1
EXHIBIT 10.33
Rev 9/90
L E A S E A G R E E M E N T
STATE OF TEXAS
COUNTY OF XXXXXX
This Lease Agreement is made and entered into by and between
Xxxxxx X. Xxxxxx, L.L.C.,
hereinafter referred to as "Landlord", and
Packaged Ice, Inc.,
hereinafter referred to as "Tenant".
W I T N E S S E T H:
1. PREMISES and TERM
In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby takes
from Landlord certain premises situated within the County of Xxxxxx, State of
Texas, more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference, and as follows:
Approximately 13,050 square feet of office/warehouse area located in Building
"A", containing approximately 39,150 square feet, in a project containing
approximately 145,800 square feet, and situated on a tract of land out of the
X.X. Xxxxxxxx Survey, Abstract A-610 and being more particularly described on
Exhibit "A", attached hereto. The address for this facility is 0000 Xxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000;
together with all rights, privileges, easements, appurtenances and immunities
belonging to or in any way pertaining to the premises and together with the
building and other improvements situated or to be situated upon said premises
(said real property, building and improvements being hereinafter referred to as
the "Premises").
TO HAVE AND TO HOLD the same for a term commencing on the
"Commencement Date" as the later of May 1, 1994, or substantial completion of
the required tenant improvements to be made by Landlord, and ending sixty (60)
months thereafter; provided, however, that in the event the Commencement Date
is a date other than the first day of a calendar month, said term shall extend
for said number of months in addition to the remainder of the calendar month
following the Commencement Date.
1
2
Tenant acknowledges that no representations as to the repair of
the Premises have been made by Landlord, unless such are expressly set forth in
this lease. After such Commencement Date Tenant shall, upon demand, execute
and deliver to Landlord a letter of acceptance of delivery of the Premises. In
the event of any dispute as to substantial completion or work performed or
required to be performed by Landlord, the certificate of Landlord's architect
or general contractor shall be conclusive.
2. BASE RENT and SECURITY DEPOSIT
A. Tenant agrees to pay to Landlord rent for the Premises, in
advance, without demand, deduction or set off, for years one through three,
Three Thousand Three Hundred Ninety-Three and 00/100 Dollars ($3,393.00) per
month; and for years four and five, Three Thousand Nine Hundred Fifteen and
00/100 Dollars ($3,915.00) per month). One such monthly installment, including
monthly common area maintenance payments, shall be due and payable on the date
hereof and a monthly installment shall be due and payable on or before the
first day of each calendar month succeeding the Commencement Date recited above
during the hereby demised term, except that the rental payment for any
fractional calendar month at the commencement or end of the lease period shall
be prorated. Failure by Tenant to pay any one monthly installment of rent by
the tenth (10) day from the date such payment was due shall be considered an
event of default in accordance with the provisions of Paragraph 18(a) of this
lease agreement. Upon such failure by Tenant to pay any rental installment
within five (5) days of when such installment is due, Tenant shall pay to
Landlord, on demand, a late charge in an amount equal to five percent (5%) of
such installment. Failure to pay such late charge within ten (10) days after
demand shall likewise be considered an event of default hereunder. The
provision for such late charge shall be in addition to all of Landlord's other
rights and hereunder or at law and shall not be construed as liquidated damages
or as limiting Landlord's remedies in any manner.
B. Tenant agrees to pay to Landlord, as additional rental, all
charges for any services, goods, or materials furnished by Landlord at Tenant's
request which are not required to be furnished by Landlord under this Lease (as
well as all other sums payable by Tenant hereunder) within ten (10) days after
Landlord renders a statement therefor to Tenant. All past due additional
rental amounts shall bear interest from the date due until paid at the maximum
rate allowed by law.
2
3
C. In addition, Tenant agrees to deposit with Landlord on the
date hereof the sum of Three Thousand Eight Hundred Fifty-five and 00/100
Dollars ($3,855.00), which sum shall be held by Landlord, without obligation
for interest, as security for the performances of Tenant's covenants and
obligations under this lease, it being expressly understood and agreed that
such deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to time, without prejudice to any
other remedy provided herein or provided by law, use such fund to the extent
necessary to make good any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by such
event of default; and Tenant shall pay to Landlord, on demand, the amount so
applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant
within thirty (30) days after termination of this lease, providing that all of
Tenant's obligations under this lease have been fulfilled.
3. USE
The demised 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 Tenant and for such other
lawful purposes as may be incidental thereto. Outside storage, including,
without limitation, trucks and other vehicles, is prohibited without Landlord's
prior written consent. Tenant shall obtain, at its own cost and expense, any
and all licenses and permits necessary for any such use. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Premises, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in, upon,
or in connection with the Premises, all at Tenant's sole expense. Tenant shall
not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
Building in which the Premises are situated or unreasonably interfere with
their use of their respective Premises. Without Landlord's prior written
consent, Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly inflammable. Tenant will
not permit the Premises to be used for any purpose or in any manner (including,
without limitation, any method or storage) which would render the insurance
thereon void or the insurance risk more hazardous or cause the State Board of
Insurance or other insurance authority to disallow any sprinkler credits.
4. TAXES
A. Landlord agrees to pay, before they become delinquent, all
taxes, assessments, and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the Building and the grounds, parking areas, driveways and alleys
around the Building. If the Tenant's proportionate share of taxes levied or
assessed against the Building and the grounds, parking areas, driveways and
alleys around the Building during a real estate tax year, occurring within the
term hereof or during any renewal or extension of this term, shall exceed an
amount equal to the actual cost of such expense for the calendar year 1994,
Tenant shall pay to Landlord as additional rental, upon demand,
3
4
the amount of such excess. In the event any such amount is not paid within ten
(10) days after the date of Landlord's invoice to Tenant, the unpaid amount
shall bear interest from the date due until paid at the maximum interest rate
allowed by law.
B. Tenant'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(s).
Tenant's initial proportionate share shall be 13,050/145,800 = 8.951%.
C. If at any time during the term of this lease the present
method of taxation shall be changed so that in lieu of the whole or any part of
any taxes, assessments or governmental charges levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord 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 for the present or any future
building(s) on the Premises, 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.
D. The Landlord 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. Tenant shall pay to Landlord the amount of
Tenant's "proportionate share" (as defined in subparagraph 4.B above) of the
reasonable cost of such service.
E. Any payment to be made pursuant to this Paragraph 4 with
respect to the real estate tax year in which this lease commences or terminates
shall be prorated.
F. Tenant shall pay all ad valorem and similar taxes or
assessments levied upon or applicable to all equipment, fixtures, furniture,
and other property placed by Tenant in the Premises and all license and other
fees or charges imposed on the business conducted by Tenant on the Premises.
It is agreed that Tenant will also be responsible for ad valorem taxes on the
value of leasehold improvements to the extent that such leasehold improvements
exceed standard building allowances, and are specifically referenced by the
taxing authority by improvement type and location in the assessment.
5. LANDLORD'S REPAIRS
Landlord shall, at his expense, maintain only the roof,
foundation, and the structural soundness of the exterior walls of the building
in good repair, reasonable wear and tear excepted. Tenant shall repair and pay
for any damage caused by the negligence of Tenant, or Tenant's employees,
agents or invitees, or caused by Tenant's default hereunder. The term "walls"
as used herein shall not include windows, glass or plate glass, doors, special
store fronts or office entries. Tenant shall immediately give Landlord written
notice of defect or need for repairs, after which Landlord shall have
reasonable opportunity to repair same or cure such defect. Landlord's
liability with respect to any defects, repairs or maintenance for which
Landlord is responsible under any of the provisions of this lease shall be
limited to the cost of such repairs or maintenance or the curing of such
defect.
4
5
6. TENANT'S REPAIRS
A. Tenant shall, at its own cost and expense, keep and maintain
all parts of the Premises (except those for which Landlord is expressly
responsible under the terms of this lease) in good condition, promptly making
all necessary repairs and replacements, including, but not limited to, windows,
glass and plate glass, doors, special store fronts or office entries, interior
walls and finish work, floors and floor covering, downspouts, gutters, heating
and air conditioning systems, truck doors, dock bumpers, paving, plumbing work
and fixtures, termite and pest extermination, regular removal of trash and
debris, keeping the parking areas, driveways, alleys and the whole of the
Premises in a clean and sanitary condition. Tenant shall not be obligated to
repair any damage caused by fire, tornado or other casualty covered by the
insurance to be maintained by Landlord pursuant to subparagraph 13.A below,
except that Tenant shall be obligated to repair all wind damage to glass,
except with respect to tornado or hurricane damage. Tenant shall not be
responsible for repairs caused by the acts or proven negligence of Landlord,
its agents or employees.
B. Tenant shall not damage any demising wall or disturb the
integrity and support provided by any demising wall and shall, at its sole cost
and expense, promptly repair any damage or injury to any demising wall caused
by Tenant or its employees, agents or invitees.
C. Tenant and its employees, customers and licensees shall have
the right to use the parking areas, if any, as may be designated by Landlord in
writing, subject to such reasonable rules and regulations as Landlord may from
time to time prescribe and subject to rights of ingress and egress of other
tenants. Landlord shall not be responsible for enforcing Tenant's parking
rights against any third parties. Landlord reserves the right to perform the
paving and landscape maintenance, exterior painting, common sewage line
plumbing, and care for the grounds around the Building, and Tenant shall be
liable for its proportionate share (as defined in subparagraph 4.B above) of
the cost and expense. If Tenant or any other particular tenant of the Building
can be clearly identified as being responsible for obstructions or stoppage of
the common sanitary sewage line, then Tenant, if Tenant is responsible, or such
other responsible tenant, shall pay the entire cost thereof, upon demand, as
additional rent. Tenant shall pay, when due, its share, determined as
aforesaid, of such costs and expenses along with the other tenants of the
building to Landlord upon demand, as additional rent, of the amount of its
share as aforesaid of such costs and expenses in the event Landlord elects to
perform or cause to be performed such work. In the event any such amount is
not paid within ten (10) days after the date of Landlord's invoice to Tenant,
the unpaid amount shall bear interest from the date due until paid at the
maximum interest rate allowed by law.
D. Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems
and equipment within the Premises. The maintenance contractor and the contract
must be approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and must become effective (and a copy thereof delivered to Landlord) within
thirty (30) days of the date Tenant takes possession of the Premises. At
Tenant's request, Tenant shall be authorized to provide the regularly scheduled
preventive maintenance/service required herein.
5
6
Tenant shall not be required to enter into a maintenance/service contract with
an outside vendor to provide such service. Tenant shall continue to be
responsible for maintaining all such equipment as described herein. Preventive
maintenance/service shall be defined as a minimum of the following work being
performed on a quarterly basis: change filters, clean coils, check belts,
freon, contactors, compressor and fan morot.
7. COMMON AREA MAINTENANCE
A. Tenant agrees to pay Landlord $ 0.0193 /sq. ft. per month as
its estimated share of the common area services which are provided by Landlord
for the mutual benefit of all tenants. These services may include, but are not
limited to, general landscaping, mowing of grass, care of shrubs (including
replacement of expired plants); operation and maintenance of lawn sprinkler
system; operation and maintenance of exterior security lighting; water service
and sewer charges; repainting of exterior surfaces of truck doors, handrails,
downspouts, and other parts of the building which require periodic preventive
maintenance; parking lot maintenance; and pro rata share of the project's
common area maintenance and security service.
B. The actual cost of these services shall be prorated among
tenants on the basis of square footage occupied in the same manner as provided
in subparagraph 4.B above. Landlord shall send Tenant an annual statement of
actual common area service costs, along with either an invoice or a rebate for
the amount that Tenant's actual proportionate share exceeded or was less than
Tenant's $ 0.0193/sq. ft. per month common area service payment for the year
then ended. Tenant agrees to reimburse Landlord within thirty (30) days after
receipt of such invoice from Landlord. Subject to landlord's reasonable
discretion, this monthly common area service charge may be renegotiated
periodically based upon increases in Landlord's annual cost of providing these
services. See Paragraphs 28.d. AND 28.g.
8. ALTERATIONS
Tenant shall not make any alterations, additions or improvements
to the Premises (including, but not limited to, roof and wall penetrations)
without the prior written consent of Landlord which shall not be unreasonably
withheld. Tenant may, without the consent of Landlord, but at its own cost
and expense and in a good workmanlike manner, erect such shelves, bins,
machinery and trade fixtures as it may deem advisable, without altering the
basic character of the Building or improvements and without overloading or
damaging such Building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations and other requirements.
All alterations, additions, improvements and partitions erected by Tenant shall
be and remain the property of Tenant during the term of this lease; and Tenant
shall, unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their original condition by the date of termination of
this lease or upon earlier vacating of the Premises, provided, however, that,
if Landlord so elects, prior to termination of this lease or upon earlier
vacating of the Premises, such
6
7
alterations, additions, improvements and partitions shall become the property
of Landlord as of the date of termination of this lease or upon earlier
vacating of the Premises and shall be delivered up to the landlord with the
Premises. All shelves, bins, machinery and trade fixtures installed by Tenant
may be removed by Tenant prior to the termination of this lease, if Tenant so
elects, and shall be removed by the date of termination of this lease or upon
earlier vacating of the Premises if required by Landlord. Upon any such
removal, Tenant shall restore the Premises to their original condition. All
such removals and restoration shall be accomplished in a good workmanlike
manner so as not to damage the primary structure or structural qualities of the
Buildings and other improvements situated on the Premises. See Paragraph 28.e.
9. SIGNS
Tenant shall have the right to install signs upon the Premises
only when first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations, Landlord's standard sign criteria
and other requirements. At Landlord's direction, Tenant shall be responsible
for the removal of all such signs by the termination of this Lease. Such
installations and removals shall be made in such a manner as to avoid injury or
defacement of the building and other improvements, and Tenant shall be
responsible for the repair of any injury or defacement, including, without
limitation, discoloration caused by such installation and/or removal.
10. INSPECTION
Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time during business
hours, for the purpose of ascertaining the condition of the Premises or in
order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is six (6)
months prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises and shall
have the right to erect on the Premises a suitable sign indicating the Premises
are available. Tenant shall give written notice to Landlord at least thirty
(30) days prior to vacating the Premises and shall arrange to meet with
Landlord for a joint inspection of the Premises prior to vacating. In the
event of Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the Premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
11. UTILITIES
Landlord agrees to provide, at its cost, water, electricity and
telephone service connections into the Premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto and any maintenance
charges for utilities, and shall furnish all electric light bulbs and tubes.
If any such services are not separately metered to Tenant, Tenant shall pay its
proportionate share, as determined by Landlord, of all charges jointly metered
with other Premises. Landlord shall in no event be liable for any interruption
or failure of utility services on the Premises, unless caused by the acts or
proven negligence of Landlord, its agents or employees.
7
8
12. ASSIGNMENT and SUBLETTING
Tenant shall not have the right to assign this lease or to sublet
the whole or any part of the Premises without the prior written consent of
Landlord. Notwithstanding any permitted assignment or subletting, Tenant shall
at all times remain directly, primarily and fully responsible and liable for
the payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this lease.
Upon the occurrence of an "event of default" as hereinafter defined, if the
Premises or any part thereof are then assigned or sublet, Landlord, in addition
to any other remedies herein provided or provided by law, may, at its option,
collect directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant hereunder, and no such collection shall be
construed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations hereunder. Notwithstanding the terms
above, Landlord reserves the right to either: 1) enter into a new lease
agreement with the proposed assignee or subtenant and terminate the lease
coincident with occupancy by the new tenant and commencement of the new lease;
or, 2) Landlord and Tenant may mutually agree to terminate this lease. See
Article 28.h.
13. FIRE and CASUALTY DAMAGE
A. Landlord agrees to maintain standard fire and extended
coverage insurance covering the Building, of which the Premises are a part, in
an amount not less than eighty percent (80%) (or such greater percentage as may
be necessary to comply with the provisions of any co-insurance clauses of the
policy) of the "replacement cost" thereof, as such term is defined in the
Replacement Cost Endorsement to be attached thereto insuring against the perils
of Fire, Lightning and Extended Coverage, such coverage and endorsements to be
as defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State of Texas for use by insurance
companies admitted in the State of Texas for the writing of such insurance on
risks located within the State of Texas. Subject to the provisions of
subparagraphs 13.C, 13.D and 13.E below, such insurance shall be for the sole
benefit of Landlord and under its sole control. In addition Landlord agrees to
maintain general liability coverage insurance in an amount deemed prudent and
necessary by Landlord or required by mortgagee presently (or in the future)
holding a mortgage and/or deed(s) of trust constituting a lien against the
Building of which the Premises are a part. If the annual premiums charged
Landlord for insurance exceed the standard premium rates because the nature of
the Tenant's operation results in extra hazardous exposure, and if Landlord
permits such operations, then Tenant, upon receipt of appropriate premium
notices, shall reimburse Landlord for such increase in such premiums as
additional rent hereunder. Tenant shall maintain, at its own expense, fire and
extended coverage insurance on all of its personal property, including
removable trade fixtures, located in the Premises and on all additions and
improvements made by Tenant and not required to be insured by Landlord. In
addition, Tenant shall reimburse Landlord annually, as additional rent and upon
receipt of notice from Landlord, for Tenant's proportionate share of all
amounts paid by Landlord for insurance premiums which exceed an amount equal to
the actual cost of such premiums for the calendar year 1994 In the event the
Premises constitute a portion of a multiple-occupancy building, Tenant shall be
responsible for reimbursing Landlord for Tenant's full proportionate share of
such excess, as such share is defined in subparagraph 4.B above. Said payment
shall be made to Landlord within ten (10) days after presentation to Tenant
8
9
of Landlord's statement setting forth the amount due. Any payment to be made
pursuant to this subparagraph A with respect to the year in which this lease
commences or terminates shall bear the same ratio to the payment which would be
required to be made for the full year as the part of such year covered by the
term of this lease bears to a full year. In the event any such additional
rental amount is not paid within ten (10) days after the date of Landlord's
invoice to Tenant, the unpaid amount shall bear interest from the date due
until paid at the maximum interest rate allowed by law.
B. If the buildings situated upon the Premises should be damaged
or destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the Premises should be totally
destroyed by fire, tornado, or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot, in Landlord's estimation, be
completed within two hundred (200) days after the date upon which Landlord is
notified by Tenant 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.
D. If the Building of which the Premises is a part should be
damaged by any peril covered by the insurance to be provided by Landlord under
subparagraph 13.A above, but only to such extent that rebuilding or repairs
can, in Landlord's estimation, be completed within one hundred twenty (120)
days after the date upon which Landlord is notified by Tenant of such damage,
this lease shall not terminate, and Landlord shall, at its sole cost and
expense, thereupon proceed with reasonable diligence to rebuild and repair such
buildings to substantially the condition in which they existed prior to such
damage, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Premises by Tenant. If the
Premises are untenable in whole or in part following such damage, the rent
payable hereunder during the period in which they are untenable shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such repairs
and rebuilding within one hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may, at its option,
terminate this lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate.
E. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust covering
the Building requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this lease by
delivering written notice of termination to tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
F. Landlord and Tenant each hereby releases the other from any
loss or damage to property caused by fire or any other perils insured through
or under them by way of subrogation, or otherwise for any loss or damage to
property caused by fire or any other perils insured in policies of insurance
covering such property, even if such loss or damage shall have been
9
10
caused by the fault or negligence of the other party or anyone for whom such
party may be responsible; provided, however, that his release shall be
applicable and in force and effect only with respect to loss or damage
occurring during such times in which the releasor's policies contain a clause
or endorsement stating that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Both Landlord and Tenant agree that they will request their
insurance carriers to include such a clause or endorsement in their policies.
If extra cost shall be charged therefor, each party shall advise the other
thereof and of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so.
14. LIABILITY
Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the Premises, resulting from and/or
caused in part or whole by the negligence or misconduct of Tenant, its agents,
servants, employees, or of any other person entering upon the Premises, or
caused by the buildings and improvements located on the Premises becoming out
of repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the Premises, or due to any cause whatsoever, and Tenant hereby
covenants and agrees that it will at all times indemnify and hold safe and
harmless the property, the Landlord (including, without limitation, the trustee
and beneficiaries if Landlord is a trust), Landlord's agents and employees from
any loss, liability, claims, suits, costs, expenses, including, without
limitation, attorney's fees and damages, both real and alleged, arising out of
any such damage or injury; except injury to persons or damage to property the
sole cause of which is negligence of Landlord or the failure of Landlord to
repair any part of the Premises which Landlord is obligated to repair and
maintain hereunder within a reasonable time after the receipt of written notice
from Tenant of needed repairs. Tenant shall, at Tenant's sole cost and
expense, fully insure its property located within the Premises against fire and
other casualty and shall maintain public liability insurance with combined
limits of at lease $1,000,000. The limits or amounts of said insurance
coverage shall not, however, limit the liability of the Tenant hereunder.
Tenant shall cause Landlord, and Landlord's Manager, RW Management Company,
Inc., to each be named as an additional insured under such public liability
policy. In addition, Landlord shall be named as additional insured on the fire
and casualty insurance policy which Tenant is required to maintain with respect
to Tenant's property located in the Premises. If Tenant fails to procure and
maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, and in such event, premiums and costs thereof shall be
reimbursed and paid by Tenant to Landlord on demand by Landlord. All such
policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing payment of premiums therefor, shall be delivered to Landlord
prior to the commencement date of this lease. Not less than fifteen (15) days
prior to the expiration date of any such policies, certified copies of the
renewals thereof (bearing notations evidencing the payment of renewal premiums)
shall be delivered to Landlord. Such policies shall further provide that not
less than thirty (30) days written notice shall be given to Landlord before
such policy may be canceled or changed to reduce insurance provided thereby.
10
11
15. CONDEMNATION
A. If the whole or any substantial part of the Premises should be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which they are being used, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective when the physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and the taking
does not prevent or materially interfere with the use of the Premises, and this
lease is not terminated as provided in subparagraph above, this lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. In the event of any such taking or private purchase in lieu
thereof, Landlord shall be entitled to receive and retain all compensation
awarded in any condemnation proceedings. Provided, however, Tenant shall be
entitled to any compensation awarded for the taking of leasehold improvements
made by Tenant, Tenant's furniture, fixtures and equipment.
16. HOLDING OVER
Tenant will, at the termination of this lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Landlord agrees in
writing that Tenant may hold over after the expiration or termination of this
lease, unless the parties hereto otherwise agree in writing on the terms of
such holding over, the hold-over tenancy shall be subject to termination by
Landlord at any time upon not less than thirty (30) days advance written
notice, or by Tenant at any time upon not less than thirty (30) days advance
written notice, and all of the other terms and provisions of this lease shall
be applicable during that period, except that Tenant shall pay Landlord from
time to time upon demand, as rental for the period of any hold-over, an amount
equal to two (2) times rent in effect on the termination date, computed on a
daily basis for each day of the hold-over period. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this lease
except as otherwise expressly provided. The preceding provisions of this
paragraph 16 shall not be construed as Landlord's consent for Tenant to hold
over.
17. QUIET ENJOYMENT
Landlord covenants that it now has, or will acquire before Tenant
takes possession of the Premises, 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 use of such property, and easements, restrictions
and other conditions of record. In the event this lease is a sublease, then
Tenant agrees to take the Premises subject to the provisions of the prior
leases. Landlord represents and warrants that it has full right
11
12
and authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the Premises for the
term hereof without hindrance or molestation from Landlord, subject to the
terms and provisions of this lease.
18. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by
Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved when due, or any payment with respect to taxes hereunder when due, or
any other payment or reimbursement to Landlord required herein when due and
such failure shall continue for a period of TEN (10) days from the date such
payment was due.
(b) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall file a petition under any section or chapter of
the National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or any state thereof; or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall desert or vacate any substantial portion of the
Premises.
(f) Tenant shall fail to comply with any term, provision or
covenant of this lease (other than the foregoing in this Paragraph 18), and
shall not cure such failure within ten (10) days after written notice thereof
to Tenant.
19. REMEDIES
Upon the occurrence of any of such events of default described in
Paragraph 18 hereof, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearage in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or any
part thereof, by force if necessary, without being liable for prosecution or
any claim of damages therefor; and Tenant agrees to pay Landlord, on demand,
the amount of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on satisfactory
terms or otherwise.
12
13
(b) Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or any
part thereof, by force if necessary, without being liable for prosecution or
any claim for damages therefor, and relet the Premises and receive the rent
therefor; and Tenant agrees to pay to the Landlord, on demand, any deficiency
that may arise by reason of such reletting. In the event Landlord is
successful in reletting the Premises at a rental in excess of that agreed to be
paid by Tenant pursuant to the terms of this lease, Landlord and Tenant each
mutually agree that Tenant shall not be entitled, under any circumstances, to
such excess rental, and Tenant does hereby specifically waive any claim to such
excess rental.
(c) Enter upon the Premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this lease; and Tenant agrees to
reimburse Landlord, on demand, for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
(d) Alter locks and other security devices at the Premises,
without being liable for prosecution or any claim of damages therefor, and such
alteration of locks and security devices shall not be deemed unauthorized or
constitute a conversion. Tenant acknowledges that Landlord may require full
payment of all sums then due to Landlord under this Lease as a condition to
Tenant's entitlement to a key to new or altered locks that Landlord may have
placed on the Premises after an Event of Default.
(e) Receive payment from Tenant, in addition to any sum provided
to be paid above, for any and all of the following expenses for which Tenant
shall be considered liable:
1. Reasonable broker's fees incurred by Landlord in
connection with reletting the whole or any part of the Premises;
2. The reasonable cost of removing and storing Tenant's or
other occupant's property;
3. The reasonable cost of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, plus a reasonable charge to cover overhead; and
4. All reasonable expenses incurred by Landlord in enforcing
Landlord's remedies.
Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord
13
14
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No act or thing
done by the Landlord or its agents during the term hereby granted shall be
deemed a termination of this lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this lease or accept a surrender of
said Premises shall be valid unless it is in writing and signed by Landlord.
No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the other terms,
provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing. Forbearance of default shall not be deemed or
construed to constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning any of Landlord's rights or remedies hereunder, Tenant agrees to pay
any reasonable attorney's fees so incurred.
20. LANDLORD'S LIEN
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have, and Tenant hereby grants to Landlord, a continuing
security interest for all rentals and other sums of money becoming due
hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture,
inventory, accounts, contract rights, chattel paper and other personal property
of Tenant situated on the Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearage in rent, as well
as any and all other sums of money then due to Landlord hereunder, shall first
have been paid and discharged. In the event of a default under this lease,
Landlord shall have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this Paragraph
20 at public or private sale upon five (5) days notice to Tenant. Any
statutory lien for rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto. See Paragraph
28.k.
21. MORTGAGES
Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon;
provided, however, that if the mortgagee, trustee or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument, then by notice to Tenant 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. Tenant
shall at any time hereafter on demand execute any instruments, releases or
other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage. See
Paragraph 28.l.
14
15
22. LANDLORD'S DEFAULT
A. In the event Landlord should become in default in any payments
due on any such mortgage described in Paragraph 21 hereof or in the payment of
taxes or any other items which might become a lien upon the Premises and which
Tenant is not obligated to pay under the terms and provisions of this lease,
Tenant shall simultaneously give Landlord and Landlord's mortgagee (provided
Landlord or Landlord's mortgagee shall have advised Tenant of the name and
address of Landlord's mortgagee) written notice specifying such default with
particularity and Landlord shall thereupon have thirty (30) days (plus an
additional reasonable period as may be required in the exercise by Landlord of
due diligence) in which to cure any such default. In addition, Landlord's
mortgagee shall have the right (but not the obligation) to cure or remedy such
default during the period that is permitted to Landlord hereunder, plus an
additional period of thirty (30) days, and Tenant will accept such curative or
remedial action taken by Landlord's mortgagee with the same effect as if such
action had been taken by Landlord.
B. Upon the failure of Landlord or Landlord's mortgagee to cure
such default in accordance with the provisions of Paragraph 22.A hereof, Tenant
shall be authorized and empowered to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for and on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided, however, that Tenant shall not be authorized and empowered to make
any payment under the terms of this Paragraph 22 unless the item paid shall be
superior to Tenant's interest hereunder. Tenant's exclusive remedy shall be an
action for damages against Landlord, and Tenant hereby waives the benefit of
any laws granting it a lien upon the property of Landlord and/or upon rent due
Landlord. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation.
23. MECHANIC'S LIENS
Tenant shall have 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 Landlord in the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant 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 on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon, and that it will save and
hold Landlord harmless from any and all loss, cost or expenses based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the Premises or under the
terms of this lease.
24. ASSIGNMENT BY LANDLORD
Landlord shall have the right to assign or transfer, in whole or
in part, every feature of its rights and obligations hereunder and in the
Building and leased Premises. Such
15
16
assignments or transfers may be made to a corporation, trust, trust company,
individual or group of individuals, howsoever made shall be in all things
respected and recognized by Tenant.
25. DISCLAIMER
This lease and the obligations of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of the
Tenant to be performed shall not be affected, impaired or executed because
Landlord is unable to fulfill any of its covenants and obligations under this
lease, expressly or impliedly to be performed by Landlord, if Landlord is
prevented or delayed from doing so by reason of strike, labor troubles,
accident, adjustment to insurance, or by any reason or cause whatsoever
reasonably beyond Landlord's control. Reasons beyond Landlord's control shall
include, but not be limited to, laws, governmental preemption in connection
with a National Emergency or by any reason of any rule, order or regulation of
any governmental agency, federal, state, county or municipal authority or any
department or subdivision thereof, or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
26. NOTICES
Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Tenant to Landlord 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 Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address hereinbelow set forth, or
at such other address within the continental United States as Tenant may
specify from time to time by written notice delivered in accordance herewith.
(c) Any 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.
16
17
Landlord: Tenant:
c/o RW Management Company, Inc. Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000 0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
If and when included within the term "Landlord", 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 such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", 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 such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions to this paragraph to the
same effect as if each had received such notice.
27. 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.
B. The terms, provisions and covenants and conditions contained
in this lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under 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.
C. Whenever a clause or provision of this lease requires
Landlord's consent or approval, Landlord agrees not to unreasonably withhold or
delay its consent or approval.
D. 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.
E. [Intentionally Deleted]
17
18
F. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. All obligations of Tenant 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 of the Premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Premises, including, without limitation, all
heating and air conditioning systems and equipment therein, in good repair,
ordinary wear and tear excepted. Tenant shall also, prior to vacating the
Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant'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 Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have
been determined and satisfied, as the case may be. Any security deposit held
by Landlord shall be credited against the amount payable by Tenant under this
Paragraph 27.G. See Paragraph 28.i.
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 contract 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. Because the Premises are on the open market and are presently
being shown, this lease shall be treated as an offer with the Premises being
subject to prior lease and such offer subject to withdrawal or non-acceptance
by Landlord or to other use of the Premises without notice, and this lease
shall not be valid or binding unless and until accepted by Landlord in writing
and a fully executed copy delivered to both parties hereto.
J. 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.
K. Both parties agree, from time to time within ten (10) days
after request of the other party, to deliver an estoppel certificate to the
requesting party or its designee. Such estoppel certificate shall state 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 matters pertaining to this
lease as may be requested.
18
19
EXECUTED by the parties this 22nd day of March, 1994.
LANDLORD: Xxxxxx X. Xxxxxx, L.L.C.
By:
---------------------------------
Xxxxxx X. Xxxxxx
Title: Manager
------------------------------
ATTEST:
By:
---------------------------------
Xxxxx X. Xxxxxx
Title: V.P. for Manager
------------------------------
Before me, the undersigned authority, on this day personally appeared Xxxxxx X.
Xxxxxx, of Xxxxxx X. Xxxxxx, L.L.C., known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, and in the
capacity stated. Given under my hand and seal of office on this, the 22nd day
of March, 1994.
----------------------------------
Notary Public in and for the
County of Xxxxxx, State of Texas
19
20
TENANT: Packaged Ice, Inc.
By:
---------------------------------
Xxxxx X. Xxxxxx
Title: President
------------------------------
ATTEST:
By:
---------------------------------
Xxxx Xxxxx
Title: Vice President
------------------------------
Before me, the undersigned authority, on this day personally appeared Xxxxx X.
Xxxxxx, of Packaged Ice, Inc., a Texas Corporation, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same for the purposes and consideration therein
expressed, and in the capacity stated. Given under my hand and seal of office
on this, the 21st day of March, 1994.
----------------------------------
Notary Public in and for the
County of Xxxxxx, State of Texas
20
21
EXHIBIT "A"
Legal Description: West Memorial Park, Phase I
Being a tract of land out of the X.X. Xxxxxxxx Survey Abstract No. A-610,
Houston, Xxxxxx County, Texas, and being more particularly described as
follows:
The point of reference is the north R.O.W. (right-of-way) line of the MKT
Railroad R.O.W. (100' wide) and the east R.O.W. line of Bingle Road; thence
east a distance of 959.15' to a point:
Thence north 0o 15' 23" W. a distance of 754.27' to the point of beginning;
Thence west a distance of 621.47' to a point for a corner;
Thence north a distance of 544.43' to a point for a corner;
Thence north 89o 21' 11" E. a distance of 619.04' to a point for a corner;
Thence south 0o 15' 23" E. a distance of 551.43 to the point of beginning and
containing 7.802 acres of land more or less.
22
Exhibit "B"
[blueprint layout of building, ground floor]
0000 Xxxx Xxxxxxx,
Xxxxx 000, 4,350
square feet
0000 Xxxx Xxxxxxx, Xxxxx 000, approximately 13,050 square feet
23
Special Provisions
Exhibit "C" - Paragraph 28
a. In the event Tenant shall occupy the leased premises prior to May 1,
1994, then all of the terms, covenants and conditions of this lease shall be in
full force and effect beginning on the date of occupancy. Tenant's rental for
the partial month of April, 1994 (if any) shall be prorated at the rate of
$113.10 per day; such amount being due and payable upon occupancy by Tenant.
b. Landlord shall improve the leased premises as shown on construction
drawings prepared by Xxxxxx X. Xxxxxx Associates, dated February 16, 1994, as
approved by both parties. All associated costs incurred in the improvement of
the leased premises, including but not limited to, space planning, construction
document preparation, mechanical and/or electrical engineering services, and
construction administration, shall be included. These tenant improvements have
been bid at $29,488.00. A portion of this work, $15,699.00, shall be the sole
cost and expense of the Landlord. All cost and expense in excess of $15,699.00
shall to be the sole cost and expense of Tenant, and shall be due and payable
according to the following schedule: 50% upon execution of this lease and 50%
prior to full occupancy of the leased premises. Landlord's contribution shall
not exceed $15,699.00. The projected tenant improvement expense in excess of
the available allowance is $13,789.00. Any and all changes to the plans
specified herein, as approved by Landlord and Tenant, must be submitted in
writing to Landlord for approval prior to any such construction, and all costs
and expense incurred as a result of such change orders shall be the sole cost
and expense of Tenant.
c. The leased premises and their use under this Lease Agreement comply
fully with (and no notices of violation have been received in connection with)
all environmental, air quality, building, health, fire, safety, and
governmental or regulatory rules, laws, ordinances, statutes, codes and
requirements applicable to the leased premises, including the Americans with
Disabilities Act of 1990. However, in the event that through amendment,
interpretation or through Tenant's use of the leased premises, modifications to
same become necessary to fully comply with the terms and provisions of the
Americans with Disabilities Act of 1990, the parties agree that it shall be the
sole responsibility of the Tenant to comply with any and all provisions of the
Americans with Disabilities Act of 1990, as same may be amended or interpreted
in the future, and Tenant agrees to be fully responsible for all expenses
related to the Tenant improvements or the later modifications of the leased
premises during the term of this Lease Agreement. The Tenant further agrees
to indemnify and hold the Landlord harmless against any claims which may arise
out of Tenant's failure to comply with the Americans with Disabilities Act of
1990. Such indemnification shall include, but shall not be limited to, all
fines, fees and penalties, and all legal and other expenses (including
attorney's fees), incurred by Landlord and for the costs of collection of the
sums due under the terms of this indemnity.
d. Tenant's initial monthly common area services payment shall be
$252.00.
e. All tenant improvement work to be performed by Tenant shall be
performed by a licensed contractor and pursuant to the following terms and
conditions:
24
1. Landlord shall be notified in writing prior to the commencement
of any work. Said notification shall specify in detail the work to
be performed and the contractor who will be performing it; and
2. Tenant is to acquire a permit from the City of Spring Valley prior
to the commencement of any work and/or any improvements requiring a
permit. Furthermore, all work shall be completed in compliance with
all applicable laws and/or ordinances of the city, county, state,
federal or any municipal governing authority; and
3. All work shall be completed in a workmanlike manner by a licensed
contractor/subcontractor and in accordance with the following:
A. The contractor/subcontractor shall have Xxxxxxx'x Compensation
and Liability insurance in the amounts of $500,000.00 for bodily
injury and $500,000.00 for property damage, Landlord shall be
supplied with insurance certificates verifying such insurance
coverages; and
B. A signed release of Lien and Warranty by all contractors
and/or subcontractors who perform any work in the Premises; and
C. All work is subject to final acceptance by Landlord.
f. While this lease is in full force and effect, provided that Tenant is
not in default of any of the terms, covenants and conditions thereof, Tenant
shall have the right or option to extend the original term of this lease for
one (1) additional term of sixty (60) months. Notice of Tenant's intention to
exercise this option must be given to Landlord in writing at least one hundred
twenty (120) days prior to the expiration of the original term of this lease.
Such extension or renewal of the original term shall be on the same terms,
covenants and conditions as provided for in the original term except for tenant
improvements and that the base rent during the renewal term shall be at fair
market value for comparable space, for a comparable use, for a comparable
tenant, in the Katy Freeway/West Loop market.
g. Pursuant to Paragraph 7 of the lease, for the purposes of determining
Tenant's proportionate share of common area services expense, as defined
therein, the actual common area services expenses, excluding utilities as a
non-controllable expense which shall be passed through to Tenant in its
entirety without restriction, shall be capped not to increase more than 10% per
calendar year on a cumulative basis over the actual common area services
expense for calendar year 1994.
h. 1. Pursuant to Paragraph 12 of the lease, Landlord shall look at the
following criteria in making a decision as to consenting to any request by
Tenant, such consent not to be unreasonably withheld contingent upon the
following criteria being satisfied in the sole reasonable judgment of the
Landlord, to sublease or assignment of the leased premises, other than to an
affiliate or subsidiary of Tenant:
25
A. Tenant shall, at the time of making such request, not be in
default of any of the terms, covenants or conditions of this lease;
and
B. The prospective subtenant or assignee's parking shall be no
greater than that amount allocated to Tenant; and
C. The prospective subtenant or assignee's credit shall be
acceptable to Landlord; and
D. The prospective subtenant or assignee's use of the leased
premises shall be compatible with the other tenants in the project and
in compliance with the terms of this lease; and
E. If Landlord is in negotiations with a prospective subtenant or
assignee prior to Tenant's request to sublease or assign the space,
Landlord shall have the right to refuse Tenant's request to sublease
or assignment of the leased premises.
2. In the event Landlord consents to a sublease or assignment and is
called upon to prepare the necessary documentation, Landlord shall be
entitled to a fee of $300.00 for preparation of said documents. This fee
shall be apart from, and in addition to, any leasing commissions,
renovations, or other costs incidental to the subleasing or assignment of
the leased premises.
3. In the event Tenant subleases or assigns the leased premises,
Landlord shall be entitled to all net rents in excess of Tenant's monthly
rent collected or received by Landlord, less the monthly proration of
Tenant's costs for renovations, construction, or direct costs incidental to
the subleasing or assignment of the leased premises.
i. Pursuant to Paragraph 27.G.. of this Lease Agreement, at the
termination of this Lease Agreement, Tenant agrees to surrender the leased
premises to Landlord in the same condition as when occupancy was taken by
Tenant, ordinary wear & tear excluded. Ordinary wear and tear as described
above shall be that condition or conditions which may exist as a result of the
use of the leased premises in the ordinary course of business which does not
physically alter the character of the leased premises, beyond smudges to the
paint, washable blemishes to any wallcoverings, or carpet wear as a result of
normal foot traffic. Damages to the leased premises which exceed ordinary wear
and tear include but shall not be limited to:
1. Doors: holes, stains, missing hardware, and/or displacement.
2. Overhead Doors: holes, bent panels or tracks, missing or damaged
rollers, inoperable condition, and/or missing hardware.
3. Office Walls: holes, and/or gouges.
4. Warehouse demising Walls: holes, cracks, dislocation, or
graffiti.
5. Ceiling Tile: holes, chips, and/or missing tiles.
6. Pipe Bollards and Structural Columns: bent, dented, cracked,
and/or displaced.
26
7. Concrete Floors: cracks or gouges caused by Tenant's operation,
and/or any unremoved foreign material from the floor surface; i.e.
spilled epoxy, glues, oils, etc.
8.
9. Electrical: broken light lenses or lights, chipped electrical
outlets or switches, damaged electrical panels, inoperable
fixtures, any unremoved electrical conduits, boxes or wiring added
by Tenant.
10. Sprinklers:
11. Warehouse Heaters:
12. Air Conditioning Systems: thermostats missing and/or inoperable,
disconnected duct work; dirty air diffusers, coils and/or filters;
unit inoperable, improperly serviced and/or not in proper working
condition.
13. Exterior Building: bent or displaced downspouts, damaged or
missing truck bumpers, any cracks or damages to the exterior wall,
any broken or cracked windows, and/or any graffiti.
14. Concrete Parking Lot: cracks, gouges, or any damage caused by
Tenant's operation.
15. Any equipment or part of the leased premises described in
Paragraph 6 of the Lease Agreement that is not operational and in
proper condition as described therein.
j. While this lease is in full force and effect, provided that Tenant is
not in default of any of the terms, covenants and conditions thereof, Tenant
shall have a continuing Right of First Refusal on Xxxxx 000 xx 0000 Xxxx
Xxxxxxx, as defined in "green" on Exhibit "B" attached hereto and made a part
hereof. Should Landlord have a bonafide prospect for the space as defined
above, Landlord shall provide Tenant with written notice setting forth a
description of the rental terms. From the date of receipt of said proposal,
Tenant shall have five (5) business days in which to either accept or reject
Landlord's offer. Should Tenant accept Landlord's offer to lease the space,
Tenant shall confirm said interest in writing and Tenant and Landlord must
consummate a lease within five (5) business days of Tenant's written notice to
Landlord to lease such space. Should Tenant reject Landlord's offer, or fail
to respond within the aforesaid time limits, Tenant's Right of First Refusal
with respect to this prospect on said space shall be null and void and of no
further force and effect. Should such space again become available during the
term of this lease, Tenant's Right of First Refusal shall, again, be in full
force and effect.
k. Provided Tenant is not in default under this Lease Agreement, Landlord
will subordinate all statutory and contractual landlord's liens (and sign the
document included in this Lease Agreement as Exhibit "E" so indicating, upon
Tenant's written request and Tenant providing Landlord with all requested
documentation to support such a request) to any liens or security interests
covering financed fixtures, furniture or equipment of Tenant in favor of bona-
fide third-party lenders (or other secured parties, specifically excluding any
person or entity owning or controlling any portion of Tenant or Tenant's stock)
providing financing to Tenant (including purchase-money financing); provided
that such lenders or secured parties to whom Landlord subordinates shall remove
the collateral if, after subordination, a default occurs under the Lease
27
Agreement even though Tenant may not be in default in its obligation to pay the
lender or secured party.
l. Landlord shall attempt to obtain a non-disturbance agreement from the
mortgagee on behalf of Tenant. All costs incurred in the negotiation and
execution of this agreement by Landlord shall be reimbursed to Landlord by
Tenant within thirty (30) days of receipt of Landlord's invoice.
28
EXHIBIT "D"
HAZARDOUS MATERIAL
1. Tenant shall not cause or permit any Hazardous Material to be brought
upon, manufactured, kept, or used in or about the Premises by Tenant, its
agents, employees, contractors, or invitees, except for such Hazardous Material
as is necessary or useful to Tenant's business and the use of which is
expressly approved by Landlord in writing.
2. Any Hazardous Material permitted on the Premises as provided in
Section 1, and all containers therefor, shall be used, kept, stored, and
disposed of in a manner that complies with all federal, state, and local laws
or regulations applicable to this Hazardous Material.
3. Tenant shall not discharge, leak, or emit, or permit to be discharged,
leaked or emitted, any material into the Premises, the building which includes
the Premises, the atmosphere, ground, sewer system, or any body of water, if
that material (as is reasonably determined by the Landlord, or any governmental
authority) does or may pollute or contaminate the same, or may adversely affect
(a) the health, welfare, or safety or persons, whether located on the Premises
or elsewhere, or (b) the condition, use, or enjoyment of the building or any
other real or personal property.
4. At the commencement of each Lease Year, Tenant shall disclose to
Landlord the names and approximately amounts of all Hazardous Material that
Tenant intends to store, use, or dispose of on the Premises in the coming Lease
Year. In addition, at the commencement of each Lease Year, beginning with the
second Lease Year, Tenant shall disclose to Landlord the names and amounts of
all Hazardous Materials that were actually used, stored, or disposed of on the
Premises if those material were not previously identified to the Landlord at
the commencement of the previous Lease Year.
5. As used herein, the term "Hazardous Material" means (a) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976, as
amended from time to time, and regulations promulgated thereunder; (b) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder; (c) any oil, petroleum products, and their
by-products; (d) any substance that is or become regulated by any federal,
state, or local governmental authority; and (e) any other ignitable, reactive,
corrosive, hazardous, toxic or dangerous substance or material.
6. Tenant hereby agrees that it shall be fully liable for all costs and
expenses related to the use, manufacture, storage, and disposal of Hazardous
Material kept on the Premises, and the Tenant shall give immediate notice to
the Landlord of any violation or potential violation of the provisions of
Section 2. Tenant shall defend, indemnify, and hold harmless Landlord, and its
agents, and employees from and against all claims, demands, penalties, fines,
liabilities, settlements, damages, costs, expenses (including, without
limitation, attorneys and consultants fees, court costs, and litigation
expenses), or losses (including, without limitation, a decrease in value of the
Premises or Land or building on which the Premises are a part, loss or
restriction of rentable or usable space) of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way
29
related to (a) the presence, disposal, release, or threatened release of any
such Hazardous Material that is on, from, or affecting the soil, water,
vegetation, buildings, personal property, persons, persons, animals, or
otherwise; (b) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to that Hazardous Material;
(c) any lawsuit brought or threatened, settlement reached, or government order
relating to that Hazardous Material; (d) any violation of any laws applicable
thereto; or (e) any violation of any requirements or provisions of this Lease
concerning Hazardous Material, providing such action is caused by Tenant's
or Tenant's customers, agents, employees, or invitees, use of the leased
premises. The provisions of this Section 6 shall be in addition to any other
obligations and liabilities Tenant may have to Landlord at law or equity and
shall survive the transactions contemplated herein and shall survive the
termination of this Lease.
30
TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
1. Hazardous Substances.
The term "Hazardous Substances," as used in this Lease, shall include,
without limitations, flammable, explosives, radioactive materials,
asbestos, polychlorinated biphenyl (PCB), chemicals known to cause cancer
or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances, or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any or regulation now or
hereafter enacted or promulgated by any governmental authority.
2. Tenant's Restrictions.
(a) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental
conditions on, under, or about the Premises, or arising from Tenant's
use or occupancy of the Premises, including, but not limited to, soil
and ground water conditions; or
(b) The use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any Hazardous Substance on, under
or about the Premises, or the transportation to or from the Premises
of any Hazardous Substance, except as specifically disclosed on
Schedule A to this Lease.
3. Environmental Clean-Up.
(a) Tenant shall, at Tenant's own expense, comply with all laws regulating
the use, generation, storage, transportation, or disposal of Hazardous
Substances ("Laws").
(b) Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all requirements
of all governmental authorities (the "Authorities") under the Laws.
(c) Should any Authority or any third party demand that a clean-up plan be
prepared and that a clean-up be undertaken because of any deposit,
spill, discharge, or other release of Hazardous Substances caused by
Tenant, or Tenant's customers, agents, employees, or invitees, that
occurs during the term of this Lease, at or from the Premises, or
which arises at any time from Tenant's use or occupancy of the
Premises, then Tenant shall, at Tenant's own expense, prepare and
submit the required plans and all related bonds and other financial
assurances; and Tenant shall carry out all such clean-up plans.
(d) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous
Substances that is requested by Owner. If Tenant fails to fulfill any
duty imposed under this Paragraph (3) within reasonable time, Owner
may do so; and in such case, Tenant shall cooperate with Owner in
31
order to prepare all documents Owner deems necessary or appropriate to
determine the applicability of the Laws to the Premises and Tenant's
use thereof, and for compliance therewith, the Tenant shall execute
all documents promptly upon Owner's request. No such action by Owner
and no attempt made by Owner to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this
Paragraph (3).
(e) Tenant's obligations and liabilities under this Paragraph (3) shall
survive the expiration of this Lease
4. Tenant's Indemnity.
(a) Tenant shall indemnify, defend, and hold harmless Owner, the manager
of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all
fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith (including attorneys' and consultants'
fees) arising out of or in any way connected with any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during
the term of this Lease, at or from the Premises, or which arises at
any time from Tenant's use or occupancy of the Premises, or from
Tenant's failure to provide all information, make all submissions, and
take all steps required by all Authorities under the laws and all
other environmental laws.
(b) Tenant's obligations and liabilities under this Paragraph (4) shall
survive the expiration of this Lease.
32
Exhibit "E"
LANDLORD'S SUBORDINATION
STATE OF TEXAS )
KNOWN ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
In consideration of Ten Dollars ($10.00) and other good and valuable
considerations to us in hand paid by (name of mortgagee), of (address of
mortgagee), Houston, Texas, ("Mortgagee") does hereby agree as follows:
I.
Landlord does hereby subordinate its Landlord Liens whether contractual or
statutory, in favor of a security interest in favor of the Mortgagee dated
(month/day/year), covering the following described property:
(address of leased premises, and property description)
the foregoing equipment (the "Equipment") now being located on the aforesaid
premises which are leased to packaged Ice, Inc., Tenant herein.
II.
It is agrees that so long as any part of the indebtedness secured by the
aforesaid security interest or any renewals or extensions thereof remain
unpaid, said security interest shall constitute a superior and prior lien
against the Equipment, as against the Landlord's Lien described in Paragraph 1
above.
III.
It is further understood and agreed that the execution of this
subordination is not a waiver of any rights but is only a subordination thereof
in favor of the rights of the Mortgagee as specifically granted herein.
IV.
It is further understood and agreed that in the event foreclosure or
repossession of the Equipment becomes necessary, the Mortgagee may enter upon
the premises and remove the Equipment during reasonable business hours provided
Mortgagee affects such removal without any damage to the premises. Mortgagee
shall remain responsible for and agree to promptly repair any damage resulting
by such removal.
33
V.
Landlord shall be entitled to any excess AS MAY BE ALLOWED BY LAW over and
above the indebtedness of the Mortgagee, which may be recovered from the sale
of the Equipment upon foreclosure or repossession.
VI.
In the event that the Landlord shall terminate the Lease contract with the
Tenant of the premises, 0000 Xxxx Xxxxxxx, Xxxxx 000, or terminate said
Tenant's right to possession prior to the expiration of the term for which the
premises were leased or any extension thereof or in the event that Tenant
abandons the premises prior to the expiration of the term for which the
premises were leased or any extension thereof, Landlord shall in any of such
events, give written notice to the Mortgagee, and said Mortgagee shall be
permitted a period of fourteen (14) days from the giving of such notice in
which to remove all of the Equipment from the premises in accordance with the
terms of this Agreement. In the event that all of the said Equipment has not
been removed within the fourteen (14) days following giving of such notice,
then this Subordination agreement shall cease and it is agreed that the
statutory and contractual liens of Landlord shall be prior and superior to any
lien or other interest in the Equipment in favor of the Mortgagee who shall not
thereafter remove said Equipment but it is agreed that without further
instrument in writing all of the right, title and interest of the Mortgagee in
said Equipment shall be considered conveyed to the Landlord.
EXECUTED this ____________ day of _______________________________________,
199____, in multiple counterparts, each of which shall have the force and
effect of an original.
MORTGAGEE: (name of mortgagee)
---------------------
BY:
---------------------------------------
TITLE:
------------------------------------
LANDLORD: Xxxxxx X. Xxxxxx, L.L.C.,
c/o RW MANAGEMENT COMPANY, INC.
------------------------------------------
BY:
---------------------------------------
Xxxxxx X. Xxxxxx
TITLE: Manager
------------------------------------
