LEASE AGREEMENT
Exhibit 10.1.1
THIS LEASE AGREEMENT is made and entered into as of the date set forth below between
Xxxxxx X. Xxxxxx Trust and/or Assigns, hereafter referred to
as “Landlord” and DAC Technology
Group International, Inc., hereafter collectively referred to as “Tenant”:
W I T N E S S E T H:
1. LEASED PREMISES: In consideration of the rents, terms, provisions, and covenants of this
Lease, Landlord hereby leases, lets and demises to Tenant the following described premises
(referred to as “leased premises” or “premises”
and containing approximately 102,175 square feet)
situated at 0000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx (sometimes referred to as “the
building,” “the project” or “the premises”). The statement of square footage contained in this
Lease is made for reference purposes only and is not a part of this agreement. Tenant states that
it is not relying on any Landlord representations relating to square foot measurements.
2. LEASE COMMENCEMENT: Subject to and upon the conditions set forth below, the term of this
Lease shall commence on November 15, 2006, (the “commencement date”) and shall terminate November
14,2010 (48) months thereafter. Upon one hundred and twenty (120) days prior written notice. Tenant
shall have the option to renew this lease for one period of four (4) years.
3. RENT & RENT COMMENCEMENT: (a) Tenant agrees to pay, as an initial base rental during the
term of this Lease, the sum of Nine Thousand Three Hundred
Sixty-Six and 08/100
($9,366.08) per
month, which amount shall be payable to Landlord at the address shown below on the first day of
each month without abatement, deduction or setoff. Monthly installment shall be due and payable on
or before the first day of each calendar month succeeding the commencement date during the demised
term; provided, that if the commencement date should be a date other than the first day of a
calendar month, the monthly rental set forth above shall be prorated to the end of that calendar
month, and all succeeding installments of rent shall be payable on or before the first day of each
succeeding calendar month during the demised term. Tenant shall pay, as additional rental, all
other sums due under this Lease.
(b) The monthly rental installments provided hereinabove shall be increased annually by five
cents ($.05) per square foot according to the rent schedule below.
Year 1 |
$112,393 | ($1.10/SF) | ||
Year 2 |
$117,501 | ($1.15/SF) | ||
Year 3 |
3122,610 | ($1.20/SF) | ||
Year 4 |
$127,719 | ($1.25/SF) | ||
First Option Period |
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Year 5 |
$132,828 | ($1.30/SF) | ||
Year 6 |
$137,936 | (S1.35/SF) | ||
Year 7 |
$143,045 | (S1.40/SF) | ||
Year 5 |
$148,154 | ($1.45/SF) |
(c) During the final three (3) months Year 8, if an acceptable lease renewal has not been
reached, Tenant shall have a first right of refusal to lease the premises. If Landlord receives an
acceptable offer within the 3-month time period to lease from another party, Landlord must give
prompt notice to Tenant and Tenant shall have forty-eight (48) hours from such notice to match the
offer. Tenant’s first right to lease shall expire ten (10) days following the end of Year 4, or ten
days following Year 8 if extended.
In addition, Tenant shall have the right of first offer to purchase the property throughout
the term of the lease and any extensions. Should Landlord decide to place the property on the
market for sale, Tenant shall have the first right to purchase the property for forty-eight (48)
hours after written notice from Landlord. Tenant’s right of first offer shall expire immediately at
the end of Year 8.
(d) On the date of execution of this Lease by Tenant, there shall be due and payable by
Tenant a security deposit (“Security Deposit”) in an amount of Ten Thousand and NO/100 Dollars
($10,000.00) to be held for the performance by Tenant of Tenant’s covenants and obligations under
this Lease, it being expressly understood that the deposit shall not be considered an advance
payment of rental or a measure of Landlord’s damage in case of default by Tenant. Upon the
occurrence of any event of default by Tenant or breach by Tenant of Tenant’s covenants under this
Lease, Landlord may, from time to time, without prejudice to any other remedy, use the security
deposit to the extent necessary to make good any arrears of rent and/or any damage, injury, expense
or liability caused to Landlord by the event of default or breach of covenant, any remaining
balance of the security deposit to be returned by Landlord to Tenant upon termination of this
Lease. If Landlord so uses any portion of the Security Deposit, then it will restore the Security
Deposit to its original amount within five (5) days after written demand from Landlord. Landlord
will not be required to keep the Security Deposit separate from its own funds and Tenant will not
be entitled to interest on the Security Deposit.
(e) All of the terms and provisions of the Lease will be effective as of the date of Lease
execution with the exception of the obligation to pay rent. The obligation to pay rent shall
commence on the date (“Rent Commencement Date”) which is the earlier of the following dates: (a)
the date on which Tenant opens the Premises for business with the public; or (b) no later than
January 1, 2007. Tenant shall have access to the building upon Lease execution to begin moving and
complete its improvements, but shall immediately be responsible for all utility costs.
(f) If any increase in the fire insurance premiums paid by Landlord for the building in which
Tenant occupies space is caused by Tenant’s use of the leased premises, or if Tenant vacates the
leased premises and causes an increase in such premiums, then Tenant shall pay as additional rental
the amount of such increase to Landlord.
(g) Other remedies for nonpayment of rent notwithstanding, if the monthly rental payment is
not received by Landlord on or before the tenth (10th) day of the month for which rent is due, or
if any other payment due Landlord by Tenant is not received by Landlord on or before the tenth day
of the month next following the month in which Tenant was invoiced, Landlord will incur
unanticipated costs, the exact amount of which are impractical or extremely difficult to ascertain,
and a service charge of ten percent (10%) of such past due amount shall become due and payable in
addition to such amounts owed under this Lease. Any installment of rent which is not paid on or
before the tenth (10th) day of the month for which rent is due shall also bear interest at the
highest rate permitted by law from the due date until paid.
(h) Tenant shall not be responsible for payment of any real estate taxes or property
insurance, except if Tenant’s (1) improvements increase the taxes or (2) use increases insurance
premiums.
4. SIGNS: Tenant shall have the right to erect a sign in good taste only on the front face of
the Tenant’s premises in the building, subject to all applicable laws, deed restrictions and
regulations. The composition and location of such sign shall be: (a) in compliance with all
municipal, city, and state codes, and (b) installed by a licensed contractor. No signs or other
objects shall be erected which are attached to the roof of the building and no signs shall be
attached to the building or canopy at right angles suspended by guy wires, but shall be attached
flush in a safe and secure manner. All such signs erected shall advertise Tenant’s business only
and no revenue producing advertising shall be erected on the leased premises without specific
written permission of Landlord. Tenant shall not paint any signs directly on the walls of the
building or otherwise deface, damage or overload the building. Tenant shall have the right to place
an additional sign at the Old Xxxxxxxxxxx entrance gate; provided, however, that the sign shall be
subject to the approval of Landlord. No other signs (mobile or stationary) shall be displayed on
the leased premises
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without the prior written consent of Landlord. Tenant shall remove all signs at the termination of
this Lease at Tenant’s sole risk and expense and shall in a workmanlike manner properly repair any
damage and close any holes caused by the removal of Tenant’s signs.
5. USAGE: Tenant warrants and represents to Landlord that the leased premises shall be used
and occupied only for the purposes of office and warehouse and no other purpose. Tenant shall
occupy the leased premises, conduct its business and control its agents, employees, invitees and
visitors in such a way as is lawful, reputable and will not create any nuisance or otherwise
interfere with, annoy or disturb any other tenant in its normal business operations or Landlord in
its management of the building. Tenant shall not commit, or suffer to be committed, any waste on
the leased premises.
6. INSURANCE: Tenant shall not permit the leased premises to be used in any way which would be
extra hazardous on account of fire or otherwise which would in any way increase or render void the
fire insurance on leasehold improvements or contents in the building belonging to other tenants in
the building. If at any time during the term of this Lease the State Board of Insurance or other
insurance authority disallows any of Landlord’s sprinkler credits or imposes an additional penalty
or surcharge in Landlord’s insurance premiums because of Tenant’s original or subsequent placement
or use of storage racks or bins, method of storage or nature of Tenant’s inventory or any other act
of Tenant, Tenant agrees to pay as additional rental the increase (between fire walls) in
Landlord’s insurance premiums. Tenant shall, during the entire term hereof, keep in full force and
effect a policy of public liability with respect to the leased premises, and the business operated
by Tenant and any assignees or subtenants of Tenant in the premises in which the limits of public
liability for personal and bodily injury shall be not less than $1,000,000 single limit and in
which the property damage liability shall be not less than $100,000. The policy shall name both
Landlord and Tenant as insureds, and shall contain a clause that the insurer will not cancel or
change the insurance without first giving the Landlord thirty (30) days prior written notice. The
insurance shall be carried with companies reasonably satisfactory to Landlord and a copy of the
policy or a certificate of insurance shall be delivered to Landlord. Tenant acknowledges that it is
solely responsible for maintaining insurance on its personal property, fixtures, improvements and
alterations, now or hereinafter made to the leased premises or the building.
7. UTILITY SERVICE: Landlord shall provide the normal utility service connections into the
leased premises. Tenant shall pay the cost of all utility services, including, but not limited to,
initial connection charges, all charges for gas, water and electricity used on the leased premises,
and for all electric light lamps or tubes. However, in a multi-occupancy building, Landlord may
provide water to the leased premises, in which case Tenant agrees to pay to Landlord Tenant’s Share
of the cost of such water unless Tenant’s usage of the leased premises exceeds normal domestic
water consumption, in which event the cost shall be estimated as appropriate for such excess
consumption. Tenant shall pay all costs caused by Tenant introducing excessive pollutants or solids
other than ordinary human waste into the sanitary sewer system, including permits, fees and charges
levied by any governmental subdivision for any such pollutants or solids. Tenant shall be
responsible for the installation and maintenance of any dilution tanks, holding tanks, settling
tanks, sewer sampling devices, sand traps, grease traps or similar devices as may be required by
any governmental subdivision for Tenant’s use of the sanitary sewer system. If the leased
premises are in a multi-occupancy building, Tenant shall pay all surcharges levied due to Tenant’s
use of sanitary sewer or waste removal services insofar as such surcharges affect Landlord or other
tenants in the building. Landlord” shall not be required to pay for any utility services, supplies
or upkeep in connection with the leased premises. Tenant’s share of utilities shall be determined
by a mutually acceptable electrical engineer or Landlord, at its option, may elect to separate the
utilities.
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8. REPAIRS AND MAINTENANCE: (a) Unless otherwise expressly provided herein, Landlord shall
not be required to make any improvements, replacement or repairs of any kind or character to the
leased premises during the term of this Lease except such repairs as are set forth in this
subparagraph. Landlord shall maintain the lawn and other landscaping, exterior painting, the roof,
foundation, parking areas, and the structural soundness of the exterior walls (excluding all
windows, window glass, plate glass and all doors) of the building in good repair and condition.
Tenant shall repair and pay for any damage caused by the negligence or default of Tenant or
Tenant’s agents and employees. Tenant shall immediately give written notice to Landlord of the need
for repairs, which repairs shall be made by Landlord beginning not more than fifteen (15) days
after written notice by Tenant. All requests for repairs or maintenance that are the responsibility
of Landlord pursuant to any provision of this Lease must be made in writing to Landlord at the
address set forth below.
(b) Tenant shall, at its own cost and expense, maintain the interior of the leased premises in
good repair and condition, including overhead doors, dock levelers, and heating and interior fans
(including all necessary replacements). Tenant shall take good care of all the property and its
fixtures. Should Tenant neglect to keep and maintain the leased premises, then Landlord shall have
the right, but not the obligation, to have the work done and the cost therefor shall be charged to
Tenant as additional rental which shall become payable by Tenant with the payment of the rental
next due hereunder.
(c) Tenant shall not allow any damage to be committed on any portion of the leased premises,
and at the termination of this Lease, by lapse of time or otherwise, Tenant shall deliver the
leased premises to Landlord in good condition as existed at the commencement date or completion
date of this Lease, ordinary wear and tear excepted. The cost and expense of any repairs necessary
to restore the condition of the leased premises shall be borne by Tenant, and if Landlord
undertakes to restore the leased premises it shall have a right of reimbursement against Tenant.
(d) Landlord shall not be liable to Tenant, except as expressly provided in this Lease, for
any damage, interruption of Tenant’s business or inconvenience, and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any repairs, alterations or additions made by
Landlord under this Lease.
9. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Tenant, at Tenant’s expense, shall comply
with all laws, ordinances, orders, rules and regulations of state, federal, municipal or other
agencies or bodies having jurisdiction relating to the use, condition and occupancy of the leased
premises. Tenant will comply with the rules of the building and/or project adopted by Landlord
which are set forth on Exhibit A attached to this Lease and made a part hereof. Landlord shall have
the right at all times to change the rules and regulations of the building or to amend them in any
reasonable manner as may be deemed advisable for the safety, care and cleanliness, and for the
preservation of good order, of the leased premises. All changes and amendments in the rules and
regulations of the building will be sent by Landlord to Tenant in writing and shall thereafter be
carried out and observed by Tenant.
10. LANDLORD WORK: Landlord shall complete the work outlined in Exhibit “B.”
11. ALTERATIONS AND IMPROVEMENTS: Tenant shall be permitted to make alterations and
physical additions in or to the leased premises, specifically the proposed new office area, only
upon written consent of Landlord, which shall not be unreasonably withheld. Tenant shall submit
building plans of the proposed office area and Landlord shall permit Tenant to maintain a break
area, which shall include an electric stove. Any alterations, physical additions or improvements to
the leased premises made by Tenant shall at’ once become the property of Landlord and shall be
surrendered to Landlord upon the termination of this Lease. Landlord, at its option, may require
Tenant to remove any physical additions and/or repair any alterations in order to restore the
leased premises to the condition existing at the time Tenant took possession, all costs of removal
and/or alterations to be borne by Tenant. This clause shall not apply to moveable equipment or
furniture owned by Tenant which may be removed by Tenant at the end of
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the term of this Lease if Tenant is not then in default and if such equipment and
furniture is not then subject to any other rights, liens and interests of Landlord. Tenant further
agrees to construct any alterations or physical additions in strict compliance with all applicable
laws, rules, regulations, codes, and ordinances now or hereafter in effect, including without
limitations, the Americans with Disabilities Act and lead-base paint requirements.
12. CONDEMNATION: (a) If, during the term (or any extension or renewal) of this Lease, all or
a substantial part of the leased 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 purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of the leased premises
for the purpose for which they are then being used, this Lease shall terminate and the rent shall
be abated during the unexpired portion of this Lease effective on the date physical possession is
taken by the condemning authority. Tenant shall have no claim to the condemnation award, less and
except any separate award made directly to Tenant as compensation for the Tenant’s
leasehold interest.
(b) In the event a portion of the leased 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 purchase in lieu thereof, and this Lease is not terminated as provided in
subparagraph (a) above, Landlord may, at Landlord’s sole risk and expense, restore and reconstruct
the building and other improvements on the leased premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired portion of the term
shall be adjusted to such an extent as may be fair and reasonable under the circumstances. Tenant
shall have no claim to the condemnation award, less and except any separate award made directly to
Tenant as compensation for the Tenant’s leasehold interest.
13. FIRE AND CASUALTY: (a) If the leased premises should be totally destroyed by
fire or other casualty, or if the leased premises should be so damaged so that rebuilding cannot
reasonably be completed within one hundred twenty (120) working days after the date of written
notification by Tenant to Landlord of the destruction, this Lease shall terminate and the rent
shall be abated for the unexpired portion of the Lease, effective as of the date set forth in the
written notification, provided the Landlord’s lender does not elect to apply such proceeds to any
indebtedness secured by the Property.
(b) Provided the Landlord’s lender does not elect to apply such proceeds to any
indebtedness secured by the Property, if the leased premises should be partially damaged by fire or
other casualty, and rebuilding or repairs can reasonably be completed within one hundred twenty
(120) working days from the date of written notification by Tenant to Landlord of the destruction,
this Lease shall not terminate, but Landlord may at its sole risk and expense proceed with
reasonable diligence to rebuild or repair the building or other improvements to substantially the
same condition in which they existed prior to the damage. If the leased premises are to be rebuilt
or repaired and are untenantable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by act or negligence of Tenant, its agents,
employees, invitees or those for whom Tenant is responsible, the rent payable under this Lease
during the period for which the leased premises are untenantable
shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. In the event that
Landlord fails to complete substantially the necessary repairs or rebuilding within one hundred
twenty (120) working days from the date of written notification by Tenant to Landlord of the
destruction, Tenant may at its option terminate this Lease by delivering written notice of
termination to Landlord, whereupon all rights and obligations under this Lease shall cease to exist
as of the effective date of such termination.
14. PROPERTY INSURANCE: Landlord shall at all times during the term of this
Lease maintain a policy or policies of insurance with the premiums paid in advance, issued by and
binding upon some solvent insurance company, insuring the building against all risk of direct
physical loss in an amount equal to ninety percent’(90%) of the full replacement cost of the
building structure and its improvements as of the date of the loss; provided, that Landlord shall
not be obligated in any way or manner to insure any personal property (including, but not limited
to, any furniture, machinery, goods or supplies) of Tenant or which Tenant may have upon or within
the leased premises or any fixtures installed by or paid for by
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Tenant upon or within the leased premises or any additional improvements or alterations which
Tenant may construct on the leased premises.
15. WAIVER OF SUBROGATION: Anything in this Lease to the contrary notwithstanding,
Landlord and Tenant 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 leased premises, improvements to the building of which the
leased premises are a part, or personal property (building contents) within the building, by reason
of fire or the elements regardless of cause or origin, including negligence of Landlord or Tenant
and their agents, officers and employees. Because this paragraph will preclude the assignment of
any claim mentioned in it by way of subrogation or otherwise to an insurance company or any other
person, each party to this Lease agrees immediately to give to each insurance company which has
issued to it policies of insurance covering all risk of direct physical loss, written notice of the
terms of the mutual waivers contained in this paragraph, and to have the insurance policies
properly endorsed, if necessary, to prevent the invalidation of the insurance coverages by reason
of the mutual waivers contained in this paragraph.
16. HOLD HARMLESS: Landlord and Landlord’s agents, employees, invitees and assigns shall not
be liable to Tenant’s employees, agents, invitees, licensees or visitors, or to any other person,
for any injury to person or damage to property on or about the leased premises, caused by any other
tenant of Landlord, caused by the building and improvements located on the leased premises, or by
any other reason whatsoever, less and except any such injury or damage caused by Landlord’s gross
negligence or willful misconduct, or that of Landlord’s employees or agents. Tenant agrees to
indemnify and hold harmless Landlord of and from any loss, damage, claim, attorney’s fees, expenses
or claims arising out of any such damage or injury.
17. QUIET ENJOYMENT: Landlord warrants that it has full right to execute and to
perform this Lease and to grant the estate demised and that Tenant, upon payment of the required
rents and performing the terms, conditions, covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the leased premises during the full term of this Lease
as well as any extension or renewal thereof. Landlord shall not be responsible for the acts or
omissions of any other Tenant or third party that may interfere with Tenant’s use and enjoyment of
the leased premises, nor shall Landlord have any responsibility for the personal security of any
persons on or about the premises, the building and/or project.
18. LANDLORD’S RIGHT OF ENTRY: Landlord shall have the right, at all reasonable
hours, or as otherwise agreed in advance by the parties, to enter the leased premises for the
following reasons: inspection; cleaning or making repairs; making alterations or additions as
Landlord may deem necessary or desirable; determining Tenant’s use of the leased premises, or
determining if an act of default under this Lease has occurred.
19. ASSIGNMENT OR SUBLEASE: Landlord 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. Without Landlord’s prior written consent, which shall not be unreasonably withheld or
delayed, Tenant will neither assign this Lease in whole or in part nor sublease all or part of the
Premises. If Tenant requests Landlord to consent to a specific assignment or sublease, Tenant will
give Landlord (i) the name and address of the proposed assignee or subtenant; (ii) a copy of the
proposed assignment or sublease; (iii) reasonably satisfactory information about the nature,
business and business history of the assignee or subtenant and its proposed use of the Premises;
and (iv) banking, financial or other credit information, and references, about the proposed
assignee or subtenant sufficient to enable the Landlord to determine the financial responsibility
and character of the proposed assignee or subtenant. Landlord’s consent to an assignment or
sublease will not be effective until: a fully executed copy of the instrument of assignment or
sublease has been delivered to the Landlord; in the case of an assignment, Landlord has received a
written instrument in which assignee has assumed and agreed to perform all Tenant’s obligations
in this Lease; and a Five Hundred Dollar ($500) transfer fee. Landlord’s consent to an
Assignment or Sublease will not
release the Tenant from the payment and performance of its obligations in the Lease, but rather,
Tenant and its assignee will be jointly and severally primarily liable for such payment and
performance.
For purposes of this Lease, the following transactions will also constitute an assignment
which shall require the Landlord’s prior written consent:
| (a) | Assignment by operation of law; | ||
| (b) | An imposition (whether or not consensual) of a lien, mortgage or encumbrance upon Tenant’s interest in this Lease; | ||
| (c) | An arrangement (including without limitation management agreements, concessions, and licensees) that allows the use and occupancy of all or part of the Premises by anyone other than Tenant; | ||
| (d) | A transfer of voting control of Tenant, if Tenant is a corporation. | ||
| (e) | A transfer of more than 33 1/3% of the interest in Tenant, if Tenant is a partnership or a limited liability company. |
An assignment or sublease without Landlord’s prior written consent will be void at Landlord’s
option. Landlord’s consent to an assignment or sublease will not waive the requirement of its
consent to any subsequent assignment or sublease. If Tenant believes that Landlord has unreasonably
withheld its consent, Tenant’s sole remedy will be to seek a declaratory judgment that Landlord has
unreasonably withheld its consent in order of specific performance or mandatory injunction of
Landlord’s agreement to give its consent. Any collection directly by Landlord from the assignee or
subtenant shall not be construed to constitute a novation or a release of Tenant from the further
performance of its obligations under this Lease. Tenant agrees to reimburse Landlord for Landlord’s
reasonable attorneys’ fees and costs incurred in connection with the processing and documentation
of any request made pursuant to this paragraph. Notwithstanding the giving by Landlord of its
consent to any assignment or sublease with respect to the premises, no such assignee or sub Tenant
may exercise any expansion option, right of first refusal option, or extension option under this
Lease except in accordance with a separate written agreement entered into directly between such
assignee or sub Tenant and Landlord, and, absent Landlord’s written agreement to the contrary, all
option rights of Tenant, and all lease rights of Tenant created pursuant to the exercise of any
option rights, with respect to any space so assigned or subleased, shall be extinguished.
21. UNIFORM
COMMERCIAL CODE: This Lease is intended as and constitutes a security
agreement within the meaning of the Uniform Commercial Code of the state in which the leased
premises are situated and, Landlord, in addition to the rights prescribed in this Lease, shall have
all of the rights, titles, liens and interests in and to Tenant’s property now or hereafter located
upon the leased premises which are granted a secured party, as that term is defined, under the
Uniform Commercial Code to secure the payment to Landlord of the various amounts provided in this
Lease. Tenant will on request execute and deliver to Landlord a financing statement for the purpose
of perfecting Landlord’s security interest under this Lease or Landlord may file this Lease or a
copy thereof as a financing statement.
22. DEFAULT BY TENANT: The following shall be deemed to be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay when due any installment of rent or any other payment required
pursuant to this Lease;
(b) Tenant shall abandon any substantial portion of the leased premises;
(c) Tenant shall fail to comply with any term, provision or covenant of this Lease, other than
the payment of rent, and the failure is not cured within thirty (30) days after written notice to
Tenant;
(d) Tenant shall file a petition or be adjudged bankrupt or insolvent under the federal
Bankruptcy Code, as amended, or any similar law or statute of the United States or any state; or a
receiver or trustee shall be appointed for all or substantially all of the assets of Tenant; or
Tenant shall make a transfer in fraud of creditors or shall make an assignment for the benefit of
creditors; or
(e) Tenant shall do or permit to be done any act which results in a lien being filed against
the leased premises or the building and/or project of which the leased premises are a part.
(f) Tenant shall fail to abide by the specific laws and/or restrictions set forth
by the city of Little Rock building code and/or inspector.
23. REMEDIES FOR TENANT’S DEFAULT: Upon the occurrence of any event of default set forth in
this Lease in addition to any other remedy available law, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand:
(a) Terminate this Lease, in which event Tenant shall immediately surrender the leased
premises to Landlord, and if Tenant fails to surrender the leased premises, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon
and take possession of the leased premises, by picking or changing locks if necessary, and lock
out, expel, or remove Tenant and any other person who may be occupying all or any part of the
leased premises without being liable for prosecution of any claim for damages. Tenant agrees to pay
on demand the amount of loss and damage which Landlord may suffer by reason of the termination of
the Lease under this subparagraph, whether through inability in reletting the leased premises on
satisfactory terms or otherwise.
(b) Enter upon and take possession of the leased premises, by picking or changing locks if
necessary, and lock out, expel or remove Tenant and any other person who may be occupying all or
any part of the leased premises without being liable for any claim for damages, and relet the
leased premises on behalf of Tenant and receive directly the rent by reason of the reletting.
Tenant agrees to pay Landlord on demand any deficiency that may arise by reason of any reletting of
the leased premises; further, Tenant agrees to reimburse Landlord for any expenditures made by it
for remodeling or repairing in order to relet the leased premises and the costs incurred in
reletting the same.
(c) Enter upon the leased premises, by picking or changing locks if necessary, without being
liable for prosecution of any claim for damages, and do whatever Tenant is obligated to do under
the terms of this Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant’s obligations under this Lease; further,
Tenant agrees that Landlord shall not be liable for any damages resulting to Tenant from effecting
compliance with Tenant’s obligations under this subparagraph caused by the negligence of Landlord
or otherwise.
(d) In addition to any of the remedies available in this Lease,
Tenant shall be liable for and shall pay immediately upon demand, any unamortized leasing fee paid
by Landlord to any broker in connection with this Lease and any unamortized Tenant buildout
performed by Landlord.
24. WAIVER OF DEFAULT OR REMEDY: Failure of Landlord to declare an event of
default immediately upon its occurrence, or delay in taking any action in connection with an event
of default, shall not constitute a waiver of the default, but Landlord shall have the right to
declare the default at any time and take such action as is lawful or authorized under
this Lease. Pursuit of any one or more of the remedies set forth in paragraph 24 above shall not
preclude pursuit of any one or more of the other remedies provided elsewhere in this Lease or
provided by law or equity, nor shall pursuit of any remedy provided
8
constitute forfeiture or waiver of any rent or damages accruing to Landlord by reason of the
violation of any of the terms, provisions or covenants of this Lease. Failure by Landlord to
enforce one or more of the remedies provided upon an event of default shall not be deemed or
construed to constitute a waiver of the default or of any other violation or breach of any of the
terms, provisions and covenants contained in this Lease.
25. ACTS OF GOD: Landlord shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Tenant, so long as the performance or
non-performance of the covenant or obligation is delayed, caused by or prevented by an act of God
or force majeure.
26. ATTORNEY’S FEES: In the event Tenant defaults in the performance
of any of the terms, covenants, agreements or conditions contained in this Lease and Landlord
places in the hands of an attorney the enforcement of all or any part of this Lease, the collection
of any rent due or to become due or recovery of the possession of the leased premises, Tenant
agrees to pay Landlord reasonable attorney’s fees for the services of the attorney, whether suit is
actually filed or not.
27. HOLDING OVER: In the event of holding over by Tenant after the
expiration or termination of this Lease, the hold over shall be as a tenant at will and all of the
terms and provisions of this Lease shall be applicable during that period, except that Tenant shall
pay Landlord as rental for the period of such hold over an amount equal to one and one-tenth (1.1)
the rent which would have been payable by Tenant had the hold over period been a part of the
original term of this Lease. Tenant agrees to vacate and deliver the leased premises to Landlord
upon Tenant’s receipt of notice from Landlord to vacate. The rental payable during the hold over
period shall be payable to Landlord on demand. No holding over by Tenant, whether with or without
consent by Landlord, shall operate to extend this Lease except as otherwise expressly provided.
28. SUBORDINATION OF RIGHTS: Tenant accepts this Lease subject and subordinate to
any recorded mortgage or deed of trust lien presently existing or hereafter created upon the leased
premises or the building. Landlord is hereby irrevocably vested with full power and authority to
subordinate Tenant’s interest under this Lease to any mortgage or deed of trust lien hereafter
placed on the leased premises, and Tenant agrees upon demand to execute additional instruments
subordinating this Lease as Landlord may require. If the interests of Landlord under this Lease
shall be transferred by reason of foreclosure or other proceedings for enforcement of any mortgage
or deed of trust on the leased premises, Tenant shall be bound to the transferee (sometimes called
the “Purchaser”), under the terms, covenants and conditions of this Lease for the balance of the
term remaining, and any extensions or renewals, with the same force and effect as if the Purchaser
were Landlord under this Lease, and, if requested by the Purchaser, Tenant agrees to
attorn to the Purchaser, including the mortgagee under any such mortgage if it be the Purchaser, as
its Landlord. All the rights and obligations of both parties outlined herein shall transfer to any
new owner, successor or assignee.
29. ESTOPPEL CERTIFICATES: Tenant agrees to furnish promptly, from time to time, upon request
of Landlord or Landlord’s mortgagee, a statement certifying, if applicable, that Tenant is in
possession of the leased premises; the leased premises are acceptable; the Lease is in full force
and effect; the Lease is unmodified; Tenant claims no present charge, lien, or claim of offset
against rent; the rent is paid for the current month, but is not prepaid for more than one month
and will not be prepaid for more than one month in advance; confirming that the Tenant’s leasehold
interest is subordinate to Landlord’s mortgage, there is no existing default by reason of some act
or omission by Landlord or Tenant; that no event exists which with the passage of time would
constitute an event of default by either party; an agreement to provide Landlord’s lender (or
lenders) with at least thirty (30) days prior notice of any default and an opportunity of lender
(or lenders) to cure such default and Landlord’s lender’s (or lenders’) consent to any assignment
or ‘sublease of all or any portion of the Premises; and such other matters as may be reasonably
required by Landlord or Landlord’s mortgagee.
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30. SUCCESSORS: This Lease shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective heirs, personal representatives, successors and assigns.
It is hereby covenanted and agreed that should Landlord’s interest in the leased
premises cease to exist for any
reason during the term of this Lease, then notwithstanding the happening of such event this
Lease nevertheless shall remain unimpaired and in full force and effect and Tenant hereunder agrees
to attorn to the then owner of the leased premises.
32. DEFINITIONS: The following definitions apply to the terms set forth below as
used in this Lease:
(a) “Abandon” means the vacating of all or a substantial portion of the leased
premises by Tenant, whether or not Tenant is in default of the rental payments due under this
Lease.
(b) An “act of God” or “force majeure” is defined for purposes of this
Lease as strikes, lockouts, sit-downs, material or labor restrictions by any governmental
authority, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire,
storms, weather (including wet grounds or inclement weather which prevents construction), acts of
the public enemy, wars, insurrections and any other cause not reasonably within the control of
Landlord and which by the exercise of due diligence Landlord is unable, wholly or in part, to
prevent or overcome.
(c) The
“commencement date” shall be the date set forth in paragraph 2. The
“commencement date” shall constitute the commencement of this Lease for all purposes, whether or
not Tenant has actually taken possession.
(d) “Real property tax” means all school, city, state and county taxes and assessments
including special district taxes or assessments.
(e) “Square feet” or “square foot” as used in this Lease includes the area contained within
the space occupied by Tenant together with a common area percentage factor of Tenant’s space
proportionate to the total building area.
33. MISCELLANEOUS: The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the scope or intent
of such paragraph. If any provision of this Lease shall ever be held to
be invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Lease, and such other provisions shall continue in full force and effect.
34. NOTICE: (a) All rent and other payments required to be made by Tenant shall be payable to
Landlord at the address set forth below.
(b) All payments required to be made by Landlord to Tenant shall be payable to
Tenant at the address set forth below, or at any other address within the United States as Tenant
may specify from time to time by written notice;
(c) Any notice or document required or permitted to be delivered by this Lease shall be
deemed to be delivered (whether or not actually received) two days after being deposited in the
United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the
parties at the respective addresses set out below:
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LANDLORD:
Xxxxxx X. Xxxxxx Trust
Westrock Corporation
C/O Xxx Xxxxxx
0000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
TEL: (501)
FAX: (501)
Westrock Corporation
C/O Xxx Xxxxxx
0000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
TEL: (501)
FAX: (501)
TENANT:
Xxx Xxxxxxx
Chief Financial Officer
DAC Technologies, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx Xxxx, XX 00000
TEL: (000) 000-0000
FAX: (000) 000-0000
Chief Financial Officer
DAC Technologies, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx Xxxx, XX 00000
TEL: (000) 000-0000
FAX: (000) 000-0000
35. HAZARDOUS MATERIALS: Tenant shall not cause or permit any hazardous material (defined as
any hazardous or toxic substance, material or waste, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto, or such substances, materials and wastes that
are or become regulated under any applicable local, state or federal law) to be brought upon, kept
or used in or about the premises or building by Tenant, its agents, employees, contractors or
invitees. Tenant shall indemnify and hold Landlord harmless from any loss, damage, claim,
fine or other expense (including attorney’s fees and expenses) incurred as a result of Tenant’s
breach of the covenants and restrictions contained in this paragraph.
36. BROKER: Landlord and Tenant hereby acknowledge and agree that Colliers Xxxxxxx Xxxxx
Partners, Inc., Realtors, Little Rock, Arkansas, and all its associates represent the Landlord and
only the Landlord in negotiating this Lease. Landlord and Tenant acknowledge that such
representation was disclosed upon initial contact. The Landlord shall be responsible for all
brokerage fees and shall indemnify Tenant against any claims for such. Landlord agrees to pay
Colliers Xxxxxxx Xxxxx Partners, Inc. a fee equal to five percent (5%) of the gross
aggregate rent for the primary term of this Lease upon commencement of the primary term, and two
percent (2%) for any extensions, renewals, or options thereafter.
37. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: It is expressly agreed by Tenant, as a
material consideration for the execution of this Lease, that this Lease, with the specific
references to written extrinsic documents, is the entire agreement of the parties; that there are,
and were, no verbal representations, warranties, understandings, stipulations, agreements or
promises pertaining to this Lease or the expressly mentioned written extrinsic documents not
incorporated in writing in this Lease. Landlord and Tenant expressly agree that there
are and shall be no implied warranties of merchantability, habitability, fitness for a particular
purpose or of any other kind arising out of this Lease and there are no warranties which extend
beyond those expressly set forth in this Lease. It is likewise agreed that this Lease may not be
altered, waived, amended or extended except by an instrument in writing signed by both Landlord and
Tenant.
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38. TENANT RECOURSE: Tenant’s sole recourse against Landlord and any successor to the interest
of Landlord in the leased premises is to the interest of Landlord, and any successor, in the leased
premises and the building of which the leased premises is a part. Unless Landlord is in direct
default of this Lease, Tenant will not have any right to satisfy any judgment it may have against
Landlord, or any successor, or from any other assets of Landlord, or any successor. This paragraph
the terms “landlord” and “successor” include the shareholders, members, managers, officers,
directors, venturers, or partners of Landlord and successor, and the agents, officers, directors,
venturers, partners or employees of the Landlord and its successor. The provisions of this
paragraph are not intended to limit Tenant’s right to seek injunctive relief or specific
performance, or Tenant’s right to claim in the proceeds of insurance, if any, specifically
maintained by the Landlord for the Tenant’s benefit.
39. SALE OF PREMISES: If Landlord or any subsequent owner of the leased premises,
sells the leased premises, its liability for the performance of its agreements in this Lease will
end on the date of the sale of the leased premises, and Tenant will look solely to the purchaser
for the performance of these agreements. For the purposes of this paragraph, any holder of a
mortgage or deed of trust that affects the leased premises at any time, and any landlord in any
lease to which this Lease is subordinate at any time, will be a subsequent owner of the leased
premises. The Tenant will
attorn to any subsequent owners of the leased premises. The provisions of this paragraph are
made in addition to, and not in lieu of, all of the provisions contained herein,
specifically including paragraph 39.
40. MEMORANDUM OF LEASE: This Lease shall not be recorded by either party, but at
the request of either Landlord or Tenant, the other party will sign a short form Memorandum of
Lease to evidence that such Lease is in existence. Since Tenant is a publicly traded company, this
Lease will become public information.
Signed at
4:00, this 28th day of November, 2006.
| LANDLORD: | TENANT: | |||||||||
| Xxxxxx X. Xxxxxx Trust and/or Assigns | DAC Technology Group International, Inc. | |||||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxx Xxxxxxx, CFO | |||||||
| Its: | Its: Chief Financial Officer | |||||||||
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