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EXHIBIT 10.57
STANDARD OFFICE SHOWROOM/WAREHOUSE COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. This lease agreement ("Lease") is entered into by and
between the following Lessor and Lessee:
Fountain Parkway, Ltd. ("Lessor")
Xxxxxxxxx Industries, L.P. ("Lessee")
1.02 LEASED PREMISES. In consideration of the rents, terms,
provisions and covenants of this Lease, Lessor hereby leases, lets and demises
to Lessee the following described premises ("leased premises"):
300,000 (Approximate sq. ft.) at
000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
1.03 TERM. Subject to and upon the conditions set forth herein, the
term of this Lease shall commence on December 1, 1996 (the "commencement date")
and shall terminate May 1, 2004 (89) months thereafter.
1.04 SECURITY DEPOSIT. Security deposit is $46,500.
1.05 ADDRESSES.
Lessor's Address: Lessee's Address:
Fountain Parkway Ltd. 000 Xxxxxxxx Xxxxxxx
C/O Southwest Properties Group, Inc. Xxxxx Xxxxxxx, XX 00000
000 Xxxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
1.06 PERMITTED USE: Warehouse Storage, Assembly, and Light
Manufacturing.
ARTICLE 2.00 RENT
2.01 BASE RENT. Lessee agrees to pay monthly as base rent during
the term of this Lease the sum of money set forth this section of the Lease,
which amount shall be payable to Lessor at the address shown above. One monthly
installment of rent shall be due and payable on the date of execution of this
Lease by Lessee for the first month's rent and a like monthly installment shall
be due and payable on or before the first day of each calendar month succeeding
the commencement date or completion date during the term of this Lease;
provided, if the commencement date or the completion 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 term of this Lease. Lessee shall pay, as
additional rent, all other sums due under this Lease.
BASE RENT. Lessee agrees to pay monthly as base rent during the term of this
lease the following sums of money:
Months 1-12: $ 35,593.11 per month or $1.42 per square foot per year
Months 13-29: $ 39,760.31 per month or $1.59 per square foot per year
Months 30-41: $ 47,500.00 per month or $1.90 per square foot per year
Months 42-53: $ 50,000.00 per month or $2.00 per square foot per year
Months 54-65: $ 52,500.00 per month or $2.10 per square foot per year
Months 66-77: $ 55,000.00 per month or $2.20 per square foot per year
Months 78-89: $ 57,500.00 per month or $2.30 per square foot per year
2.02 LESSEE'S PROPORTIONATE SHARE. For the purpose of this lease,
the total area of the Building is 300,000 rentable square feet. The
relationship between the area of the demised premises and the area of the
Building as aforesaid is 100 percent which percentage should be used throughout
this lease in determining the portions of additional rent related thereto.
2.03 OPERATING EXPENSES. In the event Lessor's operating expenses
for the building and/or project of which the leased premises are a part shall,
in any calendar year during the term of this Lease, exceed the sum of the
actual 1995 Base Year Operating Expenses (the "Base Year Expense Stop"), Lessee
agrees to pay as additional rent Lessee's pro rata share of such excess
operating expenses. Lessor may invoice Lessee monthly for Lessee's pro rata
share of the estimated operating expenses for each calendar year, which amount
shall be adjusted each year based upon anticipated operating expenses. Within
nine months following the close of each calendar year, Lessor shall provide
Lessee an accounting showing in reasonable detail all computations of
additional rent due under this section. In the event the accounting shows that
the total of the monthly payments made by the Lessee exceeds the amount of
additional rent due by Lessee under this section, the accounting shall be
accompanied by a refund. In the event the accounting shows that the total of
the monthly payments made by Lessee is less than the amount of additional rent
due by Lessee under this section, the account shall be accompanied by an
invoice for the additional rent. Notwithstanding any other provision in this
Lease, during the year in which the Lease terminates, Lessor, prior to the
termination date, shall have the option to invoice Lessee for Lessee's pro rata
share of the excess operating expenses based upon the previous year's operating
expenses. If this Lease shall terminate on a day other than the last day of a
calendar year, the amount of any additional rent payable by Lessee applicable
to the year in which such termination shall occur shall be prorated on the
ratio that the number of days from the commencement of the calendar year to and
including the termination date and its relationship to three hundred sixty-five
(365) days. Lessee shall have the right, at its own expense and within a
reasonable time, to audit Lessor's books relevant to the additional rent
payable under this section. Lessee agrees to pay any additional rent due under
this section within ten (10) days following receipt of the invoice or
accounting showing additional rent due.
2.04 DEFINITION OF OPERATING EXPENSES. The term "operating
expenses" includes all real property taxes and installments of special
assessments, including dues and assessments by means of deed restrictions
and/or owners' associations which accrue against the building of which the
leased premises are a part during the term of this lease; and all insurance
premiums Lessor is required to pay or deems necessary to pay, including public
liability insurance, with respect to the building. The term operating expenses
does not include the following: repairs; restoration or other work occasioned
by fire, wind, the elements or other casualty; income and franchise taxes of
Lessor; expenses incurred in leasing to or procuring of Lessees, leasing
commissions, advertising expenses and expenses for the renovating of space for
new lessees; interest or principle payments on any mortgage or other
indebtedness of Lessor; compensation paid to any employee of
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Lessor above the grade of property manager; any depreciation allowance or
expense; or operating expenses which are the responsibility of Lessee.
2.05 LATE PAYMENT CHARGE. Other remedies for nonpayment
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the fifth (5th) day of the month for which the rent is due, or if any
other payment due Lessor by Lessee is not received by Lessor on or before the
fifth (5th) day of the month for which such payment is due, a late payment
charge of ten percent (10%) of such past due amount shall become due and
payable in addition to such amounts owed under this Lease.
2.06 INCREASE IN INSURANCE PREMIUMS. If an increase in any
insurance premium paid by Lessor for the building is caused by Lessee's use of
the leased premises in a manner other than as set forth in section 1.06, or if
Lessee vacates the leased premises and causes an increase in such premiums,
then Lessee shall pay as additional rent the amount of such increase to Lessor.
2.07 SECURITY DEPOSIT. The security deposit set forth above shall
be held by Lessor for the performance of Lessee'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 Lessor's damage in case
of default by Lessee. Upon the occurrence of any event of default by Lessee or
breach by Lessee of Lessee's covenants under this Lease, Lessor 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, or to repair any damage or
injury, or pay any expense or liability incurred by Lessor as a result of the
event of default or breach of covenant, and any remaining balance of the
security deposit shall be returned by Lessor to Lessee upon termination of this
Lease. If any portion of the security deposit is so used or applied, Lessee
shall upon ten (10) days written notice from Lessor, deposit with Lessor by
cash or cashier's check an amount sufficient to restore the security deposit to
its original amount.
2.08 HOLDING OVER. In the event that Lessee does not vacate the
leased premises upon the expiration or termination of this Lease, Lessee shall
be a lessee at will for the holdover period and all of the terms and provisions
of this Lease shall be applicable during that period, except that Lessee shall
pay Lessor as base rental for the period of such holdover an amount equal to
two times the base rent which would have been payable by Lessee had the
holdover period been a part of the original term of this Lease. Lessee agrees
to vacate and deliver the leased premises to Lessor upon Lessee's receipt of
notice from Lessor to vacate. The rental payable during the holdover period
shall be payable to Lessor on demand. No holding over by Lessee, whether with
or without the consent of Lessor, shall operate to extend the term of this
Lease. Lessee shall not, without Lessor's prior written consent holdover after
one hundred twenty (120) days from the expiration of this lease.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Lessee warrants and represents to Lessor that the leased
premises shall be used and occupied only for the purpose as set forth in
section 1.06. Lessee shall occupy the leased premises, conduct its business and
control its agents, employees, invitees and visitors in such a manner as is
lawful, reputable and will not create a nuisance. Lessee shall not permit any
operation which emits any odor or matter which intrudes into other portions of
the building, use any apparatus or machine which makes undue noise or causes
vibration in any portion of the building or otherwise interfere with, annoy or
disturb any other lessee in its normal business operations or Lessor in its
management of the building. Lessee shall neither permit any waste on the leased
premises nor allow the leased premises to be used in any way which would, in
the opinion of Lessor, be extra hazardous on account of fire or which would in
any way increase or render void the fire insurance on the building. If at any
time during the term of this Lease, the State Bureau of Insurance or other
insurance authority disallows any of Lessors sprinkler credits or imposes an
additional penalty or surcharge in Lessors insurance premiums because of
Lessee's original or subsequent placement or use of storage racks or bins,
method of storage or nature of Lessee's inventory or any other act of Lessee,
Lessee agrees to pay as additional rent the increase (between fire walls) in
Lessor's insurance premiums.
3.02 SIGNS. No sign of any type or description shall be erected,
placed or painted in or about the leased premises or project except those signs
submitted to Lessor in writing and approved by Lessor in writing, and which
signs are in conformity with Lessor's sign criteria established for the
project.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee, at
Lessee's sole cost and expense shall comply with all laws, ordinances, orders,
rules and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over use, condition and occupancy of the leased premises.
Lessee will comply with the rules and regulations of the building adopted by
Lessor which are set forth on a schedule attached to this Lease. Lessor shall
have the right at all times to change and amend the rules and regulations in
any reasonable manners may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the building or
the leased premises. All changes and amendments to the rules and regulations of
the building will be sent by Lessor to Lessee in writing and shall thereafter
be carried out and observed by Lessee.
3.04 WARRANTY OF POSSESSION. Lessor warrants that it has the right
and authority to execute this Lease, and Lessee, upon payment of the required
rents and subject to the terms, conditions, covenants and agreements contained
in this Lease, shall have possession of the leased premises during the full
term of this Lease as well as any extension or renewal thereof. Lessor shall
not be responsible for the acts or omissions of any other lessee or third party
that may interfere with Lessee's use and enjoyment of the leased premises.
3.05 INSPECTION. Lessor or its authorized agents shall at any and
all reasonable times have the right to enter the leased premises to inspect the
same, to supply janitorial service or any other service to be provided by
Lessor, to show the leased premises to prospective purchasers or lessees, and
to alter, improve or repair the leased premises or any other portion of the
building. Lessee hereby waives any claim for damages for injury or
inconvenience to or interference with Lessee's business, any loss of occupancy
or use of the leased premises, and any other loss occasioned thereby. Lessor
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the leased premises. Lessee shall not change Lessor's lock
system or in any other manner prohibit Lessor from entering the leased
premises. Lessor shall have the right to use any and all means which Lessor may
deem proper to open any door in an emergency without liability therefore.
ARTICLE 4.00 SERVICES
4.01 Lessee accepts building services as adequate for its intended
use. Lessor agrees to make available to the premises at Lessor's sole cost and
expense: (1) water, (2) air conditioning and heating, (3) electric service, (4)
electrical lighting service for all common areas in the manner and to the
extent deemed by Lessor to be standard.
4.02 Lessee shall pay for the electricity and gas utilized in
operating any and all facilities serving the leased premises.
4.03 Failure to any extent to furnish of or any stoppage or
interruption of these defined services resulting from any cause shall not
render Lessor liable in any respect for damages to either person, property or
business; nor be construed as an eviction of Lessee or work an abatement of
rent; nor relieve Lessee from fulfillment of any covenant or agreement hereof.
Lessee shall have no claim for abatement of rent or damages on account of any
interruptions in service occasioned thereby or resulting therefrom.
4.04 REPAIRS AND MAINTENANCE. By Lessor: Lessor shall at its
expense maintain only the roof, foundation, underground or otherwise concealed
plumbing, outside of the building and the structural soundness of the exterior
walls (excluding all windows, window glass, plate glass, and all doors) of the
Building and keep in good repair and condition, except for reasonable wear and
tear. However, in no event shall Lessor be responsible for repair of any damage
caused by any act of negligence of the Lessee, its employees, agents or
invitees.
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Lessee shall give immediate written notice to Lessor of the need for repairs or
corrections and Lessor shall proceed promptly to make such repairs or
corrections. Lessor's liability hereunder shall be limited to the cost of such
repairs or corrections. In addition, Lessor shall maintain the paving outside
the building.
4.05 By Lessee: Lessee shall at its expense and risk maintain all
other parts of the building and other improvements on the demised premises in
good repair and condition, including but not limited to repairs including all
necessary replacements to the interior plumbing, windows, window glass, plate
glass doors, heating system, air-conditioning equipment, fire protection
sprinkler system, elevators, and the interior of the building in general. All
warranties and guarantees in effect on any of the items mentioned above will be
for Lessee or Lessor's use as applicable. Lessee shall be responsible for
maintaining the landscaping and regular mowing of grass.
4.06 In the event Lessee should neglect to maintain the demised
premises and the equipment located therein, Lessor shall have the right (but
not the obligation) to cause repairs or corrections to be made and any
reasonable costs therefor shall be payable by Lessee to Lessor as additional
rental on the next rental installment date.
ARTICLE 5.00 LESSEE RESPONSIBILITIES
5.01 Lessee shall make no alteration or additions to the electrical
equipment and/or appliances without the prior written consent of the Lessor in
each instance. Lessee covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to the
building or the risers or wiring installation. Lessee warrants and agrees that
there will not be installed or used in the demised premises such machines or
appliances which exceed the existing electrical capacity within the building.
5.02 No additional heating, ventilating or air-cooling unit or
equipment shall be installed or used in the suite except with the Lessor's
prior written consent and Lessee hereby expressly grants to the Lessor
permission to enter the premises demised hereunder, upon Lessee's breach of the
provisions hereof and after notice to Lessee of such breach and Lessee
expressly grants permission to Lessor to remove the equipment or appliance
causing the non-compliance or breach of such provisions without liability of
any sort on the part of the Lessor to the Lessee or any other.
5.03 The Lessee shall keep the demised premises and the fixtures
and equipment therein in clean, safe and sanitary condition, will take good
care thereof, will suffer no waste or injury thereto, and will, at the
expiration or other termination of the term of this Lease, surrender the same,
broom clean, in the same order and condition in which they were on the
commencement of the term of this Lease.
5.04 The Lessee shall commit no violations of and abide by the
Building's rules and/or regulations (as may be promulgated from time to time by
the Lessor), building code violations, violations of Fire Department or local
authorities, violations of any and all laws governing the operation or
occupancy of this building. The cost of removing the violations including the
damages the Lessor may suffer as a result of Lessee's acts, shall be borne
solely by the Lessee and such cost, expenses, losses and damages which the
Lessor incurs or will incur, will be billed to Lessee as additional rent in
accordance with the terms and conditions of this Lease.
5.05 Lessee will not conduct or permit to be conducted any
activity, or place any equipment in or about the demised premises, which will,
in any way, increase the rate of fire insurance or other insurance on the
Building; and if any increase in the rate of fire insurance or other insurance
is stated by any insurance company or by the applicable Insurance Rating Bureau
to be due to any activity or equipment in or about the demised premises, such
shall be conclusive evidence that the increase in such rate is due to any such
activity or equipment, and, as a result thereof, Lessee shall be liable for
such increase and shall reimburse Lessor thereafter.
5.06 In case of the failure of Lessee to comply with any provision
or terms of this Lease, Lessor shall have the right, but shall not be
obligated, to effect such compliance on behalf of Lessee, and, in such event,
all expenses Incurred or monies spent by Lessor in effecting such compliance
shall be deemed to be additional rental and shall be paid by Lessee to Lessor
at the time for payment of the next monthly payment of rental hereunder
following notice to Lessee from Lessor of the said additional rent to be paid
hereunder.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LESSOR IMPROVEMENTS. If construction to the leased premises is
to be performed by Lessor prior to or during Lessee's occupancy, Lessor will
complete the construction of the improvements to the leased premises, in
accordance with plans and specifications agreed to by Lessor and Lessee, which
plans and specifications are made a part of this Lease by reference. Lessee
shall execute a copy of the plans and specifications and change orders, if
applicable, setting forth the amount of any costs to be borne by Lessee within
seven (7) days of receipt of the plans and specifications. In the event Lessee
fails to execute the plans and specifications and change order within the seven
(7) day period, Lessor may, at its sole option, declare this Lease canceled or
notify Lessee that the base rent shall commence on the completion date even
though the improvements to be constructed by Lessor may not be complete. Any
changes or modifications to the approved plans and specifications shall be made
and accepted by written change order or agreement signed by Lessor and Lessee
and shall constitute an amendment to this Lease.
6.02 LESSEE IMPROVEMENTS. Lessee shall not make or allow to be made
any alterations or physical additions in or to the leased premises without
first obtaining the written consent of Lessor, which consent may in the sole
and absolute discretion of Lessor be denied. Any alterations, physical
additions or improvements to the leased premises made by Lessee shall at once
become the property of Lessor and shall be surrendered to Lessor upon the
termination of this Lease; provided, however, Lessor, at its option, may require
Lessee to remove any physical additions and/or repair any alterations in order
to restore the leased premises to the condition existing at the time Lessee
took possession, all costs of removal and/or alterations to be borne by Lessee.
This clause shall not apply to moveable equipment or furniture owned by Lessee,
which may by removed by Lessee at the end of the term of this Lease if Lessee
is not then in default and if such equipment and furniture are not then subject
to any other rights, liens and interest of Lessor.
6.03 MECHANICS LIEN. Lessee will not permit any mechanic's or
materialman's lien's or other lien to be placed upon the leased premises or the
building and nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Lessor, express or implied, by inference
or otherwise, to any person for the performance of any labor or the furnishing
of any materials to the leased premises, or any part thereof, nor as giving
Lessee any right, power, or authority to contract for or permit the rendering
of any services or the furnishing of any materials that would give rise to any
mechanic's, materialman's or other lien against the leased premises, In the
event any such lien is attached to the leased premises, then, in addition to
any other right or remedy of Lessor, Lessor may, but shall not be obligated to,
obtain the release of or otherwise discharge the same. Any amount paid by
Lessor for any of the aforesaid purposes shall be paid by Lessee to Lessor on
demand as additional rent.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 SUBSTANTIAL DESTRUCTION. If the leased premises should be
totally destroyed by fire or other casualty, or if the leased premises should
be damaged so that rebuilding cannot reasonably completed within ninety (90)
working days after the date of written notification by Lessee to Lessor of the
destruction, this Lease shall terminate and the rent shall be abated for the
unexpired portion Lease, effective as of the date of the written notification.
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7.02 PARTIAL DESTRUCTION. If the leased premises should be
partially damaged by fire or other casualty, and the rebuilding or repairs can
reasonably be completed within ninety (90) working days from the date of
written notification by Lessee to Lessor of the destruction, this Lease shall
not terminate, and Lessor shall 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 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 Lessee, its agents, employees, invitees
or those for whom Lessee 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 Lessor fails to complete the necessary repairs
or rebuilding within ninety (90) working days from the date of written
notification by Lessee to Lessor of the destruction, Lessee may at its option
terminate this Lease by delivering written notice of termination to Lessor,
whereupon all rights and obligations under this Lease shall cease to exist.
7.03 PROPERTY INSURANCE. Lessor 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 at
least ninety percent (90%) of the full replacement cost of the building
structure and its improvements as of the date of the loss; provided, Lessor
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
Lessee upon or within the leased premises, any fixtures installed or paid for by
Lessee upon or within the leased premises, or any improvements which Lessee may
construct on the leased premises. Lessee shall have no right in or claim to the
proceeds of any policy of insurance maintained by Lessor even though the cost of
such insurance is borne by Lessee as set forth in Article 2.00.
7.04 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right 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 within the building, by reason
of fire or the elements, regardless of cause or origin, including negligence of
Lessor or Lessee and their agents, officers and employees. Lessor and Lessee
agree immediately to give their respective insurance companies which have
issued policies of insurance covering all risk of direct physical loss, written
notice of the terms of the mutual waivers contained in this section, and to
have the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverages by reason of the mutual waivers.
7.05 HOLD HARMLESS. Lessor shall not be liable to Lessee's
employees, agents, invitees, licensees or visitors, or to any other person, for
an injury to person or damage to property on or about the leased premises
caused by any act or omission of Lessee, its agents, servants or employees, or
of any other person entering upon the leased premises under express or implied
invitation by Lessee, or caused by the improvements located on the leased
premises becoming out of repair, the failure or cessation of any service
provided by Lessor (including security service and devices), or caused by
leakage of gas, oil, water or steam or by electricity emanating from the leased
premises. Lessee agrees to defend, indemnify and hold harmless Lessor of and
from any loss, attorney's fees, expenses or claims arising out of any such
damage or injury.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If 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 it is 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. Lessee shall have no claim to the condemnation award or
proceeds in lieu thereof.
8.02 PARTIAL TAKING. If 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 this Lease is not terminated as provided in section 8.01
above, Lessor shall at Lessor'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. Lessee shall have no claim
to the condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LESSOR ASSIGNMENT. Lessor shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the building. Any such sale, transfer or assignment shall operate
to release Lessor from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer.
9.02 LESSEE ASSIGNMENT. Lessee shall not assign, in whole or in
part, this Lease or allow it to be assigned, in whole or in part, by operation
of law or otherwise, including without limitation, a transfer of a majority
interest of stock or merger. Nor shall Lessee sublet the leased premises in
whole or in part, without the prior written consent of Lessor. No event of an
assignment or sublease shall ever release Lessee or any guarantor from any
obligation or liability hereunder. No assignee or sublessee of the leased
premises may assign or sublet the premises or any portion thereof.
9.03 CONDITIONS OF ASSIGNMENT. If Lessee desires to assign or
sublet all OR any part of the leased premises, it shall so notify Lessor, in
writing, at least thirty (30) days in advance of the date on which Lessee
desires to make such assignment or sublease. Lessee shall provide Lessor with a
copy of the proposed assignment or sublease and such information as Lessor
might request concerning the proposed sublessee or assignee to allow Lessor to
make informed judgements as to the financial condition, reputation, operations
and general desirability of the proposed sublessee or assignee. Within fifteen
(15) days after Lessor's receipt of Lessee's proposed assignment or sublease
and all required information concerning the proposed sublessee or assignee,
Lessor shall have the following options: (1) cancel this Lease as to the leased
premises or portion thereof proposed to be assigned or sublet; (2) consent to
the proposed assignment or sublease, and, if the rent due and payable by
assignee or sublessee under any such permitted assignment or sublease (or a
combination of the rent payable under such assignment or sublease plus any
bonus or any other consideration or any payment incident thereto) exceeds the
rent payable under this Lease for such space, Lessee shall pay to Lessor all
such excess rent and other excess consideration within ten (10) days following
receipt thereof by Lessee; or (3) refuse, in its sole and absolute discretion
and judgement, to consent to the proposed assignment or sublease, which refusal
shall be deemed to have been exercised unless Lessor gives Lessee written
notice providing otherwise. Upon the occurrence of an event of default, if all
or any part of the leased premises are then assigned or sublet, Lessor, in
addition to any other remedies provided by this Lease or provided by Law, may,
at its option, collect directly from the assignee or sublessee all rents
becoming due to Lessee by reason of the assignment or sublease, and Lessor
shall have a security interest in all properties on the leased premises to
secure payment of such sums. Any collection directly by Lessor from the
assignee or sublessee shall not be construed to constitute a novation or a
release of Lessee or any guarantor from the further performance of its
obligations under this Lease.
9.04 SUBORDINATION. Lessee accepts this Lease subject and
subordinate to any recorded mortgage or deed of trust lien presently existing
or hereafter created upon the building or project. Lessor is hereby irrevocably
vested with full power and authority to subordinate Lessee's interest under
this Lease to any first mortgage or deed of trust lien hereafter placed on the
leased premises, and Lessee agrees upon demand to execute additional
instruments subordinating this Lease as Lessor may require. If the interests of
Lessor under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any first mortgage or deed of trust lien on the
leased premises, Lessee shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms,
Page 4 of 8
5
covenants and conditions of this Lease for the balance of the term remaining,
including any extensions or renewals, with the same force and effect as if the
Purchaser were Lessor under this Lease, and, if requested by the Purchaser,
Lessee agrees to attorn to the Purchaser, including the first mortgagee under
any such mortgage if it be the Purchaser, as its Lessor.
9.05 ESTOPPEL CERTIFICATES. Lessee agrees to furnish, from time to
time, within five (5) days after receipt of a request from Lessor or Lessor's
mortgagee, a statement certifying, if applicable, the following: Lessee is in
possession of the leased premises; the leased premises are acceptable; the
Lease is in full force and effect; the Lease is unmodified; Lessee 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: there is no existing default by
reason of some act or omission by Lessor; and such other matters as may be
reasonably required by Lessor or Lessors mortgagee. Lessee's failure to deliver
such statement, in addition to being a default under this Lease, shall be
deemed to establish conclusively that this Lease is in full force and effect
except as declared by Lessor, that Lessor is not in default of any of its
obligations under this Lease, and that Lessor has not received more than one
month's rent in advance.
ARTICLE 10.00 LIENS
10.01 LESSOR'S LIEN. As security for payment of rent, damages and
all other payments required to be made by this Lease, Lessee hereby grants to
Lessor a lien upon all property of Lessee now or subsequently located upon the
leased premises. If Lessee abandons or vacates any substantial portion of the
leased premises or is in default in the payment of any rentals, damages or
other payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the leased premises, by picking
or changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Lessee; sell and xxxxx ALL or
part of the proceeds of the sale of the personal property shall be applied by
Lessor towards the reasonable costs and expenses of the sale, including
attorney's fees, and then toward the payment of all sums then due by Lessee to
Lessor under the terms of this Lease. Any excess remaining shall be paid to
Lessee or any other person entitled thereto by law.
10.02 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. Lessor, in
addition to the rights prescribed in this Lease, shall have all of the rights,
titles, liens and interests in and to Lessee's property, now or hereafter
located upon the leased premises, which may be granted a secured party, as that
term is defined, under the Uniform Commercial Code to secure to Lessor payment
of all sums due and the full performance of all Lessee's covenants under this
Lease. Lessee will on request execute and deliver to Lessor a financing
statement for the purpose of perfecting Lessor's security interest under this
Lease or Lessor may file this Lease or a copy thereof as a financing statement.
Unless otherwise provided by law and for the purpose of exercising any right
pursuant to this section, Lessor and Lessee agree that reasonable notice shall
be met if such notice is given by ten (10) days written notice, certified mail,
return receipt requested, to Lessor or Lessee at the addresses specified
herein.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 DEFAULT BY LESSEE, The following shall be deemed to be events
of default by Lessee under this Lease: (1) Lessee shall fail to pay when due
any installment of rent or any other payment required pursuant to this Lease
and the failure is not cured within ten (1O) days after written notice to
Lessee; (2) Lessee shall abandon any substantial portion of the leased
premises; (3) Lessee 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 twenty (20) days after written notice to Lessee; (4) Lessee shall file a
petition or be adjudged bankrupt or insolvent under any applicable federal or
state bankruptcy or insolvency law or admit that it cannot meet its financial
obligations as they become due; or a receiver or trustee shall be appointed for
all or substantially all of the assets of Lessee; or Lessee shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors, or (5) Lessee 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.
11.02 REMEDIES FOR LESSEE'S DEFAULT. Upon the occurrence of any
event of default set forth in this Lease, Lessor shall have the option to
pursue any one or more of the remedies set forth herein without any notice or
demand. (1) Lessor may enter upon and take possession of the leased premises,
by picking or changing locks if necessary, and lock out, expel or remove Lessee
and any other person who may be occupying all or part of the leased premises
without being liable for any claim for damages, and relet the leased premises
on behalf of Lessee and receive the rent directly by reason of the reletting.
Lessee agrees to pay Lessor on demand any deficiency that may arise by reason
of any reletting of the leased premises; further, Lessee agrees to reimburse
Lessor for any expenditures made by it in order to relet the leased premises,
including, but not limited to, remodeling and repair costs. (2) Lessor may
enter upon the leased premises, by picking or changing locks if necessary,
without being liable for any claim for damages, and can do whatever Lessee is
obligated to do under the terms of this Lease. Lessee agrees to reimburse
Lessor on demand for any expenses which Lessor may incur effecting compliance
with Lessee's obligations under this Lease caused by the negligence of Lessee
or otherwise. (3) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the leased premises to Lessor, and if Lessee fails to
surrender the leased premises, Lessor 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 Lessee and any other person who may be
occupying all or any part of the leased premises without being liable for any
claim for damages. Lessee agrees to pay on demand the amount of all loss and
damage which Lessor may suffer by reason of the termination of this Lease under
this section, whether through inability to relet the leased premises on
satisfactory terms or otherwise. Notwithstanding any other remedy set forth in
this Lease, in the event Lessor has made rent concessions of any type or
character, or waived any base rent, and Lessee fails to take possession of the
leased premises on the commencement or completion date or otherwise defaults at
any time during the term of this Lease, the rent concessions, including any
waived base rent, shall be canceled and the amount of the base rent or other
rent concessions shall be due and payable immediately as if no rent concessions
or waiver of any base rent had ever been granted. A rent concession or waiver
of the base rent shall not relieve Lessee of any obligation to pay any other
charge due and payable under this Lease including without limitation any sum
due under section 2.02. In addition to the remedies set forth in this
paragraph, upon occurrence of any event or events of default by Lessee under
this Lease, Lessor may, at Lessors option, upon written notice to Lessee,
accelerate the remaining sums due from Lessee pursuant to this Lease, for the
remaining term of this Lease, at which time all such sums shall be immediately
due and payable by Lessee. Notwithstanding anything contained in this Lease to
the contrary, this Lease may be terminated by Lessor only by mailing or
delivering written notice of such termination to Lessee, and no other act or
omission of Lessor shall be construed as a termination of this Lease.
ARTICLE 12.00 DEFINITIONS
12.01 ABANDON. "Abandon" means the vacating of all or a substantial
portion of the leased premises by Lessee, whether or not Lessee is in default
of the rental payments due under this Lease.
12.02 ACT OF GOD OR FORCE MAJEURE. An "act of God" or "force
majeure" is defined for purposes of this Lease as strikes, lockouts, sitdowns,
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 Lessor and which by the exercise of
due diligence Lessor is unable, wholly or in part, to prevent or overcome,
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12.03 BUILDING OR PROJECT. "Building" or "project" as used in this
Lease means the building and/or project described in section 1.02, including
the leased premises and the land upon which the building or project is
situated.
12.04 COMMENCEMENT DATE. "Commencement date" shall be the date set
forth in section 1.03. The commencement date shall constitute the commencement
of the term of this Lease for all purposes, whether or not Lessee has actually
taken possession.
12.05 COMPLETION DATE. "Completion date" shall be the date on which
the improvements erected and to be erected upon the leased premises shall have
been completed in accordance with the plans and specifications described in
article 6.00. The completion date shall constitute the commencement of the term
of this Lease for all purposes, whether or not the Lessee has actually taken
possession. Lessor shall use its best efforts to establish the completion date
as the date set forth in section 1.03. In the event that the improvements have
not in fact been completed as of that date, Lessee shall notify Lessor in
writing of its objections. Lessor shall have a reasonable time after delivery
of the notice in which to take such corrective action as may be necessary and
shall notify Lessee in writing as soon as it deems such corrective action has
been completed and the improvements are ready for occupancy. Upon completion of
construction, Lessee shall deliver to Lessor a letter accepting the leased
premises as suitable for the purposes for which they are let and the date of
such letter shall constitute the commencement of the term of this Lease.
Whether or not Lessee has executed such letter of acceptance, taking possession
of the leased premises by Lessee shall be deemed to establish conclusively that
the improvements have been completed in accordance with the plans and
specifications, are suitable for the purposes for which the leased premises are
let, and that the leased premises are in good and satisfactory condition as of
the date possession was so taken by Lessee, except for latent defects, if any.
12.06 SQUARE FEET. "Square Feet" or "square foot"as used in this
Lease includes the area contained within the leased premises together with a
common area percentage factor of the leased premises proportionate to the total
building area.
ARTICLE 13.00 MISCELLANEOUS
13.01 WAIVER. Failure of Lessor to declare an event of default
immediately upon its occurrence, or delay in taking action in connection with
an event of default, shall not constitute a waiver of default, but Lessor 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 article 11.00 above shall not preclude pursuit of any one
or more of the other remedies provided elsewhere in this Lease or provided by
law, nor shall pursuit of any remedy constitute forfeiture or waiver of any
rent or damages accruing to Lessor by reason of the violation of any of the
terms, provisions or covenants of this Lease. Failure by Lessor 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.
13.02 ACT OF GOD. Lessor shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to Lessee, so
long as the performance or non-performance of the covenant or obligation is
delayed, caused or prevented by an act of God, force majeure or by Lessee.
13.03 ATTORNEYS FEES. In the event Lessee defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and Lessor 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, Lessee agrees to pay
Lessor's cost of collection, including reasonable attorney's fees for the
services of the attorney, whether suit is actually filed or not.
13.04. SUCCESSORS. This Lease shall the binding upon and inure to the
benefit of Lessor and Lessee and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed
that should Lessor'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 Lessee hereunder agrees to attorn to the then owner of the
leased premises.
13.05 RENT TAX. If applicable in the jurisdiction where the leased
premises are situated, Lessee shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Lessor by Lessee under
the terms of this Lease. Any such payment shall be paid concurrently with the
payment of the rent, additional rent, operating expenses or other charge upon
which the tax is based as set forth above. See Article 16.00 Other Provisions.
13.06 CAPTIONS. 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 any section.
13.07 NOTICE. All rent and other payments required to be made by
Lessee shall be payable to Lessor at the address set forth in section 1.05. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in section 1.05, or at any other address within the
United State as Lessee may specify from time to time by written notice. Any
notice or document required or permitted to be delivered by the terms of this
Lease shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set
forth in section 1.05.
13.08 SUBMISSION OF LEASE. Submission of this Lease to Lessee for
signature does not constitute a reservation of space or an option to lease.
This lease is not effective until execution by and delivery to both Lessor and
Lessee.
13.09 CORPORATE AUTHORITY. If Lessee executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Lessee does
hereby personally represent and warrant that Lessee is duly authorized and
existing corporation, the Lessee is qualified to do business in the state in
which the leased premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation is authorized to do so. In the event any representation or
warranty is false, all persons who execute this Lease shall be liable,
individually, as Lessee.
13.10 SEVERABILITY. If any provision of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Lease and the application of
such provisions to other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
13.11 LESSOR'S LIABILITY. If Lessor shall be in default under this
Lease and, if as a consequence of such default, Lessee shall recover a money
judgement against Lessor, such judgment shall be satisfied only out of the
right, title and interest of Lessor in the building as the same may then be
encumbered and neither Lessor not any person or entity that comprises Lessor
shall be liable for any deficiency. In no event shall Lessee have the right to
levy execution against any property of Lessor nor any person or entity
comprising Lessor other than its interest in the building as herein expressly
provided.
13.12 INDEMNITY. Lessor agrees to indemnify and hold harmless Lessee
from and against any liability or claim, whether meritorious or not, arising
with respect to any broker whose claim arises by through or on behalf of
Lessor. Lessee agrees to indemnify and hold harmless Lessor from and against
any liability or claim, whether meritorious or not, arising with respect to any
broker whose claim arises by, through or on behalf of Lessee.
13.13 Upon request, Lessee shall furnish Lessor with annual
financial statements and reports in a timely manner.
Page 6 of 8
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ARTICLE 14.0 AMENDMENT AND LIMITATION OF WARRANTIES
14.01 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY LESSEE, 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 TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT
INCORPORATED IN WRITING IN THIS LEASE.
14.02 AMENDMENT, THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
14.03 THIS LEASE AGREEMENT SUPERSEDES ANY AND ALL PREVIOUS
AGREEMENTS BETWEEN THE PARTIES HERETO. AND ANY AND ALL PREVIOUS AGREEMENTS
SHALL BECOME NULL AND VOID UPON EXECUTION OF THIS AGREEMENT.
ARTICLE 15.00 OTHER PROVISIONS
15.01 LESSEE INSURANCE. Lessee shall procure and maintain throughout
the term of this lease a policy or policies of insurance, at its sole cost and
expense, causing Lessee's fixtures and contents to be insured under standard
fire and extended coverage insurance and, with regard to liability insurance,
insuring both Lessor, Lessor's Agents, and Lessee against all claims, demands or
actions arising out of or in connection with Lessee's use or occupancy of the
Demised Premises, or by the condition of the Demised Premises. The limits of
Lessee's liability policy or policies shall be in an amount of not less than
$1,000,000.00 per occurrence, and shall be written by insurance companies
satisfactory to Lessor. Lessee shall obtain a written obligation on the part of
each insurance company to notify Lessor at least twenty (20) days prior to
cancellation of such insurance. Such policies and renewals thereof as required
shall be delivered to Lessor at least thirty (30) days prior to the expiration
of the respective policy terms. If Lessee should fail to comply with the
foregoing requirement relating to insurance, Lessor may obtain such insurance
and Lessee shall pay to Lessor on demand as additional rental hereunder the
premium cost thereof plus interest at the maximum contractual rate (but in no
event to exceed 1 1/2% per month) from the date of payment by Lessor until
repaid by Lessee.
15.02 TAXES. The Lessee covenants to pay all Taxes (whether imposed
upon the Lessor or the Lessee) attributable to the personal property, trade
fixtures, business, income, occupancy or sales of the Lessee or any other
occupant of the Leased Premises, and to any Leasehold Improvements or fixtures
installed by or on behalf of the Lessee within the Leased Premises, and to the
use by the Lessee of any of the Property.
Lessee covenants to pay the amount by which Taxes (whether imposed
upon the Lessor or the Lessee) are increased above the Taxes which would have
otherwise been payable as a result of the Leased Premises or the Lessee or any
other occupancy of the Leased Premises being taxed or assessed in support of
separate schools.
15.03 ENVIRONMENTAL MATTERS. Lessee agrees that it shall not allow
or permit the Premises to be used for the handling, transportation, storage,
treatment or other usage of hazardous or toxic substances. Lessee does hereby
agree to indemnify, defend and hold Lessor and its officers, employees and
agents harmless from any claims, judgements, damages, fines, penalties, costs,
liabilities (including sums paid in settlement of claims) or loss, including
attorneys' fees, consultant fees, and expert fees which arise in connection
with the presence or suspected presence of toxic or hazardous substances in the
Premises, the soil, groundwater or soil vapor on or under the premises, the
building in which the premises is located or in the surrounding property which
arise as a result of Lessee's operation of its business. Any failure by Lessee
to comply with the terms of this Paragraph 16.03 within ten (10) days of
delivery of written notice to Lessee by Lessor of such failure shall constitute
an event of default under this Lease. For purposes of this Paragraph 16.03, the
term "hazardous or toxic substances" shall mean any substance which is subject
to regulation by the Federal Comprehensive Environmental Response Compensation
and Liability Act of 1980 ("CERCLA") as authorized and amended by the Superfund
Amendment and Re-authorization Act of 1986 substance which may be reasonably
determined to cause a risk to the environment as determined by the
Environmental Protection Agency or other governmental agency.
15.04 BROKERAGE COMMISSION. Lessee represents and warrants that
there are no claims for brokerage commissions or finders' fees in connection
with the execution of this Lease except for Sovereign Commercial Realty ("SCR")
or separate agreement. Lessee agrees to indemnify and hold harmless Lessor
against all liabilities and costs arising from such claims, including without
limitation attorney's fees in connection therewith. In addition, Lessor hereby
agrees to pay SCR a commission equal to four and one half percent (4 1/2%) of
the gross rentals to be paid upon execution for any expansions, extensions, or
renewals pertaining to this Lease.
15.05 ARBITRATION. The parties wish to provide for a rapid and
efficient means of resolving any dispute relating to this Lease. Accordingly,
any dispute arising out of or relating to this Lease may be referred by either
party to arbitration, in which case it shall be decided by a single arbitrator
of the American Arbitration Association sitting in Dallas, Texas, providing
that any issues relating to allocation of Operating Costs shall be referred
first to the parties auditors for resolution. The American Arbitration
Association and the arbitrator shall be instructed to use the most expedited
rules then available, and the parties agree to cooperate to make the
arbitration as rapid and inexpensive as possible. Once an arbitrator has been
used to resolve one dispute, the parties stipulate that the same arbitrator
shall be used, unless the parties mutually agree otherwise, to resolve any
subsequent disputes. In the event of a default or claimed default on the part
of Lessee, Lessor shall be entitled to file an unlawful detainer action under
the relevant laws of the State of Texas, but any issue of fact or lease
interpretation thereunder shall be referred to arbitration as set forth above,
and the decision of the arbitrator shall be final and binding upon the parties
and the court. In any arbitration under this Section, the prevailing party
shall recover its attorneys fees and costs, and the non-prevailing party shall
pay the cost of the arbitrator.
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ARTICLE 16.00 SCHEDULES
16.01 The provisions of the following Schedules attached hereto shall
form part of this Lease as if the same were embodied herein:
Schedule "A" - Legal Description of Lands
Schedule "B" - Outline of Leased Premises
Schedule "C" - Rules and Regulations
Schedule "D" - Leasehold Improvements
Schedule "F" - Renewal Option
Schedule "G" - Subordination Agreement
ARTICLE 17.00 SIGNATURES
EXECUTED at Dallas, Texas this 1st day of December 1996.
LESSOR LESSEE
Fountain Parkway, Ltd.
By: Inner Fountain, Inc, its general partner /s/ Xxxxxxxxx Industries, L.P.
------------------------------------------- ------------------------------
By: /s/ XXXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXXX
------------------------------------------- --------------------------
Xxxxxxxx X. Xxxxx, President
Page 8 of 8
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SCHEDULE "A"
(Legal Description of Lands)
10
EXHIBIT "A"
(Legal Description of Land)
FOUNTAIN PARKWAY
BEING a tract of land in the X.X. Xxxxxxx Survey, Abstract No. 589, and being
that tract of land known as SITE 00, XXXXX XXXXXXXXX XXXXXXXXXX XXXXXXXX,
INDUSTRIAL COMMUNITY NO. 5, City of Grand Prairie, Texas as recorded in Volume
388-46, Page 735, Plat Records, Tarrant County, Texas, and being more
particularly described as follows:
BEGINNING at the 5/8-inch iron rod found at land southeast corner of said Site
12, said iron rod being in the north line of Fountain Parkway (100-foot
right-of-way);
THENCE West, along said north line, a distance of 597.74 feet to a 1/2-inch
iron rod with yellow plastic cap stamped "X.X. XXXXX ASSOC." (hereafter
referred to as "with cap") set in the east line of the Chicago, Rock Island and
Pacific Railroad (50-foot right-of-way);
THENCE North 0 degrees 24 minutes 08 seconds East, departing said north line
and along said east line, a distance of 1234.40 feet to a 1/2-inch iron rod
with cap set for the point of curvature of a circular curve to the left having
a radius of 482.28 feet and whose long cord bears South 57 degrees 30 minutes
48 seconds East, a distance of 518.07 feet and being on the south line of Lead
Track Number 23 (60-foot right-of-way);
THENCE Southeasterly, departing said east line, along said south line and along
said curve, through a central angle of 64 degrees 58 minutes 25 seconds, an arc
distance of 546.91 feet to a 1/2-inch iron rod with cap set for the point of
tangency;
THENCE East, continuing along said south line, a distance of 145.73 feet to a
set 1/2-inch iron rod with cap for corner;
THENCE South, departing said south line, a distance of 245.75 feet to a point
for corner in the interior of a building;
THENCE South 0 degrees 50 minutes 47 seconds East (Plat - South 0 degrees, 45
minutes 06 seconds East), a distance of 237.53 feet (Plat - 236.67 feet) to a
fence post found for corner at the northwest corner of the Ford Cemetery;
THENCE South 0 degrees 46 minutes 16 seconds East (Plat - South 1 degrees 47
minutes 20 seconds East), along the west line of said cemetery and along a
chain link fence, a distance of 106.52 feet (Plat - 103.94 feet) to a fence
post found for the southwest corner of said cemetery;
THENCE South 0 degrees 13 minutes 12 seconds East (Plat - South), a distance of
366.34 feet (Plat - 369.82 feet) to the POINT Of BEGINNING AND CONTAINING
599,733 square feet (Plat - 600,003 square feet) or 13.7680 acres (Plat - 13.774
Acres) of land.
11
SCHEDULE "C"
SCHEDULE "B"
(Outline of Leased Premises)
12
SCHEDULE "B"
(Outline of Leased Premises)
[SITE PLAN]
13
SCHEDULE "C"
Rules and Regulations
1. The sidewalks, entry passages, elevators (if installed in the
building) and common stairways shall not be obstructed by the Lessee or used
for any other purposes than for ingress and egress to and from the Leased
Premises. The Lessee will not place or allow to be placed in the Building
corridors or public stairways any waste paper, dust, garbage, refuse or
anything whatever.
2. The washroom plumbing fixtures and other water apparatus shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown therein.
The expense of any damage resulting by misuse by the Lessee shall be borne by
the Lessee.
3. No one shall use the Leased Premises for residential purposes, or for
the storage of personal effects or articles other than those required for
business purposes.
4. No dangerous or explosive materials shall be kept or permitted to be
kept in the Leased Premises.
5. The Lessee shall not and shall not permit any cooking in the Leased
Premises except in a microwave oven. The Lessee shall not install or permit the
installation or use of any machine dispensing goods for sale in the Leased
Premises without the prior written approval of the Lessor. Only persons
authorized by the Lessor shall be permitted to deliver or to use the elevators
(if installed in the Building) for the purpose of delivering food or beverages
to the Leased Premises.
6. The Lessee shall not bring in or take out, position, construct,
install or move any safe, business machine or other heavy office equipment
without the prior consent of the Lessor. In giving such consent, the Lessor
shall have the right in its sole discretion, to prescribe the weight permitted
and the position thereof, and the use and design of planks, skids or platforms
to distribute the weight thereof. All damages done to the Building by moving or
using any such heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Lessee. The moving of all heavy equipment or
other office equipment or furniture shall occur only at times consented to by
the Lessor and the persons employed to move the same in and out of the Building
must be acceptable to the Lessor. Safes and other heavy office equipment will
be moved through the halls and corridors only upon steel bearing plates. No
freight or bulky matter of any description will be received into the Building
or carried in the elevators (if installed in the Building) except during hours
approved by the Lessor.
7. The parking of automobiles shall be subject to the charges and the
reasonable regulations of the Lessor. The Lessor shall not be responsible for
damage to or theft of any car, its accessories or contents whether the same be
the result of negligence of otherwise. Parking may be regulated and/or assigned
by Lessor.
8. The Lessee shall not xxxx, drill into or in any way deface the walls,
ceilings, partitions, floors or other parts of the Leased Premises and the
Building unless Lessor has provided consent to do so.
9. If the Lessee desires any electrical or communications wiring, the
Lessor reserves the right to direct qualified persons as to where and how the
wires are to be introduced, and without such directions, no borings or cutting
for wires shall take place. No other wires or pipes of any kind shall be
introduced without the prior written consent of the Lessor,
10. The Lessee shall not place or cause to be placed any additional locks
upon any doors of the Leased Premises without the approval of the Lessor and
subject to any conditions imposed by the Lessor. Additional keys may be
obtained from the Lessor at the cost of the Lessee.
11. The Lessee shall take care of the rugs and window treatments in the
Leased Premises and shall arrange for the carrying-out of regular cleaning and
shampooing of carpets and cleaning of window treatments in a manner acceptable
to the Lessor.
12. The Lessee shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Lessor's rights over such lanes,
driveways and passages.
13. The Lessee shall not place or permit to be placed any sign,
advertisement, notice or other display on any part of the exterior of the
Leased Premises or elsewhere if such sign, advertisement, notice or other
display is visible from outside the Leased Premises without the prior written
consent of the Lessor which may be arbitrarily withheld. The Lessee, upon
request of the Lessor, shall immediately remove any sign, advertisement, notice
or other display which the Lessee has placed or permitted to be placed which,
in the opinion of the Lessor, is objectionable, and if the Lessee shall fail to
do so, the Lessor may remove the same at the expense of the Lessee.
14. The Lessor shall have the right to make such other and further
reasonable rules and regulations and to alter the same as in its judgment may
from time to time be needed for the safety, care, cleanliness and appearance of
the Leased Premises and the Building and for the preservation of good order
therein and the same shall be kept and observed by the lessees, their employees
and servants. The Lessor also has the right to suspend or cancel any or all of
these rules and regulations herein set out.
15. Lessor will not be responsible for lost or stolen personal property,
money or jewelry from Lessee's leased area or public area regardless of whether
such loss occurred when area is locked against entry or not.
14
SCHEDULE "D"
(Leasehold Improvements)
Lessor agrees to provide Lessee with the demised premises in an "as is"
condition. Lessor shall provide Lessee a leasehold improvement allowance equal
to fifty thousand dollars ($50,000) within 30 days of completion of the
improvements and submission of original invoices to Lessor.
UNLESS OTHERWISE NOTED, ANY ADDITIONAL LEASEHOLD IMPROVEMENTS REQUIRED BY
LESSEE SHALL BE THE FISCAL RESPONSIBILITY OF LESSEE.
AGREED AND ACCEPTED THIS 1st DAY OF DECEMBER, 1996.
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EXHIBIT G
SUBORDINATION AGREEMENT
THIS AGREEMENT is entered into among Fountain Parkway LTD. (hereinafter
referred to as "Landlord"). Xxxxxxxxx Industries, L.P. (hereafter referred to
as "Tenant"), and Foothill Capital Corporation hereinafter referred to as
"Lender") effective the 1st day of December, 1996.
WHEREAS, that certain lease ("Original Lease") dated December 1st, 1996,
covering approximately 300,000 square feet of space at 000 Xxxxxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx, a copy of which is attached hereto
between Fountain Parkway, Ltd. as ("Lessor") and Xxxxxxxxx Industries, L.P,
("Lessee").
WHEREAS, the fact that Foothill Capital Corporation ("Lender") (00000
Xxxxx Xxxxxx Xxxx., Xxxxx 0000, Xxx Xxxxxxx, XX. 90025-3333, Attn: Xxxxxxx
Xxxxxxxxx), has made a loan (as amended, increased, extended or otherwise
changed from time to time, the Loan") to the Lessee to be guaranteed by the
Company and secured in part by any and all inventory and accounts receivable,
and any records relating thereto, owned or held by Xxxxxxxxx Industries, L.P.
(the "Collateral") stored or otherwise located on the premises demised under
said Lease.
WHEREAS, the fact that Lender would not be willing to make said Loan but
for the consent and waiver of Lessor, all as herein provided.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
valuable consideration by Lessee in hand this day paid to the undersigned, the
receipt does hereby agree and represent as follows:
1. In the event of default under the proposed Loan, Lender or its successors
or assigns, may, prior to the expiration or termination of the Lease, upon
prior written notice to Lessor, enter upon the premises at the time
specified by Lessor and remove said Collateral from the premises without
the consent of, or accounting to, the undersigned Lessor, conditioned,
however, upon any damage caused to the premises by reason of the removal of
the Collateral being repaired without cost or expense to Lessor promptly
after such removal. Upon written notification by Lessor of the Termination
of the Lease or the exercise of its rights to possession of the premises by
virtue thereof, Lender shall have the license for a period of up to 30
days after such notice to enter upon the premises to remove the Collateral
and shall cause any damage caused to the premises by reason of the removal
of the Collateral to be repaired without cost or expenses to Lessor
promptly after such removal. Lender shall pay Lessor a daily license fee
equivalent to one-thirtieth (1/30th) of the holdover monthly rental provided
for in the Lease. In the event Lender does not intend to exercise its
rights with regard to the Collateral and to remove the Collateral from the
premises, Lender shall so notify Lessor in writing on or prior to Midnight
CST time on the date which is 7 days after the date of Lender's receipt of
such notice from Lessor, and Lessor may thereafter remove the Collateral
from the premises and otherwise deal with the Collateral as permitted by
applicable law and the Lease. It is expressly understood and agreed that
Lessor shall have no obligation whatsoever to preserve or protect the
Collateral after the expiration or termination of the Lease. Lessor hereby
subordinate to Lender any and all landlord's lien and other lien rights on
security interests, whether statutory or contractual, perfected or
unperfected, respecting the Collateral until the Loan is repaid in full and
all of Lessee's and Lender's obligations under the Loan have terminated.
2. Except as provided above, the Lease has not been modified, changed,
altered, or amended by any written instrument in any respect and is the only
agreement between the Lessor and the Lessee affecting the premises demised
under the Lease.
16
3. To the best of our knowledge, the Lease is not in default by either the
Lessor or the Lessee and is in full force and effect.
4. In the event of the occurrence of a default under the Lease, the Lessor
will use Lessor's best efforts to provide a copy of any written notice of
such default sent to Lessee to the Lender at the respective address set
forth above, or at such other addresses as the Lender may provide in writing
to the Lessor.
5. Any and all notices hereunder to the Lender or the Lessor shall be sent by
registered or certified mail, return receipt requested, or via hand
delivery, to their respective addresses set forth herein.
6. It is specifically understood and agreed that this Subordination
Agreement shall be binding upon the undersigned and its successors in
interest.
The foregoing is hereby approved and agreed to this 1st day of December, 1996.
LESSOR: FOUNTAIN PARKWAY, LTD.
By: Inner Fountain, Inc., Its General Partner
/s/ XXXXXXXX X. XXXXX
---------------------------------------
Xxxxxxxx X. Xxxxx, President
LESSEE: Xxxxxxxxx Industries, L.P.
/s/ XXXXX X. XXXXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
17
EXHIBIT "F"
RENEWAL OPTION (MARKET)
Lessee (but not any assignee or sublessee of Lessee, even if Lessor's consent
is obtained as required by Article 9.00 of this Lease) is granted the option(s)
to extend the term of this lease for ONE consecutive extended term of THREE
year(s) each, provided (a) Lessee is not in default at the time of the exercise
of the respective option, and (b) Lessee gives written notice of its exercise
of the respective option at least ninety (90) days prior to the expiration of
the original term or the expiration of the then existing term. Each extension
term shall be upon the same terms and conditions, except (i) Lessee shall have
no further right of renewal after the last extension term prescribed above, and
(ii) the Monthly Guaranteed Rental will be equal to whatever monthly Minimum
Guaranteed Rental (plus whatever periodic adjustments) Lessor is then quoting
to prospective lessees for new leases of comparable space in Dallas, Fort Worth
for comparable terms (as confirmed by written statement to Lessee by a
representative of Lessor), or comparable space in comparable office showroom
tech projects located in the same general area as this project (also as
confirmed by written statement to Lessee by a representative of Lessor).
Notwithstanding the above provisions to the contrary: (A) in no event will the
adjusted monthly Minimum Guaranteed Rental for any option period be lower than
the monthly Minimum Guaranteed Rental for the immediately preceding period; and
(B) in the event Lessee has not agreed in writing to accept the monthly Minimum
Guaranteed Rental before ninety (90) days prior to the expiration of the then
existing term, Lessor at its option may terminate this lease as of the
expiration of the then existing term.
