Exhibit 10(xi)
TEXAS ASSOCIATION OF REALTORS
COMMERCIAL LEASE
This lease agreement is made and entered into by and between FLEET
MANAGEMENT CO. (Landlord) and AG Technologies (Tenant). Landlord hereby leases
to Tenant and Tenant hereby leases from Landlord that certain property with the
improvements thereon, containing approximately 16,000 square feet, hereinafter
called the "leased premises", known as 0000 X. Xxxxx Xxxxxxxx, Xxxx xx
XXXXXXXXXXX XXXXXXX Xxxxxx, Xxxxx; or as more particularly described below or an
attached exhibit:
The primary term of this lease shall be 5 years commencing on the 1st
day of October, 1999, and ending on the 31st day of October, 2004, upon the
following terms, conditions, and covenants:
1. TAXES. Each year during the term of this lease, Landlord shall pay real
estate taxes assessed against the leased premises in an amount equal to
the total real estate taxes assessed against the leased premises in the
base year. Each year during the term of this lease Tenant shall pay as
additional rental, upon receipt of a statement from Landlord together
with tax statements or other verification from the proper taxing
authority, his pro rata share of any increase in real estate taxes over
the base year 0n the property of which the leased premises is a part.
Any increase in real estate taxes for a tractional year shall be
prorated. The base year shall be NA.
2. UTILITIES. Tenant shall pay charges for utility services to the leased
premises: NA
3. HOLDING OVER. Failure of Tenant to surrender the leased premises at the
expiration of the lease constitutes a holding over which shall be
construed as a tenancy from month to month at a rental of $3,000.00 per
month.
4. RENT. Tenant agrees to and shall pay Landlord at 000 X. XXXXX XX.,
Xxxxxx xx XXXXXXX, Xxxxx, or at such other place Landlord shall
designate from time to time in writing, as rent for the leased
premises, the total sum of $170,000.00 payable without demand in equal
monthly payments of $2,833.33 each in advanced on or before the 1st
day of each month commencing on November 1, 1999 and continuing
thereafter until the total sum shall be paid. Adjustment to the rent,
if any, for rent escalators, for percentage of not rent, or for
increases in building operation costs (including but not limited to
insurance, custodial services, maintenance and utilities) shall be as
set forth an attached addendum. Rent received after the first day of
the month shall be deemed delinquent. If rent is not received by
Landlord by the _____ of each month, Tenant shall pay a late charge of
$20.00 plus a penalty of $5.00 per day until rent is received in full.
Tenant shall pay $20.00 for each returned check.
5. Tenant shall use the leased premises for the following purpose and no
other: warehouse.
6. SECURITY DEPOSIT. Tenant shall pay to Landlord a security deposit in
the sum of $NA, payable on or before the commencement of this lease for
Tenant's faithful performance hereunder. Refund thereof shall be made
upon performance of this lease Agreement by Tenant, minus any
assessments or damages unless Landlord and Tenant provide otherwise in
Special Provisions.
7. INSURANCE. LANDLORD shall pay for fire and extended coverage insurance
on the buildings and other improvements on the leased premises in an
amount not less than $200,000.00 which amount shall be increased yearly
in proportion to the increase in market value of the premises.
Tenant shall provide public liability and property damage insurance for
its business operations on the leased premises in the amount of
$1,000,000.00 which policy shall cover the Landlord as well as the
Tenant. Said insurance policies required to be provided by Tenant
herein shall name Landlord as an insured and shall be issued by an
insurance company approved by Landlord, Tenant shall provide Landlord
with certificates of insurance evidencing the coverage required herein.
Tenant shall be solely responsible for fire and casualty insurance on
Tenant's property on or about lease premises. If Tenant does not
maintain such insurance in full force and effect, Landlord may notify
Tenant of such failure and if Tenant does not deliver to Landlord
within 10 days after such notice certification showing all such
insurance to be in full force and effect, Landlord may at his option
take out the necessary insurance to comply with the provision hereof
and pay the premiums on the items specified in such notice, and Tenant
covenants thereupon on demand to reimburse pay Landlord any amount so
paid or expended in the payment of the insurance premium required
hereby and specified in the notice, with interest thereon at the 10
percent per annum from the date of such payment by Landlord until
repaid by Tenant.
8. CONDITION OF PREMISES. Tenant has examined and accepts the leased
premises in its present as is condition as suitable for the purposes
for which the same are leased, and does hereby accept the leased
premises regardless of reasonable deterioration between the date of his
lease and the date Tenant begins occupying the leased premises unless
Landlord and Tenant agree to repairs or refurbishment as noted in
Special Provisions.
9. MAINTENANCE AND REPAIRS. Landlord shall keep the foundation, the
exterior walls except glass; windows; doors; door closure devices;
window and door frames, molding, locks, and hardware; and interior
painting or other treatment of exterior xxxxx), and the root of the
leased premises in good repair except that Landlord shall not be
required to make any repairs occasioned by the act or negligence of
Tenant, its employees, subtenants, licensees and concessionaries.
LANDLORD is responsible for maintenance of the common area and common
area equipment. If Landlord is responsible for any such repair and
maintenance, Tenant agrees to give Landlord written notice of needed
repairs. Landlord shall make such repairs within a give reasonable
time. Tenant shall notify Landlord immediately of any emergency
repairs. Tenant shall keep
2
the leased premises in good clean condition and shall at its sole cost
and expense, make all needed repairs and replacements, including
replacement of cracked or broken glass, except for repairs and
replacements required to be made by Landlord under this section. If any
repairs required to be made by Tenant hereunder are not made within ten
(10) days after written notice delivered to Tenant by Landlord,
Landlord may at its option make such repairs without liability to
Tenant for any loss or damage which may result by reason of such
repairs, and Tenent shall pay to Landlord upon demand as additional
rent hereunder the cost of such repairs plus interest. At the
termination of this lease, Tenant shall deliver the leased premises in
good order and condition, reasonable wear and tear excepted.
10. ALTERATIONS. All alterations, additions and improvements, except
trade fixtures, installed at expense of Tenant, shall become the
property of Landlord and shall remain upon and be surrendered with the
leased premises as a part of thereof on this lease. Such alterations,
additions, and improvements may only be made with the prior written
consent of Landlord, which consent shall not be unreasonably withheld.
If consent is granted for the making of improvements or alterations to
the leased premises, such improvements and alterations shall not
commence until Tenant has furnished to Landlord a certificate of
insurance showing coverage in a amount satisfactory to Landlord
protecting Landlord from liability for injury to any person and damage
to any personal property, on or off the leased premises, in connection
with the making of such improvements or alterations. No cooling tower,
equipment, or structure of any kind shall be placed on the roof or
elsewhere on the leased premises by Tenant without prior written
permission of Landlord. If such permission is granted, such work or
installation shall be done at Tenant's expense and in such a manner
that the roof shall not be damage thereby. If it becomes necessary to
remove such cooling tower, equipment or structure temporarily, so that
repairs to the roof can be made Tenant shall promptly repair at its
expense any damages resulting from such removal. At the termination of
this lease, Tenant shall deliver the lease premises in good order and
condition, natural deterioration only excepted. Any damage caused by
the installation or removal of trade fixtures shall be repaired at
Tenant's expense prior to the expiration of the lease term. All
alterations, improvements, additions, and repairs made by Tenant shall
be made in good term. All alterations and workmanlike manner.
11. COMPLIANCE WITH LAWS AND REGULATIONS. Tenant shall, at its own expense,
comply with all laws, order, and requirements of all governmental
entities with reference to the use and occupancy of the leased
premises, Tenant and Tenant's agents, employees and invitees shall
fully comply with any rules and regulations governing the use of the
building or other improvements to the leased premises as required by
Landlord. Landlord may make reasonable changes in such rules and
regulations from time to time as deemed advisable for the safety, care
and cleanliness of the leased premises, provided same are in writing
and are not in conflict with this lease.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this lease nor
sublet the leased premises or any interest therein without first
obtaining the written consent
3
of Landlord. An assignment or subletting without the written consent of
Landlord shall be void and shall, at the option of Landlord, terminate
this lease.
13. DESTRUCTION. In the event the leased premises is partially damaged
or destroyed or rendered partially until for occupancy by fire or
other causality. Tenant shall give immediate notice to Landlord.
Landlord may repair the damage and restore the leased premises to
substantially the same condition as immediately prior to the
occurrence of the casualty. Such repairs shall be made at Landlord's
expense unless due to Tenant's negligence. Landlord shall allow Tenant
a fair reduction of rent during the time the leased premises are
partially unfit for occupancy. If the leased premises are totally
destroyed or deemed by the Landlord to be rendered unfit for occupancy
by fire or other casualty, of if Landlord shall decide not to repair
or rebuild, this lease shall terminate and the rent shall be paid to
the time of such casualty.
14. TENANT DEFAULT AND REMOVAL OF ABANDONED PROPERTY. If Tenant abandons
the premises or otherwise defaults in the performance of any
obligations or covenants herein. Landlord may enforce the performance
of this lease in any manner provided by law. This lease may be
terminated at Landlord's discretion if such abandonment or default
continues for a period of 10 days after Landlord notifies Tenant of
such abandonment or default an of Landlord's intention to declare this
lease terminated. Such notice shall be sent by Landlord to Tenant at
Tenant's last know address by certified mail. If Tenant has not
completely removed or cured default within the 10 day period, this
lease shall terminate. Thereafter, Landlord or its agents shall have
the right, without further notice or demand, to enter the leased
premises and remove all property without being deemed guilty of
trespass and without waiving any other remedies for arrears of rent or
breach of covenant. Upon abandonment or default by Tenant, the
remaining unpaid portion of the rental from paragraph 4 herein, shall
become due and payable. For purpose of this section, Tenant is
presumed to have abandoned the premises if goods, equipment, or other
property, in an amount substantial enough to indicate a probable
intent to abandon the premises, is being or has been removed from the
premises and the removal is not normal course of Tenant's business.
Landlord shall have the right to store any property of Tenant that
remains on premises that are abandoned; and, in addition to Landlord's
other rights, Landlord may dispose of the stored property if Tenant
does not claim the property within 60 days after the date the property
is stored, provided Landlord delivers by certified mail to Tenant's
last know address a notice stating that Landlord may dispose of
Tenants' property if Tenant does not claim the property within 60 days
after the date the property is stored.
15. INTERRUPTION OF UTILITIES. Landlord or Landlord's agent may not
interrupt or cause the interruption of utility service paid directly
to the utility company by Tenant unless interruption results from bone
fide repairs, construction, or an emergency. If any utility services
furnished by Landlord are interrupted and continue to be interrupted
despite the good faith efforts of Landlord to remedy same Landlord
shall not be liable in any respect for damages to the person or
property of Tenant or Tenant's employees, agents, or guests, and some
shall not be construed as grounds for constructive eviction or
4
abatement of rent. Landlord shall use reasonable diligence to repair
and remedy such interruption promptly.
16. EXCLUSION OF TENANT. Landlord may not intentionally prevent Tenant
from entering the leased premises except by judicial process unless
the exclusion results from: (a) bona fide repairs, construction or an
emergency; (b) removing the contents of premises abandoned by Tenant;
(c) changing the door locks of Tenant in the event Tenant is
delinquent in paying at least part of the rent. If Landlord or
Landlord's agent changes the door lock of Tenant, in the event Tenant
is delinquent in paying rent, Landlord or Landlord's agent must place
a written notice on Tenant's front door stating the name and address
or telephone number of the individual or company from which the new
key may be obtained. The new key is required to be provided only
during Tenant's regular business hours.
17. LIEN. Landlord is granted an express contractual lien, in addition to
any lien provided by Law, and a security interest in all property of
Tenant found on the leased premises to secure the compliance by Tenant
with all terms of this lease.
18. SUBORDINATION. Landlord is hereby irrevocably vested with full power
and authority to subordinate this lease to any mortgage, deed of Trust,
or other lien hereafter placed on the demised premises and Tenant
agrees on demand to execute such further instruments subordinating this
lease as Landlord may request, provided such subordination shall be an
the express condition that this lease so long as Tenant shall continue
to perform all of the covenants and conditions of this lease.
19. INDEMNITY. Landlord and its employees and agents shall not be liable to
Tenant or Tenant's employees, patrons, visitors, invitees, or any other
persons for an injury to any such persons or for any other persons for
an injury to any such persons or for any damage to personal property
caused by an act, omission, or neglect of Tenant or Tenant's agents or
of any other tenant of the premises of which the leased premises is a
part. Tenant agrees to indemnify and hold Landlord and its employees
and agents harmless from any and all claims for such injury and
damages, whether the injury occurs on or off the leased premises.
20. SIGNS. Tenant shall not post or paint any signs at, on, or about the
leased premises or paint the exterior walls of the building except with
the prior written consent of the Landlord. Landlord shall have the
right to remove any sign or signs in order to maintain the leased
premises or to make any repairs or alterations thereto.
21. TENANT BANKRUPTCY. If Tenant becomes bankrupt or makes voluntary
assignment for the benefit of creditors or if a receiver is appointed
for Tenant, Landlord may terminate this lease by giving five (5) days
written notice to Tenant of Landlord's intention to do so.
22. CONDEMNATION. If the whole or any substantial part of the leased
premises is taken for any public or quasi-public use under any
governmental law, ordinance or regulation
5
or by right of eminent domain or should the leased premises be sold to
a condemning authority under threat of condemnation, this lease shall
terminate and the rent shall be abated during the unexpired portion the
lease effective from the date of the physical taking of the leased
premises.
23. HAZARDOUS MATERIALS. Landlord warrants and represents that the
Property does not contain "Hazardous Materials", as that phrase is
defined herein. For purposes of this provision, the phrase "Hazardous
Materials" shall mean and include any toxic, contaminated or other
hazardous materials including, without limitation, asbestos, PCB,
transformers, underground storage containers, materials containing any
radioactive substances, petroleum base products, paints, solvents,
lead, cyanide, DDT, acids, pesticides, ammonium compounds, and any
other substance forming a component part of the improvements which has
heretofore or may in the future be determined to contain toxic wastes,
hazardous materials, or undesirable substances injurious to the health
of occupants living or working in or around the subject Property.
Landlord acknowledges that current, past, and future federal, state
and local laws and regulations may have had or continue to have any
interest in the Property including, but not limited to, current, past,
and future owners and users, including tenants, of the Property. The
cost and expense of such clean up may be substantial, Landlord further
acknowledges that the real estate Brokers and their agents involved in
the negotiation of this transaction have no expertise with respect to
any such Hazardous Materials, Landlord acknowledges and agrees that
Landlord shall look solely to experts and professionals selected by
Landlord to advise Landlord with respect to the condition of the
Property and shall not hold the real estate Brokers or their agents
responsible for any Hazardous Materials condition or problem relating
to the Property. Landlord hereby agrees to indemnify, defend, and hold
the real estate Brokers and their agents participating in this
transaction harmless of and from any and all liability, claim, debt,
damage, cost, or expense, including reasonable attorneys' fees,
related to or arising out of or in any way connected to Hazardous
Materials and/or toxic wastes and/or any other desirable substances
affecting the Property.
24. BROKER'S FEE. NA Broker and NA Co-Broker, as Real Estate Broker (the
Broker), has negotiated this lease and Landlord agrees to pay Broker
in ____________ County, Texas, upon commencement of this lease, a
negotiated fee of $___________ or ____% of the total rental provided
for in this lease to be divided as follows: _________________________.
In the event this lease is extended, expanded or renewed, Landlord
agrees to pay Broker an additional negotiated fee of $___________ or
____% of the total rental for such extension expansion or renewal
period, payable at the time of commencement of such extension,
expansion or renewal, said fee to be divided as follows:
_______________________________. Tenant warrants that it has had no
dealings with any real estate broker or agents in connection with the
negotiation of this lease excepting only _______________________ and
it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. If Tenant during the term of
this Lease, or any extension, expansion or renewal period thereof, or
within ____ days of the expiration of this Lease, or any extension
expansion of renewal period thereof purchases the property herein
leased. Landlord agrees to pay Broker, _______________________________
in ________________ County, Texas, a
6
negotiated fee of $___________ or ____% of the sales price upon
closing of the sale of this property.
25. NOTICES. Notices to Tenant shall be by certified mail or other delivery
to the leased premises. Notices to Landlord shall be by certified mail
to the place where rent is payable.
26. DEFAULT BY LANDLORD. In the event of breach by Landlord of any
covenant, warranty, term or obligation of this lease, then Landlord's
failure to cure same or commence a good faith effort to cure same
within 10 days after written notice thereof by Tenant shall be
considered a default and shall entitle Tenant shall be reimbursed by
the Landlord after reasonable notice of the repairs and expenses
incurred. If any utility services furnished by Landlord are
interrupted and continue to be interrupted despite the good faith
efforts of Landlord to remedy same, Landlord shall not be liable in
any respect for damages to the person or property of Tenant or
Tenant's employees, agents, or guests, and same shall not be construed
as grounds for constructive eviction or abatement of rent. Landlord
shall use reasonable diligence to repair and remedy such interruption
promptly.
27. SIGNS. During the last 30 days of this lease, a "For Sale" sign and/or
a "For Lease" sign may be displayed on the leased premises and the
leased premises may be shown at reasonable times to prospective
purchasers or tenants.
28. RIGHT OF ENTRY. Landlord shall have the right during normal business
hours to enter the demised premises: a) to inspect the general
condition and state of repair thereof, b) to make repairs required or
permitted under this lease, or c) for any other reasonable purpose.
29. WAIVER OF BREACH. The waiver by Landlord of any breach of any provision
of this lease shall not constitute a continuing waiver or a waiver of
any subsequent breach of the same or a different provision of this
lease.
30. TIME OF ESSENCE. Time is expressly declared to be of the essence in the
lease.
31. BINDING OF HEIRS AND ASSIGNS. Subject to the provisions of this lease
pertaining to assignment of the Tenant's interest, all provisions of
this lease shall extend to and bind, or inure to the benefit not only
of the parties to this lease but to each and every one of the heirs,
executors, representatives successors, and assigns of Landlord of
Tenant.
32. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies by this lease
agreement are cumulative and the use of any one right or remedy by
either party shall not preclude of waive its right to use any or all
other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance, or
otherwise.
33. TEXAS LAW TO APPLY. This agreement shall be construed under and in
accordance with the laws of the State of Texas.
7
34. LEGAL CONSTRUCTION. In case any one or more of the provisions contained
in this agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shaft not effect any other provision hereof and this
agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
35. PRIOR AGREEMENTS SUPERSEDED. This agreement constitutes the sole and
only agreement of parties to this lease and supersedes any prior
understanding or written or oral agreements between the parties
respecting the subject matter of this lease.
36. AMENDMENT. No amendment, modification, or alteration of the terms
hereof shall be binding unless it is writing, dated subsequent to the
date hereof, and duly executed by the parties.
37. ATTORNEY'S FEES. Any signatory to this lease agreement who is the
prevailing party in any legal proceeding against any other signatory
brought under or with relation to this lease agreement or this
transaction shall be additionally entitled to recover court costs,
reasonable attorney fees, and all other out-of-pocket cost of
litigation, including deposition, travel and witness cost, from the
nonprevailing party.
38. SPECIAL PROVISIONS. (This section to include additional factual data
not included above.)
8
THE TEXAS ASSOCIATION OF REALTORS AND THE ________________________ BOARD OR
REALTORS DO NOT FIX, CONTROL, RECOMMEND, SUGGEST OR MAINTAIN COMMISSION RATES OR
FEES FOR SERVICES TO BE RENDERED BY THEIR MEMBERS OR THE DIVISION OF COMMISSIONS
OR FEES BETWEEN COOPERATING PARTICIPANTS OR BETWEEN PARTICIPANTS AND
NON-PARTICIPANTS. THE AMOUNT OF COMPENSATION AND THE CONTRACT TERMS HEREIN ARE
NOT PRESCRIBED BY LAW AND ARE SUBJECT TO NEGOTIATION BETWEEN BROKER ANO
SUBLESSOR.
THIS IS A LEGAL DOCUMENT, READ IT CAREFULLY, IF YOU DO NOT UNDERSTAND THE EFFECT
OF ANY PART OF THIS AGREEMENT, SEEK COMPETENT LEGAL ADVICE.
EXECUTED this 1st day of October, 1999.
/s/ /s/
------------------------------- -------------------------------
TENANT OR TENANT'S SIGNATURE(S) LANDLORD'S SIGNATURE
FLEET MANAGEMENT
000 X. XXXXX XX.
XXXXXXXXXXX, XXXXX 00000
9
