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EXHIBIT 10.26
STANDARD INDUSTRIAL LEASE AGREEMENT Approximately 13,520 square feet
XXXXXXXX XXXX COMPANY 0000 Xxxx Xxxxxx Xxxx
XXXXXXXXXX 00 Xxxxxxxxxx, XX 00000
230523-02
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between VALWOOD WEST
ASSOCIATES & CIIF hereinafter referred to as "Lessor", and XXXX XXXXX
ENTERPRISES INC. hereinafter referred to as "Lessee":
WITNESSETH:
1. PREMISES AND TERM. In consideration of the mutual obligations of Lessor
and Lessee set forth herein, Lessor leases to Lessee, and Lessee hereby takes
from Lessor the Premises situated within the County of Dallas, State of Texas,
more particularly described on EXHIBIT "A" attached hereto and incorporated
herein by reference, (the "Premises"), together with all rights, privileges,
easements, appurtances, and amenities belonging to or in any way pertaining to
the Premises, to have and to hold, subject to the terms, covenants and
conditions in this Lease. The term of this Lease shall commence on the
commencement date hereinafter set forth and shall end on the last day of the
month that is thirty-six (36) months after the commencement date.
A. EXISTING BUILDING. If no improvements are to be constructed to the
Premises, the commencement date shall be _______________. Lessee acknowledges
that (i) it has inspected and accepts the Premises, (ii) the buildings and
improvements comprising the same are suitable for the purpose for which the
Premises are leased, (iii) the Premises are in good and satisfactory condition,
and (iv) no representations as to the repair of the Premises, nor promises to
alter, remodel or improve the Premises have been made by Lessor (unless
otherwise expressly set forth in this Lease).
B. BUILDING TO BE CONSTRUCTED OR SHELL SPACE. If the Premises or part
thereof are to be constructed, the commencement date shall be deemed to be the
date upon which the Premises and other improvements to be erected in accordance
with the plans and specifications described on Exhibit "B" attached hereto and
incorporated herein by reference (the "Plans") have been substantially
completed. As used herein, the term "substantially completed" shall mean, that
in the opinion of the architect or space planner that prepared the Plans, such
improvements have been completed in accordance with the Plans and the Premises
are in good and satisfactory condition, subject only to completion of minor
punch list items. As soon as such improvements have been substantially
completed, Lessor shall notify Lessee in writing that the commencement date has
occurred. Within ten (10) days thereafter, Lessee shall submit to Lessor in
writing a punch list of items needing completion or correction. Lessor shall
use its best efforts to complete such items within thirty (30) days after the
receipt of such notice. In the event Lessee, its employees, agents or
contractors cause construction of such improvements to be delayed, the
commencement date shall be deemed to be the date that, in the opinion of the
architect or space planner that prepared the Plans, substantial completion
would have occurred if such delays had not taken place.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS
A. Lessee agrees to pay to Lessor rent for the Premises, in advance,
without demand, deduction or set off, at the rate of Four thousand seven
hundred eighty-eight & 33/100 Dollars ($4,788.33) per month during the term
hereof. One such monthly installment, plus the other monthly charges set forth
in Paragraph 2C below shall be due and payable on the date hereof and a like
monthly installment shall be due and payable on or before the first day of each
calendar month succeeding the commencement date, except that all payments due
hereunder for any fractional calendar month shall be prorated, per EXHIBIT "C",
25B SCHEDULE.
B. In addition, Lessee agrees to deposit with Lessor on the date hereof the
sum of Five Thousand Four Hundred Thirty and 41/100 Dollars ($5,430.41), which
shall be held by Lessor, without obligation for interest, as security for the
performance of Lessee's obligations under this lease, it being expressly
understood and agreed that this deposit is not an advance rental deposit or a
measure of Lessor's damages in case of Lessee's default. Upon each occurrence
of an event of default, Lessor may use all or part of the deposit to pay past
due rent or other payments due Lessor under this Lease, and the cost of any
other damage, injury, expense or liability caused by such event of default
without prejudice to any other remedy provided herein or provided by law. On
demand, Lessee shall pay Lessor the amount that will restore the security
deposit to its original amount. The security deposit shall be deemed the
property of Lessor, but any remaining balance of such deposit shall be returned
by Lessor to Lessee when Lessee's obligations under this Lease have been
fulfilled.
X. Xxxxx agrees to pay its proportionate share (as defined in Paragraph 22B
below) of (i) Taxes (hereinafter defined) payable by Lessor pursuant to
paragraph 3A below, (ii) the cost of utilities payable pursuant to paragraph 8
below, (iii) the cost of maintaining insurance pursuant to paragraph 9 below,
(iv) the cost of any common area charges payable by Lessee in accordance with
paragraph 4 below and (v) the cost of security provided to the Premises as set
forth in paragraph 23 below. During each month of the term of this Lease, on
the same day that rent is due hereunder, Lessee shall escrow with Lessor an
amount equal to 1/12 of the estimated annual cost of its proportionate share of
such items. Lessee authorizes Lessor to use the funds deposited with Lessor
under this Xxxxxxxxx 0X to pay such costs. The initial monthly escrow payments
are based upon the estimated amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual cost of all
such items. If the Lessee's total escrow payments are less than Lessee's actual
proportionate share of all such items, Lessee shall pay the difference to
Lessor within ten (10) days after demand. If the total escrow payments of
Lessee are more than Lessee's actual proportionate share of all such items,
Lessor shall retain such excess and credit it against Lessee's next annual
escrow payments. The amount of the monthly rental and the initial monthly
escrow payments are as follows:
(1) Base Rent as set forth in Paragraph 2A . . . . . . . . . . . . $4,788.33
---------
(2) Tax Escrow Payment . . . . . . . . . . . . . . . . . . . . . . $ 518.27
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(3) Insurance Escrow Payment . . . . . . . . . . . . . . . . . . . $ 22.53
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(4) Utility Charge . . . . . . . . . . . . . . . . . . . . . . . . $ 36.88
---------
(5) Common Area Charge (Maintainance). . . . . . . . . . . . . . . $ 31.60
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(6) Security Services. . . . . . . . . . . . . . . . . . . . . . . $ 0.00
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(7) Other (Landscaping). . . . . . . . . . . . . . . . . . . . . . $ 32.80
---------
Monthly Payment Total. . . . . . . . . . . . . . . . . . . . $5,430.41
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3. TAXES.
A. Lessor agrees to pay all taxes, assessments and governmental charges of
any kind and nature (collectively referred to herein as "Taxes"), that accrue
against the Premises, and/or the land and/or improvements of which the Premises
are a part. If at any time during the term of this Lease, there shall be
levied, assessed or imposed on Lessor a capital levy or other tax directly on
the rents received therefrom and/or a franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rents from the
Premises and/or the land and improvements of which the Premises are a part,
then all such taxes, assessments, levies or charges, or the part, thereof so
measured or based, shall be deemed to be included within the term "Taxes" for
the purposes hereof. The Lessor shall have the right to employ a tax consulting
firm to attempt to assure a fair tax burden on the building and grounds within
the applicable taxing jurisdiction. Lessee agrees to pay its proportionate
share of the cost of such consultant.
B. Lessee shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Lessor or Lessor's property and (i) Lessor pays the
same or (ii) the assessed value of Lessor's property is increased by inclusion
of such personal property and fixtures and Lessor pays the increased taxes,
then, upon demand Lessee shall pay to Lessor such taxes.
4. LESSOR'S REPAIRS.
A. Lessor, at its own cost and expense, shall maintain the roof,
foundation and the structural soundness of the exterior walls of the building
of which the Premises are a part in good repair, reasonable wear and tear
excluded. The term "walls" as used herein shall not include windows, glass or
plate glass, doors, special store fronts or office entries. Lessee shall
immediately give Lessor written notice of defect or need for repairs, after
which Lessor shall have reasonable opportunity to repair same or cure such
defect.
X. Xxxxxx reserves the right to perform the paving, common area and
landscape replacement and maintenance, exterior painting, common sewage line
plumbing and any other items that are otherwise Lessee's obligations under
Paragraph 5A, in which event, Lessee shall be liable for its proportionate
share of the cost and expense of such repair, replacement, maintenance and
other such items.
C. Lessee agrees to pay its proportionate share of the cost of (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Lessee and other lessees of any project or building of which the Premises are a
part.
5. LESSEE'S REPAIRS.
A. Lessee, at its own cost and expense, shall (i) maintain all parts of the
Premises, landscape and grounds surrounding the Premises (except those for
which Lessor is expressly responsible hereunder) in good condition, (ii)
promptly make all necessary repairs and replacements, (iii) keep the parking
areas, driveways and alleys surrounding the Premises in a clean and sanitary
condition, and (iv) maintain any spur track servicing the Premises. Lessee
agrees to sign a joint maintenance agreement with the railroad company
servicing the Premises if requested by the railroad company. Lessor shall have
the right to coordinate all repairs and maintenance of any rail tracks serving
or intended to serve the Premises and, if Lessee uses such rail tracks, Lessee
shall reimburse Lessor from time to time, upon demand, for its proportionate
share of the costs of such repairs and maintenance and any other sums specified
in any agreement respecting such tracks to which Lessor is a party.
B. Lessee and its employees, customers and licensees shall have the
exclusive rights to use any parking areas that have been designated for such
use by Lessor in writing, subject to (i) all rules and regulations promulgated
by Lessor and (ii) rights of ingress and egress of other lessees. Lessor shall
not be responsible for enforcing Lessee's parking rights against any third
parties. Lessee agrees not to use more spaces than so provided.
C. Lessee, at its own cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Lessor for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. The service contract must include
all services suggested by the equipment manufacturer in its
operations/maintenance manual and must become effective within thirty (30) days
of the date Lessee takes possession of the Premises.
6. ALTERATIONS. Lessee shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Lessor.
Lessee, at its own cost and expense, may erect such shelves, bins, machinery
and trade fixtures as it desires provided that (a) such items do not alter the
basic character of the Premises or the building and/or improvements of which
the Premises are a part; (b) such items do not overload or damage the same; (c)
such items may be removed without injury to the Premises; and (d) the
construction, erection or installation thereof complies with all applicable
governmental laws, ordinances, regulations and with Lessor's specifications and
requirements. All alterations, additions, improvements and partitions erected
by Lessee shall be and remain the property of Lessee during the term of this
Lease. All shelves, bins, machinery and trade fixtures installed by Lessee
shall be removed on or before the earlier to occur of the date of termination
of this Lease or vacating the Premises, at which time Lessee shall restore the
Premises to their original condition. All alterations, installations, removals
and restoration shall be performed in a good and workmanlike manner so as not to
damage or alter the primary structure or structural qualities of the buildings
and other improvements situated on the Premises or of which the Premises are a
part.
7. SIGNS. Any signage Lessee desires for the Premises shall be subject to
Lessor's written approval and shall be submitted to Lessor prior to the
commencement date of this Lease. Lessee shall repair, paint, and/or replace the
building facia surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of its signage. Lessee shall not, (i)
make any changes to the exterior of the Premises, (ii) install any exterior
lights, decorations, balloons, flags, pennants, banners or painting, or (iii)
erect or install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises, without Lessor's prior written consent. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or
other security installations visible from outside the Premises shall conform in
all respects to the criteria established by Lessor.
8. UTILITIES. Lessor agrees to provide normal water and electricity service
to the Premises. Lessee shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on or
at the Premises, together with any taxes, penalties, surcharges or the like
pertaining to the Lessee's use of the Premises, and any maintenance charges for
utilities. Lessor shall have the right to cause any of said services to be
separately metered to Lessee, at Lessee's expense. Lessee shall pay its pro
rata share, as reasonably determined by Lessor, of all charges for jointly
metered utilities. Lessor shall not be liable for any interruption or failure
of utility service on the Premises.
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9. INSURANCE
A. Lessor shall maintain insurance covering the buildings situated on the
Premises or of which the Premises are a part in an amount not less than eighty
percent (80%) of the "replacement cost" thereof insuring against the perils of
Fire, Lightning, Extended Coverage, Vandalism and Malicious Mischief.
B. Lessee, at its own expense, shall maintain during the term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and One Million Dollars
($1,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Lessee, at its own expense, also shall
maintain during the term of this Lease, fire and extended coverage insurance
covering the replacement cost of (i) all alterations, additions, partitions and
improvements installed or placed on the Premises by Lessee or by Lessor on
behalf of Lessee and (ii) all of Lessee's personal property contained within
the Premises. Said policies shall (i) name Lessor as an additional insured and
insure Lessor's contingent liability under this Lease (except for the worker's
compensation policy, which instead shall include waiver of subrogation
endorsement in favor of Lessor), (ii) be issued by an insurance company which
is acceptable to Lessor, and (iii) provide that said insurance shall not be
cancelled unless thirty (30) days prior written notice shall have been given to
Lessor. Said policy or policies or certificates thereof shall be delivered to
Lessor by Lessee upon commencement of the term of the Lease and upon each
renewal of said insurance.
C. Lessee will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or
the building of which the Premises are a part is caused by Lessee's use of the
Premises, or because Lessee vacates the Premises, then Lessee shall pay the
amount of such increase to Lessor.
10. FIRE AND CASUALTY DAMAGE
A. If the Premises or the building of which the Premises are a part should
be damaged or destroyed by fire or other peril, Lessee immediately shall give
written notice to Lessor. If the buildings situated upon the Premises or of
which the Premises are a part should be totally destroyed by any peril covered
by the insurance to be provided by Lessor under Paragraph 9A above, or if they
should be so damaged thereby that, in Lessor's estimation, rebuilding or
repairs cannot be completed within one hundred eighty (180) days after the date
of such damage, this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective upon the date of the occurrence
of such damage.
B. If the buildings situated upon the Premises or of which the
Premises are a part, should be damaged by any peril covered by the insurance to
be provided by Lessor under Paragraph 9A above, and in Lessor's estimation,
rebuilding or repairs can be substantially completed within one hundred eighty
(180) days after the date of such damage, this Lease shall not terminate, and
Lessor shall restore the Premises to substantially its previous condition,
except that Lessor shall not be required to rebuild, repair or replace any part
of the partitions, fixtures, additions and other improvements that may have
been constructed, erected or installed in, or about the Premises or for the
benefit of, or by or for Lessee. If such repairs and rebuilding have not been
substantially completed within one hundred eighty (180) days after the date of
such damage, Lessee as Lessee's exclusive remedy, may terminate this Lease by
delivering written notice of termination to Lessor in which event the rights
and obligations hereunder shall cease and terminate.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Lessor shall have the right to terminate this Lease by delivering written
notice of termination to Lessee within fifteen (15) days after such requirement
is made known by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
D. Anything in this Lease to the contrary notwithstanding, Lessor and
Lessee hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and/or Premises, for any
reason regardless of cause or origin. Each party to this Lease agrees
immediately after execution of this Lease to give each insurance company, which
has issued to it policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this subparagraph, and
if necessary, to have the insurance policies properly endorsed.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that Lessee has released, Lessor shall hold
Lessee harmless and defend Lessee against any and all claims or liability for
any injury or damage to any person in, on or about the Premises or any part
thereof and/or the building of which the Premises are a part, when such injury
or damage shall be caused by the act, neglect, fault of, or omission of any
duty with respect to the same by Lessor, its agents, servants and employees.
Except for any claims, rights of recovery and causes of action that Lessor has
released, Lessee shall hold Lessor harmless from and defend Lessor against any
and all claims or liability for any injury or damage (i) to any person or
property whatsoever occurring in, on or about the Premises or any part thereof
and/or of the building of which the Premises are a part, including without
limitation elevators, stairways, passageways or hallways, the use of which
Lessee may have in accordance with this Lease, when such injury or damage shall
be caused by the act, neglect, fault of, or omission of any duty with respect
to the same by Lessee, its agents, servants, employees, or invitees (ii)
arising from the conduct of management of any work done by the Lessee in or
about the Premises, (iii) arising from transactions of the Lessee, and (iv) all
costs, counsel fees, expenses and liabilities incurred in connection with any
such claim or action or proceeding brought thereon. The provisions of this
Paragraph 11 shall survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to such expiration or
termination.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Lessee and for such other lawful
purposes as may be incidental thereto. Outside storage, including without
limitation, storage of trucks and other vehicles, is prohibited without
Lessor's prior written consent. Lessee shall comply with all governmental
laws, ordinances and regulations applicable to the use of the Premises, and
promptly shall comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances in or upon, or connected
with, the Premises, all at Lessee's sole expense. Lessee shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Lessor or
any other lessees of the building in which the Premises are a part.
13. INSPECTION. Lessor and Lessor's agents and representatives shall
have the right to enter the Premises at any reasonable time during business
hours, to inspect the Premises and to make such repairs as may be required or
permitted pursuant to this Lease. During the period that is six (6) months
prior to the end of the Lease term, upon telephonic notice to Lessee, Lessor
and Lessor's representatives may enter the Premises during business hours for
the purpose of showing the Premises. In addition, Lessor shall have the right
to erect a suitable sign on the Premises stating the Premises are available.
Lessee shall notify Lessor in writing at least thirty (30) days prior to
vacating the Premises and shall arrange to meet with Lessor for a joint
inspection of the Premises prior to
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vacating. If Lessee fails to give such notice or to arrange for such
inspection, then Lessor's inspection of the Premises shall be deemed correct for
the purpose of determining Lessee's responsibility for repairs and restoration
of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Lessee shall not have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein, without the prior written consent
of Lessor. Any attempted assignment, subletting, transfer or encumbrance by
Lessee in violation of the terms and covenants of this Paragraph shall be void.
Notwithstanding the foregoing, Lessee shall have the right to assign this Lease
to any affiliate (as such term is defined in the Securities Act of 1933)
provided that such assignment is in form satisfactory to Lessor. Any assignee,
sublessee or transferee of Lessee's interest in this Lease (all of such
assignees, sublessees and transferees being hereinafter referred to as
"Transferees"), by assuming Lessee's obligations hereunder, shall assume
liability to Lessor for all amounts paid to persons other than Lessor by such
Transferees in contravention of this Paragraph. No assignment, subletting or
other transfer, whether consented to by Lessor or not or permitted hereunder
shall relieve Lessee of its liability hereunder. If an event of default occurs
while the Premises or any part thereof are assigned or sublet, then Lessor, in
addition to any other remedies herein provided, or provided by law, may collect
directly from such Transferee all rents payable to the Lessee and apply such
rent against any sums due Lessor hereunder. No such collection shall be
construed to constitute a novation or a release of Lessee from the further
performance of Lessee's obligations hereunder.
B. If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Lessor, shall be and remain the exclusive property of Lessor and
shall not constitute property of Lessee or of the estate of Lessee within the
meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Lessor's property under the preceding sentence not paid or
delivered to Lessor shall be held in trust for the benefit of Lessor and be
promptly paid or delivered to Lessor.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Lessor an instrument confirming such assumption.
15. CONDEMNATION. If more than eighty percent (80%) of the Premises
are taken for any public or quasi-public use under governmental law, ordinance
or regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Lessee, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease, effective on the date of such taking. If less than eighty percent
(80%) of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, this Lease shall not terminate, but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings shall be the property of Lessor and Lessee hereby assigns any
interest in any such award to Lessor; provided, however, Lessor shall have no
interest in any award made to Lessee for loss of business or goodwill or for
the taking of Lessee's fixtures and improvements, if a separate award for such
items is made to Lessee.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Lessee immediately shall deliver possession to Lessor with all
repairs and maintenance required herein to be performed by Lessee completed.
If, for any reason, Lessee retains possession of the Premises after the
expiration or termination of this Lease, unless the parties hereto otherwise
agree in writing, such possession shall be subject to termination by either
Lessor or Lessee at any time upon not less than ten (10) days advance written
notice, and all of the other terms and provisions of this Lease shall be
applicable during such period, except that Lessee shall pay Lessor from time to
time, upon demand, as rental for the period of such possession, an amount equal
to double the rent in effect on the termination date, computed on a daily basis
for each day of such period. No holding over by Lessee, whether with or without
consent of Lessor shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this Paragraph 16 shall not be
construed as consent for Lessee to retain possession of the Premises in the
absence of written consent thereto by Lessor.
17. QUIET ENJOYMENT. Lessor covenants that on or before the commencement
date it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements, restrictions and other
conditions of record. If this Lease is a sublease, then Lessee agrees to take
the Premises subject to the provisions of the prior Leases. Lessor represents
that it has the authority to enter into this Lease and that so long as Lessee
pays all amounts due hereunder and performs all other covenants and agreements
herein set forth, Lessee shall peaceably and quietly have, hold and enjoy the
Premises for the term hereof without hindrance or molestation from Lessor,
subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events (herein individually referred
to as "event of default") each shall be deemed to be events of nonperformance by
Lessee under this Lease:
A. Lessee shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Lessor required
herein when due, and such failure shall continue for a period of five (5)
days from the date such payment was due.
B. The Lessee or any guarantor of the Lessee's obligations hereunder
shall (i) become insolvent; (ii) admit in writing its inability to pay its
debts; (iii) make a general assignment for the benefit of creditors; (iv)
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or of any substantial part of its property; or (v) take any
action to authorize or in contemplation of any of the actions set forth
above in this Paragraph.
C. Any case, proceeding or other action against the Lessee or any
guarantor of the Lessee's obligations hereunder shall be commenced seeking
(i) to have an order for relief entered against it as debtor or to
adjudicate it a bankrupt or insolvent; (ii) reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts
under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors; (iii) appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property,
and such case, proceeding or other action (a) results in the entry of an
order for relief against it which it is not fully stayed within seven (7)
business days after the entry thereof or (b) shall remain undismissed for a
period of forty-five (45) days.
D. Lessee shall (i) vacate all or a substantial portion of the
Premises or (ii) fail to continuously operate its business at the
Premises for the permitted use set forth herein, whether or not Lessee is
in default of the rental payments due under this Lease.
E. Lessee shall fail to discharge any lien placed upon the Premises
in violation of Paragraph 21 hereof within twenty (20) days after any such
lien or encumbrance is filed against the Premises.
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F. Lessee shall fail to comply with any term, provision or covenant
of this Lease (other than those listed in this Paragraph 18), and shall not
cure such failure within twenty (20) days after written notice thereof to
Lessee.
19. REMEDIES.
A. Upon each occurrence of an event of default, Lessor shall have the
option to pursue any one or more of the following remedies without any notice
or demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises without
terminating this Lease; and/or
(3) Alter all locks and other security devices at the Premises with
or without terminating this Lease, and pursue, at Lessor's option, one or
more remedies pursuant to this Lease Lessee hereby specifically waiving any
state or federal law to the contrary;
and in any such event Lessee immediately shall surrender the Premises to
Lessor, and if Lessee fails so to do, Lessor, without waiving any other remedy
it may have, may enter upon and take possession of the Premises and expel or
remove Lessee and any other person who may be occupying such Premises or any
part thereof, without being liable for prosecution or any claim of damages
therefor.
B. If Lessor terminates this Lease, at Lessor's option, Lessor shall be
liable for and shall pay to Lessor, the sum of all rental and other payments
owed to Lessor hereunder accrued to the date of such termination, plus, as
liquidated damages, an amount equal to (1) the present value of the total
rental and other payments owed hereunder for the remaining portion of the Lease
term, calculated as if such term expired on the date set forth in Paragraph 1,
less (2) the then present fair market value of the Premises for such period,
which because of the difficulty of ascertaining such value, Lessor and Lessee
stipulate and agree, shall in no event be deemed to exceed seventy-five percent
(75%) of the rental amount set forth in Paragraph 2 above.
C. If Lessor repossesses the Premises without terminating the Lease,
Lessee, at Lessor's option, shall be liable for and shall pay Lessor on demand
all rental and other payments owed to Lessor hereunder, accrued to the date of
such repossession, plus all amounts required to be paid by Lessee to Lessor
until the date of expiration of the term as stated in Paragraph 1, diminished by
all amounts received by Lessor through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved). Actions
to collect amounts due by Lessee to Lessor under this subparagraph may be
brought from time to time, on one or more occasions, without the necessity of
Lessor's waiting until expiration of the Lease term.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Lessee also shall be liable for and shall pay to Lessor (i) brokers[
fees incurred by Lessor in connection with reletting the whole or any part of
the Premises; (ii) the costs of removing and storing Lessee's or other
occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new Lessee or
Lessees; and (iv) all reasonable expenses incurred by Lessor in enforcing or
defending Lessor's rights and/or remedies. If either party hereto institute
any action or proceeding to enforce any provision hereof by reason of any
alleged breach of any provision of this Lease, the prevailing party shall be
entitled to receive from the losing party all reasonable attorney's fees and
all court costs in connection with such proceeding.
E. In the event Lessee fails to make any payment due hereunder when
payment is due, to help defray the additional cost to Lessor for processing
such late payments, Lessee shall pay to Lessor on demand a late charge in an
amount equal to five percent (5%) of such installment; and the failure to pay
such amount within ten (10) days after demand therefor shall be an additional
event of default hereunder. The provision for such late charge shall be in
addition to all of Lessor's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Lessor's remedies
in any manner.
F. Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Lessor, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Lessor and Lessee. Lessee and Lessor further agree that forbearance by Lessor
to enforce its rights pursuant to the Lease at law or in equity, shall not be
waiver of Lessor's right to enforce one or more of its rights in connection
with any subsequent default.
G. In the event of termination and/or repossession of the Premises for an
event of default, Lessor shall use reasonable efforts to relet the Premises and
to collect rental after reletting; provided, that, Lessee shall not be entitled
to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Lessor may relet the whole or any portion of the Premises for any
period, to any Lessee and for any use and purpose.
H. If Lessor fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Lessee specifying such failure,
Lessee's exclusive remedy shall be an action for damages. Unless and until
Lessor fails to so cure any default after such notice, Lessee shall not have
any remedy or cause of action by reason thereof. All obligations of Lessor
hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Lessor only during the period of its
possession of the Premises and not thereafter. The term "Lessor" shall mean
only the owner, for the time being of the Premises, and in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Lessor thereafter accruing, but such covenants and obligations shall be binding
during the Lease term upon each new owner for the duration of such owner's
ownership. Notwithstanding any other provision hereof, Lessor shall not have
any personal liability hereunder. In the event of any breach or default by
Lessor in any term or provision of this Lease, Lessee agrees to look solely to
the equity or interest then owned by Lessor in the Premises or of the building
of which the Premises are a part; however, in no event, shall any deficiency
judgment or any money judgment of any kind be sought or obtained against any
Lessor.
I. If Lessor repossesses the Premises pursuant to the authority herein
granted, then Lessor shall have the right to (i) keep in place and use or (ii)
remove and store all of the furniture, fixtures and equipment at the Premises,
including that which is owned by or leased to Lessee at all times prior to any
foreclosure thereon by Lessor or repossession thereof by any Lessor thereof or
a third party having a lien thereon. Lessor also shall have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Lessor
a copy of any instrument represented by Claimant to have been executed by
Lessee (or any predecessor of Lessee) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or
other property, without the necessity on the part of Lessor to inquire in to
the authenticity or legality of said instrument. The rights of Lessor herein
stated shall be in addition to any and all other rights that Lessor has or may
hereafter have at law or in equity; and Lessee stipulates and agrees that the
rights herein granted Lessor are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Lessor from
accepting performance from (or rendering performance to) any person or entity
other than Lessee.
20. MORTGAGES. Lessee accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon or the
building of which the Premises are a part, provided, however, that if the
mortgagee, trustee, or holder of any such mortgage or deed of trust elects to
have Lessee's interest in this Lease superior to any such instrument, then by
notice to Lessee from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. Lessee, at any time
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hereafter on demand, shall execute any instruments, releases or other documents
that may be required by any mortgagee for the purpose of subjecting and
subordinating this Lease to the lien on any such mortgage.
21. MECHANIC'S LIENS. Lessee has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor or Lessee in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Lessee, including those who may furnish materials or perform labor
for any construction or repairs. Lessee covenants and agrees that it will pay
or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises and that it will save and hold Lessor harmless from any and all
loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the right, title and interest of the
Lessor in the Premises or under the terms of this Lease. Lessee agrees to give
Lessor immediate written notice of the placing of any lien or encumbrance
against the Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. the captions
inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple occupancy
building, Lessee's "proportionate share", as used in this Lease, shall mean a
fraction, the numerator of which is the space contained in the Premises and the
denominator of which is the entire space contained in the building.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, successors and assigns, except as otherwise herein
expressly provided. Lessor shall have the right to transfer and assign, in
whole or in part, its rights and obligations in the building and property that
are the subject of this Lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
X. Xxxxxx shall not be held responsible for delays in the performance of
its obligations hereunder when caused by material shortages, acts of God or
labor disputes.
E. Lessee agrees, from time to time, within ten (10) days after request
of Lessor, to deliver to Lessor, or Lessor's designee, a Certificate of
Occupancy and an estoppel certificate saying that this Lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
Lease and such other factual matters pertaining to this Lease as may be
requested by Lessor. It is understood and agreed that Lessee's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Lessor's execution of this Lease.
F. This Lease constitutes the entire understanding and agreement of the
Lessor and Lessee with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Lessor and Lessee with respect
thereto. Lessor and Lessee each acknowledge that no representations,
inducements, promisees or agreements, oral or written, have been made by Lessor
or Lessee, or anyone acting on behalf of Lessor or Lessee, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
G. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Lessee
vacating the Premises, Lessee shall pay to Lessor any amount reasonably
estimated by Lessor as necessary to put the Premises, including without
limitations, all heating and air conditioning systems and equipment therein, in
good condition and repair, reasonable wear and tear excluded. Lessee shall
also, prior to vacating the Premises, pay to Lessor the amount, as estimated by
Lessor, of Lessee's obligation hereunder for real estate taxes and insurance
premiums for the year in which the Lease expires or terminates. All such
amounts shall be used and held by Lessor for payment of such obligations of
Lessee hereunder, with Lessee being liable for any additional costs therefor
upon demand by Lessor, or with any excess to be returned to Lessee after all
such obligations have been determined and satisfied as the case may be. Any
security deposit held by Lessor shall be credited against the amount due from
Lessee under this Paragraph 22G.
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
I. All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
J. Lessee represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent or
other person brought about this transaction, other than as may be referenced in
a separate written agreement executed by Lessee, and delivered to Lessor, and
Lessee agrees to indemnify and hold Lessor harmless from and against any claims
by any other broker, agent or other person claiming a commission or other form
of compensation by virtue of having dealt with Lessee with regard to this
leasing transaction.
K. If and when included within the term "Lessor", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Lessor. If and when included within the term "Lessee", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All parties
included within the terms "Lessor" and "Lessee", respectively shall be bound by
notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Lessor to Lessee or with reference to the sending, mailing or delivering of any
notice or the
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making of any payment by Lessee to Lessor shall be deemed to be complied with
when and if the following steps are taken:
(a) All rent and other payments required to be made by Lessee to
Lessor hereunder shall be payable to Lessor at the address for Lessor set
forth below or at such other address as Lessor may specify from time to
time by written notice delivered in accordance herewith. Lessee's
obligation to pay rent and any other amounts to Lessor under the terms of
this Lease shall not be deemed satisfied until such rent and other amounts
have been actually received by Lessor. In addition to base rental due
hereunder, all sums of money and all payments due Lessor hereunder shall
be deemed to be additional rent owed to Lessor.
(b) All payments required to be made by Lessor to Lessee hereunder
shall be payable to Lessee at the address set forth below, or at such other
address within the continental United States as Lessee may specify from
time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States Mail, postage prepaid,
Certified or Registered Mail, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See Exhibit "C" attached hereto and
incorporated by reference herein.
26. LESSOR'S LIEN. In addition to any statutory lien for rent in
Lessor's favor, Lessor shall have and Lessee hereby grants to Lessor a
continuing security interest for all rentals and other sums of money become due
hereunder from Lessee, upon all goods, wares, equipment, fixtures, furniture,
inventory, and other personal property of Lessee now or hereafter situated at
0000 Xxxx Xxxxxx, and such property shall not be removed therefrom without the
consent of Lessor until all arrearages in rent as well as any and all other
sums of money then due to Lessor hereunder shall first have been paid and
discharged. In the event any of the foregoing described property is removed
from the Premises in violation of the covenant in the preceding sentence, the
security interest shall continue in such property and all proceeds and
products, regardless of location. Upon a default hereunder by Lessee in
addition to all other rights and remedies, Lessor shall have all rights and
remedies under the Uniform Commercial Code, including without limitation, the
right to sell the property described in this Paragraph at public or private
sale upon five (5) days notice by Lessor. Lessee hereby agrees to execute such
other instruments, necessary or desirable under applicable law to perfect the
security interest hereby created. Lessor and Lessee agree that this Lease and
security agreement serves as a financing statement and that a copy,
photographic or other reproduction of this portion of the Lease may be filed of
record by Lessor and have the same force and effect as the original. This
security agreement and financing statement also covers fixtures located at the
premises subject to this Lease and legally described in Exhibit "A" attached
hereto and incorporated herein by reference and is to be filed for record in
the real estate records. The record owner of this property is VALWOOD WEST
ASSOCIATES.
EXECUTED BY LESSOR, this day of , 19 .
Attest/Witness VALWOOD WEST ASSOCIATES
By: Valwest Partners Ltd.
By: TCC North Dallas Div. #1, Inc.
----------------------------------- By
--------------------------------------
Title: Xxxx X. Xxxxx, III, President
-----------------------------
BY: CIIF ASSOCIATES
A Massachusetts General Partnership
By: Xxxxxx Advisors, Inc., Managing
General Partner
By:
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Managing General Director
----------------------------------
ADDRESS:
Valwood West Associates
----------------------------------------
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
----------------------------------------
Xxxxxxxxx, XX 00000
----------------------------------------
EXECUTED BY LESSEE, this 21st day
of February, 1990
Attest/Witness
/s/ Th. J. ? XXXX XXXXX ENTERPRISES INC.
----------------------------------- ----------------------------------------
Title By /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------------
Title: President
----------------------------------
ADDRESS:
XXXX XXXXX ENTERPRISES INC.
----------------------------------------
0000-X X.X. 00xx Xxxxxx
----------------------------------------
Xxxxxx, Xxxxxxx 00000-0000
----------------------------------------
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LEGAL DESCRIPTION
0000 X. XXXXXX XXXX -- XXXXXXX XXXX
Being approximately 13,520 square feet of a larger facility containing
approximately 47,813 square feet, and known as 0000 Xxxx Xxxxxx Xxxx, Xxxxx
_______, Xxxxxxxxxx, Xxxxx 00000, and more particularly described as follows:
BEING a tract of land in the Xxxxxxx Xxxxxxx Survey, Abstract 899, and being
part of a tract of land conveyed to VALWOOD WEST ASSOCIATES as recorded in
Volume 87225, Page 0980 of the Deed Records of Dallas County, Texas and being
part of that tract of land known as Xxxxx 0, Xxxx Xxxx Xxxxx as recorded in
Volume 84229, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx and being more
particularly described as follows:
COMMENCING at the intersection of the centerline of Selene Drive (60-foot
right-of-way) and the centerline of Xxxxxxx Drive (60-foot right-of-way);
THENCE South 89 degrees 59 minutes 02 seconds West, along the said centerline
of Xxxxxxx Drive, a distance of 330.00 feet to the point of curvature of a
circular curve to the right having a radius of 130.00 feet, said point also
being the point of street name change to West Xxxxxx Road (60-foot
right-of-way);
THENCE Northwesterly, along the centerline of said West Xxxxxx Road and along
said curve through a central angle of 90 degrees 00 minutes 00 seconds, an arc
distance of 204.20 feet to a point for a corner;
THENCE South 89 degrees 59 minutes 02 seconds West, departing said centerline,
a distance of 30.00 feet to a set 1/2" iron rod with a yellow plastic cap
stamped "X.X. Xxxxx Assoc." (hereinafter referred to as "with cap") for the
POINT OF BEGINNING, said corner being on a circular curve to the left having a
radius of 160.00 feet and whose back tangent bears South 0 degrees 00 minutes
58 seconds East, said corner also being on the west line of said West Xxxxxx
Road;
THENCE Southerly, along said west line and along said curve through a central
angle of 1 degree 51 minutes 13 seconds, and arc distance of 5.18 feet to a set
1/2" iron rod with cap for a corner;
THENCE South 89 degrees 59 minutes 02 seconds West, departing said west line, a
distance of 250.09 feet to a set 1/2" iron rod with cap for a corner, said
corner being on the west line of said Xxxx Park Place;
THENCE North 0 degrees 00 minutes 58 seconds West, along said west line, a
distance of 52.50 feet to a set 1/2" iron rod with cap for a corner;
THENCE North 89 degrees 59 minutes 02 seconds East, departing said west line, a
distance of 250.00 feet to a set 1/2" iron rod with cap for a corner, said
corner being on the said west line of West Xxxxxx Road;
THENCE South 0 degrees 00 minutes 58 seconds East, along said west line, a
distance of 517.32 feet to the POINT OF BEGINNING AND CONTAINING 130,625 square
feet or 2.9987 acres of land more or less.
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AMENDMENT NO. 1 TO
LEASE AGREEMENT BY AND BETWEEN
CIIF ASSOCIATES, A MASSACHUSETTS GENERAL PARTNERSHIP
AS LESSOR AND
XXXX XXXXX ENTERPRISES INC.
AS LESSEE
This Amendment No. 1 to Lease shall be attached to and form a part of that Lease
Agreement (which together with any amendments, modifications and extensions
thereof is hereinafter called "the Lease") covering the 13,520 square foot
facility located at 0000 X. Xxxxxx Xx, Xxxxxxxxxx, Xxxxx, signed and dated on
or about the 27th day of February, 1990.
WITNESSETH:
That the Lease is hereby amended as follows:
1. The Lease is hereby extended for one further term of Sixty (60) months.
2. The commencement of the Extension Term of the lease shall be the 1st day
of April 1993, and terminate on the 31st day of March 1998, on the condition
that Lessor and Lessee comply with all the provisions of the covenants and
agreements contained in the Lease.
3. The base monthly rental during said period shall be $3.50 per square foot, or
Three Thousand, Nine Hundred Forty Three and 33/100 Dollars ($3,943.33) per
month, net of taxes, insurance and operating expense charges.
4. The amount of the initial monthly escrow payments for 1993 are estimated as
follows:
Tax Escrow $ 808.95
Insurance Escrow 33.80
Operating Expenses 260.26
----------
Total Expenses $ 1,103.01
5. Lessor will provide lessee improvements per the attached Exhibit B at
Lessor's expense.
6. It is agreed and understood that if Lessee is not in default of any of the
terms, covenants and conditions hereof and Lessee has not assigned this Lease
or sublet the premises (or a part thereof), Lessee shall have the option to
terminate this Lease Agreement effective at the end of the THIRTY SIXTH MONTH
(36th) of the Extension Term of this Lease Agreement. Such termination is
conditioned upon Lessee's providing prior written notice, if notice is not
received this termination option will be rendered null and void. Concurrent
with notice, Lessee shall make payment to Lessor the amount of SEVEN THOUSAND
EIGHT HUNDRED THIRTEEN AND 90/100 DOLLARS ($7,813.90) which represents the
unamortized portion of the tenant finish and unamortized brokerage commission.
Notice of Lessee's intention to terminate this Lease Agreement must be received
by Lessor, in writing, not less than ONE HUNDRED EIGHTY (180) days prior to the
effective date of termination. Said date of termination would be effective as
if the date had been the original termination date under this Lease Agreement.
Accordingly, Lessee shall be liable and responsible for its obligations and
liabilities under the Lease Agreement, which include but are not limited to
excess tax assessments and restoration of the premises to its original
condition. In the event Lessee fails to deliver such notice of termination
within the time period set forth above, this Lease Agreement shall remain in
full force and effect.
7. Lessor agrees to execute a Landlord's Subordination Agreement in the attached
form Exhibit C within thirty (30) days of written request by Lessee.
Notwithstanding Lessor's agreement to provide a Landlord Lien Subordination,
such will be provided upon Lessee's written request only if Lessee 1) is not in
default of any obligation under the lease, and 2) has paid all rent and other
payments as and when due under the lease, and 3) Lessee has submitted certified
or acknowledged financial statements that accurately reflect Lessee's financial
condition at the time of such request, and 4) Lessee's financial condition, in
Lessor's reasonable estimation at the time of such request, is equal to or
better than its financial condition on the date of this agreement and 5) Lessee
submits a processing fee payment of $250 at the time of such request.
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8. All other terms, provisions of the covenants and agreements as renewed,
extended and amended shall remain the same.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Amendment
No. 1 to Lease Agreement this 16th day of February, 1993.
WITNESS: Lessor: CIIF Associates, a Massachusetts general
partnership By: Xxxxxx Advisors, Inc., Managing
General Partner
By: /s/ X.X. Xxxxxxxx
-------------- -----------------------------------------------
Title:
--------------------------------------------
WITNESS Lessee: Xxxx Xxxxx Enterprises Inc.
/s/ By: /s/ Xxxx Xxxxx
-------------- -----------------------------------------------
Title: President
--------------------------------------------
