EXHIBIT 10.35
STANDARD 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:
BRADFORD MANAGEMENT COMPANY OF DALLAS, INC., As Agent for Owner ("Lessor")
---------------------------------------------------------------
XXXXX POLYMERS, INC., a Texas corporation ("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"):
54,810 (755 office) (Approximate sq. ft.) 1197465 (Job no.)
------------------------------ -------------------
PYLON DISTRIBUTION CENTER (Name of building or project)
--------------------------------------------------
0000 Xxxxx Xxxxxx (Xxxxxx address/suite number)
--------------------------------------------------
Xxxx Xxxxx, Xxxxx 00000 (City, State, and Zip Code)
----------------------------------------------------
1.03 Term. Subject to and upon the conditions set forth herein, the term
of this Lease shall commence on (July 1, 1994 the "commencement date"), and
------------
shall terminate 36 months thereafter.
--
1.04 Base Rent and Security Deposit. Base rent is $10,277.00 per month.
----------
Security deposit is $10,277.00.
----------
1.05 Addresses.
Lessor's Address: Lessee's Address:
--------------------------------------- -------------------------------------
0000 Xxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx
--------------------------------------- -------------------------------------
Xxxxxx, Xxxxx 00000 Xxxx Xxxxx, Xxxxx 00000
--------------------------------------- -------------------------------------
1.06 Permitted Use. STORAGE & DISTRIBUTION OF EXPANDABLE POLYSTYRENE &
-----------------------------------------------------
CRYSTAL POLYSTYRENE RESIN
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 in section 1.04 of this 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. Notwithstanding the foregoing, Lessor
hereby waives the base rent for the second month of the primary term of this
Lease. Lessee shall pay, as additional rent, all other sums due under this
Lease.
2.02 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 actual operating
expenses per sq. ft. for the calendar year 1994, Lessee agrees to pay as
additional rent Lessee's pro rata share of such excess operating expenses.
Lessor shall 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
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 bears to 365. 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 days following receipt of
the invoice or accounting showing additional rent due. Lessee's pro rata share
is 36.527%.
2.03 Definition of Operating Expenses. The term "operating expenses"
includes all expenses incurred by Lessor with respect to the maintenance and
operation of the building of which the leased premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs;
security; management fees, wages and benefits payable to employees of Lessor
whose duties are directly connected with the operation and maintenance of the
building; all services, utilities, supplies, repairs, replacements or other
expenses for maintaining and operating the common parking and plaza areas; the
cost, including interest, amortized over its useful life, of any capital
improvement made to the building by Lessor after the date of this Lease which is
required under any governmental law or regulation that was not applicable to the
building on the date of this Lease; the cost, including interest, amortized over
its useful life, of installation of any device or other equipment which improves
the operating efficiency of any system within the leased premises and thereby
reduces operating expenses; all other expenses which would generally be regarded
as operating and maintenance expenses which would reasonably be amortized over a
period not to exceed five years; 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 principal payments on any
mortgage or other indebtedness of Lessor; compensation paid to any employee of
Lessor above the grade of property manager; any depreciation allowance or
expense; or operating expenses which are the responsibility of Lessee.
2.04 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the tenth 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 tenth
day of the month next following the month in which Lessee was invoiced, a late
payment charge of five percent of such past due amount shall become due and
payable in addition to such amounts owed under this Lease.
2.05 Increase in Insurance Premiums. If an increase in any insurance
premiums 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.
-1-
2.06 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
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.
2.07 Holding Over. In the event that Lessor does not vacate the leased
premises upon the expiration or termination of this Lease, Lessee shall be a
tenant 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 one and
one-half 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.
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. Lessee warrants
to Lessor that the insurance questionnaire (filled out by Lessee, signed and
presented to Lessee prior to the execution of this Lease) accurately reflects
Lessee's original intended use of the leased premises. The insurance
questionnaire is made a part of this Lease by reference as though fully copied
herein. If at any time during the term of this Lease the State Board of
Insurance or other insurance authority disallows any of Lessor's sprinkler
credits or imposes an additional penalty or surcharge in Lessor's 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
conformance 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 manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the building or the leased
premises provided that no such change modifies or alters any provision of this
Lease resulting in more expense to Lessee, or modifies Lessee's right and
obligations hereunder. 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. See Addendum "A" attached hereto and made
a part hereof.
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 other than
Lessor's agents, employees, contractors and licensees.
3.05 Inspection. Lessor or its authorized agents shall at any and all
reasonable times and upon reasonable notice, except in the case of emergency
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 therefor.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 Building Services. Lessor shall provide the normal utility service
connections to the building. Lessee shall pay the cost of all utility services,
including, but not limited to, initial connection charges, all charges for gas,
electricity, water, sanitary and storm sewer service, and for all electric
lights. However, in a multi-occupancy building, Lessor may provide water to the
leased premises, in which case Lessee agrees to pay to Lessor its pro rata share
of the cost of such water. Lessee shall pay all costs caused by Lessee
introducing excessive pollutants or solids other than ordinary human waste into
the sanitary sewer system, including permits, fees and charges levied by any
governmental subdivision for any such pollutants or solids. Lessee shall be
responsible for the installation and maintenance of any dilution tanks, holding
tanks, settling tanks, sewer sampling devices, sand traps, grease traps or
similar devices as may be required by any governmental subdivision for Lessee's
use of the sanitary sewer system. If the leased premises are in a
multi-occupancy building, Lessee shall pay all surcharges levied due to Lessee's
use of sanitary sewer or waste removal services insofar as such surcharges
affect Lessor or other lessees in the building. Lessor shall not be required to
pay for any utility services, supplies or upkeep in connection with the leased
premises or building.
4.02 Theft or Burglary. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the leased premises or the building.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 Lessor Repairs. Lessor shall not be required to make any
improvements, replacements or repairs of any kind or character to the leased
premises or the project during the term of this Lease except as are set forth in
this section. Lessor shall maintain only the roof, foundation, parking and
common areas, and the structural soundness of the exterior walls (excluding
windows, windowglass, plate glass and doors). Lessor's costs of maintaining the
items set forth in this section are subject to the additional rent provisions in
section 2.02. Lessor shall not be liable to Lessee, except as expressly provided
in this Lease, for any damage or inconvenience, and Lessee shall not be entitled
to any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease.
5.02 Lessee Repairs. Lessee shall, at its sole cost and expense, maintain,
repair and replace all other parts of the leased premises in good repair and
condition, including, but not limited to, heating, ventilating and air
conditioning systems, down spouts, fire sprinkler system, dock bumpers, lawn
maintenance, pest control and extermination, trash pick-up and removal, and
exterior doors. Lessee shall repair and pay for any damage caused by any act or
omission of Lessee or Lessee's agents, employees, invitees, licensees or
visitors. If the leased premises are in a multi-occupancy building or project,
Lessor reserves the right to perform, on behalf of Lessee, lawn maintenance,
painting, and trash pick-up and removal; Lessee agrees to pay Lessor, as
additional rent, Lessee's pro rata share of the cost of such services within ten
days from receipt of Lessor's invoice, or Lessor may by monthly invoice direct
Lessee to prepay the estimated costs for the current calendar year, and such
amount shall be adjusted annually. If the leased premises are served by rail. If
Lessee fails to make the repairs or replacements promptly as required herein,
Lessor may, at its option and after delivery to Lessee of thirty (30) days prior
written notice, make the repairs and replacements and the cost of such repairs
and replacements shall be charged to Lessee as additional rent and shall become
due and payable by Lessee within ten days from
-2-
receipt of Lessor's invoice. Costs incurred under this section are the total
responsibility of Lessee and do not constitute operating expenses under section
2.02
5.03 Request for Repairs. All requests for repairs or maintenance that
are the responsibility of Lessor pursuant to any provision of this Lease must be
made in writing to Lessor at the address in section 1.05 except in the event of
an emergency when no such written notice shall be required.
5.04 Lessee Damages. Lessee shall not allow any damage to be committed
on any portion of the leased premises or building, and at the termination of
this Lease, by lapse of time or otherwise, Lessee shall deliver the leased
premises to Lessor in as good condition as existed at the commencement date of
this Lease, ordinary wear and tear excepted. The costs and expense of any
repairs necessary to restore the condition of the leased premises shall be borne
by Lessee.
5.05 Maintenance Contract. Lessee shall, at its sole cost and expense,
during the term of this Lease maintain a regularly scheduled preventative
maintenance/service contract with a maintenance contractor for all hot water,
heating and air conditioning systems and equipment within the leased premises.
The maintenance contractor and contract must be approved by Lessor and must
include monthly servicing, replacement of filters, replacement or adjustment of
drive belts, periodic lubrication and oil change and any other services
suggested by the equipment manufacturer.
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 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 day
period, Lessor may, at its sole option, declare this Lease cancelled 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 by 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 be 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. Lessee may add dock levelers,
subject to the provision of this Section 6.02. Any request by Lessor pursuant to
this Section 6.02 may also require Lessor to advise Lessee prior to such
alterations or additions whether the removal thereof will be required at the
termination of this lease.
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 and is not
released or discharged within thirty (30) days after Lessee receives notice of
same 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
be 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 be completed within ninety 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 of the Lease, effective as of the date of such destruction.
7.02 Partial Destruction. If the leased premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within ninety 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 the damage. If the leased premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of 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 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 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 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.
-3-
8.02 Partial Taking. If a portion of the leased premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in 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 by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or subject the leased premises, in whole or in part without the prior
written consent of Lessor which shall not be unreasonably withheld and in no
event shall any such assignment or sublease ever release Lessee or any guarantor
from any obligation or liability hereunder. No assignee or sublessee of the
leased premises or any portion thereof may assign or sublet the leased 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 at least twenty
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 reasonably request concerning the
proposed sublessee or assignee to allow Lessor to make informed judgments as to
the financial condition, reputation, operations and general desirability of the
proposed sublessee or assignee. Within fifteen 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 any 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 or other consideration
provided by Lessee in lieu of excess rent which is attributable to rent and rent
only within ten days following receipt thereof by Lessee; or (3) refuse, in its
reasonable discretion, 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 and to all existing recorded restrictions,
covenants, easements and agreements with respect to 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 opinion of the Purchaser, under the
terms, covenants and conditions of the 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 the 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 ten 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 Lessor's 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
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 Default by Lessee. The following shall be deemed to be events of
the 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 (5) business days after Lessee's receipt of
written notice thereof; provided however, that Lessor shall not be required to
give such written notice more than twice during any 12 month period; (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 with twenty 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
and such lien is not released, discharged or bonded within thirty (30) days
after Lessee receives written notice of such lien.
-4-
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 any 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 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 in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this Lease caused by the negligence of Lessor 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 cancelled 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.
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 RELOCATION
12.01
12.02
ARTICLE 13.00 DEFINITIONS
13.01 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.
13.02 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.
13.03 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.
13.04 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.
13.05 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 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.
13.06 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 14.00 MISCELLANEOUS
14.01 Waiver. Failure of Lessor to declare an event of default immediately
upon its occurrence, or delay in taking any action in connection with an event
of default, shall not constitute a waiver of the default, but 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 to any of the terms,
provisions or convenants 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 convenants contained in this Lease.
14.02 Act of God. Neither Lessee nor Lessor shall be required to perform
any covenant or obligation in this Lease, or be liable in damages to the other,
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 the other
party.
14.03 Attorney's Fees. In the event either party defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and the other party 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, the
defaulting party agrees to pay the prevailing party's costs of collection,
including reasonable attorney's fees for the services of the attorney.
14.04 Successors. This Lease shall be 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.
-5-
14.05 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 payments of the
rent, additional rent, operating expenses or other charge upon which the tax is
based as set forth above.
14.06 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.
14.07 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 States 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.
14.08 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.
14.09 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 a duly authorized and existing
corporation, that 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.
14.10 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.
14.11 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 judgment
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 nor any person or entity comprising 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.
14.12 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.
ARTICLE 15.00 AMENDMENT AND LIMITATION OF WARRANTIES
15.01 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.
15.02 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
15.03 Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
ARTICLE 16.00 OTHER PROVISIONS
16.01 RENEWAL OPTIONS: If at the end of the primary term of this Lease, the
Lessee is not in default of any of the terms, conditions, or covenants of the
Lease, Lessee but not any assignee or subtenant of Lessee, is hereby granted an
option to renew this Lease with the following exceptions:
a) The renewal option term will contain no further renewal options unless
expressly granted by Lessor in writing; and
b) The rental for the renewed term shall be based on then prevailing rental
rates for properties of equivalent quality, size, utility and location, with the
length of the Lease term and credit standing of the Lessee to be taken into
account. If Lessee desires to renew this Lease, Lessee will notify the Lessor
its intention to renew no later than six months prior to the expiration date of
this Lease; Lessor shall within the next fifteen (15) days, notify Lessee in
writing of the proposed renewal rate and the Lessee shall, within the next
fifteen (15) days following receipt of the proposed rate, notify the Lessor in
writing its acceptance or rejection of the proposed rental rate.
16.02 Lessee accepts the premises on an "as is" basis.
16.03 See Addendum "A" & "B" attached hereto and made a part hereof.
ARTICLE 17.00 SIGNATURES
SIGNED Dallas, Texas this 22nd day of June , 1994
----------------------------- -------- ------------------ --
LESSOR LESSEE
BRADFORD MANAGEMENT COMPANY OF XXXXX POLYMERS, INC.,
---------------------------------- -------------------------------------
DALLAS, INC., As Agent for Owner a Texas corporation
---------------------------------- -------------------------------------
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxxx, President
------------------------------- ----------------------------------
Xxxxx Xxxxxx, Executive V.P. Xxxxxxx Xxxxxxxxxx, President
---------------------------------- -----------------------------------
(Type Name and Title) (Type Name and Title)
-6-
ADDENDUM "A"
HAZARDOUS WASTE. The term "Hazardous Substances," as used in this lease shall
mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use and/or the removal of which is required or the use of which
is restricted, prohibited or penalized by any "Environmental Law," which term
shall mean any federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or protection
of the environment. Lessee hereby agrees that (i) no activity will be conducted
on the premises that will produce any Hazardous Substance, except for such
activities that are part of the ordinary course of Lessee's business activities
(the "Permitted Activities") provided said Permitted Activities are conducted in
accordance with all Environmental Laws and have been approved in advance in
writing by Lessor; Lessee shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency; (ii) the premises will not be used in any manner for the
storage of any Hazardous Substances except for the temporary storage of such
materials that are used in the ordinary course of Lessee's business (the
"Permitted Materials") provided such Permitted Materials are properly stored in
a manner and location meeting all Environmental Laws and approved in advance in
writing by Lessor; Lessee shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency; (iii) no portion of the premises will be used as a landfill
or a dump; (iv) Lessee will not install any underground or above ground tanks of
any type; (v) Lessee will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time may
constitute a public or private nuisance; (vi) Lessee will not permit any
Hazardous Substances to be brought onto the premises, except for the Permitted
Materials described below, and if so brought or found located thereon, the same
shall be immediately removed, with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental Laws.
Lessor or Lessor's representatives shall have the right but not the obligation
to enter the premises for the purpose of inspecting the storage, use and
disposal of Permitted Materials to ensure compliance with all Environmental
Laws. Should it be determined, in Lessor's sole opinion, that said Permitted
Materials are being improperly stored, used, or disposed of, then Lessee shall
immediately take such corrective action as requested by Lessor. Should Lessee
fail to take such corrective action within 24 hours, Lessor shall have the right
to perform such work and Lessee shall promptly reimburse Lessor for any and all
costs associated with said work. If at any time during or after the term of the
lease, the premises is found to be so contaminated or subject to said
conditions, Lessee shall diligently institute proper and thorough cleanup
procedures at Lessee's sole cost. Before taking any action to comply with
hazardous material laws or to clean up hazardous material contaminating the
premises, Lessee shall submit to Lessor a plan of action, including any and all
plans and documents required by any hazardous material law to be submitted to a
governmental authority (collectively, a "plan of action"). Before Lessee begins
the actions necessary to comply with hazardous material laws or to clean up
contamination from hazardous materials, Lessor shall have (1) approved the
nature, scope and timing of the plan of action, and (2) approved any and all
covenants and agreements to effect the plan of action. Lessee agrees to
indemnify and hold Lessor harmless from all claims, demands, actions,
liabilities, costs, expenses, damages and obligations of any nature arising from
or as a result of the use of the premises by Lessee. The foregoing
indemnification and the responsibilities of Lessee shall survive the termination
or expiration of this Lease.
Permitted Materials (if none, enter "None"): Expandable Polystyrene, Crystal
Polystyrene Resin
3.03 (cont'd.) COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Should the building
of which the leased premises are a part not be classified as a "commercial
facility which is a place of public accommodations" as defined in Title III of
the American With Disabilities Act of 1990 (the Act) on the date hereof, and
Lessee's use, alterations or improvements thereafter cause the building to be
classified as such, Lessee shall be responsible for and shall indemnify Lessor
against any and all costs and expenses of Lessor associated with complying with
the Act.
LIABILITY INSURANCE. Lessee shall, at its sole expense, maintain at all times
during the term of this Lease public liability insurance with respect to the
leased premises and the conduct or operation of Lessee's business therein,
naming Lessor as an additional insured, with limits of not less that
$1,000,000.00 for death or bodily injury to any one or more persons in a single
occurrence and $500,000.00 for property damage. Lessee shall deliver a
certificate of such insurance to Lessor on or before the commencement date and
thereafter from time to time upon request.
-0-
XXXXXXXX "X"
16.0 Environmental Compliance. Lessee will not cause or permit the leased
------------------------
premises or Lessee to be in violation of, or do anything or permit anything to
be done which will subject the leased premises to any remedial obligations
under, any Applicable Laws (as hereinafter defined) assuming disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances know to Lessee, if any, pertaining to the leased premises and
Lessee and Lessee will promptly notify Lessor in writing of any existing,
pending or threatened investigation or inquiry by any governmental authority in
connection with any Applicable Laws upon Lessee's receipt of notice thereof.
Lessee shall obtain or cause to be obtained any permits, licenses or similar
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures and equipment forming a part of the leased premises required under any
Applicable Laws. Lessee shall take all steps reasonably necessary to determine
that no hazardous substances or solid wastes are being disposed of otherwise
released on or to the leased premises in violation of Applicable Laws. Lessee
will not cause or permit the disposal or other release of any hazardous
substances or solid waste on or to the leased premises in violation of
Applicable Laws and covenants and agrees to keep or cause the leased premises to
be kept free of any hazardous substance or solid waste except in compliance with
Applicable Laws and to remove the same (or if removal is prohibited by law, to
take whatever action is required by law) promptly upon discovery at its sole
expense. In the event Lessee fails to comply with or perform any of the
foregoing covenants and obligations within fifteen (15) days after written
notice, Lessor may declare a default hereunder and in addition to Lessor's
remedies available by reason thereof, Lessor may (without any obligations,
express or implied) remove any hazardous substance or solid waste from the
leased premises (or if removal is prohibited by law, take whatever action is
required by law) and the cost of the removal or such other action shall be paid
by Lessee to Lessor as additional rent. Lessee grants to Lessor and its agents,
employees, contractors and consultants access to the leased premises and the
right to enter upon the leased premises and remove the hazardous substance or
solid waste (or if removal is prohibited by law, to take whatever action is
required by law.)
For purposes of this Lease the term "Applicable Laws" shall mean all
applicable restrictive covenants, zoning ordinances and any buildings codes,
flood disaster laws, applicable health and environmental laws and regulations
and all other applicable laws, statutes, ordinances, rules, regulations, orders,
determinations and court decisions, including with limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(hereinafter called "CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (hereinafter called "RCRA"), the Texas Water Code and the Texas
Solid Waste Disposal Act.
Lessee will not install in the leased premises nor permit to be installed
in the leased premises, asbestos, material containing asbestos which is or may
become friable or material containing asbestos deemed hazardous by Applicable
Laws, and, if any such asbestos or material containing asbestos exists in or on
the leased premises, Lessee will remove the same (or if removal is prohibited or
not required by law, will take whatever action is required by law, including
without limitation implementing any required operation and maintenance program)
promptly upon discovery at its sole expense. In the event Lessee fails to comply
with or perform any of the foregoing covenants and obligations within fifteen
(15) days notice thereof, Lessor may declare a default hereunder and in addition
to Lessor's remedies available by reason thereof, Lessor may (without any
obligation, express or implied) remove such asbestos or material containing
asbestos (or if removal is prohibited or not required by law, take whatever
action is required by law including without limitation implementing any required
operation and maintenance program) and the reasonable cost of removal or such
other action shall be paid by Lessee to Lessor as additional rent. Lessee grants
to Lessor and its agents, employees, contractors and consultants access to the
leased premises and a license to remove such asbestos or materials containing
asbestos (or if removal is prohibited or not required by law, take whatever
action is required by law, including without limitation implementing any
required operation and maintenance program).
-8-
RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional keys
will be furnished at a nominal charge. Lessee shall not change locks or
install additional locks on doors without prior written consent of Lessor.
Lessee shall not make or cause to be made duplicates of keys procured from
Lessor without prior approval of Lessor. All keys to leased premises shall
be surrendered to Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the leased premises
for Lessee to Lessor for Lessor's approval before performance of any
contractual service. Lessee's contractors and installation technicians
shall comply with Lessor's rules and regulations pertaining to construction
and installation. This provision shall apply to all work performed on or
about the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceilings
and equipment or any other physical portion of the leased premises or
project.
3. Lessee shall not at any time occupy any part of the leased premises or
project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the leased premises or in any
part of the building any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the
leased premises or project any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable explosive or hazardous material without written
consent of Lessor.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the leased premises or the project
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the leased premises or project.
7. Employees of Lessor shall not receive or carry messages for or to any
Lessee or other person or contract with or render free or paid services to
any Lessee or to any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, passages, doors,
elevators, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown
into these areas or such area used by Lessee's agents, employees or
invitees at any time for purposes inconsistent with their designation by
Lessor.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
12. Lessee and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Lessor. Lessee shall furnish
Lessor with state automobile license numbers of Lessee's vehicles and its
employees' vehicles within five days after taking possession of the leased
premises and shall notify Lessor of any changes within five days after such
change occurs. Lessee shall not leave any vehicle in state of disrepair
(including without limitation, flat tires, out of date inspection stickers
or license plates) on the leased premises or project. If Lessee or its
employees, agents or invitees park their vehicles in areas other than the
designated parking areas or leave any vehicle in a state of disrepair,
Lessor, after giving written notice to Lessee of such violation, shall have
the right to remove such vehicles at Lessee's expense.
13. Parking in a parking garage or area shall be in compliance with all parking
rules and regulations including any sticker or other identification system
established by Lessor. Failure to observe the rules and regulations shall
terminate Lessee's right to use the parking garage or area and subject the
vehicle in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal of impoundment
of a vehicle shall create any liability on Lessor or be deemed to
interfere with Lessee's right to possession of its leased premises.
Vehicles must be parked entirely within the stall lines and all directional
signs, arrows and posted speed limits must be observed. Parking is
prohibited in areas not striped for parking, in aisles, where "No Parking"
signs are posted, on ramps, in cross hatched areas, and in other areas as
may be designated by Lessor. Parking stickers or other forms of
identification supplied by Lessor shall remain the property of Lessor and
not the property of Lessee and are not transferable. Every person is
required to park and lock his vehicle. All responsibility for damage to
vehicles or persons is assumed by the owner of the vehicle or its driver.
14. Movement in or out of the building of furniture or office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or materials
which requires use of elevators or stairways, or movement through the
building entrances or lobby, shall be restricted to hours designated by
Lessor. All such movement shall be under supervision of Lessor and carried
out in the manner agreed between Lessee and Lessor by prearrangement
before performance. Such prearrangement will include determination by
Lessor of time, method, and routing of movement and limitations imposed by
safety or other concerns which may prohibit any article, equipment or any
other item from being brought into the building. Lessee assumes, and shall
indemnify Lessor against, all risks and claims of damage to persons and
properties arising in connection with any said movement.
15. Lessor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort
or duration in connection with the elevator service.
16. Lessee shall not lay floor covering within the leased premises without
written approval of the Lessor. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling with the building or project.
18. It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and convenience
for Lessees. Any action or condition not meeting this high standard should
be reported directly to Lessor. Your cooperation will be mutually
beneficial and sincerely appreciated. Lessor reserves the right to make
such other and further reasonable rules and regulations as in its judgment
may from time to time be necessary, for the safety, care and cleanliness of
the leased premises and for the preservation of good order therein.
-9-
ACCEPTANCE OF PREMISES
LESSEE XXXXX POLYMERS, INC., a Texas Corporation
--------------------------------------------------------------------------
LESSOR BRADFORD MANAGEMENT COMPANY OF DALLAS, INC., As Agent for Owner
-------------------------------------------------------------------------
DATE LEASE SIGNED: 6-22-94
-------------------------------------------------------------
TERMS OF LEASE: 36 MONTHS
----------
ADDRESS OF LEASED PREMISES: Suite containing approximately
--------------------
54,810 sq.ft located at 0000 Xxxxx Xxxxxx, Xxxx Xxxxx, XX 00000
------------- --------------------------------------------------
--------------------------------------------------------------------------------
COMMENCEMENT DATE: July 1, 1994
--------------------------------------------------------------
EXPIRATION DATE: June 30, 1997
----------------------------------------------------------------
The above described premises are accepted by Lessee as suitable for the purpose
for which they were let. The above described lease term commences and expires on
the dates set forth above. Lessee acknowledges that it has been received from
Lessor 6 number of keys to the leased premises.
-------
LESSEE
XXXXX POLYMERS, INC., a Texas Corporation
-----------------------------------------
(Type Name of Lessee)
By /s/ Xxxxxxx Xxxxxxxxxx, 6-29-94
--------------------------------------
Xxxxxxx Xxxxxxxxxx, President
-----------------------------------------
(Type Name and Title)
6/29/94
-----------------------------------------
(Date Signed)
TENANT
MODIFICATION AND RATIFICATION
OF LEASE
This Modification and Ratification of Lease Agreement is made and entered
into between Bradford Management Company of Dallas, Inc., As
------------------------------------------------------------------
Agent for Owner (Lessor) and StyroChem
---------------------------------------------------------- ----------
International, Inc., a Texas corporation (formerly Xxxxx Polymers, Inc.), a
-------------------------------------------------------------------------------
Texas Corporation (Lessee) for and in consideration of One Dollar ($1.00) and
-----------------
other good and valuable consideration, receipt of which is hereby acknowledged.
W I T N E S S E T H:
1. Lessor and Lessee hereby confirm and ratify, except as modified
below, all of the terms, conditions and covenants in that certain written Lease
Agreement dated June 22, 1994, between Lessor and Lessee, for the rental of the
-------------
following described property:
Approximately 54,810 total square feet of office/warehouse space of which
approximately 755 square feet is fully air conditioned office space located
in Pylon Distribution Center at 0000 Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000
per Bradford Job #1197465.
2. Lessor and Lessee agree that effective August 3, 1994, Lessee's
name shall change from Xxxxx Polymers, Inc., a Texas corporation to StyroChem
International, Inc., a Texas corporation.
SIGNED at Dallas, Texas, this 5th day of April , 1996.
---------------------- --- -----------
LESSOR:
BRADFORD MANAGEMENT COMPANY
OF DALLAS, INC., as Agent for Owner
----------------------------------------
By: /s/Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
Title: Executive Vice President
-----------------------------
LESSEE:
StyroChem International, Inc.,
----------------------------------------
a Texas corporation
----------------------------------------
By: /s/Xxxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxxx
Title: President
----------------------------------
Attest
-------------------------
(Corporate Seal)
RENEWAL OF LEASE
This Renewal Agreement is made and entered into between
--------------------
Bradford Management Company of Dallas, Inc., As Agent for Owner (Lessor)
-------------------------------------------------------------------------------
and Styrochem International, Inc., a Texas corporation (Lessee)
-----------------------------------------------------------------
for and in consideration of One Dollar ($1.00) and other good and valuable
consideration, receipt of which is hereby acknowledged.
W I T N E S S E T H:
1. Lessor and Lessee hereby confirm and ratify, except as modified below,
all of the terms, conditions and covenants in that certain written Lease
Agreement dated June 22, 1994, and Modification dated April 5, 1996 between
---------------------------------------------------
Lessor and Lessee, for the rental of the following described property:
Approximately 54,810 square feet of office/warehouse space of which
approximately 755 square feet is fully air conditioned office space
located in the Pylon Distribution Center at 0000 Xxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxx 00000 per Bradford Job #1197465.
2. Lessee warrants that Lessee has accepted and is now in possession of the
demised premises and that the Lease Agreement is valid and presently in full
force and effect.
3. Lessor and Lessee agree that the term of this Lease Agreement shall be
extended for 36 months so that the expiration date shall be changed from June
-- ----
30, 1997, to June 30, 2000.
-------- -------------
4. Lessor and Lessee agree that beginning July 1, 1997, the monthly rental
------------
payments set out in the Lease Agreement shall be changed from $10,277.00 per
----------
month to $12,332.25 per month. Upon execution of this Renewal Agreement Lessee
----------
agrees to deposit $-0- with Lessor as additional security deposit.
----
5. RENEWAL OPTION. See Addendum "A" attached hereto and made a part hereof.
SIGNED at Dallas, Texas, this 22nd day of October, 1996.
-------------- ---- -------
LESSOR:
BRADFORD MANAGEMENT COMPANY
OF DALLAS, INC., as Agent for Owner
-----------------------------------
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
Title: Executive Vice President
----------------------------
LESSEE:
STYROCHEM INTERNATIONAL,INC.,
-----------------------------------
a Texas corporation
-----------------------------------
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxxx
Title: President
-----------------------------
Attest
------------------------------
(Corporate Seal)
ADDENDUM "A"
------------
RENEWAL OPTION(S)
-----------------
If at the end of the renewal term of this Lease, and the Lessee is not in
default of any of the terms, conditions, or covenants of the Lease, Lessee but
not any assignee or subtenant of Lessee, is hereby granted an option to renew
this Lease for an additional term of 36 months upon the same terms and
--
conditions contained in the lease dated June 22, 1994 with the following
exceptions:
a) The Renewal Option term will contain no further renewal options
unless expressly granted by Lessor in writing, and;
b) The rental for the renewed term shall be $3.00 per square foot
-----
or $13,702.50 per month with the length of the Lease term and
----------
credit standing of the Lessee to be taken into account. If
Lessee desires to renew this Lease, Lessee will notify the
Lessor its intention to renew no later than six (6) months prior
to the expiration date of this Lease; Lessor shall within the
next fifteen (15) days, notify Lessee in writing of the proposal
renewal rate and the Lessee, shall within the next fifteen (15)
days following receipt of the proposed rate, notify the Lessor
in writing its acceptance or rejection of the proposed rental
rate.
