIPAL BROKER COOPERATING BROKER
By [Signature]: XXXXX XXXX By [Signature]: X. XXXXXX FOR XXXXX
Name: Xxxxx Xxxx Name: Xxx X. Xxxxx, SIOR
Title: Director of Industrial Title: First Vice President
Copyright Notice: This form is provided for the use of members of the
North Texas Commercial Association of Realtors, Inc. Permission is hereby
granted to make limited copies of this form for use in a particular Texas
real estate transaction. Contact the NTCAR office to confirm that you are
using the current version of this form.
CB Xxxxxxx Xxxxx, Inc.
North Texas Commercial Association Of Realtorsr
ADDENDUM A TO LEASE
EXPENSE REIMBURSEMENT
Demised Premises/Address:
[Check all boxes which apply. Boxes not checked do not apply to this
Lease.]
A. Expense Reimbursement. Tenant shall pay the Landlord as additional
Rent a portion of the following expenses (collectively the "Reimbursement")
which are incurred by or assessed against the Demised Premises [check all
that are to apply]:
X Ad Valorem Taxes;
X Insurance Premiums;
Common Area Maintenance (CAM) Expenses;
Operating Expenses;
Roof and Structural Maintenance Expenses;
B. Expense Reimbursement Limitations. The amount of Tenant's
Reimbursement shall be determined by one of the following methods as
described in Section 4 below [check only one]:
Base Year/Expense Stop Adjustment;
Pro Rata Adjustment;
Fixed Amount Adjustment;
X Net Lease
C. Expense Reimbursement Payments. Tenant agrees to pay any end-of-year
lump sum Reimbursement within thirty (30) days after receiving an invoice
from Landlord. Any time during the Lease Term (or any renewals or
extensions) Landlord may direct Tenant to pay monthly an estimated portion
of the projected future Reimbursement amount. Any such payment directed by
Landlord shall be due and payable monthly on the same day that the Base
Rent is due. Landlord may, at Landlord's option and to the extent allowed
by applicable law, impose a Late Charge on any Reimbursement payments which
are not actually received by Landlord on or before the due date, in the
amount and manner set forth in Section 3.03 of this Lease. Any
Reimbursement relating to partial calendar years shall be prorated
accordingly. Tenant's Pro Rata Share of such Reimbursements shall be based
on the square footage of useable area contained in the Demised Premises in
proportion to the square footage of useable building area of the Property.
Tenant may audit or examine those items of expense in Landlord's records
which relate to Tenant's obligations under this Lease. Landlord shall
promptly refund to Tenant any overpayment which is established by an audit
or examination. If the audit or examination reveals an error of more than
five percent (5%) over the figures billed to Tenant, Landlord shall pay the
reasonable cost of the audit or examination.
D. Definitions.
1. Ad Valorem Taxes. All general real estate taxes, general and special
assessments, parking surcharges, rent taxes, and other similar governmental
charges levied against the Property for each calendar year.
2. Insurance Premiums. All Landlord's insurance premiums attributable
to the Property, including but not limited to insurance for fire, casualty,
general liability, property damage, medical expenses, and extended
coverage, and loss of rents coverage for six months' Rent.
X. Xxxxx-Up Provisions. [Check this only if applicable.] If the
Property is a multi-tenant building and is not fully occupied during the
Base Year or any portion of the Lease Term, an adjustment shall be made in
computing the variable costs for each applicable calendar year. Variable
costs shall include only those items of expense that vary directly
proportionately to the occupancy of the Property. Variable costs which are
included in the CAM and Operating Expenses shall be increased
proportionately to the amounts that, in Landlord's reasonable judgment,
would have been incurred had ninety percent (90%) of the useable area of
the Property been occupied during those years.
CB Xxxxxxx Xxxxx, Inc.
North Texas Commercial Association Of Realtorsr
ADDENDUM B TO LEASE
RENEWAL OPTIONS
Demised Premises/Address: 0000 XxXxxx, Xx. Xxxxx, Xxxxx
A. Option to Extend Term. Landlord grants to Tenant One option(s)
(the "Option") to extend the Lease Term for an additional term of 60
months each (the "Extension"), on the same terms, conditions and covenants
set forth in this Lease, except as provided below. Each Option may be
exercised only by written notice delivered to the Landlord no earlier than
Two hundred forty ( 240 )
days before, and no later than One hundred eighty ( 180 )
days before, the expiration of the Lease Term or the preceding Extension of
the Lease Term, whichever is applicable. If Tenant fails to deliver
Landlord written notice of the exercise of an Option within the prescribed
time period, such Option and any succeeding Options shall lapse, and there
shall be no further right to extend the Lease Term. Each Option may only
be exercised by Tenant on the express condition that, at the time of the
exercise, Tenant is not in default under any of the provisions of this
Lease. The foregoing Options are personal to Tenant and may not be
exercised by an assignee or subtenant without Landlord's written consent.
B. Calculation of Rent. The Base Rent during the Extension(s) shall be
determined by one of the following methods [check one]:
1. Consumer Price Index Adjustment. The monthly Base Rent during the
Extension shall be determined by multiplying the monthly installment of
Base Rent during the last month of the Lease Term by a fraction determined
as follows:
a. The numerator shall be the Latest Index which means either [check
one]:
(1) the Index published for the nearest calendar month preceding
the first day of the Extension, or
(2) the Index for the month of N/A
preceding the Extension.
b. The denominator shall be the Initial Index which means either
[check one]:
(1) the Index published for the nearest calendar month preceding
the Commencement Date, or
(2) the Index for the month of N/A
preceding the Commencement Date.
[If no blanks are filled in above, the choice (1) including the phrase,
"the nearest calendar month preceding", shall apply.]
c. The Index means the Consumer Price Index (CPI) for All Urban
Consumers (All Items) U.S. City Average (unless this box is checked in
which case the CPI for the Dallas/Fort Worth Consolidated Metropolitan
Statistical Area shall be used) published by the U.S. Department of Labor,
Bureau of Labor Statistics (Base Index of 1982-84 = 100). If the Index is
discontinued or revised, the new index or computation which replaces the
Index shall be used in order to obtain substantially the same result as
would have been obtained if it had not been discontinued or revised. If
such computation would reduce the Rent for the particular Extension, it
shall be disregarded, and the Rent during the immediately preceding period
shall apply instead.
X 2. Fair Market Rental Value. The Base Rent during the Extension shall
be the Fair Market Rental determined as follows:
a. The "Fair Market Rental" of the Demised Premises means the price
that a ready and willing tenant would pay as of the commencement of the
Extension as monthly rent to a ready and willing landlord of demised
premises comparable to the Demised Premises if the property were exposed
for lease on the open market for a reasonable period of time, and taking
into account the term of the Extension, the amount of improvements made by
Tenant at its expense, the creditworthiness of the Tenant, and all of the
purposes for which the property may be used and not just the use proposed
to be made of the Demised Premises by Tenant. Upon proper written notice
by Tenant to Landlord of Tenant's election to exercise the renewal Option,
Landlord shall within fifteen (15) days thereafter notify Tenant in writing
of Landlord's proposed Fair Market Rental amount and Tenant shall thereupon
notify Landlord of Tenant's acceptance or rejection of Landlords proposed
amount. Failure of Tenant to reject Landlord's Fair Market Rental amount
within fifteen (15) days after receipt of Landlord's notice shall be deemed
Tenant's acceptance of Landlord's proposed Fair Market Rental amount.
b. If Landlord and Tenant have not been able to agree on the Fair
Market Rental amount prior to the date the option is required to be
exercised, the rent for the Extension shall be determined as follows:
Within thirty (30) days following the exercise of the option, Landlord and
Tenant shall endeavor in good faith to agree upon a single Appraiser
(defined below). If Landlord and Tenant are unable to agree upon a single
Appraiser within the thirty day period, each shall then appoint one
Appraiser by written notice to the other, given within ten (10) days after
the thirty day period. Within ten (10) days after the two Appraisers are
appointed, the two Appraisers shall appoint a third Appraiser. If either
Landlord or Tenant fails to appoint its Appraiser within the prescribed
time period the single Appraiser appointed shall determine the Fair Market
Rental amount of the Demised Premises. Each party shall bear the cost of
the appraiser appointed by it and the parties shall share equally the cost
of the third appraiser. The term "Appraiser" means a State Certified Real
Estate Appraiser licensed by the State of Texas to value commercial
property.
c. The Fair Market Rental Value of the Demised Premises shall be the
average of two of the three appraisals which are closest in amount as
described below, and the third appraisal shall be disregarded. In no event
shall the Rent be reduced by reason of such computation. If the Fair
Market Rental is not determined prior to the commencement of the Extension,
then Tenant shall continue to pay to Landlord the Rent applicable to the
Demised Premises immediately prior to the Extension until the Fair Market
Rental amount is determined, and when it is determined, Tenant shall pay to
Landlord within ten (10) days after receipt of such notice the difference
between the Rent actually paid by Tenant to Landlord and the new Rent
determined under this Lease.
C. Fixed Rental Adjustments. The monthly Base Rent shall be increased
beginning on the following dates to these amounts:
Date: N/A Amount: N/A
Date: N/A Amount: N/A
Date: N/A Amount: N/A
Date: N/A Amount: N/A
CB Xxxxxxx Xxxxx, Inc.
North Texas Commercial Association Of Realtorsr
ADDENDUM F TO LEASE
CONSTRUCTION OF IMPROVEMENTS
Demised Premises/Address:
A. Construction of Improvements.
1. Landlord agrees to construct (or complete) a building and interior
finishes and other improvements upon the Demised Premises in accordance
with detailed Plans and Specifications to be promptly prepared by Landlord
and delivered to Tenant. Upon approval by Tenant, two or more sets of the
Plans and Specifications shall be signed by both parties, with one signed
set retained by Tenant. Changes to the Plans and Specifications may be
made only by written addenda signed by both parties.
The floor covering allowance will not exceed $12 per square yard
2. Upon approval of the Plans and Specifications, Landlord shall
promptly begin construction and pursue the construction to its completion
with reasonable diligence and in a good and workmanlike manner.
B. Completion Date.
1. It is estimated by Landlord that the building and other improvements
will be completed within 6 weeks of Lease execution .
2. Landlord shall notify Tenant in writing within two (2) days of the
Date of Completion. Tenant shall then promptly inspect the building and
other improvements, and if they have in fact been completed in accordance
with the Plans and Specifications, the Lease Term shall begin upon the Date
of Completion or on the Commencement Date, whichever is later. If Tenant
reasonably determines that the improvements have not been completed in
accordance with the Plans and Specifications, Tenant may deliver a written
objection to Landlord specifying the deficiencies. If Tenant does not,
within ten (10) days after Landlord's notice of completion, deliver to
Landlord either a written objection or a written Letter of Acceptance of
the improvements, then Tenant shall be deemed to have approved the
improvements as constructed and the date of Landlord's notice of completion
shall be the Date of Completion.
3. If the building and other improvements have not in fact been
completed in accordance with the Plans and Specifications, and Tenant has
delivered to Landlord a written objection specifying the items deemed
incomplete, then Landlord shall promptly proceed to finish the incomplete
items, and the Lease Term shall begin upon the date that the items are in
fact complete.
4. Completion, as used in this Addendum, means substantial completion.
Substantial completion will be deemed to have occurred when (i) Landlord
obtains a Certificate of Occupancy issued by the local municipal
authorities whose jurisdiction includes the Demised Premises, and (ii) the
construction is sufficiently complete in accordance with the Plans and
Specifications so that the Tenant is able to occupy or utilize the Demised
Premises for its intended use, except for minor "punch list" items
remaining to be completed.
C. Letter of Acceptance. Upon completion of the improvements to the
Demised Premises, Tenant agrees to execute and deliver to Landlord, with a
copy to the Principal Broker, a Letter of Acceptance, addressed to Landlord
signed by Tenant (or its authorized representative) acknowledging that
construction has been completed in accordance with the Plans and
Specifications, acknowledging acceptance of the improvements (subject to
"punch list" items being completed), acknowledging the Date of Completion,
and acknowledging the Commencement Date of the Lease Term.
D. Taking of Possession. The taking of possession of the Demised Premises
by Tenant shall be deemed conclusively to be acknowledgment by Tenant that
construction has been completed in accordance with Plans and Specifications
(except for latent defects and "punch list" items) whether or not a
Certificate of Occupancy has been obtained, and that the Lease Term has
begun as of the Date of Completion.
E. Failure to Complete. If the building and other improvements have not
been completed in accordance with the Plans and Specifications by
February 25th, 2001 , or by such date as extended by application
of Section 16.02, Tenant shall have the right and option to terminate this
Lease by giving written notice of Tenant's intention to terminate as of a
certain date specified by Tenant in the notice of termination (the
"Termination Date"). The notice must be given to Landlord not less than
fifteen (15) days prior to the Termination Date. If the building and other
improvements have not been completed by the Termination Date, this Lease
shall terminate, unless further extended by Tenant in writing, with no
further liability of one party to the other.
CB Xxxxxxx Xxxxx, Inc.
North Texas Commercial Association Of Realtorsr
ADDENDUM F TO LEASE
CONSTRUCTION OF IMPROVEMENTS
Demised Premises/Address:
A. Construction of Improvements.
Landlord agrees to provide the following improvements to the above Demised
Premises:
RE: McIvey, Fort Worth
1 Electrical 5,413.68
Replace all 2' x 4' fixtures
Replace all plugs & switches
Repair all dock lighting
Replace vent/lights in restrooms
Repair all electrical to working order
2 Plumbing 2,357.00
Replace two (2) water coolers
Rebuild all plumbing fixtures
check & clean all drains as required for working order
3 Painting 6,575.00
Patch & prep all interior walls as required
Paint all walls & door trim
Prep & paint all restroom partitions
Clean & paint all ceiling grids
Power wash all dock areas
4 Replace all ceiling tile & insulation 2,684.90
5 HVAC 3,072.00
Replace all grills
Change all filters
Check & clean system
6 Floor covering (allowance) 1,850.00
Demo existing flooring & base
Install new carpet in existing carpet areas
Install new VCT in all remaining areas
Install new cove base on all walls
7 Repair all overhead doors (allowance) 1,850.00
8 Construction cleaning & trash haul off 475.00
9 Final cleaning 350.00
Total Labor & Materials24,647.58
15% Overhead & Profit3,697.14
Total 28,344.72
EXHIBIT "B" DRAWINGS
RETAINED BY
PROPERTY DEPARTMENT
