EXHIBIT 10.36
XXXXXXXX XXXX COMPANY
COMMERCIAL LEASE AGREEMENT
XXXXXXXX XXXX INTERNATIONAL PARTNERS, a Texas Limited Partnership
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Lessor
AND
CUPLEX, INC.
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Lessee
CREA - '93
STANDARD INDUSTRIAL LEASE AGREEMEENT 33,149 Square Feet
XXXXXXXX XXXX COMPANY ------------------------
COMMERCIAL - CREA '93 00000 Xxxxxxxx Xxxx
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Xxxxxx, Xxxxx 00000
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214830-15
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between Xxxxxxxx Xxxx
international Partners, a Texas Limited Partnership hereinafter referred to as
"Lessor", and Cuplex. Inc. hereinafter referred to as "Lessee";
WITNESSETH:
1. PREMISES AND TERM.
A. In consideration of the mutual obligations of Lessor and Lessee set
forth herein, Lessor leases to Lessee, and Lessee takes from Lessor the
approximately 33,149 square feet (the "Premises"), which Premises are part of
that approximately 48,862 square foot building (the "Building") located on the
real property situated within the County of Dallas, State of Texas, which real
property is more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference (the "Land"), together with all rights,
privileges,, easements, appurtenances, 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. If more than one building is located on the Land,
then all references herein to "Building" shall be deemed to refer to all such
buildings collectively unless the context otherwise requires.
B. The term of this Lease shall commence upon either (i) October 1, 1995,
or (ii) if Lessor is required to construct improvements in the Premises pursuant
to Paragraph 1.C. below, on the date of substantial completion of any such
alterations or improvements to the Premises described in Paragraph 1.C. below
(the "Commencement" Date). The term of this Lease shall end on the last day of
the calendar month that is 36 full calendar months after the Commencement Date.
C. If an Exhibit "B" is attached hereto, then Lessor shall construct and
install in the Premises those improvements and alterations to be constructed and
installed by Lessor pursuant to the plans and specifications described on such
Exhibit "B" attached hereto and incorporated herein by reference (the "Plans").
As used herein, the term "substantial completion" or "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 written 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 Base Rent (herein so called) for the
Premises, in advance, without demand, deduction or set off, at the rate of Nine
thousand six hundred sixty-eight and 46/100 Dollars ($9,668.46) per month during
the term hereof. One such monthly installment, plus the other monthly charges
set forth in Paragraph 2.C 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; provided, however,
that should this Lease commence on a day other than the first day of a calendar
month or terminate on a day other than the last day of a calendar month the
rental for such partial month shall be prorated.
B. In addition, Lessee shall deposit with Lessor on the date hereof the
sum of Twelve thousand one hundred seven and 40/100 Dollars ($12,107.40) (the
"Security Deposit"), which shall be held by Lessor as security for performance
of Lessee's obligations under this Lease, it being expressly understood and
agreed that the Security Deposit is not an advance rental deposit or a measure
of Lessor's damages in case of an event of default. Upon each occurrence of an
event of default, Lessor may use all or part of the Security Deposit to pay past
due rent or other payments due Lessor
1 CREA - '93
under this Lease, and the cost of any other damage, injury, expense or
liability, chargeable to Lessee hereunder, without prejudice to any other remedy
provided herein or provided by law. Lessee shall pay Lessor the amount that will
restore the Security Deposit to its original amount. If, during the term of this
Lease, Lessor, in Lessor's sole opinion, deems itself insecure as to the
performance or prospect of performance by Lessee as to any of Lessee's
obligations pursuant to this Lease, Lessee shall be required to provide Lessor
with an additional security deposit, in an amount and form acceptable to Lessor,
The Security Deposit shall be deemed the property of Lessor, but any remaining
balance of the Security Deposit shall be returned by Lessor to Lessee when
Lessee's obligations under this Lease have been fulfilled.
C. Lessee agrees to pay, as additional rent, its Proportionate Share (as
defined in Paragraph 22.B. below) of (1) Taxes (hereinafter defined) payable by
Lessor pursuant to Paragraph 3.A. below, (2) the cost of any utilities used in
the Building which are not otherwise paid for by Lessee pursuant to Paragraph 8,
below or billed separately to another tenant of the Building, (3) the cost of
any insurance maintained by Lessor on the Building or Land, and (4) the cost of
repairs, replacement, management fees, a replacement reserve for capital items
and other operating expenses required by this Lease, including, without
limitation, those expenses referred to in Paragraph 5.D. hereof (but excluding
those expenses otherwise specifically paid for by Lessee pursuant to the terms
hereof or expenses billed separately to other tenants of the Building). During
each month of the term of this Lease, on the same day that Base Rent is due
hereunder, Lessee shall escrow with Lessor an amount equal to 1/12 of Lessor's
estimate of annual cost of its Proportionate Share of such items. Lessee
authorizes Lessor to use the funds deposited with Lessor under this Paragraph
2.C. to pay such costs. The initial monthly escrow payments are based upon
Lessor's estimate of amounts for the year in question, and shall be increased or
decreased annually to reflect the projected actual cost of all such items. If
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:
(a) Base Rent as set forth in Paragraph 2.A ............... $ 9,668.46
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(b) Taxes as set forth in Paragraph 2.C.(1) ............... $ 1,620.71
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(c) Utilities, Insurance and other Operating Expenses as set
forth in Paragraphs 2.C.(2), (3) and (4) .............. $ 818.23
insurance $81.49; CAM $736.74 ---------
Monthly Payment Total ................................. $12,107.40
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D. In calculating the annual cost of the items described in subparagraph C
above, if during any period during the relevant year the Building is less than
one hundred percent (100%) occupied, then in computing the amount of Lessee's
obligations Lessor shall "gross-up" the amount of any of Lessor's expenses which
fluctuate with Building occupancy to the amount which, in Lessor's reasonable
estimation, such fluctuating expenses would have been if the Building had been
one hundred percent (100%) occupied for the entire year. Lessee will then pay
Lessee's Proportionate Share of such grossed-up amount so that the actual amount
paid by Lessee in respect of such fluctuating expenses is not affected by
occupancy or non-occupancy of the remainder of the Building.
3. TAXES.
A. Lessor agrees to pay all taxes, assessments and/or governmental charges
of any kind and. nature (collectively referred to herein as "Taxes") that accrue
against the Premises, the Land and/or the Building, 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 hereunder and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part upon such rents from the Premises, the Land and/or the Building, 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 the Land within the
applicable taxing jurisdiction. Lessee agrees to pay its Proportionate Share of
the cost of such consultant. In addition, if the Building is a multiple
occupancy Building and the cost of any improvements constructed on the Premises
is disproportionately higher than the cost of improvements constructed on the
premises of other tenants of the Building, then the Lessor, at its option. may
require that Lessee pay the amount of Taxes attributable to such
disproportionately more expensive improvements in addition to its Proportionate
Share of Taxes.
B. Prior to delinquency, Lessee shall (i) pay all taxes levied or assessed
against any personal property or fixtures placed in the Premises, and (ii) upon
the request of Lessor, deliver to Lessor receipts from the applicable taxing
authority or other evidence acceptable to Lessor to verify that such taxes upon
personal property and fixtures have been paid by Lessee. 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.
2 CREA - '93
4. LESSOR'S REPAIRS.
A. Lessee understands and agrees that this Lease is intended to be a "net"
lease, and as such, Lessor's maintenance, repair and replacement obligations are
limited to those set forth in this Paragraph 4.A. Lessor, at its own cost and
expense, shall be responsible for repair and replacement of only the roof, the
foundation and the structural members of the exterior walls of the Building. The
terms "roof" and "walls" as used herein shall not include skylights, 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. Lessor's liability with respect to any defects, repairs, replacement or
maintenance for which Lessor is responsible hereunder shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
X. Xxxxxx reserves the right to perform Lessee's maintenance, repair and
replacement obligations and any other items that are otherwise Lessee's
obligations under Paragraph 5.B, in which event, Lessee shall pay to Lessor any
cost or expense incurred by Lessor in making such repairs within ten (10) days
after demand.
5. LESSEE'S MAINTENANCE AND REPAIR OBLIGATIONS.
A. Lessee, at its own cost and expense, shall maintain all parts of the
Premises (except those for which Lessor is expressly responsible hereunder) in
good condition, ordinary wear and tear excepted, and promptly make all necessary
repairs and replacements to the Premises.
B. In addition to Lessee's obligations under the preceding subparagraph
A., if Lessee is the only tenant of the Building, Lessee shall be responsible
for causing the parking areas, driveways, alleys and grounds surrounding the
Premises to be maintained in a good, neat, clean and sanitary condition,
consistent with the operation of a first class office/warehouse building. which
includes, without limitation, prompt maintenance, repairs and replacements (1)
of any drill or spur track servicing the Premises, (2) of the parking area
associated with the Building, (3) of all grass, shrubbery and other landscape
treatments surrounding the Building, (4) of the exterior of the Building
(including painting), (5) of sprinkler systems and sewage lines, and (6) of any
other maintenance, repair or replacement items normally associated with the
foregoing. In addition, Lessee shall repair and pay for any damage caused by the
negligence of Lessee, or Lessee's employees, agents or invitees, or caused by
Lessee's default hereunder.
C. In the event that the Lessee is not the sole tenant of the Building,
then subject to payment by Lessee, Lessor shall perform the maintenance, repair,
and replacement obligations set forth in the foregoing Subparagraph B. Lessee
shall pay its Proportionate Share of the cost and expense of such repair,
replacement, replacement reserve, maintenance and other such items as additional
rent, pursuant to Paragraph 2.C. above. The amount of Lessee's rental obligation
set forth in Paragraph 2.A. above does not include the cost of such items, and
Lessor's performance of repair, replacement, maintenance and other items, is not
a condition to payment of such rental obligations.
D. Lessee agrees to pay as additional rent (pursuant to Paragraph 2.C.
above) its Proportionate Share of the cost of (1) operation, maintenance and/or
landscaping of any property or facility that is operated, maintained or
landscaped by any property owner or community owner association that is named in
any restrictive covenants or deed restrictions to which the Premises are subject
and which are actually billed to the Building, and (2) operating and maintaining
any property, facilities or services provided for the common use of Lessee and
other lessees of the Building, which costs shall include, without limitation,
management fees, maintenance and repair costs, sewer, landscaping, trash and
security (if furnished by Lessor), wages and employee benefits payable to
employees of Lessor whose duties are connected with the operation and
maintenance of the Building, amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance of
the Building, all service, supplies, repairs, replacements or other expenses for
maintaining and operating the Building, and any other facilities or services
provided for the common use of Lessee and other losses of the Building.
E. If Lessor has entered into one or more regularly scheduled preventive
maintenance/service contracts with a maintenance contractor for servicing hot
water, heating, air conditioning, and/or other systems and equipment within the
Premises, then upon execution of this Lease, Lessor shall assign such
contract(s) to Lessee and Lessee shall be responsible for all costs and expenses
required thereunder. If Lessor has not entered into such a contract for
regularly scheduled preventative maintenance and service as to any one or more
of such system and equipment, then upon execution of this Lease. Lessee shall
enter into such a contract with a contractor responsible acceptable to Lessor,
and Lessee shall be responsible for all costs and expenses required thereunder.
F. Lessee agrees to sign a joint maintenance agreement with the railroad
company, if any, 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.
3 CREA - '93
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; (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 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 Building or the Premises.
7. SIGNS. Lessee shall not place, install or attach any signage,
decorations, advertising media, blinds, draperies, window treatments, bars, or
security installations to the Premises or the Building without Lessor's prior
written approval. Lessee shall repair, paint, and/or replace any portion of the
Premises or the Building damaged or altered as a result of its signage, upon the
earlier of vacation of the Premises by Lessee or the removal or alteration of
its signage, all of which shall be accomplished at Lessee's sole cost and
expense. Lessee shall not, (i) make any changes to the exterior of the Premises
or the Building, (ii) install any exterior lights, decorations, balloons, flags,
pennants, banners or painting, or (iii) erect or install any signs, windows or
door lettering. decals. window and storefront stickers, placards, decorations or
advertising media of any type that can be viewed from the exterior of the
Premises, without Lessor's prior written consent.
8. UTILITIES. Lessee shall obtain and 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. If any
such services are not separately metered to Lessee, Lessee shall pay on demand
to Lessor a reasonable proportion, to be determined by Lessor, of all charges
jointly metered with other premises in the Building. Lessor shall not be liable
for any interruption or failure of utility service on the Premises.
9. INSURANCE.
A. Lessor shall maintain insurance covering the Building and the Premises
in an amount not less than eighty percent (80%) of the "replacement cost"
thereof insuring against the perils and costs of Fire, Lightning, Extended
Coverage, Vandalism and Malicious Mischief, Liability and Rental Interruption
and such other insurance as Lessor shall deem necessary.
B. Lessee, at its own expense, shall maintain during the term of this
Lease (1) a policy or policies of worker's compensation and comprehensive
general liability insurance (with contractual liability endorsement), including
personal injury and property damage in the amount of Five Hundred Thousand
Dollars ($500,000.00) per occurrence 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 and (2) fire and extended coverage insurance
covering the replacement cost of (a) all alterations, additions, partitions and
improvements installed or placed on the Premises, (b) all of Lessee's personal
property contained within the Premises, and (c) business interruption insurance
insuring loss of profits in the event of an insured peril damaging the Premises.
Said policies shall (i) name Lessor, as well as such entities or firms as Lessor
may engage from time to time as property managers and/or asset or investment
managers, as additional insureds (until further notice, it is expressly agreed
that Xxxxxxxx Xxxx Company. Xxxxxxxx Xxxx Company Dallas Industrial, Inc., and
Xxxxxx Real Estate Advisors, Inc. shall be named as additional insureds), (ii)
be issued by an insurance company which is acceptable to Lessor, (iii) provide
that such insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Lessor, (iv) shall be delivered to Lessor by
Lessee prior to the Commencement Date and at least fifteen (15) days prior to
each renewal of said insurance, and (v) shall provide primary coverage to Lessor
when any policy issued to Lessor is similar or duplicate in coverage, in which
case Lessor's policy shall be excess over Lessee's policies.
C. Lessee will not permit the Premises to be used for any purpose or in
any manner that would (1) void the insurance thereon, (2) increase the insurance
risk, or (3) cause the disallowance of any sprinkler credits. Lessee shall pay
to Lessor on demand any increase in the cost of any insurance on the Premises or
the Building incurred by Lessor, which is caused by Lessee's use of the Premises
or because Lessee vacates the Premises.
10. FIRE AND CASUALTY DAMAGE.
A. Lessee immediately shall give written notice to Lessor if the Premises
or the Building are damaged or destroyed. If the Premises or the Building should
be totally destroyed by an insured peril, or so damaged by an insured peril
that, in Lessor's estimation, rebuilding or repairs cannot be completed within
days after the date of Lessor's actual knowledge of such damage, then in either
case 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 Building or the Premises should be damaged but not totally
destroyed by any insured peril, and in Labor's estimation, rebuilding or repairs
can be substantially completed within
4 CREA - '93
days after the date of Lessor's actual knowledge 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 or personal property required to be covered by Lessee's insurance
pursuant to Paragraph 9.B. above. Effective upon the date of the occurrence of
such damage and ending upon the date of substantial completion (as defined in
Paragraph 1.C. above) of Lessor's repair or restoration work, if the Premises
are untenantable in whole or part during such period, then the rent shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. If such repairs and rebuilding have not been substantially
completed within 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, provided, however, that any liabilities of Lessee which
accrued prior to termination of this Lease shall survive such termination.
C. In connection with any repair or reconstruction to the Premises arising
from or necessitated by fire or other casualty which is covered by the insurance
provided pursuant to Paragraph 9.A. above, Lessee shall pay Lessor upon demand
its Proportionate Share of the amount of any deductible of such insurance.
D. Notwithstanding anything herein to the contrary, in the event the
Premises are destroyed or substantially damaged by any peril not covered by the
insurance required to be carried by Lessor pursuant to Paragraph 9.A above, or
if the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that 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, provided, however, that any
liabilities of Lessee which accrued prior to termination of this Lease shall
survive such termination.
E. Anything in this Lease to the contrary notwithstanding, to the extent
of a recovery of loss proceeds under the policies of insurance described in this
Lease. Lessor and Lessee hereby waive and release each other and any of their
respective related parties and affiliates 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,
the Building, or personal property within the Building and/or Premises arising
from or caused by fire or other casualty or hazard covered or required to be
covered by hazard insurance under this Lease. Upon execution of this Lease.
Lessor and Lessee shall notify their respective insurance companies of the
mutual waivers contained herein and, if available, shall cause each policy
described in this Lease to be so endorsed.
11. LIABILITY AND INDEMNIFICATION.
A. Lessee agrees that it will indemnify and hold harmless Lessor, its
successors, assigns, agents, employees, contractors, partners, directors,
officers and affiliates (as that term is defined in the Securities Act of 1933)
(collectively, the "Indemnified Parties") from and against all fines, suits,
losses, costs, liabilities, claims, demands, actions and judgments of every kind
or character (a) arising from any breach, violation or non-performance of any
term, provision, covenant, agreement or condition on the part of Lessee
hereunder, (b) recovered from or asserted against any of the Indemnified Parties
on account of injury or damage to person or property to the extent that any such
damage or injury may be incident to, arise out of, or be caused, either
proximately or remotely, wholly or in part, by any act, omission, negligence or
misconduct on the part of Lessee or any of its agents, servants, employees,
contractors, or invitees or of any other person entering upon the Premises under
or with the express or implied invitation or permission of Lessee, (c) arising
from or out of the occupancy or use by Lessee, its agents, servants, employees,
contractors, or invitees of the Premises or arising from or out of any event,
circumstance, or occurrence within the Premises, howsoever caused, and/or (d)
suffered by, recovered from or asserted against any of the Indemnified Parties
by Lessee's employees, agents, servants, contractors, or invitees. Such
indemnification of the Indemnified Parties by Lessee shall be effective (i)
unless such damage to property results from the gross negligence or willful
misconduct of Lessor or any of its duly authorized agents or employees, and (ii)
unless such injury to person results from the negligence or willful misconduct
of Lessor or any of its duly authorized agents or employees.
B. Lessee covenants and agrees that in case any of the Indemnified Parties
shall be made a party to any litigation commenced by or against Lessee with
respect to which Lessee has agreed to indemnify the Indemnified Parties
hereunder or relating to this Lease or to the Premises, then Lessee shall and
will pay all costs and expenses, including reasonable attorneys' fees and court
costs, incurred by or imposed upon any of the Indemnified Parties by virtue of
any such litigation and the amount of all such costs and expenses, including
attorneys' fees and court costs, shall be a demand obligation owing by Lessee to
the Indemnified Parties.
C. The provisions of this Paragraph shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination. The indemnification provided by this
Paragraph 11, is subject to Lessor's waiver of recovery in the preceding
Paragraph 10., to the extent of Lessor's recovery of loss proceeds under
policies of insurance described in Paragraph 10.
5 CREA - '93
12. USE.
A. 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. Lessee shall not use the Premises for the receipt, storage
or handling of any product, material or merchandise that is explosive or highly
inflammable or hazardous. Outside storage, including without limitation, storage
of trucks and other vehicles, is prohibited without Lessor's prior written
consent. Lessee shall comply with all federal, state and local governmental 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, light, 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.
B. Lessee and its employees, customers and licensees shall have the
non-exclusive right to use, in common with others, any parking areas associated
with the Premises which Lessor has designated for such use, subject to (1) all
reasonable rules and regulations promulgated by Lessor and (2) rights of ingress
and egress of other lessees and their employees, customers, agents and invitees.
Lessor shall not be responsible for enforcing Lessee's parking rights against
any third parties.
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 twelve (12) months prior to
the end of the Lease term, Lessor and Lessor's representatives may enter the
Premises during business hours for the purpose of showing the Premises. In
addition, during the same twelve (12) month period Lessor shall have the right
to erect a suitable sign on the Premises indicating that 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 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 sublet all or part of the Premises
or to assign, 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. 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 assignee. sublessee or 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 Lessee is a corporation, partnership, or other entity, for purposes
of subparagraph A above, any transfer or series of related transfers of equity
ownership interests in Lessee (or any direct or indirect owners of Lessee) that
results in the change of the ultimate ownership of more than fifty percent (50%)
of the equity ownership of Lessee shall constitute an assignment of this Lease.
The foregoing provision shall not apply, however, if at the time of execution of
this Lease Lessee is a corporation the shares of which are listed on a
recognized security exchange or in the over-the-counter market.
C. Upon the occurrence of an assignment or subletting, whether consented
to by Lessor, or mandated by judicial intervention, Lessee hereby assigns,
transfers and conveys all rents or other sums received by Lessee under any such
assignment or sublease, which are in excess of the rents and other sums payable
by Lessee under this Lease, and Lessee agrees to pay to Lessor such amounts
within ten (10) days after receipt.
D. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. (S) 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.
E. 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.
6 CREA - '93
15. CONDEMNATION. If more than fifty percent (50%) of the Premises are
taken for any public or quasipublic 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
remainder 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 (i) less than
fifty percent (50%) 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; or (ii) more than fifty percent
(50%) of the Premises are taken for any public or quasipublic use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, but the taking does not prevent or materially
interfere with the use of the remainder of the Premises for the purpose for
which they were leased to Lessee, 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. SURRENDER OF PREMISES; HOLDING OVER.
A. At the termination of this Lease, whether caused by lapse of time or
otherwise, Lessee shall at once surrender possession of the Premises and deliver
them to Lessor in as good repair and condition as existed at the Commencement
Date, reasonable wear and tear excepted, and shall deliver to Lessor all keys
(or other access control devices) to the Premises, and, if such possession is
not immediately surrendered, Lessor may forthwith enter upon and take possession
of the Premises and expel or remove Lessee and any other person who may be
occupying them, or any part thereof, without having any civil or criminal
liability therefor.
B. All alterations, additions or improvements (whether temporary or
permanent in character) made to or fixtures installed in or upon the Premises,
either by Lessor or Lessee, shall be Lessor's property on termination of this
Lease and shall remain on the Premises. Notwithstanding the foregoing, upon the
termination of this Lease Lessor may direct Lessee, at Lessee's expense, to
remove all alterations, improvements, and additions installed by Lessee and
return the Premises to the condition that existed at the Commencement Date.
Subject to Paragraph 25 hereof and provided that all sums owed by Lessee
hereunder have been paid, all movable office furniture and equipment not
attached to the Building may be removed by Lessee at the termination of this
Lease. All such removals shall be accomplished in a good workmanlike manner so
as not to damage the Premises or the structural components of the Building or
the plumbing, electrical lines or other utilities, and any damage resulting from
such removals shall be repaired at Lessee's expense.
C. All alterations, additions, and improvements directed by Lessor to be
removed and all movable office furniture and equipment not attached to the
Building not promptly removed after such termination shall thereupon be
conclusively presumed to have been abandoned by Lessee, and Lessor may, at its
option, take over possession of such property and either (a) declare same to be
the property of Lessor by written notice thereof to Lessee or (b) at the sole
cost and expense of Lessee remove and store the same or any part thereof in any
manner that Lessor shall choose without incoming liability to Lessee or any
other person (any such removal and storage costs and expenses being payable by
Lessee upon demand).
D. Should Lessee continue to hold the Premises after the termination of
this Lease, whether the termination occurs by lapse of time or otherwise, such
holding over shall, unless otherwise agreed by Lessor in writing, constitute and
be construed as a tenancy at will at a daily rental equal to one-thirtieth of an
amount equal to of the amount of the monthly rental payable during the last
month prior to the termination of this Lease, and upon and subject to all of the
other terms, provisions, covenants and agreements set forth herein except any
right to renew this Lease. No payments of money by Lessee to Lessor after the
termination of this Lease shall reinstate, continue or extend the term of this
Lease and no extension of this Lease after the termination hereof shall be valid
unless and until the same shall be reduced to writing and signed by both Lessor
and Lessee. Lessee shall be liable to Lessor for all damage which Lessor shall
suffer by reason of any holding over by Lessee and Lessee shall indemnify Lessor
against all claims made by any other tenant or prospective tenant against Lessor
resulting from delay by Lessor in delivering possession of the Premises to such
other tenant or prospective tenant.
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 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 lease. 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.
7 CREA - '93
18. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "event of default" on the part of Lessee under this
Lease:
A. Lessee shall fail to pay any rental or other payment or reimbursement
payable by Lessee hereunder when due, or Lessee shall fail to pay any payment or
reimbursement required under any other lease with Lessor when due, and in either
case such failure shall continue for a period of five (5) days from the date
such payment was due.
B. Lessee shall fail to pay any amounts owed to contractors or
subcontractors for work or services performed in connection with the operation,
construction, management or maintenance of the Building as provided herein, and
such failure shall continue for a period of five (5) days from the date such
payment was due.
C. 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 pant of its property; or (v) take any action to authorize or in
contemplation of any of the actions set forth above in this subparagraph C.
D. Any case, proceeding or other action against the Lessee or any
guarantor of 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 pant 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.
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.
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, and in addition to and
not in limitation of any other remedy permitted by law or equity or by this
Lease, 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, deny access to Lessee, 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. This provision
shall control over any conflicting provisions of the Texas Property Code or any
successor statute governing the right of landlords to change the door locks of
commercial tenants to the extent permitted by applicable law.
B. Upon the occurrence of any event of default 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
the Premises or any part thereof, without being liable for prosecution or any
claim of damages therefor.
C. If Lessor repossesses the Premises with or 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 payed by Lessee to
Lessor until the date of expiration of the term as stated in Paragraph 1.
Actions to collect amounts due by Lessee to Lessor under the Lessor's
subparagraph may be brought from time to time, on one or more occasions, without
the necessity of Lessor's
8 CREA - '93
waiting until expiration of the Lease term. Lessor may relet the whole or any
portion of the Premises for any period, to any tenant and for any use and
purpose.
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 (1) any
brokerage fees incurred by Lessor in connection with the execution of this
Lease; (2) brokers' fees incurred by Lessor in connection with any reletting of
the whole or any pant of the Premises; (3) the costs of removing and storing
Lessee's or other occupant's property; (4) the costs of repairing, altering,
remodeling or otherwise putting the Premises into condition acceptable to a new
lessee or lessees; and (5) all reasonable expenses incurred by Lessor in
enforcing or defending Lessor's rights and/or remedies. If either party hereto
institutes 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. Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available, including without limitation, the institution by Lessor,
its agents or attorneys of a forcible detainer or ejectment action to re-enter
the Premises shall not be construed to be an election to terminate this Lease or
relieve Lessee of its obligation to pay rent hereunder and 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 a waiver of Lessor's right to enforce one or more
of its rights in connection with any subsequent default.
F. 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.
G. 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, at Lessee's expense, 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 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 into
the authenticity or legality of said instrument. Lessor may. at its sole option
and without prejudice to, or waiver of any rights it may have i) escort Lessee
to the Premises to retrieve any personal belongings of Lessee and/or its
employees not covered by the Lessor's lien and security interest described in
Paragraph 25. hereof, or ii) obtain a list from Lessee of the personal property
of Lessee and/or its employees that is not covered by the Lessor's lien and
security interest described in Paragraph 25 hereof, and make such property
available to Lessee and or Lessee's employees; provided, however, Lessee first
shall pay in cash all costs and estimated expenses to be incurred in connection
with the removal of such property and making it available. Any such property not
removed by Lessee within five (5) days after demand therefor by Lessor shall
thereupon be conclusively presumed to have been abandoned by Lessee to Lessor,
and Lessor may, at its option, take over possession of such property and declare
same to be the property of Lessor by written notice thereof to Lessee. 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.
H. If Lessor fails to commence 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 said default after such notice, Lessee shall not
have any remedy or cause of action by reason thereof. All obligations of Lessor
hereunder 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, and, as a consequence, if Lessee shall recover a
money judgment against Lessor, such judgments shall be satisfied only out of the
proceeds received at a judicial sale upon execution and levy against the right,
title and interest of Lessor in the Building, and in the rents or other income
from the Building receivable by Lessor, and neither Lessor nor Lessor's owners,
partners or ventures shall have any personal, partnership, corporate or other
liability hereunder.
9 CREA - '93
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, the improvements situated thereon, the Building or
the Land, and to any and all increases, renewals, modifications, consolidations.
replacements and extensions of such mortgages and deeds of trust; 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. The provisions of this
Paragraph 20 shall be self-operative, and no further instrument shall be
required to effect such subordination of this Lease. Lessee shall however, at
any time hereafter, within ten (10) days after demand, 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 of any such
mortgage. If Lessee fails to execute the same within such ten (10) day period.
Lessor is hereby authorized to execute the same as attorney-in-fact for Lessee.
Lessee agrees to attorn upon demand to any mortgagee, trustee under a deed of
trust or purchaser at a foreclosure sale or trustee's sale as Lessor under this
Lease. The agreement of Lessee to attorn upon demand contained in the
immediately preceding sentence shall survive any such foreclosure sale or
trustee's sale. Lessee shall upon demand at any time or times, before or after
any such foreclosure sale or trustee's sale, execute, acknowledge and deliver to
any mortgagee, trustee under a deed of trust or purchaser at a foreclosure sale
or trustee's sale any and all instruments and certificates that in the judgment
of such party may be necessary or proper to confirm or evidence such attornment,
and Lessee hereby irrevocably appoints any such mortgagee, trustee under a deed
of trust or purchaser at a foreclosure sale or trustee's sale as Lessee's agent
and attorney-in-fact for the purpose of executing, acknowledging and delivering
any such instruments and certificates.
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 rentable 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, legal 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 strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or restrictions or
any other cause of any kind whatsoever which are beyond the control of Lessor.
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
for the Premises, financial statements for itself and any guarantor of its
obligations hereunder, and an estoppel certificate stating 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 the above-described items in a timely fashion is a material inducement
for Lessor's execution of this Lease. If Lessee fails to execute any such
estoppel certificate within such ten (10) day period. Lessor is hereby
authorized to execute the same as attorney-in-fact for Lessee.
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
10 CREA - '93
with respect thereto. Lessor and Lessee each acknowledge that no
representations, inducements, promises 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
limitation, 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 by Lessee under
this Paragraph 22.G.
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 prior
to execution of this Lease, and Lessee agrees to indemnify and hold Lessor
harmless from and against any claims by any other broker, agent or other persons
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 23, hereof to the
same effect as if each had received such notice.
11 CREA - '93
L. LESSEE ACKNOWLEDGES THAT (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES
IN AN "AS IS. WHERE IS" CONDITION, (2) THE BUILDINGS AND IMPROVEMENTS COMPRISING
THE SAME ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND
LESSOR HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH RESPECT
TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PREMISES,
(3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO REPRESENTATIONS
AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL OR IMPROVE THE
PREMISES HAVE BEEN MADE BY LESSOR (UNLESS AND EXCEPT AS MAY BE SET FORTH IN
EXHIBIT B ATTACHED TO THIS LEASE, IF ONE SHALL BE ATTACHED, OR AS IS OTHERWISE
EXPRESSLY SET FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR
WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND BEYOND THE DESCRIPTION
OF THE PREMISES.
X. Xxxxxx and Lessee agree that the terms and conditions of this Lease are
confidential and the parties hereto agree not to disclose the terms of this
Lease to any third party.
N. 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.
O. 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.
23. 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 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.
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 upon the earlier to occur of (1)
tender of delivery (in the case of a hand-delivered notice) or (2) deposit 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.
24. HAZARDOUS WASTE. The term "Hazardous Substances", as used in this
Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, 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 or ordinance 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 Substances, except for
such activities that are part of the ordinary course of Lessees 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; (ii) the Premises will not be used in any manner
for the storage of any Hazardous Substances except for any 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; (iii) no portion of the Premises will he used as a landfill
or a dump; (iv) Lessee will not install any underground 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, 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. 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 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 shall survive the termination or expiration of this
Lease.
Unless expressly identified on an addendum to this Lease, as of the date
hereof there are no "Permitted Activities" and/or "Permitted Materials" for
purposed of the foregoing provision and none shall exist unless and until
approved in writing by Lessor.
12 CREA - '93
25. Lessor hereby waives any Landlord's liens and lien rights it might
hold, including all statutory, common law, constitutional, contractual or other
liens and lien rights, to any inventory, equipment, machinery or other personal
property owned or leased by Lessee and now or hereafter located on the Premises.
EXECUTED BY LESSOR, this day of _____________. 19__.
XXXXXXXX XXXX INTERNATIONAL PARTNERS, a Texas Limited Partnership
By: Xxxxxxxx Xxxx Ventures, Ltd:, a Texas limited partnership
By: Xxxxxxxx Xxxx Ventures, Inc., a Texas Corporation
By:__________________________________ By:__________________________________
Title:_______________________________ Title:_______________________________
By:__________________________________
Title:_______________________________
ADDRESS: ADDRESS:
3500 Xxxxxxxx Xxxx Center
---------------------------------------- -------------------------------------
0000 Xxxx Xxx., Xxxxxx, Xxxxx 00000-0000
---------------------------------------- -------------------------------------
copy to: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
---------------------------------------- -------------------------------------
EXECUTED BY LESSEE this ______ day of _______________, 19__.
CUPLEX, INC.
---------------------------------------- -------------------------------------
By: By:
------------------------------------- ----------------------------------
J. Xxxx Xxxx
Title: Executive Vice President Title:
--------------------------------- -------------------------------
ADDRESS:
00000 Xxxxxxxx Xxxx
-------------------
Xxxxxx Xxxxx 00000
-------------------
SPECIAL PROVISIONS
FOR
CUPLEX
25a. 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 landfill or a dump; (iv) Lessee will not install
any underground 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 representative 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, and 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 indemnifications and the
responsibilities of Lessee shall survive the termination or expiration of
this Lease. Notwithstanding anything in this Lease, Lessee shall not be
liable for nor indemnify Lessor from any Hazardous Substances or violation
of Environmental Law unless caused by Lessee.
Permitted: A wave soldering machine is permitted as long as it use
complies with all laws and regulations and the solder does not penetrate
the vinyl composition tile, the slab or any part of the Premises.
25b. NONDISCLOSURE
Lessee acknowledges that Lessor has a business interest in maintaining the
confidentiality of the lease terms negotiated with various tenants. As a
material part of the consideration for this Lease, Lessee hereby agrees
that it shall not disclose the terms of this Lease to any person without
the prior written consent of Lessor. Lessee agrees, in addition to any
other rights or remedies which Lessor may possess, that Lessor shall be
entitled to injunctions without bond or security in the event of any
actual or threatened breach of this Section by Lessee. The provisions of
this Section shall survive the termination of this Lease.
25c. NONDISTURBANCE
Notwithstanding anything contained herein to the contrary (i) Lessor
covenants and agrees to use reasonable efforts to obtain from any mortgage
holder currently in place a nondisturbance agreement when requested by
Lessee, and (ii) Lessee's agreement to subordinate this Lease to any
future mortgage is expressly subject to and conditional upon Lessor using
reasonable efforts to obtain from such future mortgage holder an new
nondisturbance agreement in favor of Lessee.
25d. This Lease is contingent on the successful termination of the existing
Lessee (Avnet, Inc.)
25e. Lessee accepts the Premises in its "As-Is" condition.
EXHIBIT "A"
LEGAL DESCRIPTION
-----------------
BEING approximately 33,149 square feet out of an approximate 48,862 square foot
facility commonly known as Northgate I, Building 15, located on Pagemill Road in
Dallas, Texas and situated on a tract of land described as follows:
BEING a tract of land situated in the Xxxx Xxxxxxx Survey, Abstract Xx. 000,
Xxxx xx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx; and being part of Block B/8073 of the
Northgate Business Park, First Installment as recorded in Volume 74113, Page
1136 of the Map and Deed Records of Dallas County, Texas; and being more
particularly described as follows:
BEGINNING at a point in the East line of Pagemill Road (60' R.O.W.), said point
being in a Northerly direction along said East line of Pagemill Road a distance
of 337.00 feet from the intersection of said East line and the North line of
Chartwell Drive (60' R.O.W.).
THENCE North 13 degrees 20'55" East, along said East line of Pagemill Road, a
distance of 360.00 feet to a point for a corner;
THENCE South 76 degrees 39'05" East, a distance of 340.00 feet to a point for a
corner, said point being in the centerline of a railroad lead track;
THENCE South 13 degrees 20'55" West, along said centerline of a railroad lead
track, a distance of 360.00 feet to a point for a corner;
THENCE North 76 degrees 39'05" West, a distance of 340.00 feet to the POINT OF
BEGINNING and CONTAINING 122,400 square feet or 2.8099 acres of land, more or
less.
SUPPLEMENTAL LEASE AGREEMENT
This Supplemental Lease Agreement is made and entered into this _______ day of
___________________, 1999 by and between:
NORTHGATE BUSINESS PARK, INC.
BY: XXXXXXX ASSOCIATES REAL ESTATE COUNSEL, INC.
(ITS INVESTMENT MANAGER)
c/o THE INDUSTRIAL GROUP MANAGEMENT SERVICES, INC.
X.X. XXX 000000
XXXXXX, XXXXX 00000-0000
AND
DYNAMIC DETAILS INCORPORATED
(FORMERLY KNOWN AS CUPLEX, INC.)
11410-11420 XXXXXXXX XXXX
XXXXXX, XXXXX 00000
(48,862 SQUARE FEET)
This Second Supplemental Lease Agreement shall modify the original Lease
Agreement between Northgate Business Park, Inc., successor in interest to
Xxxxxxx Xxxx International Partners (Lessor), and Dynamic Details Incorporated,
formerly know as Cuplex, Inc. (Lessee) dated on or about June 21, 1993, for
11410 Pagemill, as amended on or about September 12, 1995, and Lease Agreement
dated November 2, 1995, for 11420 Pagemill (which together with any amendments,
modifications and extensions thereof is hereinafter called the "Lease"); and
Supplement Lease Agreements dated June 24, 1998, in which certain real estate
and premises therein described and situated in the County of Dallas, City of
Dallas and the State of Texas were demised and leased by Landlord to Tenant.
It is the sole intent of this Supplemental Lease Agreement to modify the Lease
by the following provisions:
1. The original term of the Lease Agreement as described in Paragraph 1.
shall be extended for a further term of Thirty-six (36) months beginning
April 1, 1999 (the "Renewal Commencement Date") and ending March 31, 2002.
2. Beginning on the Renewal Commencement Date the monthly base rental as
referenced in Paragraph 2.A. of the original Lease Agreement shall be:
Months 1-36: $4.00 per square foot ($16,287.33 per month)
3. Tenant will continue to pay its proportionate share of the operating
expenses as per Xxxxxxxxx 0X of the Original Lease Agreement.
4. Landlord and Tenant represent each to the other that it has full right and
authority to enter into this Supplemental Lease Agreement.
5. Lessor and Lessee upon execution of the document shall be known as
Landlord and Tenant.
6. Tenants total square footage consists of 48,862 square foot, which
reflects 00000 Xxxxxxxx Xxxx and 00000 Xxxxxxxx Xxxx.
7. Landlord will provide up to $50,000.00 for tenant improvements. Tenant
will be responsible for any costs in excess of $50,000.00. Landlord has
approved the plans for the tenant improvements as shown on "Exhibit A" and
tenant shall not be required to return the improvements outlined on
Exhibit A (except as provided herein) back to their original condition.
Furthermore, Landlord shall have approval of tenant's contractor. Tenant
contractor shall be required to have insurance requirements acceptable to
Landlord. After Landlord has received receipt of paid invoices and
executed lien waivers from Tenant, Landlord agrees to reimburse Tenant for
all approved expenditures for tenant improvements and construction up to
the provided amount of $50,000.00. These improvements shall be performed
within six (6) months of execution of this Supplemental Lease Agreement.
8. Notwithstanding the provisions of the Original Leases to the contrary, the
name of the Lessee, Cuplex, Inc. shall be known as Dynamic Details
Incorporated.
9. Renewal Option - Provided that Tenant is not in default of any of the
terms, covenants and conditions hereof, and this Lease has not been
assigned or the premises (or a part thereof) sublet, Tenant shall have the
right and option to extend the original term of this Lease for one further
term of thirty six (36) months. Such extension of the original term shall
be on the same terms, covenants and conditions as provided for in the
original term except for this paragraph and except that the rental during
the extended term shall be at the fair market rental then in effect on
equivalent properties, of equivalent size, in equivalent areas (but in no
event less than the rental rate specified in Paragraph 2 of this
Supplemental Lease Agreement). Tenant shall deliver written notice to
Landlord of Tenant's intent to exercise the renewal option granted herein
not more than one hundred and eighty (180) days nor less than one hundred
fifty days (150) days prior to the expiration of the original term of this
Lease. In the event Tenant fails to deliver such written notice within the
time period set forth above then Tenant's right to extend the term hereof
shall expire and be of no further force and effect. In the event Landlord
and Tenant fail to agree in writing upon the fair market rental within
thirty (30) days after exercise by Tenant of this renewal option, Tenant's
right hereunder to extend the term under this Paragraph shall become null
and void.
10. Tenant may remove three (3) walls as shown on Exhibit A and highlighted in
yellow, provided Landlord may at its sole opinion require Tenant to
reconstruct walls and any other items affected by removing such walls
prior to Lease expiration.
Except as expressly provided herein all of the other terms and conditions of the
Lease shall remain in effect and unchanged.
Signed by Landlord this _____ day of _______________, 1999.
Landlord:
NORTHGATE BUSINESS PARK, INC.
Signed: _____________________________ Witness: ____________________________
Printed Name: _______________________ Title: ____________________________
Title: _______________________
Signed by Lessee this 2nd day of March, 1999.
Tenant:
DYNAMIC DETAILS INCORPORATED
Signed: /s/ X. Xxxxxxxx Witness: /s/ Xxxxx Xxxxx
----------------------------- ----------------------------
Printed Name: X. Xxxxxxxx Title: Administrative Assistant
----------------------- --------------------------
Title: Vice President
-----------------------
EXHIBIT A
[GRAPHIC OF 00000 XXXXXXXX, XXXXXX, XX]
3
