EXHIBIT 10.7
LEASE AGREEMENT 100,800 Square Feet
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4202 Xxx Xxxxxx
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Xxxxxx, Xxxxx 00000
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between XXXXX PROPERTY
ASSOCIATES hereinafter referred to as "Lessor", and LESLIE'S POOL MART, A
CALIFORNIA CORPORATION hereinafter referred to as "Lessee";
WITNESSETH
1. PREMISES AND TERM. In consideration of the mutual obligations of
Lessor and Lessee set forth herein, Lessor leases to Lessee, and Lessee hereby
takes from Lessor the Premises situated within the County of Dallas, State of
Texas, more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference, (the "Premises"), together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any way
pertaining to the Premises, to have and to hold, subject to the terms, covenants
and conditions in this Lease. The term of this Lease shall commence on the
commencement date hereinafter set forth and shall end on the last day of the
month that is 120 months after the commencement date.
A. EXISTING BUILDING. As set forth in Exhibit D the commencement date
shall be _________________. Except as otherwise provided in this Lease, Lessee
acknowledges that (i) it has inspected and accepts the Premises, (ii) the
buildings and improvements comprising the same are suitable for the purpose for
which the Premises are leased, (iii) the Premises are in good and satisfactory
condition, and (iv) no representations as to the repair of the Premises, nor
promises to alter, remodel or improve the Premises have been made by Lessor
(unless otherwise expressly set forth in this Lease).
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Lessee agrees to pay to Lessor rent for the Premises, in advance,
without demand, deduction or set off, at the rate of _____________________
Dollars ($ * ) per month during the term hereof. One such monthly installment,
plus the other monthly charges set forth in Paragraph 2C below shall be due and
payable on the date hereof and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding the
commencement date, except that all payments due hereunder for any fractional
calendar month shall be prorated.
B. In addition, Lessee agrees to deposit with Lessor on the date hereof
the sum of Twenty One Thousand Three Hundred Thirty-six and no/100 Dollars
($21,336.00), which shall be held by Lessor as security for the performance of
Lessee's obligations under this lease, it being expressly understood and agreed
that this deposit Is not an advance rental deposit or a measure of Lessor's
damages in case of Lessee's default. Upon each occurrence of an event of
default, Lessor may use all or part of the deposit to pay past due rent or other
payments due Lessor under this Lease, and the cost of any other damage, injury,
expense or liability caused by such event of default without prejudice to any
other remedy provided herein or provided by law. On demand, Lessee shall pay
Lessor the amount that will restore the security deposit to its original amount.
The security deposit shall be deemed the property of Lessor, but any remaining
balance of such deposit shall be returned by Lessor to Lessee when Lessee's
obligations under this Lease have been fulfilled.
C. Lessee agrees to pay its proportionate share (as defined in Paragraph
22B below) of (i) Taxes (hereinafter defined) payable by Lessor pursuant to
paragraph 3A below, (ii) the cost of utilities payable pursuant to paragraph B
below, (iii) the cost of maintaining insurance pursuant to paragraph 9 below,
(iv) the cost of any common area charges payable by Lessee in accordance with
paragraph 4 below and (v) the cost of security provided to the Premises as set
forth in paragraph 23 below. During each month of the term of this Lease, on the
same day that rent is due hereunder, Lessee shall escrow with Lessor an amount
equal to 1/12 of the estimated annual cost of its proportionate share of such
items. Lessee authorizes Lessor to use the funds deposited with Lessor under
this Xxxxxxxxx 0X to pay such costs. The initial monthly escrow payments are
based upon the estimated amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual cost of all such
items. If the Lessee's total escrow payments are less than Lessee's actual
proportionate share of all such items, Lessee shall pay the difference to Lessor
within ten (10) days after demand. If the total escrow payments of Lessee are
more than Lessee's actual proportionate share of all such items, Lessor shall
retain such excess and credit it against Lessee's next annual escrow payments.
The amount of the monthly rental and the initial monthly escrow payments are as
follows:
(1) Base Rent as set forth in Paragraph 2A (Months 1-36)..... $15,456.00
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(2) Tax Escrow Payment....................................... $ 3,108.00
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(3) Insurance Escrow Payment................................. $ 252.00
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(4) Utility Charge........................................... $ ----
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(5) Common Area Charge....................................... $ 168.00
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(6) Security Services........................................ $ ----
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(7) Other.................................................... $
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Monthly Payment Total.................................... $18,984.00
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Months 1-36: $15,456.00
Months 37-72: $20,496.00
Months 73-96: $25,956.00
Months 97-120: $26,376.00
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3. TAXES.
A. Lessor agrees to pay all taxes, assessments and governmental charges
of any kind and nature (collectively referred to herein as "Taxes") that accrue
against the Premises, and/or the land and/or improvements of which the Premises
are a part. If at any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of assessments imposed on real estate
and improvements thereon, there shall be levied, assessed or imposed on Lessor a
capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents from the Premises and/or the land and improvements of
which the Premises are a part, then all such taxes, assessments, levies or
charges, or the part, thereof so measured or based, shall be deemed to be
included within the term "Taxes" for the purposes hereof. The Lessor shall have
the right to employ a tax consulting firm to attempt to assure a fair tax burden
on the building and grounds within the applicable taxing jurisdiction. Lessee
agrees to pay its proportionate share of the cost of such consultant.
B. Lessee shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Lessor or Lessor's property and (i) Lessor pays the
same or (ii) the assessed value of Lessor's property is increased by inclusion
of such personal property and fixtures and Lessor pays the increased taxes,
then, upon demand Lessee shall pay to Lessor such taxes.
4. LESSOR'S REPAIRS.
A. Lessor, at its own cost and expense, shall maintain the roof,
foundation and the structural soundness of the exterior walls of the building of
which the Premises are a part in good repair, reasonable wear and tear excluded.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Lessee shall immediately give
Lessor written notice of defect or need for repairs, after which Lessor shall
have reasonable opportunity to repair same or cure such defect.
X. Xxxxxx reserves the right to perform the paving, common area and
landscape replacement and maintenance, exterior painting, common sewage line
plumbing and any other items that are otherwise Lessee's obligations under
Paragraph 5A, in which event, Lessee shall be liable for its proportionate share
of the cost and expense of such repair, replacement, maintenance and other such
items.
C. Lessee agrees to pay its proportionate share of the cost of (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Lessee and other lessees of any project or building of which the Premises are a
part.
5. LESSEE'S REPAIRS.
A. Lessee, at its own cost and expense, shall (i) maintain all parts of
the Premises, landscape and grounds surrounding the Premises (except those for
which Lessor is expressly responsible hereunder) in good condition, (ii)
promptly make all necessary repairs and replacements, (iii) keep the parking
areas, driveways and alleys surrounding the Premises in a clean and sanitary
condition, and (iv) maintain any spur track servicing the Premises, Lessee
agrees to sign a joint maintenance agreement with the railroad company servicing
the Premises if requested by the railroad company. Lessor shall have the right
to coordinate all repairs and maintenance of any rail tracks serving or intended
to serve the Premises and, if Lessee uses such rail tracks, Lessee shall
reimburse Lessor from time to time, upon demand, for its proportionate share of
the costs of such repairs and maintenance and any other sums specified in any
agreement respecting such tracks to which Lessor is a party.
B. Lessee and its employees, customers and licensees shall have the
exclusive rights to use any parking areas that have been designated for such use
by Lessor in writing, subject to (i) all rules and regulations promulgated by
Lessor and (ii) rights of ingress and egress of other lessees. Lessor shall not
be responsible for enforcing Lessee's parking rights against any third parties.
Lessee agrees not to use more spaces than so provided.
C. Lessee, at its own cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Lessor for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. The service contract must include
all services suggested by the equipment manufacturer in its
operations/maintenance manual and must become effective within thirty (30) days
of the date Lessee takes possession of the Premises.
6. ALTERATIONS. Lessee shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Lessor.
Lessee, at its own cost and expense, may erect such shelves, bins, machinery and
trade fixtures as it desires provided that (a) such items do not alter the basic
character of the Premises or the building and/or improvements of which the
Premises are a part; (b) such items do not overload or damage the same; (c) such
items may be removed without injury to the Premises; and (d) the construction,
erection or installation thereof complies with all applicable governmental laws,
ordinances, regulations and with Lessor's specifications and requirements. All
alterations, additions, improvements and partitions erected by Lessee shall be
and remain the property of Lessee during the term of this Lease. All shelves,
bins, machinery and trade fixtures installed by Lessee shall be removed on or
before the earlier to occur of the date of termination of this Lease or vacating
the Premises, at which time Lessee shall restore the Premises to their original
condition except for reasonable wear and tear. All alterations, installations,
removals and restoration shall be performed in a good and workmanlike manner so
as not to damage or alter the primary structure or structural qualities of the
buildings and other improvements situated on the Premises or of which the
Premises are a part.
7. SIGNS. Any signage Lessee desires for the Premises shall be subject
to Lessor's written approval and shall be submitted to Lessor prior to the
commencement date of this Lease. Lessee shall repair, paint, and/or replace the
building facial surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of its signage. Lessee shall not, (i)
make any changes to the exterior of the Premises, (ii) install any exterior
lights, decorations, balloons, flags, pennants, banners or painting, or (iii)
erect or install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises, without Lessor's prior written consent. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall conform in all
respects to the criteria established by Lessor.
8. UTILITIES. Lessor agrees to provide normal water and electricity
service to the Premises. Lessee shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
on or at the Premises, together with any taxes, penalties, surcharges or the
like pertaining to the Lessee's use of the Premises, and any maintenance charges
for utilities. Lessor shall have the right to cause any of said services to be
separately metered to Lessee, at Lessee's expense. Lessee shall pay its pro
rata share, as reasonably determined by Lessor, of all charges for jointly
metered utilities. Lessor shall not be liable for any interruption or failure
of utility service on the Premises.
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9. INSURANCE.
A. Lessor shall maintain insurance covering the buildings situated on the
Premises or of which the Premises are a part in an amount not less than eighty
percent (80%) of the "replacement cost" thereof insuring against the perils of
Fire, Lightning, Extended Coverage, Vandalism and Malicious Mischief.
B. Lessee, at its own expense, shall maintain during the term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement. In the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and One Million Dollars
($1,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Lessee, at its own expense, also shall
maintain during the term of this Lease, fire and extended coverage insurance
covering the replacement cost of (i) all alterations, additions, partitions and
improvements installed or placed on the Premises by Lessee or by Lessor on
behalf of Lessee and (ii) all of Lessee's personal property contained within the
Premises. Said policies shall (i) be issued by an insurance company which is
acceptable to Lessor, and (ii) provide that said insurance shall not be
cancelled unless thirty (30) days prior written notice shall have been given to
Lessor. Said policy or policies or certificates thereof shall be delivered to
Lessor by Lessee upon commencement of the term of the Lease and upon each
renewal of said insurance.
C. Lessee will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits. If
any increase in the cost of any insurance on the Premises or the building of
which the Premises are a part is caused by Lessee's use of the Premises, or
because Lessee vacates the Premises, then Lessee shall pay the amount of such
increase to Lessor.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the building of which the Premises are a part
should be damaged or destroyed by fire or other peril, Lessee immediately shall
give written notice to Lessor. If the buildings situated upon the Premises or
of which the Premises are a part should be totally destroyed by any peril not
covered by the insurance to be provided by Lessor under Paragraph 9A above, or
if they should be so damaged thereby that, in Lessor's reasonable estimation,
rebuilding or repairs cannot be completed within one hundred eighty (180) days
after the date of such damage, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease, effective upon the date of
the occurrence of such damage.
B. If the buildings situated upon the Premises or of which the Premises
are a part, should be damaged by any peril covered by the insurance to be
provided by Lessor under Paragraph 9A above, and in Lessor's reasonable
estimation, rebuilding or repairs can be substantially completed within one
hundred eighty (180) days after the date of such damage, this Lease shall not
terminate, and Lessor shall restore the Premises to substantially its previous
condition, except that Lessor shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
that may have been constructed, erected or installed in, or about the Premises
or for the benefit of, or by or for Lessee. If such repairs and rebuilding have
not been substantially completed within one hundred eighty (180) days after the
date of such damage, Lessee, as Lessee's exclusive remedy, may terminate this
Lease by delivering written notice of termination to Lessor in which event the
rights and obligations hereunder shall cease and terminate.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Lessor shall have the right to terminate this Lease by delivering written
notice of termination to Lessee within fifteen (15) days after such requirement
is made known by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate.
D. Anything in this Lease to the contrary notwithstanding, Lessor and
Lessee hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and/or Premises, for any reason
regardless of cause or origin. Each party to this Lease agrees immediately
after execution of this Lease to give each insurance company, which has issued
to its policies of fire and extended coverage insurance, written notice of the
terms of the mutual waivers contained in this subparagraph, and if necessary, to
have the insurance policies properly endorsed.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Lessee and Lessee's permitted assigns for
such other lawful purposes as may be incidental thereto. Outside storage,
including without limitation, storage of trucks and other vehicles, is
prohibited without Lessor's prior written consent. Lessee shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises, and promptly shall comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Lessee's sole expense. Lessee shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action that would
constitute a nuisance or would disturb, unreasonably interfere with, or endanger
Lessor or any other lessees of the building in which the Premises are a part.
13. INSPECTION. Lessor and Lessor's agents and representatives shall have
the right to enter the Premises at any reasonable time during business hours, to
inspect the Premises and to make such repairs as may be required or permitted
pursuant to this Lease. During the period that is six (6) months prior to the
end of the Lease term, upon telephonic notice to Lessee, Lessor and Lessor's
representatives may enter the Premises during business hours for the purpose of
showing the Premises. In addition, Lessor shall have the right to erect a
suitable sign on the Premises stating the Premises are available. Lessee shall
notify Lessor in writing at least thirty (30) days prior to vacating the
Premises and shall arrange to meet with Lessor for a joint inspection of the
Premises prior to
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vacating. If Lessee fails to give such notice or to arrange for such inspection,
then Lessor's inspection of the Premises shall be deemed correct for the purpose
of determining Lessee's responsibility for repairs and restoration of the
Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Lessee shall have the right to assign, sublet, transfer or encumber
this Lease, or any interest therein, with the prior written consent of Lessor,
which consent will not be unreasonably withheld. Any attempted assignment,
subletting, transfer or encumbrance by Lessee in violation of the terms and
covenants of this Paragraph shall be void. Notwithstanding the foregoing,
Lessee shall have the right to assign this Lease to any affiliate (as such term
is defined in the Securities Act of 1933) provided that such assignment is in
form satisfactory to Lessor. Any assignee, sublessee or transferee of Lessee's
interest in this Lease (all such assignees, sublessees and transferees being
hereinafter referred to as "Transferees"), by assuming Lessee's obligations
hereunder, shall assume liability to Lessor for all amounts paid to persons
other than Lessor by such Transferees in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Lessor or not
or permitted hereunder shall relieve Lessee of its liability hereunder. If an
event of default occurs while the Premises or any part thereof are assigned or
sublet, then Lessor, in addition to any other remedies herein provided, or
provided by law, may collect directly from such Transferee all rents payable to
the Lessee and apply such rent against any sums due Lessor hereunder. No such
collection shall be construed to constitute a novation or a release of Lessee
from the further performance of Lessee's obligations hereunder. The sale or
transfer of Lessee's stock is not a prohibited assignment.
B. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. (S) 101 et seq., (the "Bankruptcy
Code"), any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Lessor, shall be and remain the exclusive property of Lessor and shall not
constitute property of Lessee or of the estate of Lessee within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Lessor's property under the preceding sentence not paid or delivered to Lessor
shall be held in trust for the benefit of Lessor and be promptly paid or
delivered to Lessor.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and
deliver to Lessor an instrument confirming such assumption.
15. CONDEMNATION. If more than eight percent (80%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Lessee, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than eighty percent (80%)
of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, this Lease shall not terminate, unless
Lessor's and Lessee's determination that such condemnation so significantly
impairs the purposes of this Lease that its legitimate intended uses are no
longer practical but the rent payable hereunder during the unexpired portion of
this Lease shall be reduced to such extent as may be fair and reasonable under
all of the circumstances. All compensation awarded in connection with or as a
result of any of the foregoing proceedings shall be the property of Lessor and
Lessee hereby assigns any interest in any such award to Lessor; provided,
however, Lessor shall have no interest in any award made to Lessee for loss of
business or goodwill or for the taking of Lessee's fixtures and improvements, if
a separate award for such items is made to Lessee.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Lessee immediately shall deliver possession to Lessor with all
repairs and maintenance required herein to be performed by Lessee completed.
If, for any reason, Lessee retains possession of the Premises after the
expiration or termination of this Lease, unless the parties hereto otherwise
agree in writing, such possession shall be subject to termination by either
Lessor or Lessee at any time upon not less than ten (10) days advance written
notice, and all of the other terms and provisions of this Lease shall be
applicable during such period, except that Lessee shall pay Lessor from time to
time, upon demand, as rental for the period of such possession, an amount equal
to 150% the rent in effect on the termination date, computed on a daily basis
for each day of such period. No holding over by Lessee, whether with or without
consent of Lessor shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this Paragraph 16 shall not be
construed as consent for Lessee to retain possession of the Premises in the
absence of written consent thereto by Lessor.
17. QUIET ENJOYMENT. Lessor covenants that on or before the commencement
date it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the intended use of such property, and easements, restrictions and
other conditions of record. If this Lease is a sublease, then Lessee agrees to
take the Premises subject to the provisions of the prior Leases. Lessor
represents that it has the authority to enter into this Lease and that so long
as Lessee pays all amounts due hereunder and performs all other covenants and
agreements herein set forth, Lessee shall peaceably and quietly have, hold and
enjoy the Premises for the term hereof without hindrance or molestation from
Lessor, subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events (herein individually referred
to as "event of default") each shall be deemed to be events of nonperformance by
Lessee under this Lease:
A. Lessee shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Lessor required
herein when due, and such failure shall continue for a period of five (5)
days following written notice of such failure. For purposes of this
Section 18A., "written notice" shall include Lessor's standard invoicing
documents.
B. The Lessee or any guarantor of the Lessee's obligations hereunder
shall (i) become insolvent; (ii) admit in writing its inability to pay its
debts; (iii) make a general assignment for the benefit of creditors; (iv)
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, 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 of any substantial part of its property; or (v) take any
action to authorize or in contemplation of any of the actions set forth
above in this Paragraph.
C. Any case, proceeding or other action against the Lessee or any
guarantor of the Lessee's obligations hereunder shall be commenced seeking
(i) to have an order for relief entered against it as debtor or to
adjudicate it a bankrupt or insolvent; (ii) reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts
under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors; (iii) appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property,
and such case, proceeding or other action (a) results in the entry of an
order for relief against it which it is not fully stayed within seven (7)
business days after the entry thereof or (b) shall remain undismissed for a
period of forty-five (45) days.
D. Lessee shall (i) vacate all or a substantial portion of the
Premises or (ii) fail to continuously operate its business at the Premises
for the permitted use set forth herein, whether or not Lessee is in default
of the rental payments due under this Lease.
E. Lessee shall fail to discharge any lien placed upon the Premises
in violation of Paragraph 21 hereof within twenty (20) days after any such
lien or encumbrance is filed against the Premises.
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F. Lessee shall fail to comply with any term, provision or covenant
of the Lease (other than those listed in this Paragraph 18), and shall not
cure or commence to cure such failure within thirty (30) days after written
notice thereof to Lessee and thereafter diligently prosecute such cure to
completion.
19. REMEDIES.
A. Upon each occurrence of an event of default, Lessor shall have the
option to pursue any one or more of the following remedies without any notice or
demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises without terminating
this Lease; and/or
(3) Alter all locks and other security devices at the Premises with or
without terminating this Lease, and pursue, at Lessor's option, one or more
remedies pursuant to this Lease, Lessee hereby specifically waiving any
state or federal law to the contrary;
and in any such event Lessee immediately shall surrender the Premises to Lessor,
and if Lessee fails so to do, Lessor, without waiving any other remedy it may
have, may enter upon and take possession of the Premises and expel or remove
Lessee and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution or any claim of damages therefor.
B. If Lessor terminates this Lease, at Lessor's option, Lessee shall be
liable for and shall pay to Lessor, the sum of all rental and other payments
owed to Lessor hereunder accrued to the date of such termination, plus, as
liquidated damages, an amount equal to (1) the present value of the total rental
and other payments owed hereunder for the remaining portion of the Lease term,
calculated as if such term expired on the date set forth in Paragraph 1, less
(2) the then present fair market rental value of the Premises for such period,
which because of the difficulty of ascertaining such value, Lessor and Lessee
stipulate and agree, shall in no event be deemed to exceed seventy-five percent
(75%) of the rental amount set forth in Paragraph 2 above.
C. If Lessor repossesses the Premises without terminating the Lease,
Lessee, at Lessor's option, shall be liable for and shall pay Lessor on demand
all rental and other payments owed to Lessor hereunder, accrued to the date of
such repossession, plus all amounts required to be paid by Lessee to Lessor
until the date of expiration of the term as stated in Paragraph 1, diminished by
all amounts received by Lessor through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved). Actions to
collect amounts due by Lessee to Lessor under this subparagraph may be brought
from time to time, on one or more occasions, without the necessity of Lessor's
waiting until expiration of the Lease term.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Lessee also shall be liable for and shall pay to Lessor (i) brokers'
fees incurred by Lessor in connection with reletting the whole or any part of
the Premises; (ii) the costs of removing and storing Lessee's or other
occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new Lessee or
Lessees; and (iv) all reasonable expenses incurred by Lessor in enforcing or
defending Lessor's rights and/or remedies. If either party hereto institute any
action or proceeding to enforce any provision hereof by reason of any alleged
breach of any provision of this Lease, the prevailing party shall be entitled to
receive from the losing party all reasonable attorneys' fees and all court costs
in connection with such proceeding.
E. In the event Lessee fails to make any payment due hereunder within 15
days of when payment is due, to help defray the additional cost to Lessor for
processing such late payments, Lessee shall pay to Lessor on demand a late
charge in an amount equal to five percent (5%) of such installment; and the
failure to pay such amount within ten (10) days after demand therefor shall be
an additional event of default hereunder. The provision for such late charge
shall be in addition to all of Lessor's other rights and remedies hereunder or
at law and shall not be construed as liquidated damages or as limiting Lessor's
remedies in any manner.
F. Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Lessor, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Lessor and Lessee. Lessee and Lessor further agree that forbearance by Lessor
to enforce its rights pursuant to the Lease at law or in equity, shall not be a
waiver of Lessor's right to enforce one or more of its rights in connection with
any subsequent default.
G. In the event of termination and/or repossession of the Premises for an
event of default, Lessor shall use reasonable efforts to relet the Premises and
to collect rental after reletting; provided, that, Lessee shall not be entitled
to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Lessor may relet the whole or any portion of the Premises for any
period, to any Lessee and for any use and purpose.
H. If Lessor fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Lessee specifying such failure,
Lessee's exclusive remedy shall be an action for damages, except as stated to
the contrary in this Lease. Unless and until Lessor fails to so cure any
default after such notice, Lessee shall not have any remedy or cause of action
by reason thereof. All obligations of Lessor hereunder will be construed as
covenants, not conditions; and all such obligations will be binding upon Lessor
only during the period of its possession of the Premises and not thereafter.
The term "Lessor" shall mean only the owner, for the time being of the Premises,
and in the event of the transfer by such owner of its interest in the Premises,
such owner shall thereupon be released and discharged from all covenants and
obligations of the Lessor thereafter accruing, but such covenants and
obligations shall be binding during the Lease term upon each new owner for the
duration of such owner's ownership. Notwithstanding any other provision hereof,
Lessor shall not have any personal liability hereunder. In the event of any
breach or default by Lessor in any term or provision of this Lease, Lessee
agrees to look solely to the equity or interest then owned by Lessor in the
Premises or of the building of which the Premises are a part; however, in no
event, shall any deficiency judgment or any money judgment of any kind be sought
or obtained against any Lessor.
I. If Lessor repossesses the Premises pursuant to the authority herein
granted, then Lessor shall have the right to (i) keep in place and use or (ii)
remove and store all of the furniture, fixtures and equipment at the Premises,
including that which is owned by or leased to Lessee at all times prior to any
foreclosure thereon by Lessor or repossession thereof by any Lessor thereof or
third party having a lien thereon. Lessor also shall have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Lessor a
copy of any instrument represented by Claimant to have been executed by Lessee
(or any predecessor of Lessee) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Lessor to inquire into the
authenticity or legality of said instrument. The rights of Lessor herein stated
shall be in addition to any and all other rights that Lessor has or may
hereafter have at law or in equity; and Lessee stipulates and agrees that the
rights herein granted Lessor are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Lessor from
accepting performance from (or rendering performance to) any person or entity
other than Lessee.
X. Xxxxxx shall at all times use its best efforts to mitigate its
damages.
20. MORTGAGES. Lessee accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated thereon or the building
of which the Premises are a part, provided, however, that if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have Lessee's
interest in this Lease superior to any such instrument, then by notice to Lessee
from such mortgagee, trustee or holder, this Lease shall be deemed superior to
such lien, whether this Lease was executed before or after said mortgage or deed
of trust. Lessee, at any time
5
hereafter on demand, shall execute any instruments, releases or other documents
that may be required by any mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage. See Exhibit D
Paragraph "O".
21. MECHANIC'S LIENS. Lessee has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor or Lessee in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Lessee, including those who may furnish materials or perform labor
for any construction or repairs. Lessee covenants and agrees that it will pay
or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises and that it will save and hold Lessor harmless from any and all
loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the right, title and interest of the
Lessor in the Premises or under the terms of this Lease. Lessee agrees to give
Lessor immediate written notice of the placing of any lien or encumbrance
against the Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple occupancy
building, Lessee's "proportionate share", as used in this Lease, shall mean a
fraction, the numerator of which is the space contained in the Premises and the
denominator of which is the entire space contained in the building.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Lessor shall have the right to transfer
and assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease. Each party agrees to furnish to
the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
X. Xxxxxx shall not be held responsible for delays in the performance of
its obligations hereunder when caused by material shortages, acts of God or
labor disputes.
E. Lessee agrees, from time to time, within ten (10) days after request
of Lessor, to deliver to Lessor, or Lessor's designee, a Certificate of
Occupancy and an estoppel certificate stating that this Lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
Lease and such other factual matters pertaining to this Lease as may be
requested by Lessor. It is understood and agreed that Lessee's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Lessor's execution of this Lease. Lessee shall have a reciprocal right to
receive an estoppel certificate from Lessor upon 10 days written demand.
F. This Lease constitutes the entire understanding and agreement of the
Lessor and Lessee with respect to the subject matter of this Lease, and contains
all of the covenants and agreements of Lessor and Lessee with respect thereto.
Lessor and Lessee each acknowledge that no representations, inducements,
promises or agreements, oral or written, have been made by Lessor or Lessee, or
anyone acting on behalf of Lessor or Lessee, which are not contained herein, and
any prior agreements, promises, negotiations, or representations not expressly
set forth in this Lease are of no force or effect. This Lease may not be
altered, changed or amended except by an instrument in writing signed by both
parties hereto.
G. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Lessee
vacating the Premises, Lessee shall pay to Lessor any amount reasonably
estimated by Lessor as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment therein, in
good condition and repair, reasonable wear and tear excluded, Lessee shall also,
prior to vacating the Premises pay to Lessor the amount, as estimated by Lessor,
of Lessee's obligation hereunder for real estate taxes and insurance premiums
for the year in which the Lease expires or terminates. All such amounts shall
be used and held by Lessor for payment of such obligations of Lessee hereunder,
with Lessee being liable for any additional costs therefor upon demand by
Lessor, or with any excess to be returned to Lessee after all such obligations
have been determined and satisfied as the case may be. Any security deposit
held by Lessor shall be credited against the amount due from Lessee under this
Paragraph 22G.
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
I. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
J. Lessee represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent or
other person brought about this transaction, other than Xxxxx X. Xxxxx
Commercial & Industrials, Inc. and Lessee agrees to indemnify and hold Lessor
harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Lessee with regard to this leasing transaction.
K. If and when included within the term "Lessor", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Lessor. If and when included within the term "Lessee", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All parties
included within the terms "Lessor" and "Lessee", respectively shall be bound by
notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
23. SECURITY SERVICE. Lessee agrees to pay the proportionate share of the
cost of monitoring, repair and maintenance of the burglar alarm systems, water
flow detection systems and other protective security equipment installed on the
Premises and/or the building of which the Premises are a part, including the
cost of any license or permit or user charge required for such security systems.
Lessor has entered into an agreement with a third party for the monitoring,
maintenance and repair. Lessor shall not be liable to Lessee for any damages,
costs or expenses which occur for any reason in the event such security system
is not properly installed, monitored or maintained.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Lessor to Lessee or with reference to the sending, mailing or delivering of any
notice or the
making of any payment by Lessee to Lessor shall be deemed to be complied with
when and if the following steps are taken:
(a) All rent and other payments required to be made by Lessee to
Lessor hereunder shall be payable to Lessor at the address for Lessor set
forth below or at such other address as Lessor may specify from time to
time by written notice delivered in accordance herewith. Lessee's
obligation to pay rent and any other amounts to Lessor under the terms of
this Lease shall not be deemed satisfied until such rent and other amounts
have been actually received by Lessor. In addition to base rental due
hereunder, all sums of money and all payments due Lessor hereunder shall be
deemed to be additional rental owed to Lessor.
(b) All payments required to be made by Lessor to Lessee hereunder
shall be payable to Lessee at the address set forth below, or at such other
address within the continental United States as Lessee may specify from
time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States Mail, postage prepaid,
Certified or Registered Mail, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See Exhibits A-F attached hereto and
incorporated by reference herein, the provisions of which shall supersede and
control the provisions of Sections 1-25 of this Lease to the extent of any
inconsistency.
EXECUTED BY LESSOR, this 30th day of August, 1990.
Attest/Witness XXXXX PROPERTY ASSOCIATES
-------------------------
/s/ Xxxxx Xxxxx By: /s/ Xxxxx Property Associates
---------------------------- -------------------------------
Title: Title: Vice President
---------------------- -----------------------
ADDRESS:
000 Xxxxx Xxxxxx
-----------------------------
Suite 1450
-----------------------------
Xxxxxxxxxx, Xxxxxxxxx 00000
-----------------------------
-----------------------------
EXECUTED BY LESSEE, this 15th day of August, 1990.
LESLIE'S POOL MART
------------------
Attest/Witness A CALIFORNIA CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------------- ----------------------------
Title: Title: EVP
--------------------- -------------------------
ADDRESS:
00000 Xxxxxxx Xxxxxx
----------------------------------
X.X. Xxx 0000
----------------------------------
Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
----------------------------------
----------------------------------
By
--------------------------------
7
EXHIBIT A
---------
100,800 square feet of the western section (designated as Space 100 on page
two of this Exhibit "A") of the property described as follows:
Being situated in the Xxxx X. Xxxxxxx Survey, Abstract No. 885, and located
in City Block 8032, City of Dallas, Dallas Country, Texas, and being more
particularly described as follows:
Beginning at a point in the north line of Xxxxxxxxx Drive, said point
being 10.0 feet east. of the east line of Xxx Xxxxxx Drive as shown on
the file plat of Dedication of' Xxx Xxxxxx Drive and Investment Drive
Redbird Industrial Park West, an addition to the City of Dallas,
Texas, according to the plat thereof recorded in Volume 77083, at page
0008 of the Deed Records of Dallas Country, Texas;
Thence North 45 degrees 16 minutes West 14.16 feet to corner; Thence
North 0 decrees 21 minutes West along the east line of Xxx Xxxxxx
Drive 1119.0 feet to corner;
Thence North 89 degrees 38 minutes, 30 seconds east 400.0 feet to
corner; Thence South 0 degrees 21 minutes 30 seconds east 1130.24 feet
to corner; Thence South 89 degrees 49 minutes 10 seconds west along
the north line of Xxxxxxxxx Drive 390.0 feet to place of beginning.
This tract of land contains 451,798 square feet or 10.2/19 acres of land.
Being now known as Lot 1 in Block 5/8032 of the SIXTH SECTION OF RED BIRD
INDUSTRIAL PARK WEST, an Addition to the City of Dallas, Texas, according
to the Map thereof as recorded, in Volume 79218, Page 1062, Map Records,
Texas.
EXHIBIT A
---------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT B
HAZARDOUS SUBSTANCES
--------------------
The term "Hazardous Substances," as used in this Lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other substances,
the removal of which is required or the use of Which is restricted, prohibited
or penalized by an "Environmental Law," which term shall mean any federal, state
or local law, ordinance or other statute of a governmental or quasi-governmental
authority relating to pollution or protection of the environment.
Lessee hereby agrees that:
1. No activity will be conducted on the Premises that will produce any
Hazardous Substance except for such activities that are necessary or useful
to Lessee's legitimate business activities (the "Permitted Activities")
provided said Permitted Activities are conducted in accordance with all
Environmental Laws; Lessee shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency which are directly indirectly related to the Permitted
Activities.
2. The Premises will not be used in any manner for the storage of
Hazardous Substances except for the storage of such materials that are
necessary or useful to Lessee's legitimate business activities (the
"Permitted Materials"), provided such Permitted Materials are properly
stored in a manner and location meeting all Environmental Laws; Lessee
shall be responsible for obtaining any required permits and paying any fees
and providing any testing required by any governmental agency which are
directly or indirectly related to the Permitted Materials.
3. No portion of the Premises will be used as a landfill or a dump.
4. Lessee will not install any underground tanks of any type.
5. Lessee will not allow any surface or subsurface conditions to exist or
come into existence that constitute, or with the passage of time, may
constitute a public or private nuisance.
6. Lessee will not permit any Hazardous Substances to be brought onto the
Premises, except for the Permitted Materials, and if so brought or found
located thereon, the same shall immediately be removed, with proper
disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws. Lessor or Lessor's
representative shall have the right but not the obligation to enter the
premises upon reasonable notice for the purposes of inspecting the storage,
use and disposal of Permitted Materials to ensure compliance with all
Environmental Laws. Should it be determined that said Permitted Materials
are being improperly stored, used, or disposed of, then Lessee shall
immediately take such corrective action as required by Lessor. Should
Lessee fail to take such corrective action within twenty-four
EXHIBIT B cont.
Page 2 of 3
(24) hours, Lessor shall have the right to perform such work and Lessee
shall promptly reimburse Lessor for any and all reasonable ("reasonable" to
be determined by reference to applicable Environmental Laws) costs
associated with said work.
If at any time during or after the term of the Lease, Lessee breaches or if
it is discovered that Lessee has breached any provision of this Exhibit "B",
which breach or breaches, singular, collectively, directly or indirectly result
or have resulted in the contamination of the Premises by one or more Hazardous
Substances, Lessee shall diligently institute proper and thorough cleanup
procedures at Lessee's sole cost, and Lessee agrees to indemnify and hold Lessor
and its partners, venturers, beneficiaries, affiliates, employees, contractors,
agents and representatives harmless from all reasonable claims, demands,
actions, liabilities, costs, expenses, damages and obligations of any nature
arising from or as a direct or indirect result of such contamination. Without
limiting the generality of the foregoing, the indemnification provided by this
paragraph shall specifically cover any and all expenses and costs (including any
legal fees or costs incurred in determining liability) incurred by Lessor in
clean-up, removal, remedial or restoration work required by any federal, state
or local government agency or political subdivision or third party because of
the presence of any Hazardous Substance in the soil or ground water on or under
the Premises, including any improvements located thereon.
Lessor understands that Lessee will be storing swimming pool chemicals on
the Premises. As noted in Exhibit D, Lessor will be constructing chemical
containment and flammable rooms for the Lessee's use for the storage of
combustible oxidizing compounds.
Lessor agrees to indemnify, defend and hold Lessee and its shareholders,
officers, affiliates, employees, contractors, agents and representatives
harmless from any and all reasonable claims, demands, actions, liabilities,
costs, expenses, damages and obligations of any nature arising from or as a
direct or indirect result of the presence or release of any Hazardous Substance
in or into the air, soil, surface water or ground water at, on, about, under or
within the Premises, or any portion thereof, except for contamination by
Hazardous Substances caused by Lessee after Lessor's execution of this Lease.
Without limiting the generality of the foregoing, the indemnification provided
by this paragraph, shall specifically cover any and all expenses and costs
(including any legal fees or costs incurred in determining liability) incurred
by Lessee in clean-up, removal, remedial or restoration work required by any
federal, state or local government agency or political subdivision or third
party because of the presence of any Hazardous Substance in the soil or ground
water on or under the Premises, including any improvements located thereon.
Each of the covenants and agreements of Lessor and Lessee set forth in this
Exhibit "B" shall survive the expiration or earlier termination of this Lease.
EXHIBIT B cont.
Page 3 of 3
Lessor hereby represents and warrants to the best of its knowledge that
there has been no lank, spill, release, discharge, emissions, installation or
disposal of any Hazardous Substance in, on or about the Premises to date and
that to the best of its knowledge the soil, ground water, and improvements on or
under the Premises are free of any Hazardous Substance as of the date of this
Lease. In the event that Lessor shall determine after the date of the Lease
that any of the foregoing is untrue, Lessor shall promptly notify Lessee of said
new information in writing.
EXHIBIT C
---------
TRUST EXCULPATION: Lessor is XXXXX PROPERTY ASSOCIATES, a Georgia General
-----------------
Partnership composed of Continental Mortgage and Equity Trust and Income Special
Associates, a California General Partnership as managing partner composed of
National Income Realty Trust, a California business trust, and Continental
Mortgage and Equity Trust, a California business trust. The Declarations of
Trust, as amended, establishing National Income Realty Trust and Continental
Mortgage and Equity Trust, California business trusts (collectively, the
"Trusts" and severally, "Trust") , dated October 31, 1978 and August 27, 1980,
respectively, copies of which, together with all amendments thereto (the
"Declaration") , are duly recorded in the office of the recorder of the county
of Alameda, State of California, provide with respect to each Trust that:
(a) The Trustees shall conduct the Trust's activities in the name of the
Trust;
(b) The name of the Trust refers to the Trustees collectively as trustee,
but not Individually or personally;
(c) No trustee, shareholder, officer, employee or agent shall have any
personal liability, jointly or severally, for any obligation of or
claim against the Trust; and
(d) All persons dealing with the Trust, in any way, must look solely to
the assets of the Trust for payment of any claims against the Trust.
Accordingly, Lessee agrees to look solely to the respective assets of each
Trust for the enforcement of any claims against either National Income Realty
Trust or Continental Mortgage and Equity Trust.
EXHIBIT D
---------
A. LEASE COMMENCEMENT:
------------------
Commencement date shall be the later of October 1, 1990, the successful
termination of the existing lease agreement for the Premises between Lessor
and Goody Products, Inc., or upon the issuance of a Certificate of
Occupancy (provided that such Certificate of Occupancy is not delayed due
to Lessee's failure to comply with reasonable requirements for issuance of
a Certificate of Occupancy, Lessee's failure to cooperate and provide
pertinent information to effect the finish-out improvements as per Section
C of this Exhibit "D," or delays caused by Lessee's change orders). Lessee
shall use its best efforts to ensure an October 1, 1990 commencement date.
Notwithstanding the foregoing, if all plans and drawings for the finish-out
improvements described in Exhibit "E" attached hereto and in Section C of
this Exhibit "D" are not approved by the applicable agencies and
departments of the City of Dallas on or before August 20, 1990, then either
party shall have the right to immediately terminate this Lease upon written
notice. Further, if a Certificate of Occupancy is not issued through no
fault of Lessee on or before November 15, 1990, then either party shall
have the right to immediately terminate this Lease upon written notice.
B. RENTAL ABATEMENT:
----------------
The total monthly payment for months 2-7 shall be waived. (six months
total)
C. LESSEE IMPROVEMENTS:
-------------------
Lessor will provide finish-out improvement, in accordance with applicable
re-building and zoning improvements and codes, as per the working drawings
attached hereto as Exhibit "E," as approved by Lessor and Lessee, including
the following:
1. Construction of two chemical containment rooms
A. Class 3 oxidizer room: 4,592 square feet (56' x 82')
B. Class 1 and 2 oxidizer room: 6,150 square feet (75' x 82')
These rooms must be completed by city fire code and building
----
requirements and will contain four 101 x 101 overhead firedoors for
access.
2. Construction of flammable room 990 square feet (22' x 45')
This room must be completed to city fire code and building
----
requirements and will contain one 10' x 10' overhead firedoor for
access.
3. Refurbishment of existing office (painting, new carpet, new tile for
the lunchroom), minor modifications to layout (shown in item 14
below).
EXHIBIT D. cont.
Page 2 of 6
4. Installation of 11 additional dock levelers at Dock #'s 2, 3, 6, 7, 7,
11, 12, 13, 14, 15 and 16. These levelers must meet the following
minimum specifications:
A. Must be 6' x 8'
B. 25,000 lb capacity
C. 20" lip
Note: Existing levelers will remain at dock #'s 5, 8 and 10.
5. Installation of dock shelters to dock #'s 2 through 16.
6. Add dock lights to dock #'s 2 through 16 (comparable to Xxxxx light
model DL 60/300 watt with double arm).
7. Add day gates to docks #'s 1, 5, 7, 9, 11, 13, 15, 17, 22, 25, and all
six rail doors.
8. Installation of permanently fixed wheel chocks to docks #'s 2 through
16.
9. Realignment of warehouse lighting based on the following lighting
specifications and racking configuration. This also includes the
addition of metal halide-type lighting as required (see warehouse
racking layout).
The minimum power requirement is 40' candle power at 3' elevation for
all high bay storage areas, bulk stock, docks and other circulation
areas. 60' candle power at 3' elevation for all repack areas and
filter assembly area.
10. Construction of a warehouse receiving office (10' x 10') at the
northeast end of the existing warehouse restroom. This office will
also contain heating/air condition units.
11. Dock #17 will contain a concrete ramp for access to ground level.
12. Encase or repair badly damaged column.
13. All areas of the warehouse must be covered by adequate sprinkler
coverage to meet city fire and building codes.
14. Office layout revisions:
1. Complete painting in one color
2. New carpet, cost not to exceed $10.00 per square yard, installed
3. New tile for lunchroom, cost not to exceed $10.00 per square yard,
installed
4. Add 36" x 60" sliding glass window to Office No. 1
5. Add warehouse entry door to Office No. 1
EXHIBIT D. cont.
Page 3 of 6
6. Add two 36" x 60" sliding glass windows to office No. 3
7. Change existing glass window to a sliding glass window in office
No. 2
Lessee shall pay to Commercial Finish Group $85,000.00 cash upon the
execution of this Lease as Lessee's total contribution towards finish-out
improvements.* This amount is refundable if this Lease is terminated for
any reason within 180 days of execution. Provided, however, notwithstanding
the foregoing provision as to Lessee's contribution to finish-out
improvements, Lessee shall be additionally responsible for and shall pay to
Lessor, upon five (5) days written demand, all costs associated with
Lessee's alterations, additions or deletions to the finish-out improvements
stated in this Section C, as well as all costs associated with Lessee's
actions and/or inactions causing delays, alterations, additions or
deletions to the finish-out improvements stated in this Section C,
including, but not limited to failures to comply with the reasonable
requests of Lessor or its contractors for logistical or informational
cooperation. In this connection, Lessee will use its best efforts to ensure
that all finish-out improvements described are effected at originally
budgeted cost according to original plans and drawings in this Section C
and Exhibit "E" attached hereto.
D. SECURITY DEPOSIT:
----------------
$21,336.00 to be held by Lessor, which shall bear interest at the rate of
eight percent (8%) per annum payable to Lessee on an annual basis in the
form of a credit against the rent payment due for the 12th month of each
Lease year.
E. RENEWAL OPTION:
--------------
Lessor hereby grants to Lessee two (2) options to extend the Lease term for
additional term(s) of five (5) years each. The renewal option will be
based on the prevailing market rate, terms and conditions at the time of
renewal and to include a base year expense stop for the calendar year of
renewal.
F. RIGHT OF FIRST REFUSAL:
----------------------
Lessor shall grant one right of first refusal during the term of the Lease,
including extensions, on segregated space adjacent to the Premises (as per
the site plan attached hereto as part of Exhibit "F"), subject to any
existing lease or renewal options. Any exercise of such right shall be at
the prevailing market rate, terms and conditions for such adjacent space.
This right shall be exercisable by providing written notice to Lessor
within 30 days of Lessor providing written notice to Lessee of the
potential leasing of such adjacent space. Any adjacent space for which
Lessee does not exercise its rights herein shall be fully leasable by
Lessor after this 30 day period.
G. ROOF MAINTENANCE:
----------------
Prior to Lessee's occupancy (see Section A of this Exhibit "D"), weather
permitting and subject to delays unavoidable by Lessor's contractor, Lessor
at Lessor's sole cost and expense
* Leslie's Pool Mart will pay Commercial Finish Group, the contractor, the
sum of $85,000.00 within 10 days of substantial completion. Leslie's Pool Mart
shall be responsible for obtaining a lien waver from the contractor, the
subcontractors, and suppliers upon payment of the $85,000.00.
EXHIBIT D. cont.
Page 4 of 6
shall make preventative maintenance repairs to the roof in accordance with
Exhibit "F" to this Agreement, including six ruptured blisters existing on
the roof.
During the first three (3) years of the Lease term, should Lessor not
respond in a timely manner after written notice from Lessee (7 days,
weather permitting) in addressing any necessary roof repairs, Lessee shall
have the option to repair the roof at its cost and withhold rental payments
to offset such cost. In addition, after inspections and confirmation by
both parties' roof consultants that the roof needs to be replaced, Lessor
will replace the roof at its sole cost and expense with a new retro-fit
roof system. In any event, Lessor will replace the roof with a new retro-
fit roof system with a. ten (10) year manufacturer's warranty by the end of
the third year of the Lease Agreement.
H. TAXES, UTILITIES AND INSURANCE PRORATIONS:
-----------------------------------------
Lessee shall have the right to review Lessor's supporting documentation
relating to the method of calculating Lessee's pro rata cost of insurance,
taxes, utilities or other charges allocatable to Lessee.
Lessor is solely responsible for penalties and late fees relating to the
delinquent payment of these expenses.
I. CONDITION OF PREMISES/REPAIRS/ALTERATIONS:
-----------------------------------------
To ensure that all plumbing, lighting, air conditioning, heating, and
loading doors will be in good and working order on the date the Premises is
delivered to Lessee, Lessor and Lessee will conduct an inspection of the
Premises within 10 days of substantial completion of the finish-out
improvements described in Section C of this Exhibit "D" (such substantial
completion to be determined by Lessor's contractor).
Upon 30 days written notice to Lessor, Lessee shall have the right to
perform any of the maintenance and repair duties of Lessor if needed in an
emergency in order to minimize the disruption of Lessee's business if
Lessor has not commenced with such maintenance or repair within such 30 day
period.
Lessor shall reimburse Lessee for the reasonable value of such maintenance
or repairs upon 10 days written notice.
J. CASUALTY/LIABILITY/DAMAGE/INDEMNIFICATION:
-----------------------------------------
In the event of partial destruction where repairs can be made within 180
days, rents will be abated during any period where Lessee's use is impaired
to the extent of such impairment, on a pro rata square footage basis.
Except for any claims, rights of recovery and causes of action that Lessor
or Lessee have release against each other, Lessee and Lessor shall hold the
other harmless from and defend the other against any and all claims or
liability for any injury or damage caused by the negligence or willful
misconduct of Lessor or Lessee or their respective agents, servants,
employees or invitees: (i) to any person or property whatsoever occurring
in, on or about the Premises or any part thereof and/or of the building of
which the Premises
EXHIBIT D. cont.
Page 5 of 6
are a part, including without limitation elevators, stairways passageways
or hallways, (ii) arising from the conduct of management of any work done
by the Lessee or Lessor in or about the Premises, (iii) arising from
transactions of the Lessee or Lessor, and (iv) all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or
action or proceeding brought thereon. The provisions of this Section J.
shall survive the expiration or termination of this Lease with respect to
any claims or liability occurring prior to such expiration or termination.
K. SALE OF PREMISES:
----------------
Lessor's obligations under the Lease shall continue in the event of the
sale of the Premises unless the new owner of the Premises expressly assumes
the obligations of Lessor under the Lease. In no event shall Lessor be
relieved of liabilities accruing prior to such sale or conveyance.
L. CONSENT TO ASSIGN/SUBLET:
------------------------
Lessor shall not unreasonably withhold consent to assign or sublet the
Premises.
M. NON-STRUCTURAL ALTERATIONS:
--------------------------
Lessee may make de minimus non-structural alterations to the Premises
----------
provided that the reasonable value of such alterations do not exceed, in
the aggregate, $3,000.00 during the Lease term. Such alterations shall
comply with all applicable national, state, county and municipal laws,
codes and ordinances and Lessee shall provide evidence of such compliance
in the form of certificates, permits, licenses and other documents where
required. In connection with such alterations, Lessee shall provide to
Lessor any vendor's/contractor's drawings of such alterations and evidence
of worker's compensation and liability insurance covering the activities
attendant to the work to be performed in effecting such alterations within
30 days after the completion of such alterations. Lessee represents and
warrants that it will use only competent and qualified vendors and
contractors for such alterations.
N. MISCELLANEOUS:
-------------
1. When consents are needed of Lessor under the Lease, they shall not be
unreasonably withheld.
2. Monthly rents and escrow payments are based on a rentable area of
100,800 square feet. Lessee shall have the right to re-measure the
Premises and, if necessary, all payments to Lessor based on rentable
area to be adjusted accordingly. Lessee shall have 20 days from the
date of the execution of the Lease to inspect the Premises and notify
Lessor of any discrepancies in square footage.
EXHIBIT D. cont.
Page 5 of 6
3. All amounts paid to Lessor upon execution of this Lease by Lessee,
including, but not limited to the first month's rent, security deposit
and Lessee improvement contribution are refundable to Lessee should
this Lease be terminated for Lessor's failure to deliver Promises in
accordance with Section A of this Exhibit "D."
O. NONDISTURBANCE, ATTORNMENT AND SUBORDINATION:
--------------------------------------------
Lessor agrees that prior to the commencement Date, it will provide Lessee
with non-disturbance, attornment and subordination agreements in a form
reasonably acceptable to Lessor and Lessee ("Non-Disturbance Agreements")
from any ground lessors, mortgage holders or lien holders of Lessor now in
existence. Lessor also agrees to provide Lessee with Non-Disturbance
Agreements from any ground lessors, mortgage holders or lien holders of
Lessor who later come into existence at any time after this Lease is
executed, and prior to the expiration of the terms of this Lease in
consideration of, and as a condition precedent to, Lessee's agreement to be
bound by Paragraph 20 of the Lease. Lessor agrees to notify each
prospective lender of the terms and conditions of this Lease and shall
require such lender to provide Lessee with a Non-Disturbance Agreement.
Lessor's failure to comply with this Paragraph O shall constitute a
material breach of this Lease.
EXHIBIT "E"
-----------
[FLOOR PLAN APPEARS HERE]
EXHIBIT "E"
-----------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT "F"
[LETTERHEAD OF XXXX X. XXXXXXXX CO., INC.]
July 20, 1990
Leslies Swimming Pool Co.
00000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
ATTN: Xx. Xxxxxxx Xxxxxxx
RE: Repairs to Goody Space Warehouse
Xxx Xxxxxx Drive
Dallas, Texas
Gentlemen:
Upon your request we have inspected the above referenced building and below you
will find our proposal for repair work to the Good Space side only.
1. The existing expansion joint joints will be cleaned and three coursed with
a MBR Type modified bit cement. This type of repair will allow the
expansion joint to continue to expand and contract without causing splits
at the joint areas.
2. Broken gravel guard joints will be bumped back, cleaned, primed, three
coursed, stripped and regraveled.
3. All pitch pockets will be refilled and properly topped off.
4. All existing base flashing will be bumped back at roof level and torn out.
We will then incorporate new wood fiber cant and mop down 170 Type modified
bit base flashing.
5. All existing gutter in this area will be cleaned. Minor repairs will be
made to gutter joints where necessary.
6. A portion of the existing gravel guard will be bumped back, stripped, and
regraveled.
7. All debris incidental to our work will be hauled away and properly disposed
of.
8. All existing open (ruptured) blisters will be repaired.
EXHIBIT "F" cont.
Page 2 of 2
Leslies Swimming Pool Co.
Repairs Xxx Xxxxxx Drive
July 20, 1990
Page Two
NOTE: Although repair work carries no warranty, Xxxx X. Xxxxxxxx Co. will do
everything possible to prevent any problems that you may be having now and
minimize any future problems that you may have.
We appreciate the opportunity of submitting this information and if we can be of
any further assistance in the future, please feel free to contact us. We are
looking forward to working with you on this project.
Sincerely,
Xxxx X. Xxxxxxxx Co., Inc.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Project Manager
RCL/cc
ASSIGNMENT
THIS ASSIGNMENT (the "Assignment") is made and entered into this 27th day
of March, 1992, by and between XXXXX PROPERTIES ASSOCIATES, a Georgia general
partnership (hereinafter referred to as the "Assignor") composed of (i) Income
Special Associates, a California general partnership having as its only general
partners National Income Realty Trust and Continental Mortgage and Equity Trust,
both California business trusts, and (ii) Continental Mortgage and Equity Trust,
a California business trust, Xxxxx Properties Associates being formerly named
Sealy Consolidated Capital Properties (hereinafter referred to as the
"Assignor") and SEALY SOUTHEASTERN, L.P., a Georgia limited partnership having
as its only general partner Sealy venture II, L.P., a Georgia limited
partnership (hereinafter referred to as the "Assignee").
W I T N E S S E T H:
THAT, WHEREAS, Assignor has on even date herewith conveyed to Assignee
certain premises located in Georgia, Tennessee and Texas and improvements
located thereon, being more particularly described on Exhibit A attached hereto
---------
and made a part hereof (collectively the "Premises").
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.0) in hand paid to Assignor by Assignee, at and with the execution
and delivery of this Assignment, the mutual covenants contained herein and other
good and valuable Consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee covenant and agree that:
1. Tenant Leases. Assignor does hereby assign, transfer, sell, grant,
-------------
convey, deliver and set over, without warranty or recourse, except for a
warranty as to free and clear title except for the Permitted Exceptions (as
hereinafter defined), unto Assignee, all of Assignor's right, title, interest,
powers and privileges in and to each and every tenant lease relating to the
Premises (hereinafter referred to as the "Leases"). Assignee hereby assumes
Assignor's obligations as lessor in and to the Leases, including with respect to
the tenants, security deposits, arising on and after the date of this
Assignment. Assignor does hereby agree to indemnify and hold Assignee harmless
as to tenant claims arising out of occurrences or obligations accruing prior to
the date of this Assignment, including, without limitation, in respect to the
tenants' security deposits, described on Exhibit C and with respect to any
---------
claims for tenants' security deposits which are not described on Exhibit C, and
---------
Assignee does hereby agree to indemnify and hold Assignor harmless as to tenant
claims arising out of occurrences or obligations accruing on or after the date
of this Assignment, including, without limitation, in respect to the tenants'
security deposits described on Exhibit C. The indemnifications made in this
---------
paragraph 1 shall survive the execution and delivery of this Assignment and the
payment of all considerations hereof.
2. Service Agreements. Assignor does hereby assign, transfer, sell,
------------------
grant, convey, deliver and set over, without recourse, to Assignee, all of
Assignor's right, title, interest, powers and privileges in and to the
maintenance, supply and service agreements and other agreements relating to the
Premises that appear on Exhibit B attached hereto and made a part hereof.
---------
Assignee hereby assumes all such agreements that appear in Exhibit B and all
---------
obligations thereunder occurring or accruing on or after the date of this
Assignment. Assignor does hereby agree to indemnify and hold Assignee harmless
with respect to fees payable in connection with such agreements and contracts
assumed by Assignee for all time periods before the date hereof. Assignee does
hereby agree to indemnify and hold Assignor harmless with respect to fees
payable in connection with such agreements and contracts assumed by Assignee for
all time periods on or after the date hereof. The indemnifications made in this
paragraph 2 shall survive the execution and delivery of this Assignment and the
payment of all. considerations hereof.
3. Warranties and Guaranties. Assignor does hereby assign, transfer,
-------------------------
sell, grant, convey, deliver and set over unto Assignee, without recourse, all
of Assignor's right, title, interest, powers and privileges in and under all
guaranties and warranties from any contractor, subcontractor, vendor,
manufacturer, supplier or other person in connection with the construction,
manufacture, development, installation, operation and maintenance of any and all
improvements, fixtures, equipment and personal property located on or used in
connection with the Premises.
4. Licenses, Permits and Certificates. Assignor does hereby assign,
----------------------------------
transfer, sell, grant, convey, deliver and set over unto Assignee, without
recourse, all of Assignor's right, title, interest, powers and privileges in and
under all assignable licenses, certificates and permits relating to the
operation of the Premises.
5. Defined Terms. All capitalized terms used in this Assignment, unless
-------------
specified herein to the contrary, shall have the meanings ascribed to them in
that certain Sales Contract dated March 6, 1992 between Assignor, as Seller and
Assignee, as Purchaser, as same may have been amended through the date hereof,
with respect to the acquisition and sale of 27 properties located in Georgia,
Tennessee and Texas, and in that certain Sales Contract dated March 6, 1992
between Assignor, as Seller and Assignee, as Purchaser, as same may have been
amended through the date hereof, with respect to the acquisition and sale of six
properties located in Georgia and Tennessee.
6. Successors and Assigns. This Assignment shall inure to the benefit of
----------------------
and be binding upon Assignor and Assignee, their respective successors and
assigns, and legal representatives, and the term "Assignor" and "Assignee" shall
mean and include their respective successors, assigns and legal representatives
whenever used in this Assignment.
7. Governing Law. This Assignment shall be construed under and enforced
---------
in accordance with the laws of the State of Georgia.
8. Time. Time is of the essence of this Assignment.
----
2
9. Trust Disclaimers. The Declarations of Trust, as amended,
-----------------
establishing National Income Realty Trust and Continental Mortgage and Equity
Trust, California business trusts (collectively, the "Trusts" and severally,
"Trust"), dated June 15, 1987 and May 27, 1987, respectively, copies of which,
together with all amendments thereto (the "Declaration"), are duly recorded in
the office of the recorder of the County of Alameda, State of California,
provide with respect to each Trust that (a) the Trustees shall conduct the
Trust's activities in the name of the Trust, (b) the name of the Trust refers to
the Trustees collectively as trustees, but not individually or personally, (c)
no trustee, shareholder, officer, employee or agent shall have any personal
liability, jointly or severally, for any obligation of, or claim against, the
Trust, and (d) all persons dealing with the Trust, in any way, must look solely
to the assets of the Trust for the payment of any claims against the Trust.
Accordingly, Assignee agrees to look solely to the respective assets of each
Trust for the enforcement of any claims against either National Income Realty
Trust or Continental Mortgage and Equity Trust.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
affixed their respective seals as of the day and year first above written.
ASSIGNOR:
XXXXX PROPERTIES ASSOCIATES, a Georgia
general partnership
By: Income Special Associates,
a California general partnership,
general partner
By: National Income Realty Trust,a
California business trust,
general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx,
Vice President
(TRUST SEAL)
3
By: Continental Mortgage and Equity
Trust, a California business
trust, general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx,
Vice President
(TRUST SEAL)
By: Continental Mortgage and Equity
Trust, a California business
trust, general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx,
Vice President
(TRUST SEAL)
ASSIGNEE:
SEALY SOUTHEASTERN, L.P., a Georgia
general partnership
By: Sealy Venture II, L.P., a
Georgia limited partnership,
its sole general partner
By: Sealy Industrial, Inc.,
a Georgia corporation,
its sole general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, President
(CORPORATE SEAL)
4
EXHIBIT "A"
That certain property located at 4202 through 0000 Xxx Xxxxxx Xxxxx in the City
of Dallas, Texas, described as follows:
Xxx 0, Xxxxx 0, Xxxx Xxxxx 0000, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxx Xxxx West, an
Addition to the City of Dallas, Texas, according to Plat thereof recorded in
Volume 79218, page 1062 of the Deed Records of Dallas County, Texas, and being
more particularly described as follows:
BEGINNING at a 1/2-inch iron rod set in the north line of Xxxxxxxxx Drive (100
foot right-of-way), said iron rod set being 10.0 feet east of the east line of
Xxx Xxxxxx Drive as shown on the file plat of dedication of Xxx Xxxxxx Drive and
Investment Drive, Redbird Industrial Park West, an Addition to the City of
Dallas, Texas, according to the Plat thereof recorded in Volume 77083, page 8 of
the Deed Records of Dallas County, Texas;
THENCE North 45 degrees 16 minutes West 14.16 feet to a 1/2-inch iron rod set in
the east line of Xxx Xxxxxx Drive (60 foot right-of-way);
THENCE North 0 degrees 21 minutes 30 seconds West along the east line of Xxx
Xxxxxx Drive 1119.00 feet to a 1/2-inch iron rod set for corner;
THENCE, leaving said east line, North 89 degrees 38 minutes 30 seconds East
400.0 feet to a 1/2-inch iron rod set for corner;
THENCE South 00 degrees 21 minutes 30 seconds East 1130.24 feet to a 1/2-inch
iron rod found in the north line of Xxxxxxxxx Drive for corner;
THENCE South 89 degrees 49 minutes 10 seconds West along the north line of
Xxxxxxxxx Drive 390.00 feet to the PLACE OF BEGINNING.
This tract of land containing 451,797 square feet or 10.3718 acres of land, more
or less, as shown on plat of As-Built Survey of 4202-4250 Xxx Xxxxxx Xxxxx, Xxxx
xx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx prepared for Sealy Southeastern, L.P., Xxxxx
Properties Associates, Title Insurance Company of Minnesota and Confederation
Life Insurance Company, prepared by Xxxxxxx & Xxx Surveyors, bearing the seal
and certification of X.X. Xxx, Texas Registered Professional Land Surveyor No.
2038, dated November 18, 1991.
EXHIBIT "B"
-----------
SERVICE CONTRACTS
-----------------
1. Agreement with Kassell & Company for the following-described properties:
- 0000-00 Xxxxxxxxxxxxx, Xxxxxxx, Xxxxxxx
- 000 Xxxx, Xxxxxxx, Xxxxxxx
- 000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
- 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx
- 0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxx
- 0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxx
- 0000 Xxxxxxxx, Xxxxxxx, Xxxxxxx
- 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
- 000 Xxxxxxx, Xxxxxxx, Xxxxxxx
- 3510 Zip Industrial, Atlanta, Georgia
- 3530 Zip Industrial, Atlanta, Georgia
- 3538-44 Zip Industrial, Atlanta, Georgia
- 3550 Zip Industrial, Atlanta, Georgia
2. Agreement with Xxxxxxx Professional Lawn Service for the following
properties:
- 4400 Xxxx, Memphis, Tennessee
- 0000-00 Xxxxx, Xxxxxxx, Xxxxxxxxx
- 4606 Lamar, Memphis, Tennessee
3. Agreement with GreenScape, Inc. for 0000 Xxxxxxx, Xxxxxxx, Xxxxxxxxx.
4. Agreements with K.C. Maintenance for the following properties:
- 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx
- 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx
- 0000 Xxxxxxxxx, Xxxxxx, Xxxxx
5. Agreements with Perennial Lawn Care for the following properties:
- 4703-05 Greatland, San Antonio, Texas
- 4615-4651 Greatland, San Antonio, Texas
- 0000 Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx
- 0000-0000 Space Center, San Antonio, Texas
EXHIBIT "C"
-----------
SCHEDULE A
----------
TENANT SECURITY DEPOSITS
------------------------
Property Tenant Amount
-------- ------ ------
0000 Xxxxxxxxxxxxx Xxxxxx Events Group, Inc. (3,500 s.f.) $ 1,152.00
0000 Xxxxxxxxxxxxx Xxxxxx Events Group, Inc. (9,000 s.f.) 1,687.50
0000 Xxxxxxxxxxxxx Xxxxxx Mohawk Finishing 1,100.00
0000-0000 Xxxxxxxxxxxxx Xxxxxx Xxxxx'x Alley, Inc. (5,621 s.f.) 1,240.50
0000-0000 Xxxxxxxxxxxxx Xxxxxx Xxxxx'x Alley, Inc. (5,200 s.f.) 1,452.00
0000-0000 Xxxxxxxxxxxxx Xxxxxx Diversified Mail 1,300.00
0000-0000 Xxxxxxxxxxxxx Xxxxxx Summit Commercial 1,235.00
0000-0000 Xxxxxxxxxxxxx Xxxxxx National Exhibitor Service 1,360.00
0000-0000 Xxxxxxxxxxxxx Xxxxxx Germersheim, Inc. 2,167.00
000 Xxxxx Xxxxxxxxx Xxxxxxx B&F Distribution Services 8,943.00
355 Xxxx Bonded Service Warehouse 2,000.00
0000 Xxxx Xxxxx Allied Foods, Inc. 1,400.00
0000 Xxxxxxxxx Xxxxxxxxxx Electrical Reps South 4,261.00
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxx Racing Equipment 3,149.32
0000 Xxxxxxxxx Xxxxxxxxxx Van's Antique Delivery Serv. 2,811.06
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxx American Moving 1,000.00
0000 Xxxxxxxxx Xxxxxxxxxx Electrical Products 10,262.71
3645 Oakcliff Cenco Enterprises 3,125.00
5360 Tulane Alchem Chemical Corporation 3,750.00
5700 Tulane Pirelli Power TranSMiBSion 900.00
EXHIBIT "C"
-----------
SCHEDULE A
----------
TENANT SECURITY DEPOSITS
------------------------
Property Tenant Amount
-------- ------ ------
5700 Tulane Webwork, Inc. (18,125 s.f.) 2,640.00
5700 Tulane Webwork, Inc. (21,875 s.f.) 3,500.00
000 Xxxxxxx Xxxxxxx Coil, Inc. 6,135.00
0000 Xxx Xxxxxxxxxx Xxxx. American Distribution 15,750.00
0000-00 Xxxxx Xxxxxx Valeo Engine Cooling, Inc. 10,083.33
0000-00 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxx 6,562.50
0000 Xxxxx Xxxxxx Trans Ubiquity Corp. 450.00
0000 Xxxxx Xxxxxx A-Safeway Moving & Storage 2,203.13
0000 Xxx Xxxxxx Xxxxx Leslie's Pool Mart 21,336.00
0000 Xxx Xxxxxx Xxxxx Xxxx of Life, Inc. 21,586.00
0000 Xxxxxxxxx Xxxx Shipper's Warehouse 15,150.00
0000-0000 Xxxxxxxxx Xxxxx Regal Plastics Supply 656.25
0000-0000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxx 703.00
0000-0000 Xxxxxxxxx Xxxxx American Spirits 5,062.50
0000-0000 Xxxxxxxxx Xxxxx X.X.X. Xxx Xxxxxxx, Inc. 2,150.00
4926 Space Center Reliance Steel & Aluminum 2,550.00
5000-5006 Space Center Xxxxx Distributing Co. 1,128.00
5000-5006 Space Center Cargo-Lite Pallet Company 5,240.00
-----------
Total $177,181.80
FIRST AMENDMENT TO LEASE AGREEMENT
BY AND BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST,
a Maryland real estate investment trust,
and
LESLIE'S POOL MART,
a California corporation
This First Amendment To Lease Agreement (this "First Amendment") is made
and entered into effective as of ______________________, 1996, by and between
SECURITY CAPITAL INDUSTRIAL TRUST (hereinafter "Landlord"), and LESLIE'S POOL
MART (hereinafter "Tenant").
W I T N E S S E T H:
-------------------
WHEREAS, Landlord (or its predecessor in title) and Tenant have previously
made and entered into that certain Lease Agreement dated August 30, 1990 (the
"Lease"), pursuant to which Landlord currently leases to Tenant approximately
100,800 square feet of office/warehouse space (the "Existing Leased Premises" or
the "Existing Premises") situated in Suite 100 of the Project known as the 4202
Xxx Xxxxxx Project, situated at 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000; and
WHEREAS, Landlord and Tenant desire to provide for the expansion of the
Existing Premises, and to modify certain terms and provisions of the Lease, all
as herein more particularly set forth;
NOW, THEREFORE, pursuant to the foregoing, and in consideration of the
mutual covenants and agreements contained in the Lease and in this First
Amendment, the Lease is hereby modified and amended as set out below:
1. Section 1 of the Lease, captioned "Premises and Term," is hereby
amended to reflect the following:
(a) Effective as of July 1, 1996 (the "Expansion Commencement Date"),
the Existing Premises shall be expanded to include the
approximately 25,200 square feet of space (the "Expansion
Premises") situated in Suite 103 of the 4202 Xxx Xxxxxx Project,
said Expansion Space being depicted on Exhibit A attached to this
First Amendment and made a part hereof for all purposes. From
and after the Expansion Commencement Date, all references in the
Lease to the "Premises" or the "Leased Premises" shall mean and
refer to the Existing Premises and the Expansion Premises,
together, unless otherwise expressly provided in this First
Amendment. Without limiting the generality of the foregoing,
Tenant shall obtain an amended certificate of insurance, as
provided for in Paragraph 9B of the Lease, evidencing extension
of the coverages therein required to the Expansion Premises, and
naming Landlord and SCI Client Services Incorporated as
additional insureds with respect to Tenant's operations and
activities in and about the Expansion Premises.
(b) With respect to the Expansion Space, the Term of the Lease shall
run from the Expansion Commencement Date through September 30,
1997. Additionally, Tenant shall have the right and option to
further renew the Lease Term for the Expansion Space for one (1)
additional year, on and subject to the terms and provisions of
Exhibit B attached to this First Amendment and made a part hereof
for all purposes.
(c) Expiration of the Lease Term with respect to the Expansion
Premises as provided in (b) above shall not alter or affect the
continuing effectiveness of the Lease with respect to the
Existing Premises, on and subject to the remaining terms and
provisions of the Lease.
2. (a) Tenant may, at its sole cost and expense and within 30 days
after the Expansion Space Commencement Date described in
Paragraph 1 above, construct one (1) opening, not to exceed a 10'
x 10' opening, in the common demising wall between the Existing
Premises and the Expansion Premises. Tenant accepts the
Expansion Premises in their present, "as is" condition.
(b) Upon expiration or termination of the Lease Term for the
Expansion Premises for any reason, Tenant, at its sole cost and
expense, shall restore the opening constructed by Tenant in the
demising wall between the Existing Premises and the Expansion
Premises to its original condition and to Landlord's reasonable
satisfaction.
3. Section 2A of the Lease, captioned "Base Rent, Security Deposit and
Escrow Payments," is hereby amended to reflect the following:
(a) Commencing July 1, 1996, the Base Rental payable by Tenant to
Landlord for the Expansion Premises shall be $4,725.00 per month
($2.25 per square foot per year, triple net).
(b) Beginning July 1, 1996 and continuing during the Lease Term for
the Expansion Premises, Tenant's obligation to pay to Landlord,
as additional rental, Tenant's pro rata share of all Operating
Expenses of the project allocable to the Expansion Premises.
Tenant's estimated pro rata share of Operating Expenses allocable
to the Expansion Premises shall be payable monthly in advance,
commencing July 1, 1996 (with an annual reconciliation of
estimated and actual Operating Expenses as provided for in
Xxxxxxxxx 0X of the Lease), in the following amounts:
Taxes $0.46 per square foot per year ($966.00 per month)
Insurance $0.05 per square foot per year ($105.00 per month)
Common Area $0.13 per square foot per year ($273.00 per month)
Maintenance
Management Fee $0.0476 per square foot per year ($100.00 per month)
____________
Total $0.74 per square foot per year ($1,444.00 per month)
(c) The Base Rental and Operating Expense obligations of Tenant with
respect to the Expansion Premises, as hereinabove set forth, are
in addition to Tenant's Base Rental and Operating Expense
obligations for the Existing Premises as set forth in the Lease.
4. (a) Notwithstanding anything to the contrary set forth in Paragraph
12 of the Lease, captioned "USE," or in Paragraphs 2 or 6 of
Exhibit B to the Lease, with respect to Hazardous Substances the
Expansion Premises shall be used only as a staging area for
Tenant's sales and distribution operations on and from the
Premises, and shall not be used for the processing, mixing,
blending, packaging, or re-packaging of any Hazardous Substances.
All Permitted Materials that are at any time in the Expansion
Premises shall be and remain in sealed, unopened containers.
(b) So long as Tenant complies with the use restrictions set forth in
subparagraph 4(a) above, the indemnification by Tenant of
Landlord set forth in the first full paragraph on page two of
Exhibit B to the Lease shall not apply to the Expansion Premises,
and in lieu of such indemnity Tenant covenants and agrees that in
the event of contamination of the Expansion Premises as a result
of the presence or release of Hazardous Substances in, on or
under the Expansion Premises caused by Tenant, its employees,
agents, contractors, assignees or subtenants, Tenant, at its sole
cost and expense, shall promptly institute and diligently
prosecute to completion proper and thorough remediation
procedures in accordance with applicable Environmental Laws, so
that upon completion of such
2
remediation the Expansion Premises may be used for customary
office/warehouse purposes without any use restrictions thereon
that did not apply prior to such contamination.
5. The environmental representations, warranties, covenants, agreements
and indemnity of Landlord as set forth in the last three grammatical
paragraphs of Exhibit B to the Lease shall not apply to the Expansion
Premises or any portion thereof, or the presence or release, of any
Hazardous Substances therein, thereon or thereunder. However, and in
lieu of such indemnity, landlord covenants and agrees that in the
event it is determined the Expansion Premises are contaminated by
Hazardous Substances, and such contamination was not caused by Tenant,
its employees, agents, contractors, assignees or subtenants, Landlord,
at its sole cost and expense, shall promptly institute and diligently
prosecute to completion proper and thorough remediation. procedures in
accordance with applicable Environmental Laws, so that upon completion
of such remediation the Expansion Premises may be used for customary
office/warehouse purposes without any use restrictions thereon that
did not apply prior to such contamination.
6. ANY OBLIGATION OR LIABILITY WHATSOEVER OF SECURITY CAPITAL INDUSTRIAL
TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST, WHICH MAY ARISE AT ANY
TIME UNDER THIS LEASE OR ANY OBLIGATION OR LIABILITY WHICH MAY BE
INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION, OR
UNDERTAKING CONTEMPLATED HEREBY SHALL NOT BE PERSONALLY BINDING UPON,
NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY
OF ANY OF ITS TRUSTEES, DIRECTORS, SHAREHOLDERS, OFFICERS, OR
EMPLOYEES, REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN
THE NATURE OF CONTRACT, TORT, OR OTHERWISE.
7. With the exception of those terms and conditions specifically modified
and amended herein, the herein referenced Lease shall remain in full
force and effect in accordance with all its terms and conditions. In
the event of any conflict between the terms and provisions of this
First Amendment and the terms and provisions of the Lease, the terms
and provisions of this First Amendment shall supersede and control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
To Lease Agreement to be effective as of the day and year as first above
written.
LANDLORD: TENANT:
SECURITY CAPITAL INDUSTRIAL TRUST LESLIE'S POOL MART
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx
------------------------- ------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx Xxxxx
Title: Senior Vice President Title: Vice President
Date: ________, 1996 Date: 6/21, 1996
Landlord's Address for Notices:
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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EXHIBIT A
TO
FIRST AMENDMENT TO LEASE AGREEMENT
----------------------------------
Depiction of the Expansion Premises:
-----------------------------------
EXHIBIT A
TO
FIRST AMENDMENT TO LEASE AGREEMENT
----------------------------------
[Depiction of the Expansion Premises appears here]
EXHIBIT B
TO
FIRST AMENDMENT TO LEASE AGREEMENT
----------------------------------
ONE RENEWAL OPTION AT MARKET
----------------------------
(a) Provided that as of the time of the giving of the Extension Notice
(hereinbelow defined) and the Commencement Date of the Extension Term, (x)
Tenant is the Tenant originally named herein, (y) Tenant actually occupies all
of the Existing Premises and the Expansion Premises, and (z) no Event of Default
exists or would exist but for the passage of time or the giving of notice, or
both; then Tenant shall have the right to extend the Lease Term for the
Expansion Premises for an additional term of one (1) year (such additional term
is hereinafter called the "Extension Term") commencing on the day following the
--------------
expiration of the Lease Term for the Expansion Premises (hereinafter referred to
as the "Commencement Date of the Extension Term"). Tenant shall give Landlord
---------------------------------------
notice (hereinafter called the "Extension Notice") of its election to extend the
---------
term of the Lease Term for the Expansion Premises at least two (2) months, but
not more than five (5) months, prior to the scheduled expiration date of the
Lease Term for the Expansion Premises.
(b) The Base Rent payable by Tenant to Landlord for the Expansion Premises
during the Extension Term shall be the greater of (i) the Base Rent then payable
for the Expansion Premises and (ii) the then prevailing market rate for
comparable space in the Project and comparable buildings in the vicinity of the
Project, taking into account the size of the Lease, the length of the renewal
term, market escalations and the credit of Tenant. The Base Rent shall not be
reduced by reason of any costs or expenses saved by Landlord by reason of
Landlord's not having to find a new tenant for such premises (including, without
limitation, brokerage commissions, costs of improvements, rent concessions or
lost rental income during any vacancy period). In the event Landlord and Tenant
fail to reach an agreement on such rental rate and execute the Amendment
(defined below) at least one (1) month prior to the expiration of the Lease Term
for the Expansion Premises, then Tenant's exercise of the renewal option shall
be deemed withdrawn and the Lease Term for the Expansion Premises shall
terminate on its original expiration date (September 30, 1997).
(c) The determination of Base Rent does not reduce the Tenant's obligation
to pay or reimburse Landlord for Operating Expenses for the Expansion Premises
and other reimbursable items as set forth in the Lease, and Tenant shall
reimburse and pay Landlord as set forth in the Lease with respect to such
Operating Expenses and other items with respect to the Expansion Premises during
the Extension Term.
(d) Except for the Base Rent as determined above, Tenant's occupancy of the
Expansion Premises during the Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the initial
Lease Term for the Expansion Premises; provided, however, Tenant shall have no
further right to any allowances, credits or abatements or any options to expand,
contracts renew or extend the Lease Term for the Expansion Premises.
(e) If Tenant does not give the Extension Notice within the period set
forth in paragraph (a) above, Tenant's right to extend the Lease Term for the
Expansion Premises shall automatically terminate. Time is of the essence as to
the giving of the Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise improve the
Expansion Premises for the Extension Term. The Expansion Premises shall be
tendered on the Commencement Date of the Extension Term in "as-is" condition.
(g) If the Lease is extended for the Extension Term, then Landlord shall
prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term for the Expansion Premises and the other provisions
applicable thereto (the "Amendment").
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(h) If Tenant exercises its right to extend the term of the Lease for the
Expansion Premises for the Extension Term pursuant to this Addendum, the term
"Lease Term" as used in the Lease, shall be construed to include, when
practicable and with respect to the Expansion Premises, the Extension Term
except as provided in (d) above.
(i) Tenant's exercise of the option for the Extension Term, or Tenant's
election not to exercise the option, or Tenant's failure to exercise the option
for the Extension Term, shall not alter or affect the Lease or the Lease Term
with respect to the Existing Premises.
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