1
EXHIBIT 10.18
H-R
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into by and
between XXXXXXXX INDUSTRIAL PROPERTIES, LTD., A TEXAS LIMITED PARTNERSHIP
("Landlord"), and XXXXXXXX COMPANIES, INC., A TEXAS CORPORATION ("Tenant").
WITNESSETH:
In consideration of Tenant's obligation to pay rent, and of the other
terms, covenants, and conditions contained herein, Landlord hereby demises and
leases to Tenant, and Tenant hereby takes from Landlord the Premises, described
herein, TO HAVE AND TO HOLD all and singular, said Premises and improvements,
together with the rights, privileges, and appurtenances thereto, belonging unto
said Tenant for the term described herein.
ARTICLE I. PREMISES.
A. THE PREMISES. The leased premises ("Premises") are the real
property, together with all improvements now existing or hereafter constructed
thereon, which is located in Dallas County, Texas and described on EXHIBIT "A",
attached hereto and incorporated herein by reference.
B. CONDITION OF PROPERTY; REQUIRED CONSTRUCTION. Tenant accepts the
condition of the Premises in "AS IS" condition, subject to the representations
and warranties of Landlord contained in EXHIBIT "B" attached hereto and
incorporated herein. Except for the representations and warranties of Landlord
contained in EXHIBIT "B" attached hereto, Tenant acknowledges that neither
Landlord, nor any agent or representative of Landlord, has made any
representation or warranty with respect to the suitability of the Premises for
the use intended by Tenant, and that Tenant has entered into this Lease based
solely upon its own investigation and inspection of the Premises.
C. ACCEPTANCE OF PREMISES. Possession of the Premises by Tenant
shall be deemed acceptance thereof by Tenant.
ARTICLE II. TERM OF LEASE.
A. COMMENCEMENT DATE AND LEASE TERM. The Commencement Date shall be
as provided for on EXHIBIT "C-1", attached hereto and incorporated herein. The
term of the Lease ("Lease Term") shall begin on the Commencement Date and shall
continue for the number of years provided for in EXHIBIT "C-1", provided that
if said Commencement Date shall not occur on
2
the first day of the calendar month, then the last day of the Lease Term shall
be calculated from the first day of the calendar month next following the
Commencement Date.
B. SURRENDER. Promptly on the expiration of the term of this Lease
or earlier termination of this Lease, Tenant shall peaceably and quietly leave,
surrender, and yield to Landlord the Premises, broom-clean and in the same
condition that the Premises were in on the Commencement Date, reasonable wear
and tear and casualties provided for in Article IX herein excepted. Further,
Tenant shall surrender all keys to the Premises at the place then fixed for the
payment of rent.
C. HOLDING OVER. In the event Tenant remains in possession of the
Premises after the termination of this Lease without having executed a new
lease, Tenant shall be deemed to be a month-to-month Tenant whose rental rate
shall be the last rental rate provided for herein plus fifty percent (50%) of
such amount, and otherwise subject to all terms, covenants, and conditions of
this Lease insofar as the same are applicable to a month-to-month tenancy.
ARTICLE III. RENT.
A. ACCRUAL. Rent shall accrue hereunder from the Commencement Date.
B. RENT. Tenant promises and agrees to pay to Landlord at the
office of Landlord, designated herein, or any other location designated by
Landlord in writing, Rent for the Premises, as set forth in EXHIBIT "C-2",
attached hereto and incorporated herein. Rent shall be paid in advance in
monthly installments on the first day of each month without prior demand,
deduction, counterclaim, or set-off, in lawful money of the United States of
America.
C. ADDITIONAL RENT. Tenant promises and agrees to pay, at the
office of Landlord designated herein, or any other location designated by
Landlord in writing, Additional Rent, as provided herein, including but not
limited to (1) taxes, as provided for in Article IV, and (2) insurance, as
provided for in Article V.
D. PAST DUE RENT AND OTHER CHARGES. Tenant acknowledges that the
late payment of any Rent or Additional Rent will cause Landlord to incur
certain costs and expenses not contemplated under this Lease, the exact amount
of which would be extremely difficult or impracticable to determine. Such
costs and expenses will include, without limitation, administrative and
collection costs, processing and accounting expenses, and other costs and
expenses necessary and incidental thereto. Therefore, if Landlord has not
received a Rent or Additional Rent payment from Tenant within ten (10) days of
its due date, Tenant shall immediately pay to Landlord a late charge equal to
five percent (5%) of such past due amount. Such late charge shall be due and
payable on the sixth day of such month. Landlord and Tenant agree that this
late charge represents a reasonable estimate of such costs and expenses and
will fairly compensate Landlord for the losses it will incur as a result of
Tenant's late payment. The interest and the late charge provided for herein
LEASE AGREEMENT PAGE 2
3
shall be cumulative with and not in substitution for any rights or remedies
which may be available to Landlord pursuant to this Lease or applicable law.
E. NET RENT. It is the intent of this Lease that all Rent and
Additional Rent shall be paid to Landlord on an "absolute net" basis at all
times during the term of the Lease, and that, except for Landlord's maintenance
obligations as set forth in Article VIII.A., all expenses for taxes,
assessments, insurance, repair, maintenance, and operation of the Premises, and
all other obligations of every kind and nature whatsoever relating to the use
and operation of the Premises arising or becoming due during or with respect to
the term of the Lease shall be paid or discharged by Tenant in addition to Rent
and Additional Rent.
F. PAYMENT UPON EXECUTION OF LEASE. Tenant, contemporaneously with
the execution of this Lease, has paid Landlord an amount equal to the sum of
the first month's and last month's Rent, the receipt of which is hereby
acknowledged. An amount equal to the first month's rent shall be applied by
Landlord to the payment of Rent due hereunder, and the balance shall constitute
a Default Deposit to secure the faithful performance by Tenant of all the
terms, covenants, and conditions of this Lease. Rent and all other rent and
charges for any period during the term hereof which is for less than one full
calendar month shall be prorated based upon the actual number of days of the
calendar month involved.
ARTICLE IV. PROPERTY TAXES.
A. Payment of Taxes. Throughout the term of this Lease, Tenant
shall pay monthly as Additional Rent, one-twelfth (1/12th) of the general real
estate taxes, assessments, and governmental charges levied, assessed, or
imposed against or becoming due and payable in connection with the Premises, as
herein defined. Landlord may pay such taxes on behalf of Tenant, and if
Landlord so elects, Tenant shall immediately reimburse Landlord upon demand.
Landlord may adjust the monthly estimated sum at the end of each calendar
quarter on the basis of Landlord's experience and reasonably anticipated costs.
Within sixty (60) days following the end of each calendar year, or at
Landlord's option, each tax year, Landlord shall furnish Tenant with a
statement covering the year just expired showing the total taxes payable by
Tenant for such year and the payments made by Tenant with respect to such year.
If the taxes payable by Tenant for such year exceed Tenant's payments so made,
Tenant shall pay Landlord the deficiency within ten (10) days after receipt of
such statement. Should Tenant's payments during such year exceed the sums
payable for such expenses, Tenant shall be entitled to offset the excess
against payments next thereafter to become due Landlord with respect to taxes.
If the Premises is not taxed as a separate tract of land, then Tenant shall be
obligated to pay that amount of the taxes owed which the square footage of the
building situated on the Premises bears to the total square footage contained
in the tax assessment.
B. Betterment Assessments. Any assessments levied or imposed
against the Premises as a consequence of a public improvement made or
constructed by a governmental entity after the Commencement Date may, at
Tenant's election, be paid in installments if permitted by such
LEASE AGREEMENT PAGE 3
4
governmental entity. Tenant shall be responsible for, and obligated to pay,
only the installment amounts which are due during the term of this Lease.
C. Taxes Excluded. Nothing herein contained shall be deemed to
require, or shall be construed to require, Tenant to pay any income, estate,
gift, inheritance, succession, or transfer taxes, and any tax on rents.
D. Contesting Taxes and Assessments. Landlord agrees to deliver to
Tenant within thirty (30) days after Landlord receives same, copies of any and
all notices of or concerning real property taxes, assessments, and surcharges
that are due or will become due. If, after receiving a copy of any notice,
Tenant reasonably believes that the taxes, assessments, or surcharges may or
should be decreased, then within thirty (30) days after receipt of such notice
from Landlord (i) if Tenant produces evidence supporting Tenant's reasonable
belief that such taxes, assessments, or surcharges may or should be decreased,
Tenant may contest such taxes, assessments, or surcharges, at its sole cost and
expense; or (ii) regardless of whether or not Tenant can produce any such
evidence, Tenant shall have the privilege, before delinquency occurs, and at
its sole cost and expense, of protesting, contesting, objecting to, or opposing
the legality of amount of such taxes, assessments, and surcharges. In the
event of any such contest, Tenant may, to the extent provided by law, defer
payment of any such tax as long as the legality or the amount thereof is being
reasonably and duly contested; provided, however, that if at any time payment
of the whole or any part thereof shall become necessary in order to prevent the
enforcement or foreclosure of a lien for the nonpayment of such taxes, Landlord
shall be entitled to pay such amount in order to prevent such enforcement or
foreclosure. Any such contest, whether before or after payment, may be made in
the name of Landlord or Tenant, or both, as Tenant may determine, but if such
contest is made by Tenant in the name of Landlord, then Landlord shall be
notified thereof at least ten (10) days prior to the commencement of the
proceeding and Landlord shall cooperate, reasonably, in such contest, but any
expenses incurred by Landlord as a consequence of such cooperation shall be
reimbursed to Landlord by Tenant, and shall be payable as Additional Rent.
ARTICLE V. INSURANCE, INDEMNITY, AND LIABILITY.
A. INDEMNIFICATION. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims, liabilities, losses, damages,
causes of action, and expenses (including court costs and reasonable attorneys'
fees) arising from (1) Tenant's occupation of the Premises, use of the
Premises, conduct of its business, or any other activity permitted or suffered
by the Tenant in and about the Premises, (2) any default, breach, violation, or
nonperformance of this Lease or any of its terms, covenants, and conditions,
and (3) any act, omission, or negligence of Tenant, or any officer, agent,
employee, guest, customer, subtenant, assignee, or invitee of Tenant, including
any act, omission, or negligence resulting in injury or death. In connection
with the foregoing, Tenant upon notice from Landlord shall defend any claim at
Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons in, upon, or about the Premises, from
any cause
LEASE AGREEMENT PAGE 4
5
other than Landlord's gross negligence or willful misconduct; and Tenant shall
indemnify and hold Landlord harmless from and against any penalty, damage, or
charge incurred or imposed by reason of any violation of law, statute,
ordinance, or governmental rule, regulation or requirement now or hereafter in
force, by Tenant, or any officer, agent, employee, guest, customer, subtenant,
assignee, or invitee of Tenant.
B. INSURANCE. (I) LIABILITY. Tenant shall procure and maintain
throughout the Lease Term a policy or policies of insurance, at Tenant's sole
cost and expense, insuring Landlord as well as Tenant, from all claims,
demands, or actions arising out of Tenant's use and occupancy of the Premises,
containing bodily injury and property damage combined single-limit coverage of
not less than $2,000,000.00 per each occurrence. Landlord shall procure and
maintain throughout the Lease Term a policy or policies of liability insurance
at Landlord's cost and expense, containing terms and amounts as determined
reasonable in Landlord's discretion. (II) PROPERTY. Landlord shall maintain
property insurance covering the Premises for one hundred percent (100%) of full
replacement cost (inclusive of all alterations and improvements therein, but
exclusive of the cost of excavations, foundations, and footings), from time to
time during the Lease Term, providing protection against perils included within
the standard Texas form of fire and extended-coverage insurance policy,
together with such other risks and amounts as Landlord may from time to time
reasonably determine. The cost for such property insurance shall be paid by
Tenant throughout the term of this Lease on a monthly basis, and as Additional
Rent, in an amount equal to one-twelfth (1/12th) of the cost of such insurance.
Landlord may adjust the monthly estimated sum at the end of each year on the
basis of Landlord's experience and reasonably anticipated costs. Within sixty
(60) days following the end of each insurance policy's annual anniversary date,
Landlord shall furnish Tenant with a statement covering the policy period just
expired showing the total premium payable by Tenant for such period and the
payments made by Tenant with respect to such year. If the premiums payable by
Tenant for such period exceed Tenant's payments so made, Tenant shall pay
Landlord the deficiency within ten (10) days after receipt of such statement.
Should Tenant's payments during such period exceed the sums payable for such
premiums, Tenant shall be entitled to offset the excess against payments next
thereafter to become due Landlord with respect to insurance. If the policy or
policies include more than the Premises, then Tenant shall be obligated to pay
that amount of the premium which the square footage contained in the building
located on the Premises bears to the entire premises covered by such insurance
policy or policies.
All required insurance shall be carried with companies reasonably
satisfactory to Landlord, and each party shall obtain a written obligation on
the part of each insurance company to notify Landlord and Tenant at least
thirty (30) days prior to cancellation of such insurance. All such policies or
duly executed certificates of insurance shall be delivered to Landlord and
Tenant prior to the Commencement Date, and renewals of said insurance shall be
delivered to Landlord and Tenant at least thirty (30) days prior to the
expiration of the respective policy terms. If either Landlord or Tenant, as
applicable, fails to timely maintain and provide to the other evidence of such
insurance as required herein, the other party may obtain such insurance and the
cost for such insurance shall become Additional Rent and be due and payable to
Landlord immediately, upon
LEASE AGREEMENT PAGE 5
6
demand, if owed by Tenant, or, the cost for such insurance obtained by Tenant
shall be due and payable by Landlord to Tenant immediately, upon demand.
C. LANDLORD NOT LIABLE. Neither Landlord nor its agents shall be
liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, rain, or water from any
source or any other cause whatsoever, unless caused by or due to the gross
negligence or willful misconduct of Landlord, its agents, servants, or
employees. Landlord or its agents shall not be liable for interference with
the light or air, or for any latent defect in the Premises, and any
interference with air or light shall not affect this Lease or cause any
abatement of Rent.
ARTICLE VI. UTILITIES.
Tenant shall be responsible for all costs and expenses for the use and
connection of all utility services for the Premises, including, but not limited
to, the payment of any and all utility deposits. Tenant shall promptly pay
all charges for electricity, water, gas, telephone service, and all other
utilities furnished to the Premises. Landlord shall not be liable in any way
for the utility service to the Premises and any interruption in service shall
have no effect on this Lease or Tenant's obligation to pay, as provided for
herein. Therefore, any interruption in utility service shall not constitute
either a constructive or actual eviction, or a basis for any abatement of Rent,
except that, if any such interruption substantially and materially impairs
Tenant's ability to conduct its usual business activities, continues for a
period of five (5) consecutive 8:00 a.m. to 5:00 p.m. business days, and is
caused by Landlord's negligence or misconduct, then, beginning with the sixth
(6th) business day and continuing until such interruption shall be reduced to
the extent that Tenant's ability to conduct its usual business activities is no
longer substantially and materially impaired, Tenant shall be entitled to a
reasonable reduction of Rent.
ARTICLE VII. TENANT'S USE OF PREMISES.
A. PERMITTED USE. The Premises may be used and occupied only for the
purpose or purposes described on EXHIBIT "D", attached hereto and incorporated
herein. Tenant may not change the use of the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld.
B. PERMITS AND LICENSES. Tenant shall obtain at its sole cost and
expense all permits and licenses required for the transaction of its business
in the Premises. Tenant shall not violate any applicable law, ordinance, or
governmental regulation now in force or which may hereafter be in force
pertaining to the transaction of its business on the Premises.
C. PROHIBITED USES. Tenant shall keep the Premises free from waste
or nuisance at all times, and Tenant shall not, without Landlord's prior
written consent, or as provided in Paragraph D below in connection with the
making of alterations or additions:
LEASE AGREEMENT PAGE 6
7
1. Damage or deface the walls, ceilings, floors, or any other part
of the Premises; or
2. Permit any injury, overloading, or other harm to any part of the
Premises or any equipment or fixtures which are attached thereto or used
therein, including but not limited to placing any unreasonably heavy loads upon
any floor of the Premises.
D. ALTERATIONS AND ADDITIONS. Tenant shall not, without Landlord's
prior written consent, which consent shall not be unreasonably withheld,
delayed, or conditioned, by Landlord, make any alterations or additions to the
Premises; provided, however, that Tenant may make non-structural alterations to
the interior of the building or buildings included in the Premises. Any
alterations or additions, including any fixtures or equipment which is made or
installed to the interior or exterior of the Premises by Tenant, shall, upon
the termination of this Lease for whatever reason, become the property of
Landlord and be surrendered with the Premises, unless Landlord requests their
removal, in which event Tenant, at Tenant's expense, shall remove the same and
restore the Premises to their original condition, normal wear and tear
excepted. Upon prior written request from Tenant, Landlord will inform Tenant
if any alteration or addition to be subsequently made to, or installed in, the
Premises by Tenant will be required by Landlord to be removed upon termination
of this Lease. Notwithstanding the foregoing, Tenant may install equipment and
trade fixtures, and may remove same upon termination of this Lease, at Tenant's
expense, provided the Premises are restored to their original condition, normal
wear and tear excepted, and provided further that Tenant shall not then be in
default of any provision of this Lease.
ARTICLE VIII. MAINTENANCE AND REPAIR.
A. MAINTENANCE BY LANDLORD. Landlord shall make, at its sole cost
and expense, all necessary repairs, maintenance, or replacements (the
necessity of replacements to be determined by Landlord in its sole discretion)
to the exterior and structural portions of the Premises, including, without
limitation, the roof and roof supports, flashings, gutters, downspouts,
footings, foundations, structural supports, columns, exterior walls, bearing
walls, and floor slabs, so as to keep the Premises in as good condition as it
was in on the Commencement Date, reasonable wear and tear excepted (but in no
event shall the condition of the Premises be such that Tenant is unable to
operate its business within reasonable and acceptable limits in accordance with
the permitted use); provided, however, that Landlord shall not be required to
make any repairs occasioned by the act, omission, or negligence of Tenant, its
agents, invitees, contractors, or employees. In the event that the Premises
should become in need of repairs required to be made by Landlord, Tenant shall
give immediate written notice of the needed repairs to Landlord. Landlord
shall make repairs within thirty (30) days after delivery of such written
notice from Tenant, unless such repairs are not capable of being completed
within thirty (30) days, in which case, Landlord shall use reasonable, diligent
efforts to complete such repairs as promptly as possible after the expiration
of thirty (30) days. Landlord shall be responsible only for the cost of
repairs required above, and not for any consequential or other damages
resulting therefrom.
LEASE AGREEMENT PAGE 7
8
B. MAINTENANCE BY TENANT. Tenant shall keep the Premises, including
all windows, signs, and sidewalks, service ways, loading areas adjacent to the
Premises, landscaping and irrigation systems (if any), and all paved surfaces
and parking lots (including striping of the parking lot and preventing potholes
and other surface inadequacies based on the intended purpose of such paved
surfaces and parking lots) in good, clean, rubbish-free condition, free from
waste and nuisance at all times, reasonable wear and tear and damage by
casualty excepted. Tenant shall, subject to Landlord's maintenance
responsibilities provided for above, make all needed repairs, including without
being limited to, maintenance of all direct utility connections and replacement
of any cracked or broken windows or other glass. Tenant shall, at Tenant's
expense, keep in good working condition the heating, ventilating, and air
conditioning systems, the sprinkler system, if any, and the water heater,
maintaining, repairing, and replacing such items as may be necessary from time
to time, reasonable wear and tear and damage by casualty excepted. Tenant
shall comply at its sole cost and expense with all governmental laws,
ordinances, and regulations which must be complied with by reason of the nature
of the use of the Premises by Tenant, except that Tenant shall not be obligated
to make any structural changes or alterations to the Premises in order to
comply therewith unless made necessary by the negligent act or omission of
Tenant, in which event Tenant shall comply at its expense in accordance with
plans and specifications approved by Landlord. If any repairs or replacements
required to be made by Tenant hereunder are not made within fifteen (15) days
after written notice delivered to Tenant by Landlord, Landlord may, at its
option, make such repairs or replacements without liability to Tenant for any
loss or damage which may result to its stock or business by reason of such
repairs or replacements, and Tenant shall pay to Landlord upon demand as
additional rental hereunder the cost of such repairs and replacements, plus
interest at a rate equal to the lower of eight percent (8%) per annum, or the
maximum rate permitted by the usury laws of the State of Texas, from the date
of payment by Landlord until Landlord is repaid by Tenant.
C. GARBAGE AND TRASH DISPOSAL. Tenant shall be responsible, at its
sole cost and expense, for making the provision for garbage disposal from the
Premises.
ARTICLE IX. CASUALTY.
Tenant shall give immediate written notice to Landlord of any damage
caused to the Premises by fire or other casualty. If the Premises is damaged
by a fire, explosion, or other casualty (an "Occurrence"), the damage shall
promptly be repaired by Landlord subject to this Section, and only to the
extent as is necessary to place the Premises in the same condition as when
possession was initially delivered to Tenant, and to the extent of insurance
proceeds made available to Landlord specifically for such repair. Should
insurance proceeds made available to Landlord specifically for such repair be
insufficient for such repair, and Landlord elects not to rebuild or restore the
Premises, Landlord shall so advise Tenant in writing within forty-five (45)
days after the Occurrence, and Tenant may, at its option, and within thirty
(30) days after its being advised of Landlord's decision not to rebuild or
restore, provide Landlord with at least forty-five (45) days prior written
notice of its election to terminate this Lease. If such damage occurs and (i)
Landlord is not required to repair as provided above, or (ii) the Premises
shall be damaged to the extent of seventy-five percent (75%)
LEASE AGREEMENT PAGE 8
9
or more of the cost of replacement, Landlord may repair or rebuild the
Premises or the building, or terminate this Lease upon notice of such election
in writing to Tenant within forty-five (45) days after the Occurrence. If the
Occurrence renders forty percent (40%) or less of the Premises untenantable and
Tenant does not utilize the portion rendered untenantable, a proportionate
abatement of the Rent and Additional Rent shall be allowed from the Occurrence
date until the date Landlord completes its work, said proportion to be computed
on the basis of the relation which the gross square footage of the untenantable
space bears to the floor area of the Premises (but not including any portion of
the Premises outside of the building improvements). If more than forty percent
(40%) of the Premises is rendered untenantable, and Tenant does not utilize the
entire Premises for any purpose, then until Landlord restores it to the
condition it was in on the Commencement Date, Rent and Additional Rent shall
xxxxx. If any Occurrence precludes twenty-five percent (25%) or more of the
Premises' use by Tenant and less than twelve (12) months remain on the then
current term, notwithstanding any of the other provisions of this Section,
Landlord shall have no obligation to repair or rebuild unless Tenant, within
thirty (30) days of the Occurrence, irrevocably exercises its next option, if
any, to extend this Lease. If no such option exists and less than twelve (12)
months remain in the term, Landlord shall have no obligation to restore or
rebuild. If Landlord shall fail to commence to repair or restore the Premises
in the manner specified in this Article within forty-five (45) days after the
Occurrence, and proceed to complete such repairs and restoration with
reasonable due diligence, subject to any delays enumerated in Article XV.C.
hereof, and subject to the provisions of Article XI.E., then, in such event,
Tenant may give Landlord ten (10) days prior written notice of its election
either to (i) terminate this Lease, or (ii) rebuild the Premises itself on
behalf of Landlord. If the Tenant shall so rebuild the Premises, then Tenant
shall have the right to the insurance proceeds payable with respect to the
Occurrence. Notwithstanding anything to the contrary contained in this Lease,
under no circumstances whatsoever shall Landlord's obligation to rebuild,
restore, or repair the Premises exceed insurance proceeds made available to
Landlord.
ARTICLE X. CONDEMNATION.
A. TERMINATION OPTION. In the event that all or any portion of the
buildings on the Premises, or in excess of twenty-five percent (25%) of the
parking area of the Premises, should be appropriated or taken by any public or
quasi-public authority under the power of eminent domain, this Lease may be
terminated by either Landlord or Tenant by the delivery of thirty (30) days'
prior written notice of their election, said notice being delivered within
thirty (30) days of Tenant's and Landlord's receipt of notice of such proposed
taking or acquisition; the termination shall be effective as of the date title
vests pursuant to such taking or acquisition, and all rentals shall be paid up
to that date.
B. LEASE OBLIGATION AFTER CONDEMNATION. In the event that all or
any portion of the Premises should be appropriated or taken by any public or
quasi-public authority under the power of eminent domain, and this Lease is not
terminated by Landlord or Tenant, the Rent payable hereunder during the
unexpired portion of this Lease shall be reduced by multiplying the
LEASE AGREEMENT PAGE 9
10
total rental by a fraction the numerator of which is the Square Foot Area of
the Premises (but not including any portion of the Premises outside of the
building improvements) after condemnation and the denominator of which is the
Square Foot Area of the Premises (but not including any portion of the Premises
outside of the building improvements) prior to condemnation. Landlord shall
repair any structural damage to the Premises caused by the appropriation or
taking.
C. VOLUNTARY CONVEYANCE IN LIEU OF CONDEMNATION. In the event that
any authority having the power of eminent domain requests that Landlord convey
to such authority all or any portion of the Premises, Landlord shall have the
right to make a voluntary conveyance to such authority of all or any portion of
the Premises whether or not proceedings have been filed by such authority; and
in the event of any such voluntary conveyance, it shall nevertheless be deemed
for the purpose of interpreting this Lease that there has been a taking under
the power of eminent domain.
D. CONDEMNATION AWARDS. In the event of such an appropriation or
taking, whether whole or partial, all awards of compensation shall belong to
Landlord, and Tenant expressly waives any claim or right to any such award,
except that Tenant shall be allowed to recover from such authority, but not
from any portion of any award to Landlord, at Tenant's own cost and expense,
the unamortized cost of Tenant's leasehold improvements and trade fixtures.
ARTICLE XI. DEFAULT AND REMEDIES FOR DEFAULT.
A. EVENTS OF DEFAULT AND REMEDIES FOR DEFAULT. The following shall
be deemed to be events of default by Tenant under this Lease:
1. Tenant shall fail to pay when due any installment of Rent
or Additional Rent due to Landlord pursuant to this Lease;
2. Tenant shall fail to pay when due, or within five (5) days
of receipt of written notice from Landlord, any payment required
pursuant to this Lease, other than the payment of Rent or Additional
Rent;
3. Tenant shall fail to comply with any term, covenant, or
condition of this Lease, other than the payment of Rent, and shall fail
to cure such event of default within fifteen (15) days after written
notice by Landlord. Notwithstanding the foregoing, if the default
described in the notice from Landlord is of such a nature that it is
incapable of being cured within fifteen (15) days following receipt of
written notice from Landlord, then Tenant shall be in default if Tenant
fails to use reasonable, diligent efforts to cure such default until
such default is cured;
LEASE AGREEMENT PAGE 10
11
4. Tenant shall be the subject of a petition under Title 11
of the United States Code, as amended, or under any state bankruptcy
laws, whether voluntary or involuntary, or be adjudged bankrupt or
insolvent under and of such laws;
5. Tenant shall have a receiver or trustee appointed for all
or substantially all of the assets of Tenant; or Tenant shall make a
transfer in fraud of creditors or shall make an assignment for the
benefit of creditors; or
6. Tenant shall do or permit to be done any act which results
in a lien being filed against the Premises, and does not discharge of
record or bond against said lien within thirty (30) days after the date
of filing thereof.
B. REMEDIES. Upon the occurrence of an event of default, and in
addition to all other remedies now or hereinafter provided herein or by law:
1. Landlord may, at its option, enter upon and take
possession of the Premises without any previous notice of intention to
reenter, and may remove all persons and property from the Premises and
may take full and exclusive possession of the Premises. Landlord may
secure, lock up, cut off utility service to, and attempt to relet the
Premises, all without any of such actions being deemed a trespass or an
election on Landlord's part to terminate the Lease. If, however, any
such default on Tenant's part should be fully corrected and cured before
Landlord exercises an option to terminate the Lease, and before Landlord
has relet the Premises, then the Premises shall be returned to Tenant,
and Tenant may continue in possession hereunder. Tenant expressly
waives any and all damages by reason of reentry by Landlord under this
Lease.
2. In the event that Landlord elects to reenter the Premises
without terminating the Lease, then Tenant shall be liable for and shall
pay to Landlord at Landlord's mailing address in Dallas County, Texas,
all Rent and other indebtedness accrued to that date. Landlord shall be
entitled to collect from Tenant Rent and Additional Rent due hereunder
monthly as it becomes due for the remainder of the Term, diminished by
any net sums thereafter received by Landlord through reletting the
Premises during said period (after deducting all expenses incurred by
landlord to relet the Premises). In no event shall Tenant be entitled
to any excess of any Rent obtained by reletting over and above the Rent
herein reserved. Actions to collect amounts due by Tenant as provided
in this Paragraph may be brought from time to time, on one or more
occasion, without the necessity of Landlord's waiting until expiration
of the Lease Term.
3. Notwithstanding any prior election not to terminate,
Landlord may at any time, including subsequent to a reentry as above
provided, elect to terminate this Lease on account of such default.
Upon termination of this Lease, Tenant shall be liable for and shall pay
to Landlord the sum of all Rent and other indebtedness accrued to the
date of such
LEASE AGREEMENT PAGE 11
12
termination, plus, as agreed and liquidated damages, an amount equal to
the Rent and other charges for the remaining portion of the Lease Term
(had such term not been terminated by Landlord prior to expiration of
the Lease Term), less the then fair rental value of the Premises for
said period, both discounted to their present value based upon an
interest rate of six percent (6%) per annum.
4. Upon the occurrence of an event of default, Tenant shall
also be liable for and shall pay to Landlord, at Landlord's mailing
address in Dallas County, Texas, in addition to any sum provided to be
paid above: broker's fees incurred by Landlord in connection with
reletting the whole or any part of the Premises; the costs of removing
and storing Tenant's or other occupant's property; the cost of
repairing, altering, remodeling, renovating, or otherwise putting the
Premises into condition acceptable to a new tenant or tenants; and all
reasonable expenses incurred by Landlord in enforcing Landlord's
remedies, including reasonable attorney's fees.
C. DEFAULT DEPOSIT. If Tenant shall fail to pay the Rent provided
for herein promptly when due, the Default Deposit provided for in Article III
may, at Landlord's option, be applied to any Rent due and unpaid, or other
amounts payable to Landlord by Tenant, and if Tenant violates any of the other
terms, covenants, or conditions of this Lease, the Default Deposit may be
applied to any damages suffered by Landlord as a result of Tenant's default, to
the extent of the amount of the damages suffered. Should any of the Default
Deposit be used to pay Rent due for any reason, and if this Lease is kept in
full force and effect at Landlord's option, Tenant shall reimburse Landlord the
amount of said depletion within ten (10) days after notice to Tenant by
Landlord of such depletion. Nothing contained in this Paragraph shall in any
way diminish or be construed as waiving any of Landlord's other remedies as
provided herein or by law or equity. Should Tenant comply with all of the
terms, covenants, and conditions of this Lease and promptly pay the Rent and
all other sums payable by Tenant to Landlord hereunder when due, the Default
Deposit shall be returned in full to Tenant at the end of the Lease Term, or
upon the earlier termination of this Lease.
D. DEFAULT UNDER ANOTHER LEASE WITH LANDLORD. A DEFAULT BY TENANT
UNDER ANOTHER LEASE WITH LANDLORD FOR THE LEASE OF SPACE NOT INCLUDED IN THIS
LEASE SHALL, AT LANDLORD'S OPTION, CONSTITUTE AN EVENT OF DEFAULT UNDER THIS
LEASE.
E. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after receipt of written
notice by Tenant to Landlord, specifying wherein Landlord has failed to perform
such obligation; provided, however, that if the nature of Landlord's obligation
is such that more than thirty (30) days are required for performance, then
Landlord shall not be in default if Landlord commences performance within such
thirty (30) day period and thereafter diligently prosecutes completion of same.
In any event, if Landlord is in default hereunder, and as a consequence Tenant
recovers a money judgment against Landlord, so long as Landlord owns the
LEASE AGREEMENT PAGE 12
13
Premises such judgment shall be satisfied only out of the proceeds of sale
received on execution of the judgment and levy against the right, title, and
interest of Landlord in the Premises, and out of rent or other income from such
real property receivable by Landlord or out of the Landlord's right, title, and
interest in the Premises. Neither Landlord, nor any agent, officer, director,
or employee of Landlord shall be personally liable for any portion of such a
judgment.
ARTICLE XII. TRANSFERS AND LIENS.
A. FINANCING SUBORDINATION. This Lease and the rights of Tenant
hereunder are subject and subordinate to any first lien mortgage or deed of
trust, together with all renewals, modifications, consolidations, replacements,
and extensions thereof, which may now or hereafter encumber the Premises on
which it is located, provided the holder of any such mortgage or deed of trust
executes and delivers to tenant an agreement in a form suitable for recording
pursuant to which the holder agrees that it will recognize this Lease and will
not disturb Tenant's possession of the Premises in the event of foreclosure or
deed-in-lieu of foreclosure of such mortgage or deed of trust so long as Tenant
is not then in default under this Lease. Tenant agrees to execute such further
documents as may be necessary for subordinating this Lease to any mortgage,
deed of trust, as the case may be, and further agrees to execute any other
document of attornment required by Landlord's mortgagee. Tenant irrevocably
appoints Landlord as Tenant's attorney-in-fact to execute and deliver in the
name of Tenant any such instrument or instruments in the event that Tenant
fails to so deliver said instrument or instruments within ten (10) days after
written demand from Landlord. Tenant agrees that it shall not undertake any
act which will cause a lien to be filed against the subject property, and
Tenant acknowledges that it has no power to encumber or cloud Landlord's title.
Tenant further agrees that if, because of any act or omission of Tenant, any
mechanic's lien or other lien, charge, or order for the payment of money shall
be filed against Tenant or any portion of the Premises, or upon the right,
title, and interest of Tenant created by this Lease, Tenant shall, at its own
cost and expense, cause the same to be discharged of record or bonded within
fifteen (15) days after written notice by Landlord to Tenant of the filing
thereof; and Tenant hereby agrees to indemnify and hold Landlord harmless
against and from all costs, liabilities, suits, penalties, claims, and demands
therefrom.
B. ASSIGNMENT AND SUBLETTING. Tenant may assign this Lease or
sublet the Premises only with the prior written consent of Landlord. Tenant
acknowledges that this Lease is personal to Tenant for the use specified
herein, and that Landlord may withhold its consent arbitrarily and for any
reason whatsoever, and may further condition any consent on an increase in Rent
or any other changes in the terms, covenants, or conditions hereof. The
consent by Landlord to any transfer, assignment, or subletting shall not be
deemed to be a waiver on the part of Landlord of its rights regarding any
future transfers, assignments, or sublettings. If Landlord consents to an
assignment or subletting, that consent shall not be effective unless and until
Landlord approves in writing the executed assignment or sublease agreement,
which agreement shall provide for the Landlord's consent to any amendment, and
for the assignee or sublessee to assume all of the obligations and liabilities
of Tenant under this Lease, without relieving Tenant of its obligations under
this Lease,
LEASE AGREEMENT PAGE 13
14
unless otherwise agreed to in writing by Landlord. In the event of any
assignment or subletting, even with the consent of Landlord, Tenant shall pay
to Landlord, in addition to all payments otherwise required under this Lease,
the amount of any payments payable by any assignee or subtenant under its
agreement with Tenant which is in excess of that provided for in this Lease.
Notwithstanding the foregoing, Tenant shall have the right, without Landlord's
prior written consent, to assign this Lease, or to sublet the whole or any part
of the Premises, to any corporation which, at the time, the Tenant shall be a
parent or subsidiary, or to any subsidiary of a corporation of which, at the
time, Tenant shall be a parent or a subsidiary. In addition, Tenant shall have
the right, without Landlord's prior written consent, to assign this Lease to
any person or entity acquiring all or substantially all of the Tenant's assets
by purchase, merger, consolidation or otherwise. Tenant shall have the right,
without Landlord's consent, to pledge its interest in this Lease to The First
National Bank of Boston, its successors and assigns, as collateral for any
obligation owed to it by Tenant.
C. TRANSFER OF LANDLORD'S INTEREST. In the event of any sale of the
Premises or transfer of Landlord's interest hereunder, Landlord shall be and is
hereby entirely freed and relieved from any and all liability which may arise
under any of the terms, covenants, and conditions contained herein after the
consummation of such sale or transfer. Landlord shall have no liability or
responsibility for any act, occurrence, or omission occurring after the
consummation of such sale or transfer. Thereafter, Tenant shall look solely to
the purchaser to carry out any and all of the terms, covenants, and conditions
obligating Landlord under this Lease, said purchaser being deemed without
further agreement between the parties to have assumed said obligations by
virtue of the sale or transfer. The Default Deposit, provided for herein, and
any other asset or security provided by Tenant to Landlord may be assigned and
transferred by Landlord to such successor-in-interest of Landlord and Landlord
shall thereby be discharged of any further obligation relating thereto.
Landlord may, at any time during the term of this Lease, with notice to Tenant,
assign or pledge, or both, its interest in this Lease as collateral for any
indebtedness owed by it.
D. ESTOPPEL. Within ten (10) days following a request by Landlord,
Tenant shall deliver to Landlord an estoppel certificate requested by Landlord,
properly acknowledged, which shall certify to Landlord, any purchaser, lender,
or other person specified by Landlord, all reasonable information required by
Landlord, including whether or not this Lease is unmodified and in full force
and effect, whether or not Tenant contends that Landlord is in default under
this Lease in any respect, whether or not there are then existing setoffs or
defenses against the enforcement of any right or remedy of Landlord, or any
duty or obligation of Tenant, the amount of deposits held by Landlord, the date
to which Rent and other charges have been paid, and stating that Tenant has no
right or interest in the Premises, other than as a Tenant under this Lease.
Similarly, within ten (10) days following a request by Tenant, Landlord shall
deliver to Tenant an estoppel certificate requested by Tenant, properly
acknowledged, which shall certify to Tenant or any person specified by Tenant,
all reasonable information requested by Tenant.
LEASE AGREEMENT PAGE 14
15
ARTICLE XIII. ACCESS TO PREMISES.
Landlord shall have the right to enter upon the Premises at all
reasonable hours, after giving at least two (2) hours advance notice, for the
purpose of inspecting them, making repairs to the Premises, or curing any
default of Tenant hereunder that Landlord elects to cure. Notwithstanding the
foregoing, Landlord shall not be required to provide any advance notice in an
emergency situation. Landlord shall not be liable to Tenant for any expense,
loss, or damage from any such entry. Tenant shall permit Landlord, during the
sixty (60) day period preceding the expiration of this Lease, to place usual or
ordinary "For Lease" signs in clearly visible locations within the Premises and
to enter upon the Premises during normal business hours to exhibit same to
prospective tenants.
ARTICLE XIV. HAZARDOUS SUBSTANCES; AMERICANS WITH DISABILITIES ACT.
A. HAZARDOUS SUBSTANCES. The term "Hazardous Substances", as used
in this Lease shall mean pollutants, contaminants, toxins, or hazardous wastes,
or other substances, the use and/or the removal of which is restricted,
prohibited, or penalized by an "Environmental Law". Environmental Law, as used
in this Lease, shall mean any federal, state, or local, statute, law,
ordinance, rule, regulation, or judicial or administrative order or decision
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as same may be amended from time to
time. Tenant hereby agrees that (i) no activity will be conducted on the
Premises that will produce any Hazardous Substance(s), except for such
activities that are part of the ordinary course of Tenant's business activities
("Permitted Activities"), provided Tenant agrees to conduct all Permitted
Activities in accordance with applicable Environmental Laws; (ii) the Premises
will not be used in any manner for the storage of any Hazardous Substances,
except for the storage of such materials that are used in the ordinary course
of Tenant's business ("Permitted Materials"), provided Tenant will store the
Permitted Materials in accordance with applicable Environmental Laws; (iii) no
portion of the Premises will be used as a landfill or a dump; (iv) Tenant will
not install any underground tanks of any type in, under, or near the Premises,
(v) Tenant will not permit any Hazardous Substances to be brought onto the
Premises except for the Permitted Materials and, if so brought thereon by
Tenant, its agents or employees, the same immediately shall be removed with
proper disposal and all required clean-up procedures shall be diligently
undertaken pursuant to all Environmental Laws. Landlord or Landlord's
representative, upon notice and during normal business hours, 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 or other
Hazardous Substances and to ensure compliance with all Environmental Laws.
Should it be determined, in Landlord's sole opinion, that any Permitted
Material is being improperly stored, used, or disposed of, or that the
Premises, or any portion thereof, is being used in violation of any
Environmental Law, then Landlord shall provide written notice to Tenant of such
matter. Upon receipt of notice, Tenant agrees that it will use all due
diligence, at Tenant's sole cost and expense, to cure such violation. Landlord
shall have the right to perform such work at the Premises if Tenant shall not
complete such remediation within a reasonable time period. The reasonableness
of the time period for the cure shall be determined by Landlord's environmental
consultant or engineer. In the event Tenant shall not complete such
remediation within a reasonable period, as determined above, Landlord shall
have the
LEASE AGREEMENT PAGE 15
16
right to perform such work and Tenant, upon written notice from Landlord, shall
reimburse Landlord for any and all costs associated with said work.
Tenant hereby indemnifies and holds Landlord harmless from all claims,
demands, actions, liabilities, costs, expenses, damages, and obligations of any
nature arising from or as a result of (a) any breach by Tenant of its
obligation of this paragraph on or after the Commencement Date, (b) from any
violation of any applicable Environmental Law on or at the Premises caused by
any act of Tenant, its invitees, customers, vendors, employees, agents, or
representatives occurring on or after the Commencement Date, and (c) from any
liability incurred under any applicable Environmental Law arising out of any
activity of Tenant or condition caused by any act of Tenant at or on the
Premises in each case occurring on or after the Commencement Date. The
foregoing indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this lease.
B. AMERICANS WITH DISABILITIES ACT OF 1990. During the term of this
Lease, and notwithstanding anything contained in this Lease to the contrary,
Tenant shall be responsible for, and shall bear all costs and expenses
associated with, any and all alterations to the Premises which may be required
by Title I of the Americans with Disabilities Act of 1990, as subsequently
amended or revised (the "ADA"), for the accommodation of disabled individuals
who may be employed from time to time by Tenant, or any disabled customers,
clients, guests, invitees, or sublessees. Additionally, Tenant shall indemnify
and hold Landlord harmless from and against any and all liability incurred
arising from Tenant's failure to maintain the Premises in compliance with Title
I of the ADA, including the cost of making any alterations, renovations, or
accommodations required by Title I of the ADA, or any government enforcement
agency, or any courts, any and all fines, civil penalties, and damages awarded
against Landlord resulting from a violation or violations of Title I of the
ADA, and all reasonable legal expenses and court costs incurred in defending
claims made under the ADA, including, without limitation, reasonable
consultants', attorneys' and paralegals' fees, expenses, and court costs.
Landlord shall be responsible for, and shall bear all costs and expenses
associated with, compliance with Title III of the ADA, except that,
NOTWITHSTANDING ANYTHING CONTAINED IN THIS PARAGRAPH B. TO THE CONTRARY, Tenant
shall be responsible for, and shall bear all costs and expenses associated
with, compliance with the ADA, regardless of whether it is Title I or Title
III, for: (i) any activities on the Premises after the Commencement Date; (ii)
any alterations, additions, or renovations, to the Premises made by, or on
behalf of, Tenant; and, (iii) any change in the use of the Premises after the
Commencement Date.
LEASE AGREEMENT PAGE 16
17
ARTICLE XV. INTERPRETATION, NOTICES, AND MISCELLANEOUS.
A. CHOICE OF LAW. This Lease shall be governed by the laws of the
State of Texas.
B. SUCCESSORS AND ASSIGNS. The terms, covenants, and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto, and their respective successors-in-interest (subject
to any restrictions on transfers contained in Article XII) and legal
representatives, except as otherwise herein expressly provided.
C. FORCE MAJEURE. In the event that Landlord is delayed, hindered,
or prevented from performing any action required herein, Landlord shall not be
liable or responsible if the delay is due to strike, riot, act of God, shortage
of labor or materials, war, governmental laws, regulations, or other
restrictions or any other causes of any kind which are beyond the reasonable
control of Landlord, and the period for the performance of such act shall be
extended for a period equivalent to the period of such delay.
D. PARTIAL INVALIDITY. Any provision of this Lease which shall
prove to be illegal, invalid, or unenforceable under present or future laws
shall in no way affect, impair, or invalidate any other provision hereof, and
this Lease shall be interpreted as if it had been entered into without such an
illegal, invalid, or unenforceable provision.
E. WAIVER. The waiver by Landlord of any remedy for the breach of
term, covenant, or condition shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant, or condition
contained herein. The subsequent acceptance of Rent hereunder by Landlord
shall not be deemed to be a waiver of any preceding default by Tenant of any
term, covenant, or condition of this Lease, other than failure of the Tenant to
provide the particular Rent payments so accepted, regardless of Landlord's
knowledge of such preceding default at the time of acceptance of such Rent.
F. MERGER OF ESTATES. The voluntary or other surrender of this
Lease by Tenant or a mutual cancellation of this agreement shall not cause a
merger, and shall, at Landlord's option, terminate all or any existing sublease
or subtenancies, or, at Landlord's option, may operate as an assignment to
Landlord of Tenant's interest in any or all subleases or subtenancies.
G. LIABILITY. Notwithstanding anything to the contrary contained
herein, no personal liability of any kind or character whatsoever shall now, or
at any time hereafter, attach to Landlord's partners under any of the terms,
covenants, and conditions contained in this Lease for the payment of any amount
payable under this Lease or for the performance of any obligation under this
Lease.
H. CONSTRUCTION. Whenever in this Lease a singular number is used,
the same shall include the plural, and the neutered gender shall include the
feminine and masculine genders. The captions used in this Lease are for
convenience only, do not constitute a part of the Lease, and
LEASE AGREEMENT PAGE 17
18
shall have no effect upon the construction or interpretation of any term,
covenant, or condition herein.
I. NOTICES. All notices or requests provided for in this Lease must
be in writing and must be given by depositing the same in the United States
mail, addressed to the party to be notified, postage prepaid, and registered or
certified with return receipt requested, or by express courier service, or by
personal delivery. Notices by mail shall be deemed received upon mailing in
accordance with the foregoing requirement. Notices shall be sent to the
address designated in this Lease or at any other address specified in writing
by the parties hereto. In the event that more than one party is acting as
either Landlord or Tenant under this Lease, the parties shall agree upon a
common location for the receipt of notices, and any notice sent to said
designated location shall bind each party acting as either Landlord or Tenant
as if each party acting in said capacity had received such notice.
J. ENTIRE AGREEMENT. This Lease, together with the exhibits
described below which are attached hereto and incorporated herein for all
purposes, set forth all agreements between Landlord and Tenant relative to the
Premises. All prior negotiations and agreements are merged herein, and no
subsequent agreement relative to the subject matter hereof or modification of
this Lease shall be binding unless reduced to a writing signed by both parties
hereto.
K. QUIET ENJOYMENT. Landlord hereby covenants that Tenant shall
peaceably and quietly have, hold, and enjoy the Premises for the full term
hereby granted, including any extension thereof, free from molestation,
eviction, or disturbance by Landlord or by any other person claiming through
Landlord, provided Tenant is not in default of the Lease and that Landlord has
good right to make this Lease.
L. NOTICE OF LEASE. At any time following the execution of this
Lease, Landlord and Tenant agree to execute a short form Notice of Lease in
form suitable for recording, in the form attached hereto as Exhibit "E".
The following exhibits have been attached to and incorporated into this Lease:
EXHIBIT "A" - Description of the Premises
EXHIBIT "B" - Condition of the Premises
EXHIBIT "C-1" - Lease Term
EXHIBIT "C-2" - Rent
EXHIBIT "D" - Permitted Use
EXHIBIT "E" - Notice of Lease
LEASE AGREEMENT PAGE 18
19
Executed by Landlord the 3rd day of July, 1995.
LANDLORD: MAILING ADDRESS:
Xxxxxxxx Industrial Properties, 0000 Xxxxxxxxx Xxx.
Ltd., a Texas Limited Xxxxxx, XX 00000
Partnership
By: Xxxxxxxx Industrial Properties
Management, Inc., a Texas corporation,
general partner
By: /s/ XXX XXXXXXXX
--------------------------------
Xxx Xxxxxxxx
President
Executed by Tenant the 3rd day of July, 1995.
TENANT: MAILING ADDRESS:
Xxxxxxxx Companies, Inc. X.X. Xxx 000000
a Texas corporation Xxxxxx, XX 00000
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------
Xxxxxxx X. Xxxxxxxx
President
LEASE AGREEMENT PAGE 19
20
EXHIBIT "A"
LEASE PLAN
00
Xxxxxxxxxx Xxx
Xxxxxx Xx.
EXHIBIT "A"
BEING a tract of land in the XXXXX XxXXXXXXXX SURVEY, ABSTRACT NO. 845, and
being all of City of Dallas Block 2-E/7940, REVISED BROOK HOLLOW INDUSTRIAL
DISTRICT NUMBER ONE, an addition to the City of Dallas, Dallas County, Texas,
according to the Map thereof recorded in Volume 28, Page 235 of the Map Records
of Dallas County, Texas, and being more particularly described as follows:
BEGINNING at the point of intersection of the Southwest right-of-way line of
Ambassador Row (70' wide) with the Northwest right-of-way line of Profit Drive
(60' wide), said beginning point being evidenced by a 1/2" iron rod found for
corner;
THENCE North 51 degrees 51' West, along the Southwest right-of-way line of
Ambassador Row, 1,200.00 feet to a 5/8" iron rod set for corner in the
Southeast right-of-way line of the M.K. & T. Railroad right-of-way (40' wide);
THENCE South 38 degrees 09' West, along the Southeast right-of-way line of
said railroad, 571.20 feet to the point of curvature of a circular curve to the
left having a central angle of 90 degrees 00', and a radius of 300.00 feet,
said point of curvature being evidenced by a cross cut in concrete pavement,
found;
THENCE, continuing along the Southeast right-of-way line of said railroad, in a
Southerly and Easterly direction, around said curve, an arc distance of 471.24
feet to its point of tangency being evidenced by a cross cut in concrete
pavement, found;
THENCE, South 51 degrees 51' East, along the Northeast right-of-way line of
said railroad, 900.00 feet to a point for corner in the Northwest right-of-way
line of Profit Drive, said point being evidenced by a 1/2" iron rod found for
corner;
THENCE, North 38 degrees 09' East, along the Northwest right-of-way line of
Profit Drive, 871.20 feet to the POINT OF BEGINNING AND CONTAINING 23.556 acres
of land, more or less.
22
EXHIBIT "B"
CONDITION OF PREMISES
LANDLORD MAKES ONLY THE FOLLOWING REPRESENTATIONS AND WARRANTIES
CONCERNING THE CONDITION OF THE PREMISES. EXCEPT AS SET FORTH BELOW ON THIS
EXHIBIT "B", LANDLORD DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES, OR
COVENANTS, EXPRESS OF IMPLIED, OF ANY KIND OR NATURE CONCERNING THE PREMISES,
INCLUDING ANY WARRANTY OF HABITABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE,
ALL OF WHICH ARE HEREBY DISCLAIMED. SUBJECT TO THE FOLLOWING REPRESENTATIONS
AND WARRANTIES BY LANDLORD, TENANT ACCEPTS THE PREMISES IN ITS AS IS, WHERE IS,
WITH ALL FAULTS, CONDITION, AND TENANT HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES
THAT TENANT HAS, OR WILL HAVE PRIOR TO THE COMMENCEMENT DATE, THOROUGHLY
INSPECTED AND EXAMINED THE PREMISES TO THE EXTENT DEEMED NECESSARY BY TENANT IN
ORDER TO ENABLE TENANT TO EVALUATE THE PREMISES AND ITS SUITABILITY FOR
TENANT'S PURPOSES.
1. The Premises is in good condition and repair and is adequate and
sufficient for Tenant to carry on its business as is presently being conducted
on the Premises by Xxxxxxxx Companies, Inc.
2. There are no material defects in the Premises, as to title or
condition, which have not been otherwise disclosed in writing by Landlord to
Tenant.
3. Landlord has not received any notice that either the whole or any
portion of the Premises is to be condemned, requisitioned, or otherwise taken
by any public authority.
4. Landlord does not have any knowledge of any public improvements
that may result in special assessments against or which otherwise affect the
Premises.
5. Landlord has good and indefeasible title to the Premises.
23
EXHIBIT "C-1"
LEASE TERM
A. COMMENCEMENT DATE. The Commencement Date of this Lease shall be
________ ___, 1995.
B. TERM. The term of this Lease begins on the Commencement Date
and continues for a period of one hundred twenty (120) months thereafter,
unless terminated pursuant to the terms, covenants, and conditions of this
Lease, prior thereto.
C. RENEWAL OPTION. Tenant (but not any assignee or subtenant of
Tenant, even if Landlord's consent is obtained as required in the Lease), is
granted the option to extend the term of this Lease for two extended terms of
sixty (60) months each, provided (a) Tenant is not in default at the time of
exercise of the option, and (b) Tenant gives written notice of its exercise of
the option at least two hundred ten (210) days prior to the expiration of the
original term, or the first extended term, of the Lease, as applicable.
Landlord shall, within fifteen (15) days of its receipt of Tenant's notice,
notify Tenant in writing of its opinion concerning the proposed renewal rate,
which shall be the fair market rental value described in the immediately
succeeding paragraph, and the Tenant shall, within thirty (30) days of its
receipt of Landlord's notice of the renewal rate, during which time Landlord
and Tenant shall confer and attempt to reach an agreement regarding the
reasonableness of the proposed renewal rate, notify Landlord in writing of its
acceptance or rejection of the proposed rental rate. If Landlord and Tenant
are unable to mutually agree on the renewal rate within such thirty (30) day
period, then the renewal options described in this paragraph shall
automatically terminate without further notice.
Each such extension term shall be upon the same terms, conditions, and
rentals, except (i) Tenant shall have no further right of renewal after the
last extension term prescribed above, and (ii) the Rent amount shall be
increased to fair market rental value of the Premises at the time Tenant
exercises its election. Fair market rental value of the Premises for each
extension term will be determined by the parties, in their reasonable
discretion and upon their combined good faith efforts, considering the rental
market for comparable land and improvements in substantially the same
condition, in comparable locations, used for similar purposes, and under terms
similar to those set forth in this Lease.
24
EXHIBIT "C-2"
RENT
A. RENT. This provision designates the Rent for each year of the Lease
Term. Each year shall begin on the Commencement Date or on the anniversary
thereof for purposes of determining the applicable rental rate.
Year Annual Rate Monthly Rate
---- ----------- ------------
1-3 $373,080.00 $ 31,090.00
4-6 $419,715.00 $ 34,976.25
7-10 $466,350.00 $ 38,862.50
25
EXHIBIT "D"
PERMITTED USE
Manufacturing, office, research and development, warehouse, distribution, and
related uses.
26
H-R
EXHIBIT "E"
MEMORANDUM OF LEASE
This is a Memorandum of Lease by and between XXXXXXXX INDUSTRIAL
PROPERTIES, LTD., a Texas limited partnership, (hereinafter referred to as
"Landlord") and XXXXXXXX COMPANIES, INC., a Texas corporation (hereinafter
referred to as "Tenant") upon the following terms:
1. Date of Lease: _________ ___, 1995
2. Description of Property: That portion of the property cross-
hatched on Exhibit "A", attached hereto and incorporated herein
by reference, and being a part of the real property more fully
described on Exhibit "A-1", attached hereto and incorporated
herein by reference, commonly known as 0000 Xxxxxxxxxx Xxx,
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx
3. Date of Commencement: ________ ___, 1995
4. Term: Ten (10) years
5. Renewal Option(s): Two (2), 5-year options
The purpose of this Memorandum of Lease is to give record notice of the
lease and of the rights created thereby, all of which are hereby confirmed.
IN WITNESS WHEREOF the parties have executed this Memorandum of Lease as
of the dates set forth in their respective acknowledgments.
LANDLORD:
Xxxxxxxx Industrial Properties,
Ltd., a Texas limited
partnership
By: Xxxxxxxx Industrial Properties
Management, Inc., a Texas corporation,
its general partner
By:__________________________
Xxx Xxxxxxxx
President
Page 1 of 2
27
Executed by Tenant the _______ day of ___________, 1995.
TENANT:
Xxxxxxxx Companies, Inc.
a Texas corporation
By:_________________________
Xxxxxxx X. Xxxxxxxx
President
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the ___ day of __________,
1995, by Xxx Xxxxxxxx, President of Xxxxxxxx Industrial Properties Management,
Inc., a Texas corporation, general partner of Xxxxxxxx Industrial Properties,
Ltd., a Texas limited partnership, on behalf of said corporation.
------------------------------
NOTARY PUBLIC, STATE OF TEXAS
Printed Name:
-----------------
My Commission Expires:
--------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the ___ day of _________,
1995, by Xxxxxxx X. Xxxxxxxx, President of Xxxxxxxx Companies, Inc., a Texas
corporation, on behalf of said corporation.
------------------------------
NOTARY PUBLIC, STATE OF TEXAS
Printed Name:
-----------------
My Commission Expires:
--------
Page 2 of 2
28
H-R lease
Insert XV.M.
To the extent the parking facilities for the contiguous premises
currently owned by Landlord and occupied by The Atrium Door & Window Company, a
division of Xxxxxxxx Companies, Inc. ("Atrium") are not required for Tenant to
comply with minimum parking code requirements, the parking area cross-hatched
on Exhibit "F" attached hereto shall be made available to Atrium, Landlord, or
the then current tenant(s) or occupant(s) of such contiguous premises for its
use and enjoyment.
